How to Fix the FBI

Report The Constitution

How to Fix the FBI

July 10, 2023 About an hour read Download Report
Steven G. Bradbury
Distinguished Fellow
Steven G. Bradbury is a Distinguished Fellow at The Heritage Foundation.

Summary

The FBI’s chilling record of politicized abuses and the executive branch’s continuing misuse of federal intelligence authorities to target the exercise of free speech and other constitutional rights of Americans gives Congress clear and compelling grounds for enacting forceful reforms, starting with the FBI. In fact, the time is ripe for Congress to consider a complete reconstruction of the FBI, defining the scope of its jurisdiction, refocusing its mission on traditional law enforcement, and putting it under effective control. Short of that comprehensive reform, Congress must, at the very least, put in place the minimum set of proposed reforms outlined in this paper, and reauthorization of the Foreign Intelligence Surveillance Act’s Section 702 offers a perfect vehicle for doing so.

Key Takeaways

The executive branch’s misuse of federal intelligence authorities gives Congress clear and compelling grounds for enacting forceful reforms, starting with the FBI.

Congress should define the scope of the FBI’s jurisdiction, refocus its mission on traditional law enforcement, and put it under effective control.

At the very least, Congress must adopt a minimum set of critical reforms necessary to safeguard America’s freedoms.

The liberty of the American people is under threat from politicized national security agencies, exemplified by the abuses of the Federal Bureau of Investigation. Congress must act to restrain and reform the FBI and mitigate this threat to our cherished freedoms.

There is good reason to rethink the entire idea of the FBI at a fundamental level—to start over from scratch and reconstruct the Bureau in a new form, one refocused on its core law enforcement responsibilities, brought under effective control and oversight, and subject to the structural restraints needed to protect the constitutional rights of Americans.

After laying out the need for fundamental reform, this paper describes the general elements that would be involved in rebuilding the FBI and offers options for Congress’s consideration. We at The Heritage Foundation stand ready to assist with the foundational research and analytical work needed to flesh out the components of a serious plan for the Bureau’s reconstruction.

Whether or not Congress decides to advance a comprehensive package for reimagining the FBI, there still remains an urgent imperative for Congress to act without delay to end the weaponization of the FBI and the misuse of intelligence authorities. We describe below the minimum set of reforms we believe must be enacted. The push this year for legislation reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA)REF provides a useful opportunity for congressional action. Any reauthorization of Section 702 must include meaningful reforms.

The Need for Reform

Once America’s premier domestic law enforcement agency, dedicated to protecting the American way of life from organized crime and terrorist conspiracies, the FBI has now become an adversary of freedom in the eyes of many Americans, misappropriated for partisan political purposes, abusing its national security powers for the suppression of free expression and religious dissent and for the harassment of law-abiding citizens.

After 9/11, the FBI took on a new prime directive: to detect unfolding plots and prevent the next terrorist attack before it happens, not just to investigate evidence of suspected crimes after the fact. That was an understandable reaction to the intelligence lapses of the pre-9/11 years, when the FBI had been deliberately walled off from the latest foreign threat-assessment information collected by federal intelligence agencies, even information about suspicious activities in the U.S.

But in the years since 9/11, the Bureau has expanded the scope and use of its own intelligence-gathering powers in dangerous ways, directing them increasingly at political movements that threaten the Washington establishment and at the exercise of constitutionally protected rights by ordinary Americans.

The recently published Durham ReportREF officially confirms what was already widely known: Without any proper or credible predicate, the FBI launched a partisan political effort to derail the 2016 presidential campaign of Donald Trump while simultaneously acting to protect Trump’s Democratic rival, Hillary Clinton, from serious legal jeopardy.

Under the cloak of a “counterintelligence” investigation codenamed Crossfire Hurricane, FBI Director James Comey, Deputy Director Andrew McCabe, and the FBI’s leadership team employed the Bureau’s powerful intelligence-gathering authorities to target the Trump election campaign. Relying on frivolous and unsubstantiated claims of collusion between Russia and the Trump campaign, including the wildly ludicrous fantasies set out in the so-called Steele Dossier, an opposition-research product commissioned by Democratic Party operatives (which may itself have been Russian influenced), Director Comey and the FBI advanced the Russia collusion narrative through deliberate leaks of information to the media, misleading statements to Congress and the public, and a falsified application for secret FISA surveillance of Trump associate Carter Page.REF

In a December 2019 report, the Inspector General of the U.S. Department of Justice (DOJ) excoriated Comey and the FBI for their conduct of Crossfire Hurricane, particularly the FISA application targeting Carter Page.REF The Durham Report has now amplified those damning indictments.

The Durham Report also exposes the political bias and double standards applied by the FBI in giving favorable treatment to Hillary Clinton and her campaign. Just when he was ramping up the Crossfire Hurricane investigation in the summer of 2016, Director Comey took upon himself the unilateral authority to make (and to announce publicly) the ultimate decision not to prosecute Clinton for her mishandling and deletion of sensitive State Department emails,REF a usurpation of prosecutorial power by the FBI director that violated DOJ’s well-established policies and lines of authority.REF Durham also reports that in 2016, FBI leadership, demonstrating its political bias, put the brakes on four criminal investigations opened by FBI field offices into potential foreign influence on the Clinton Foundation and gave the Clinton campaign a special “defensive briefing” about the risk of infiltration by Russian actors that was denied to Trump.REF As the report states:

The speed and manner in which the FBI opened and investigated Crossfire Hurricane during the presidential election season based on raw, unanalyzed, and uncorroborated intelligence reflected a noticeable departure from how it approached prior matters involving possible attempted foreign election interference plans aimed at the Clinton campaign.REF

Meanwhile, John Brennan, the Obama Administration’s director of the Central Intelligence Agency (CIA), briefed President Obama, Vice President Biden, Attorney General Loretta Lynch, and FBI Director Comey on information available to the Intelligence Community indicating that candidate Clinton had approved a plan “to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security services” in the election.REF Shockingly, Comey did not ensure that that information was passed along to all of the FBI agents who were actively pursuing the Trump–Russia collusion investigation he had greenlighted.REF Thus, most of the FBI investigators Comey and McCabe unleashed on the Trump campaign were never told that the U.S. government had reason to know the claims on which the investigation was based may have been stirred up by the Clinton campaign.

Even after Trump was elected, Comey and other senior Obama Administration officials continued their efforts to undermine the new President and weaken his Administration. Intercepted conversations between the Russian ambassador and incoming National Security Adviser Michael Flynn were leaked to The Washington Post with the intent of driving Flynn out of government. The leaks succeeded, forcing Flynn’s departure within a few weeks of President Trump’s inauguration. To date, no one has been held accountable for those leaks. Comey also engaged in leaks of confidential conversations with the President to the news media in order to pressure DOJ leadership to appoint a special counsel to carry on the investigation into assertions of Russian collusion with Trump.REF

The abuses persisted long after Comey’s team was gone. In the lead up to the 2020 presidential election contest between President Trump and his Democratic challenger Joe Biden, the FBI warned Twitter and Facebook to be on the watch for an expected dump of Russian disinformation designed to influence the election. It was in part because of those warnings that the social media platforms suppressed dissemination of the New York Post’s exposé of the Hunter Biden laptop even though the FBI had had custody of the laptop for many months and had already determined that its contents were true and authentic.REF

Then 51 former senior national security officials chimed in with a very public letter intended to benefit Joe Biden’s campaign by convincing the leading news outlets and major social media platforms to treat the laptop story as a Russian lie. Recently released emails reveal that this effort was organized by former Acting CIA Director Michael Morrell, and it played off the intelligence community credentials of former CIA Director Brennan and dozens of others to give candidate Biden “a talking point to push back on Trump on this issue,” which Joe Biden used effectively in the presidential debates.REF Further, relying on bogus sources like the Hamilton 68 website, the FBI pressured social media companies to report and suppress many more social media accounts as “Russian influenced” than the companies themselves believed was justified.REF

Since 2020, the FBI has expanded its efforts to pressure social media platforms to censor domestic speech. FBI agents have flagged social media content as “misinformation” or “disinformation”—often targeting posts raising concerns about election integrity or questioning the Biden Administration’s pronouncements on COVID-19 and the COVID vaccines. Recently disclosed documents show how the FBI, along with elements of the Department of Homeland Security (DHS), enlisted the cooperation of the social media platforms and nonprofit and academic organizations to block, downgrade, or “shadow ban” the offending social media accounts.REF

In addition, the FBI has aided Attorney General Merrick Garland’s campaign to investigate parental protests at school board meetings as potential cases of “domestic terrorism.”REF It also has directed its resources toward the arrest of pro-life protesters (many exercising their sincere religious beliefs) at abortion clinics under the Freedom of Access to Clinic Entrances (FACE) ActREF while at the same time failing to take action against violent activists on the political left like Antifa rioters.REF

The Bureau has also diverted agents to the investigation of the January 6 riots at the expense of other pressing law enforcement priorities like child trafficking.REF The Biden Administration has lost track of some 85,000 child migrants who were allowed entry into the U.S. as unaccompanied minors, and there is no doubt many of these children are being trafficked within our country as sex slaves or slave laborers.REF Stopping these outrages and arresting the perpetrators of these horrible crimes should be the highest priority for FBI investigators.

In a similar vein, the FBI’s Richmond, Virginia, field office recently issued an intelligence bulletin identifying what it called “radical-traditionalist Catholic” churches as potential hate groups, based on claims from the Southern Poverty Law Center (SPLC), even though the FBI had officially renounced reliance on the SPLC’s “hate group” accusations.REF This intelligence bulletin was rescinded by FBI headquarters the day after it was publicly disclosed by a whistleblower.REF

Further, in a push to alter the culture within its ranks and advance “diversity, equity, and inclusion” goals, the Bureau has reportedly relaxed its standards of fitness and appearance, introducing personnel policies that have caused the disaffection and loss of valuable agents who embodied the traditional virtues of the FBI.REF

In a recent congressional hearing, the Select Subcommittee on the Weaponization of the Federal Government highlighted how the FBI has retaliated against special agents who complained about the Bureau’s misguided priorities and who made the difficult decision to come forward as whistleblowers.REF

On the FISA front, beyond its abuse of FISA surveillance in the Crossfire Hurricane investigation of the Trump campaign, the FBI has also repeatedly abused its access to the data collected through the FISA Section 702 program for the purpose of acquiring information about American citizens or lawful permanent residents of the U.S. (collectively known as “U.S. persons” under FISA) even though Section 702 was designed for national security surveillance of foreign threats to the U.S.

While Section 702 surveillance is targeted only at the communications of foreigners who are reasonably believed to be located outside the United States, the non-targeted end of those communications can be in the U.S., so the surveillance may therefore incidentally capture information about U.S. persons. Heretofore, the FBI has been allowed to query the Section 702 database for U.S.-person information in connection with counterintelligence and counterterrorism investigations and certain other criminal matters related to national security.

However, materials recently unsealed by the federal district court judges assigned to sit on the Foreign Intelligence Surveillance Court (FISC or FISA court) reveal that the FBI has improperly queried the database more than 278,000 times, including to gather information about U.S. persons who were crime victims, suspected January 6 rioters, people arrested at Black Lives Matter protests, and even 19,000 donors to a congressional candidate.REF In fact, before this most recent disclosure of unsealed FISC materials, it was already well known that FBI personnel had repeatedly failed to comply with court-ordered procedures to limit searches for information about Americans in the 702 database.REF

Moreover, although the FBI committed to various remedial measures to address its poor record of compliance, including new guidance on when the FBI could query the database,REF those measures do not appear to have been successful. In an April 2022 opinion unsealed and publicly released on May 19, 2023, a federal judge sitting on the FISA court expressed exasperation with the FBI’s continued abuses of the 702 database and warned that if the abuses did not stop, the court would be forced to order the FBI to change its practices.REF

Earlier declassified FISC opinions from 2019 and 2020 revealed that FBI personnel had searched Section 702 information for a variety of other improper purposes, including investigating people who visited an FBI office to perform maintenance, college students who applied for the FBI Collegiate Academy, and people seeking to participate in FBI’s Citizens Academy program for local community leaders.REF There were also reports that the FBI had specifically queried the name of a Member of Congress, Representative Darin LaHood (R–IL), which, along with the recent revelation that the FBI queried the database for information about political donors, raises the very troubling specter that Section 702 is misused for partisan purposes.REF

This disturbing record of abuses should dispel any question about the need for forceful reforms of the FBI at the earliest opportunity.

Reimagining the FBI from the Ground Up

As the preceding recitation of facts establishes, there is a compelling case for Congress to undertake a comprehensive plan to reconstruct the FBI from its foundations and to consider as part of that plan the possibility of limiting and focusing the FBI’s authorities and placing strong structural controls on the Bureau for the preservation of American liberty.

Today, the FBI exercises virtually unconstrained authority to investigate potential violations of any one of the vast and growing panoply of federal crimes, other than those whose enforcement is assigned by statute exclusively to another agency.REF The Framers of our Constitution presumed that law enforcement would continue to be, as it was in 18th century America, almost entirely a state responsibility. They never would have conceived of a federal law enforcement authority with the FBI’s sweeping mandate.

In addition to its criminal law enforcement jurisdiction, the FBI has authority to address all manner of threats to national security, including international terrorism and foreign espionage, as well as broad authority to conduct intelligence gathering and intelligence analysis and planning as a member of the Intelligence Community.REF Combined with this wide-open field of authority, though nominally subject to supervision by the Attorney General (with a foot in the Intelligence Community), the FBI maintains a strong culture of independence in its governance and decision-making, largely free to develop and approve its own agenda and priorities.REF

Included in the FBI’s broad discretion is the ability to decide for itself whether to initiate so-called “assessments” for the purpose of monitoring individuals, organizations, groups, or activities.REF Assessments are supposed to have an authorized purpose and must be approved by a supervisor, but their launch requires no “particular factual predication.”REF In other words, there need be no factual basis to believe the subject of interest is violating the law or threatening national security for the FBI investigators to begin gathering information on the subject and closely monitoring and tracking his or its activities. The rationale behind assessments is that:

[D]etecting and interrupting criminal activities at their early stages, and preventing crimes from occurring in the first place, is preferable to allowing criminal plots and activities to come to fruition. Hence, assessments may be undertaken proactively with such objectives as detecting criminal activities; obtaining information on individuals, groups, or organizations of possible investigative interest, either because they may be involved in criminal or national security-threatening activities or because they may be targeted for attack or victimization by such activities; and identifying and assessing individuals who may have value as human sources.REF

Methods of investigation approved for use in assessments include monitoring the subject online and through publicly available sources, examining records and information collected on the subject by other government agencies, using informants and other human sources, interviewing people who may be familiar with the subject, putting the subject under observation and surveillance not requiring a court order, accepting any information on the subject that is voluntarily offered by any entity, and obtaining grand jury subpoenas for telephone and email records.REF

In contrast to assessments, “predicated investigations,” which include “preliminary investigations” or more formal “full investigations,” do require some factual basis to initiate and involve more senior approval and oversight.REF Although assessments may develop into predicated investigations, there is no requirement that they do so within any prescribed time frame, and some assessments may continue indefinitely.

As for intelligence gathering, the FBI’s expansive mandate to collect and analyze intelligence—ostensibly for foreign intelligence purposes but largely involving surveillance occurring in the United States and often focused on U.S. persons and the activities of Americans—involves few clear limits. As long as the FBI judges that the surveillance relates to a matter “of foreign intelligence interest responsive to foreign intelligence requirements” or “may obtain” such foreign intelligence, the FBI has discretion to pursue the intelligence gathering through informal assessments, preliminary investigations, or full investigations.REF The FBI’s license to carry out “strategic intelligence analysis” is extremely broad:

The FBI is authorized to develop overviews and analyses of threats to and vulnerabilities of the United States and its interests in areas related to the FBI’s responsibilities, including domestic and international criminal threats and activities; domestic and international activities, circumstances, and developments affecting the national security; and matters relevant to the conduct of the United States’ [sic] foreign affairs. The overviews and analyses prepared under this Subpart may encompass present, emergent, and potential threats and vulnerabilities, their contexts and causes, and identification and analysis of means of responding to them.REF

In undertaking legislation to reconstitute the FBI, Congress should consider narrowing the Bureau’s jurisdiction and refocusing its mission on those major law enforcement and national security challenges that are beyond the capacity of state and local law enforcement to resolve and that are not addressed by any other federal agencies. In addition, now that we are more than two decades out from the atrocities of 9/11, Congress may wish to consider anew whether it is necessary for the FBI to retain its current broad intelligence-gathering mandate or whether it would be more appropriate to move the intelligence functions out of the FBI and relocate them elsewhere, perhaps within DHS.

The following outline describes in general terms the major elements we believe ought to be considered in putting together a plan for a complete makeover of the FBI.

Element No. 1: Consider restricting the new Bureau’s jurisdiction and eliminating redundancies with other federal law enforcement agencies. Congress should decide whether the newly constituted BureauREF must continue to exercise general authority to investigate all federal crimes or whether it would be more appropriate to limit the scope of the Bureau’s investigatory jurisdiction.

We recognize that there are strong arguments in favor of retaining a general criminal investigatory capability under the supervision of the Justice Department—arguments based on the need for flexibility, efficiency, adaptability, and nimbleness. Congress may well conclude that such a capability should be maintained in some form. However, in approaching these questions in the bright light of recent abuses, we believe Congress should give serious consideration to whether it would be better from a civil liberties perspective to restrict the scope of the Bureau’s mandate by eliminating redundancies between the Bureau’s jurisdiction and that of other federal agencies, as well as by focusing what remains of the new Bureau’s mission on large-scale crimes and threats to national security that require a federal-level response.

A starting goal could be to achieve minimal or no overlap between the investigatory and enforcement jurisdictions of the new Bureau and, for example, the Drug Enforcement Agency (DEA); the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); U.S. Immigration and Customs Enforcement (ICE) of DHS; the Financial Crimes Enforcement Network (FinCEN) of the Treasury Department (which handles financial crimes and money laundering and has broad administrative subpoena authority); the investigatory agents of the Internal Revenue Service (IRS); the Secret Service; the U.S. Marshals Service; the Bureau of Prisons; the 93 U.S. Attorney’s Offices (which conduct grand jury investigations, among other things); the various litigating divisions of DOJ (including the Civil Rights, Tax, Antitrust, and Environment and Natural Resources Divisions), which handle certain aspects of criminal investigations and prosecutions, usually in conjunction with U.S. Attorney’s Offices; and potentially other enforcement components of the federal government.

Weeding out these redundancies would go a long way toward containing the free-ranging power of the Bureau. But it would not go all the way.

In addition to eliminating redundancies, Congress should also consider whether to refocus what remains of the Bureau on large-scale enterprise crimes and national security matters that are beyond the ability of state and local law enforcement to address. These could include, for example, organized crime syndicates; large-scale conspiracies to commit violent crimes, including transnational terrorism; child pornography and human trafficking enterprises; public corruption and broad-based fraud schemes; espionage crimes by foreign powers; and widespread cyber-crimes. This reform would be most in line with the foundational principles of federalism that animate the genius of our constitutional republic.

Element No. 2: Consider moving the intelligence function elsewhere and establishing by law distinct components within the Bureau, each focused on clear federal law enforcement priorities. Currently, the FBI assembles investigatory teams and employs assets as needed from across the organization to focus on particular matters of priority, often conjoining criminal investigations with national security matters and intelligence gathering.REF In taking on the task of redesigning a new Bureau to replace the FBI, Congress should decide whether the Bureau must retain the flexibility to do so or whether it would be more consistent with liberty and our values of freedom and a limited federal government to chart a different course.

One option would be for Congress to define by statute the Bureau’s different law enforcement focuses and establish discrete components for each. For example, Congress could establish defined components within the Bureau for confronting organized crime, violent conspiracies, child pornography and human trafficking, public corruption and fraud, espionage and cyber-crimes, and state and local support. As the Framers of our Constitution understood brilliantly, assigning different government functions to structurally distinct entities is one effective way to check tendencies toward administrative overreach and the dangerous accumulation of power.

At the same time, the separation of focus and functions in a law enforcement agency should not be so rigid as to give rise to problems of stovepiping that could enable criminal activities that demand a federal response to escape effective investigation. The agency needs to be able to deploy its investigatory assets as required to respond to the shifting courses of criminal conduct. These are considerations that Congress should weigh carefully.

Whether or not Congress decides to organize the bureau’s areas of responsibility into different subcomponents, Congress should give serious consideration to moving the intelligence-gathering function out of the agency entirely. Perhaps, for example, Congress could move the FBI’s directorate of intelligence functions to a new bureau of intelligence in DHS, thereby removing DOJ’s new law enforcement bureau from the list of agencies that comprise the Intelligence Community.

Here again, though, caution is warranted. If Congress does decide to remove intelligence functions from the Bureau, it must take care not to recreate the wall of separation between foreign-intelligence collection and law enforcement that contributed to our vulnerabilities on 9/11. Intelligence agencies must remain able to pass information in real time to the Bureau about the threatening activities of foreign agents that may be occurring in the U.S., so that the Bureau can pursue appropriate follow-up action without unnecessary delay.

Element No. 3: Consider limiting the tools of investigation used by the Bureau and prohibit efforts to suppress free speech, religious liberty, and other constitutional rights. Congress should consider restricting or possibly even eliminating the new Bureau’s authority to conduct assessments of U.S. persons without a factual predication (in other words, to monitor the activities of Americans without any evident connection to a possible crime). Similarly, Congress should consider restricting the Bureau’s ability to stimulate or induce citizens into engaging in criminal activity without predication. Congress may decide it is appropriate to require a clear factual predicate and senior-level signoffs for initiating each investigation or sting operation in accordance with standards approved by the Attorney General and consistently applied without partisan purpose or political favoritism.

In any event, given the abuses enumerated above, there is every reason for Congress to enact a firm statutory prohibition on any effort by the Bureau to b