Like it or not, the FBI finds itself standing on a thin precipice that seems to add a new crack each week. If polls are to be believed, almost half the country now lacks trust in the FBI over concerns it is doing the bidding of one political party over another. That is a disaster for the bureau — unprecedented in magnitude — and could translate into an existential threat to one of the nation’s most important agencies as political fault lines shift.
Millions of Americans have concluded that the FBI has been hyper-aggressive against Republicans, conservatives, and Donald Trump supporters while turning a blind eye or downplaying damning allegations against Democrats and leftists, from the Biden and Clinton families’ alleged pay-to-play schemes to Jane’s Revenge to antifa.
But it gets worse — as if political bias weren’t bad enough. The FBI has been regularly adding to a growing list of forceful arrests and searches of targets on the right that seem dramatically out of proportion to the alleged crimes being investigated. Early morning residential door-banging by a phalanx of heavily armed FBI agents traditionally was reserved — and used sparingly — for subjects of serious violent crimes known to be armed and dangerous.
There was a reason for this. Residential arrests are particularly dangerous for everyone involved. The subject has clear advantages at home, none of them good for law enforcement. A decision to confront menacing criminals where they live was normally made because the risk of attempting an arrest in a more public venue where innocents might be harmed was considered too great. Therefore, the FBI took on all the peril of arresting a dangerous subject in his home in order to protect others. Residential arrests and searches typically were nobody’s favorite option inside the FBI.
And so, it makes little operational sense to deploy these kinds of tactics in cases involving a dispute over documents, or sham Electoral College voters, or a diary belonging to the daughter of the president, or a failure to observe a congressional subpoena, or shoving someone outside an abortion clinic.
Normally, cases involving individuals who are clearly not violent career criminals or flight risks would be handled with a summons to appear or, if necessary, a safe, low-key arrest in a controlled setting. Invasive searches were rarely a first option when a subpoena would more than suffice. Handcuffs were deemed to be ample restraint. During my FBI career, I never used nor saw used, with even the most dangerous criminals, ankle restraints like those allegedly slapped on one Trump adviser. Why arrest a Catholic pro-life protester at home when it’s established that he kneels to pray the rosary every week in front of an abortion clinic? Maybe the home arrest sends a better chilling message.
Two other factors are feeding suspicions of unnecessarily aggressive FBI tactics. First, many of these investigations involve arcane criminal charges that were rarely, if ever, pursued for prosecution — but now, suddenly, they are. Second, in at least the search of Trump’s Mar-a-Lago resort, the Ashley Biden diary search, and the Catholic pro-life father arrest, there are substantial indicators of early attempts by defendants to cooperate with the Department of Justice (DOJ). And yet, the front doors of homes were still banged on early in the morning.
Add all this up on your favorite abacus and you get a whopper of a perception taking deeper and deeper root every week that the FBI is not just biased, but is also cooperating in a DOJ political effort to “send an intimidating message” through highly kinetic, show-of-force actions against individuals the Biden administration doesn’t like and wants to shut up.
The DOJ, and the attorney general in particular, have set their jaws and justified their actions by claiming they are simply following the rule of law and ensuring that no one is above that law. Essentially they’re saying that perceptions of uneven application of the rule of law against conservatives that may arise from their actions simply don’t matter; they’re just doing their jobs.
Well, here’s the rich irony of that argument. For nearly 30 years, the DOJ has investigated more than 70 police departments across the country for perceived “patterns and practices” of excessive and unconstitutional enforcement actions against certain constituencies such as minority communities or the mentally ill. The Justice Department often will assert that these perceived patterns indicate a form of “extrajudicial punishment” outside of conviction and sentencing. To the DOJ, mere perceptions of police excesses are considered reality. Guess what police departments will usually offer as a first line of defense: We were just doing our job.
These DOJ investigations of police departments usually result in what is called a “consent decree,” in which the parties agree to certain reforms. Consent decrees can be a positive force for correcting patterns (aka, perceptions) of overly aggressive law enforcement actions against specific constituencies.
The question, then, that now jumps out of the irony file is who has the authority to impose a consent decree on DOJ for its own current pattern of hyper-forceful and possibly extrajudicial punishment of a particular constituency consisting of political foes of the Biden administration? Answer: No one. The DOJ is currently free to engage in patterns of aggressive, targeted enforcement actions that they will not allow police agencies to do.
This may help explain why congressional Republicans claim there is a growing list of FBI agents coming forward whom they characterize as “whistleblowers.” The FBI does not have a long tradition of whistleblowers showing up in force so, if true, it’s not something to be taken lightly.
It’s important to remember that 99 percent of agents daily investigate what every law-abiding citizen wants them to. This summer saw 6,000 violent criminals arrested, thousands of illegal guns seized, and massive amounts of killer fentanyl taken off the street in a cooperative initiative with local police departments. Gangs have been dismantled; young children sexually trafficked by cartels have been rescued. Espionage arrests have been made and cryptocurrency extortions have been recovered.
FBI agents working these matters understand that when a small slice of the FBI fosters a perception of one-sided, politically driven enforcement actions, it erodes the trust that Americans have traditionally placed in the FBI. When trust diminishes, the FBI loses access to cooperation it used to have. When cooperation is lost, fewer crimes are solved. Many agents are understandably upset with current trends. To be clear, the FBI does not have to cooperate with politically fraught DOJ agendas, no matter which party is in power — and it shouldn’t.
Kevin R. Brock is a former assistant director of intelligence for the FBI and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.