Other Secrets of the FBI

During these last few days, the Federal Bureau of Investigation has been the center of attention as perhaps never before. As this is being written, a memo may be released pertaining to the FBI that may prove to be the most scandalous of all time.

This article seeks not to reveal classified or formerly classified material, but to impart a better understanding of recent events relating to the FBI. Some of the topics covered are secrets in the sense that many people who should know better have fixed ideas that are wrong about the FBI. Other topics are simply not known to the general public. In both cases a better understanding of these topics will allow for a better and more-informed general discussion concerning all matters pertaining to that institution.

First, many well-known pundits, including the former Speaker of the House, Newt Gingrich, and (very recently) Sebastian Gorka (@ 5:03), former deputy assistant to President Trump, have claimed that the FBI failed to place former Secretary of Defense Hillary Clinton under oath when they interviewed her, the idea being that because of this she is not subject to prosecution in the same way former National Security Advisor General Michael Flynn was.

This is simply incorrect. It is a crime to make even an unsworn false statement to the FBI under 18 USC §1001, the False Statement Act. Oaths are not necessary under this act. Moreover, oaths are not administered by FBI agents. It is doubtful that they even could be. Thus, Mrs. Clinton remains liable under the False Statement Act for any false statements made to the FBI -- and not only to the FBI, inasmuch as the statute actually covers statements made to other agencies as well.

For instance, Mrs. Clinton stated to the Inspector General of the State Department that she turned all her government emails over to the Department of State. Yet the FBI found she did not turn over 17,000 of them.

That is not to say that there is not something bizarre at the very least regarding General Flynn's being prosecuted for violation of the False Statements Act while Mrs. Clinton is not. After all, the underlying activity of Flynn was not only legal, but it was what he should have been doing as the incoming National Security Advisor: he was in contact with a Russian ambassador in order to support U.S. policy -- Obama's policy. Whereas the underlying activity of Mrs. Clinton was  1) her felonious failure to comply with the Federal Records Act, 2) thwart Freedom of Information Act inquiries, and 3) to be at the least grossly negligent regarding the handling of classified material in her possession, also a felony under the Espionage Act. Given recent revelations, this disparity is troubling at best, and at worst -- and it probably is the latter -- is, given recent revelations, evidence of extreme bias if not corruption.

(As a former law professor and dean I cannot resist adding that I completely agree with Stephen R. Morrison of UND law school that the False Statements Act "relies only on prosecutorial forbearance and discretion to prevent its abuse." (p. 111) Moreover, in order to prevent abuse, the Act's purpose should be narrowly construed (and not widely as it was with Flynn). As Justice Ruth Bader Ginsburg has stated, the Act really was designed to protect agencies of the United States government from becoming "victim[s] of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions." (Brogan v. U.S., 522 U.S. 398 at 400). Such an interpretation would have protected Flynn but would still have reached Mrs. Clinton.)

Time to move on to the next "secret." This one facilitated the faking of an espionage investigation.

The FBI is a topsy-turvy organization. It may be hard to believe, but the shots are called by the people who would appear to be at the bottom of the organizational chart. That is, cases are assigned to regular, field office, agents: it is the case agent, not some "boss," who decides how to conduct the investigation. This involves the steps taken, the investigative techniques used, and their timing. Thus, investigations are not "driven" from the top down.

Supervisors do have legitimate functions, of course. Primary among them is to assure the investigative techniques used are appropriate, lawful, and authorized. Certain techniques or even simple interviews in some circumstances require approval of officials "higher up" the organizational structure. There is nothing wrong with this: the more sensitive an investigatory technique, the more a dutiful agent would want to have the proposal reviewed.

Therefore, one can say that the investigation of cases in the FBI is decentralized. The FBI is further decentralized because its local offices, called field offices, are all administered as separate units. This is where the case agent is permanently assigned and out of which investigations are conducted.

All of this militates towards an apolitical, unbiased, disposition. The typical FBI field office agent cares little about his "higher ups" at FBIHQ. Such agents have dedicated their careers toward being "witnesses to the truth," and the field office agent knows that those at FBIHQ are not better agents than he is. Indeed, they typically have less experience, since they opted for management at some point in their careers while the case agent remained an active investigator. Another thing to bear in mind is that FBI agents are both competitive and attuned to their surroundings. Any attempt to interfere, in a biased or corrupt way, with an investigation at a field office would be difficult to do quietly.

But if the FBI's field offices are apolitical, its headquarters is the exact opposite. Indeed, FBIHQ can be described as being nothing but political. It has been since day one. Even back in 1993 FBIHQ was described as being extremely attuned to the political winds -- although in that context it was largely legitimate -- to obtain additional funding, to respond to legitimate criticism. (There is a difference between being politically attuned versus being biased.) 

It is clear then, that the field office is where cases are investigated, not at FBIHQ; further, investigations are not top-driven. It is also clear that field offices are largely apolitical whereas FBIHQ is exactly the opposite by nature. This dichotomy of function has made it difficult for political bias to impose itself. To put it more strongly, this framework makes it quite difficult for any group -- or cabal -- to corrupt an FBI investigation.

It therefore remains quite striking, as some have sought to deny, that the Mrs. Clinton servergate espionage investigation was conducted directly from FBIHQ and therefore outside of the aforesaid usual and normal framework.  

Now, from time to time, some investigations have been so conducted. It may make some sense to have an investigation conducted from FBIHQ; for instance, when an investigation stretches across several field offices (the crash of TWA Flight 800) or if it involves an occurrence outside of the United States (the U.S.S. Cole bombing in Yemen).

But these two investigations -- concerning the Cole and TWA 800 -- were complex investigations. Yet there was nothing complex per se about the Clinton servergate-espionage investigation. It was such an open-shut affair that even given the massaged and extremely fake FBIHQ-run investigation there was such overwhelming evidence of guilt that Comey had to resort to the most fervid tergiversations in order to evade recommending indictment.

Therefore it is not quite correct to say, "The Mrs. Clinton espionage investigation was fake because it was conducted out of FBIHQ." It is, however, not at all incorrect to say, "Because the Mrs. Clinton espionage investigation was conducted out of FBIHQ, it was easier to politicize it, to massage it, and indeed to corrupt it."

The next and last topic involves the investigation of the Trump campaign and administration by a special counsel foisted upon us by that hapless Rod Rosenstein.

Most people do not realize that the FBI's most important function is that of counterintelligence. It is the FBI and not some other agency which must counter -- must fight -- the professional intelligence services of other nations operating in and against the United States.

Theoretically, there are two ways to go about doing this. One is to investigate every American. After all, the foreign intelligence officers need to obtain the nation's secrets or subvert its processes, and it can't do that without the help, witting or unwitting, of Americans.

But that approach would be, to say the least, un-American.

The other approach is to watch the foreign intelligence officers.

The usual rules do not apply in the spooky world. Foreign intelligence officers need not be suspected of a crime to be investigated. Their phones can be "tapped," as it were, pursuant to orders not from a regular court, but from the FISA court. Any activities they engage in to influence anything at all would be monitored and even countered.

Most Americans, one would think, understand, in some inchoate manner, that it is always possible that some foreign spook has or may try to harm America. They are not against the idea that this be looked at. This attitude is not incorrect.

And indeed the Special Counsel's unpredicated investigation is maintained by this attitude. It holds on to its last shreds of legitimacy only by means of it. Yet it rests upon a perversion of the usual FBI counterintelligence mandate. We as a people do not investigate each other just on the odd chance that someone somewhere is guilty of something. That would be a witch hunt.

The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).













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