Cleaning house at the FBI and Justice Department

The two most striking features of the FBI’s unprecedented raid on Donald Trump’s Mar-a-Lago home are its bold intrusiveness and the public’s mistrust of the Bureau’s honesty and integrity. The Department of Justice could have used low-profile subpoenas to force Trump to turn over any documents, including the most sensitive ones. It didn’t. Instead, it sent carloads of federal agents to search the former president’s house. That raid was also unusual in a second sense. Although mishandling federal documents is a felony, it happens with some frequency, alas, and is almost never subject to full-scale raids.

The blowback has been a Category 5 storm. The damage has grown because the FBI and Department of Justice remained silent for three days, refusing to explain their actions.

Now, the FBI or DoJ are busy leaking their justification, alleging (anonymously) that Trump took highly-classified nuclear secrets when he left office. That would be a grave matter, if true, but it raises several obvious questions. One is whether he really did wrongly remove such materials. The second is whether less-invasive means could have been used to retrieve them. The third is whether the real purpose of the raid was to collect materials for other investigations, such as January 6 and Trump’s efforts to delay Joe Biden’s certification as president. Seized materials can be used in other investigations, but it is illegal to get warrants for one purpose when your real purpose is something else. The fourth is public skepticism about the government’s explanations.

The blowback and public mistrust are nothing new. The past few years have been hurricane season for the FBI. The Bureau and, to a lesser extent, the Department of Justice have destroyed their reputations and undermined the public trust essential for law enforcement in a democracy.

Critics of the Mar-a-Lago raid argue it is only the latest example of FBI/DoJ malfeasance:

• The FBI initially refused to take possession of Hunter Biden’s incriminating laptop and leaked word it was “Russian disinformation” before Joe Biden faced the voters in 2020. They knew it wasn’t
• The FBI’s leaks (reinforced by former CIA officials) likely influenced social media giants’ decision to kill the New York Post’s accurate story about Hunter’s computer. We still don’t know if the FBI spoke to anyone at the social media companies
• The FBI appears to have concocted the “kidnap attempt” on Michigan governor Gretchen Whitmer. The DoJ lost its first two criminal cases, an extreme rarity
• Attorney General Merrick Garland sicced FBI agents on parents protesting school curricula but refused to enforce clear statutes prohibiting intimidation of federal judges
• The FBI violated countless rules and procedures in interviewing Hillary Clinton about her home-brew server with its classified documents. FBI director James Comey actually wrote the memo clearing Hillary before the interview
• In direct violation of the FBI’s own rules and basic notions of fairness, Comey held a press conference before the 2016 election outlining Hillary Clinton’s misdeeds without bringing criminal charges. Comey reworded his statement to scratch out phrases in the original document that were also used in criminal statutes. This illicit press conference may well have cost Clinton the close election
• Comey himself made the decision not to charge Hillary Clinton, a responsibility that belongs solely to the Department of Justice
• The Bureau ignored multiple, credible allegations of sexual abuse against Larry Nassar, a doctor for Michigan State athletes, allowing him to continue his abuse against many more women for many more years. No agents were fired or even punished
• And, of course, the FBI played a central role in perpetuating the Russia hoax, falsely linking Donald Trump’s 2016 campaign to Kremlin operatives

The catalog of serious errors could go on and on. Republicans are convinced that the worst are directed against them and that Democrats, like Hunter Biden and Hillary Clinton, escape harsh treatment. Democrats don’t make similar allegations against the FBI (except for the Comey press conference), but they do make them against Trump’s Department of Justice. And, of course, they don’t believe anything Trump says about the raid.

What will happen next?

When the Republicans retake the House, they will investigate the FBI and probably the DoJ using their newfound subpoena power. That will publicize the problems but nothing more. Congressional investigations are notoriously inept, and the Biden Department of Justice will refuse to act on any criminal referrals.

If the Republicans retake the White House in 2024, they will try to clean house at the FBI, and inevitably face Democrats’ accusations that they are politicizing the agency. Cleaning the Augean Stables will be nearly impossible. The president can appoint a few top officials, but big bureaucracies like the FBI and DoJ have enormous powers of self-protection — and the capacity to strike back. Just look what they’ve already gotten away with.

Two places to start fixing things

The problems are endemic and they can’t all be fixed at once. But we have to start somewhere.

We can begin by ensuring that future raids on top politicians don’t resemble the one at Mar-a-Lago. That means we need special protections against the misuse of search-and-seizure against senior elected officials. That’s not because they are above the law — no one should be — but because they are obvious targets for partisan malice. To restore public trust, we need better safeguards, and the public needs to know they work.

Some of those safeguards were missing in the raid on Trump’s house. It took three days to learn that the attorney general approved the search. We still don’t know about FBI director Christopher Wray. We do know this raid, the most important in FBI history, was authorized by a single, low-level magistrate, below the status of a district judge.

Warrant applications for senior elected officials should be made only with signatures from the attorney general and FBI director and approved only after high-level judicial scrutiny. Ideally, that scrutiny should be conducted by a panel of federal judges, perhaps three chosen at random from the relevant district court or circuit (appeals) court. We need clear rules, or perhaps laws, that require those safeguards.

Which “high officials” should be covered by these special procedures? The president, vice president, former presidents and vice presidents, declared candidates for the presidency, the speaker of the House and minority leader and their Senate counterparts, plus immediate family members. It’s a sad commentary we need these safeguards. But we do. Just ask yourself, “Would Democrats have any confidence in the fairness of a raid on Joe Biden’s Delaware home during a Republican administration?”

Second, we need the equivalent of a 9/11 commission to investigate the systemic failures at the FBI and suggest corrections. The commission should be nonpartisan, co-chaired by law enforcement leaders with extensive administrative experience, such as Judge Michael Mukasey. One chair should be associated with each party. The committee should have subpoena power and make a public report.

It’s a tragedy that we need such remedies and a further tragedy that they are only the beginning. Our democracy needs strong, fair, nonpartisan law enforcement. Those agencies have enormous power, and the public needs to know it can trust them. Right now, it knows no such thing.