Who Watches the Watchmen?

Earlier this month, former Vice-President Mike Pence called out criticism of the FBI lodged by members of his own party. In his speech, Pence stated “I … want to remind my fellow Republicans we can hold the attorney general accountable for the decision that he made without attacking the rank-and-file law enforcement personnel at the FBI..” While the intent of Pence’s statement is certainly laudable, it comes at a time when the public is increasingly distrustful of the agency’s activities.
 
Pence’s comments have been received so poorly because they dismiss the credible concerns emanating from all sectors of the American public. The distrust towards the agency turned into full-blown outrage when the FBI raided former President Trump’s Mar-a-Lago estate earlier this month on August 8th. It has been weeks since the raid, and there has been little official explanation provided. What information we do have has been pieced together from an unsealed warrant and source leaks. From the warrant, the search was related to potential violations of three laws including the Espionage Act. Attorney General Merrick Garland said during remarks on August 11 that he would not explain why he personally signed off on seeking a search warrant. Even though documents were recovered, distrust of the agency has become so severe, that swaths of the American public may choose to believe that the evidence seized was forged and planted.
 
Also worried is Michael Horowitz, Inspector General of the U.S. Department of Justice. Across multiple reports, Horowitz details the abuses, noncompliance, and mishandling that is currently ongoing within the FBI. For a few examples, in September of 2021, the office of the Inspector General released a report stating that there “was widespread non-compliance with the Woods Procedures,” a set of procedures to ensure factual accuracy in FISA applications. In August of 2019, the office of the Inspector General released a report detailing the multiple rules violations by former FBI Director James Comey, indicating a culture of secrecy and noncompliance at the highest level in the chain of command. There are multiple reports detailing commercial sex, accepting illegal gifts from the media, the violation of ethics rules, and a “lack of candor.”
 
When American citizens display “a lack of candor,” they can be fired from their jobs. When senior officials at the FBI do it, prosecution is declined and the offending party is “reassigned to a nonsupervisory role.”
 
In 2019, the Foreign Intelligence Surveillance Court criticized the FBI for misleading it in applications to wiretap former Trump campaign aide, Carter Page. Inspector General Horowitz found that the FBI had omitted facts and provided false statements to the FISA court when the FBI filed for a warrant to conduct surveillance on Page. FISA court presiding Judge Rosemary Collier stated in her opinion that “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above…”
 
So, not only is the public concerned, but so is the office of the Inspector General and the FISA courts, two organizations which either oversee or directly liaise with the FBI.
 
Just this week, the escapades of the FBI were on full display during a trial to convict two men involved in the 2020 plan to kidnap Michigan Governor Gretchen Whitmer. The already high-profile nature of the case was catapulted into the stratosphere when the FBI revealed there were at least five informants or undercover agents embedded among the suspected planners. Defense attorneys have argued there were at least twelve. The involvement of FBI agents and informants was so significant, that a trial for a separate set of suspected planners failed to get a single conviction. One informant became second-in-command of a militia. Another undercover agent offered to provide explosives to the group. It calls into question whether the FBI was engaged in entrapment.
 
FBI agents assigned to the case became subjects of scrutiny themselves. As the New York Times reports, “one F.B.I. agent on the case was fired last year after being charged with domestic violence, and another agent, who supervised a key informant, tried to build a private security consulting firm based in part on some of his work for the F.B.I.…” That FBI agents so close to an ongoing plan to kidnap a governor were themselves so compromised is very chilling.
 
It seems obvious from the last several years that the FBI is in need of both oversight and reform. An agency with significant investigatory and enforcement powers, Congress can and should do more to monitor the activities of the agency.