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Last month, in the District of Columbia , a jury could not bring itself to find Michael Sussmann guilty of lying to the FBI . Nonetheless, we learned a lot during that trial. An FBI agent testified that he is under investigation for withholding exculpatory material during the investigation of the Trump campaign. Other revelations in that courtroom highlighted the eagerness of FBI brass, “the 7th floor,” to proceed with the investigation of that presidential campaign. Withholding exculpatory information about someone is a threat to that individual’s civil rights; withholding exculpatory material about a presidential campaign is a threat to democracy.
When explaining the FBI in the past, I and others would often stress how blessed the United States was to have as our domestic security service a law enforcement agency, an organization that works within the guidelines of the law, to protect our democracy.
Doubts about this blessed situation first surfaced after the 2016 election with the exposure of the FBI role in the orchestrated Russian collusion hoax. The current FBI director’s response, repeated like the reggae tune “Don’t Worry, Be Happy,” is simply, “Those responsible are no longer with us.” Developments are multiplying that call into question that happy assumption.
The federal case concerning an alleged plot to kidnap Gov. Gretchen Whitmer of Michigan ended with zero convictions. The defense of entrapment was discussed for the first time in years with credibility. In the aftermath of the bureau’s famous ABSCAM cases of the early ’80s, guidelines were put in place and strictly followed that eliminated entrapment as a viable defense. Basically, there is no entrapment if the government can show the defendant was predisposed toward the crime. Agents were cautioned and trained not to entice someone, who was “not otherwise disposed,” into committing a crime. Disclosures in the Michigan case likely convinced jurors that informants and undercover agents helped shape the conspiracy.
In the government-recorded conversations in that case, many passages show the Michigan defendants expressing unease with the idea of kidnapping and confusion about what was planned. One agent, in a text to his informant, just before he led a surveillance of the governor’s residence, is quoted: “Mission is to kill the governor specifically.” In the aftermath of ABSCAM, we believed entrapment had become a nonissue. Maybe not.
Only four defendants went to trial in the kidnapping plot. But there were as many as 12 FBI informants and two undercover agents among the plotters. Reminds me of the joke, or the criticism in some quarters, about the FBI and the Communist Party during the 1950s and ’60s. The bureau had so many informants in the party, they were most of the members at the party meetings. The not-so-funny joke was that only the dues of the government-paid informants kept the party going.
What is also not so funny is the alleged kidnapping plot was weaponized by Democrats in the 2020 presidential election. Nor is it funny in our democracy that a couple of ultimately acquitted defendants endured 18 months of imprisonment.
Earlier, in November 2021, the FBI in New York conducted pre-dawn raids at the homes of Project Veritas journalists. This was part of an investigation into the “possible theft” of a diary, belonging to President Joe Biden’s daughter. Why use an intrusive search for a mere diary, particularly if Project Veritas had, as claimed, tried to return the diary to law enforcement and Biden’s lawyers. Even left-wing media groups have expressed concern about the violation of a media organization’s First Amendment rights. If the diary belonged to anyone else’s daughter, it is hard to imagine the FBI involved at all. Certainly it is a waste of resources. But to violate a journalist’s rights in the process is a threat to democracy.
On March 11, a redacted internal audit from 2019 became public that showed FBI investigations failed to comply with the Domestic Investigations and Operations Guide at least 747 times in “sensitive investigative matter” cases. These involve politicians, candidates, religious groups, or the news media. The review identified over two “compliance errors” per case. Errors included failure to get approval for opening a case, failure to document a legal review before opening a case, and failure to keep prosecutors informed. The subjects of the cases are those that brush right up against specific constitutional rights.
Rather than being blessed to have a law enforcement agency as its domestic security agency, is the United States now cursed to have a domestic intelligence organization with police powers? Has a once-great agency now become a threat to our democracy?
Thomas J. Baker, a former FBI agent, is the author of The Fall of the FBI being released later this year by Bombardier Books.
Ukrainian soldiers in the Kherson region this month.Credit…Tyler Hicks/The New York Times