May 22, 2017 – Matthew Harwood is Senior Writer/Editor, ACLU
The last week and a half may be unprecedented in U.S. history — raising the specter of a possible constitutional crisis.
It began with President Donald Trump’s firing of FBI Director James Comey last Tuesday night, May 9. A little more than a week later, the Deputy Attorney General Rod Rosenstein tapped Robert Mueller, the FBI director before Comey, to lead an investigation into Trump campaign ties to Russian interference in November’s presidential election and any directly related issues. (For a good breakdown of everything related to the Russia investigation, check out this piece from the Los Angeles Times.)
To help us understand these events as well as the future of the FBI under President Trump, I spoke with Mike German, a fellow at the Brennan Center for Justice’s Liberty and National Security Program. For 16 years, German was an FBI special agent who worked white collar crime and domestic terrorism. Twelve of those years he spent in deep cover, infiltrating neo-Nazi and anti-government militia groups planning attacks on American soil. In 2002, German reported serious mismanagement of a counterterrorism undercover case he was assigned to. At the time, FBI Director Robert Mueller asked agents to come forward if they witnessed anything unethical or unlawful during counterterrorism cases. German did, reporting an illegal wiretap, and immediately was retaliated against by his superiors. After two years fighting to effect change, he resigned.
In 2006, he joined the American Civil Liberties Union’s Washington Legislative Office, where he worked on the many civil rights issues raised by the FBI’s rapid growth into a massive domestic intelligence agency before leaving for the Brennan Center in 2014. You can follow Mike on Twitter at @rethinkintel and read his work at his website, Rethinking Intelligence: Reforms for a Failing System.
The interview has been lightly edited for clarity.
Matthew Harwood: You’ve been publicly critical of Comey and believe he deserved sanction for his actions during the election in a piece for Time.com. You’re an ex-agent, can you let people know what agency rules he broke and why it’s important for every employee of the FBI to follow them, no matter their title?
Mike German: So Comey’s action was so far outside the appropriate behavior for an FBI director that this could be a long answer. I think for whatever deficiencies people find in Deputy Attorney General Rod Rosenstein’s memo, he certainly hit all the high notes. First, the Justice Department has long-standing policies against making any public comment regarding FBI investigations that do not result in public charges. We give the FBI powerful tools to invade our privacy when it is necessary to investigate federal crimes or national security threats, but if they don’t find a chargeable offense, it is highly unfair for them to release derogatory information gathered using these law enforcement tools. Doing so leaves the subjects without an adequate venue to challenge the government’s evidence and defend themselves.
Second, Justice Department policies strictly prohibit any investigative activity or other actions during the run-up to an election that might have an influence on that election. These rules exist to make sure the FBI is not undermining the democratic process, whether intentionally or not. Once an agency is perceived to be political, efforts to depoliticize it tend to look more like re-politicizing it from the opposite direction. These policies protect the public, candidates for offices, and the FBI. Clearly, Comey’s actions, taken in violation of policy and against the advice of superiors, has damaged the reputation of the FBI and raised questions about its objectivity and partiality.
Even though you believe Comey deserved to be sanctioned, what concerns you about his firing by President Trump?
President Trump made clear both in the termination letter he wrote to Comey and in subsequent tweets and interviews, not to mention his White House conversations with Russian officials, that his decision to fire Comey had more to do with ongoing investigations of his campaign and administration staff than Comey’s behavior regarding the Clinton investigation that formed the initial justification. Trump has said himself that he was dissatisfied with the pace of the investigation and thought firing Comey would move the investigation in a better direction. These statements make clear his intent was to interfere with the ongoing FBI investigations, which is potentially obstruction of justice, a federal crime.
You’ve been trained by the FBI as an investigator. With everything that has transpired with Trump, Comey, and the investigation into his campaign’s ties to Russia, what interests you most as an investigator? What doesn’t quite make sense?
What doesn’t make sense is Trump’s callous disregard for policies and practices that are established to protect the president from legal liability. His behavior shows little instinct for self-protection and frankly makes the special counsel’s job much easier. What interests me as an investigator is why the FBI and other intelligence agencies didn’t react quicker to the allegations that Russians had corrupt influence over Trump’s campaign, much less more mundane allegations of fraud.
Former Director of National Intelligence James Clapper confirmed the British government warned U.S. intelligence agencies in late 2015 that Trump campaign officials were meeting with Russian intelligence agents. According to one report, Trump has been sued 4,000 times over the last 30 years. None of those cases included a fraud referral to the FBI? I find that hard to believe. The Treasury Department fined Trump’s Taj Mahal casino $10 million in 2015 for violating anti-money laundering requirements for over a decade. He also ran a fake charity and a fraudulent university. Where was the FBI through all this time?
Your old boss Robert Mueller is now the special counsel in charge of investigating Trump campaign ties to Russia. What’s your opinion of the choice? Will he pursue the truth no matter where it leads?
I wrote about this for Time, but the synopsis is that Mueller is probably the most experienced investigator and prosecutor in the U.S., and he has the confidence of many FBI agents, Justice Department officials, and members of Congress. BUT we have to remain vigilant, and Congress has to continue and intensify its own investigations. I can’t think of someone more capable of conducting an effective investigation, but his record shows he has often been less aggressive in addressing government abuses of power. It’s important to remember Mueller was the lead law enforcement officer when the CIA and Defense Department started their torture programs and when the NSA initiated a warrantless wiretapping program in violation of the Foreign Intelligence Surveillance Act. Instead of investigating these crimes, Mueller’s FBI investigated the whistleblowers who brought them to light. We need to make sure Congress does its job and keeps a close watch on Mueller’s conduct as well.
Whatever happens with the investigation, chances are Trump will choose a new FBI director and likely get his choice confirmed. What frightens you about an FBI led by a Trump appointee as both a whistleblower and someone who did his best to protect national security while upholding his constitutional oath?
I think it is more than clear that Trump picks people for high-level government positions not because of their competence to fulfill those roles, but as rewards for personal loyalty to him. The FBI is one of the most important government agencies in that it protects Americans from crimes and foreign threats, and reinforces the law by policing public corruption. But the FBI’s tools are easily abused, and history shows president’s like using the bureau to spy on rivals and settle political scores. A politicized FBI can do great damage to both our democracy and our security.
The FBI has a bit of a split personality. During its history, it has operated as a domestic intelligence agency that has endangered civil liberties, but it also has worked to protect the civil rights of vulnerable Americans. Where does this contradictory nature come from? Will it lose some of these contradictions under a Trump administration without Jim Comey as its director?
First, the FBI is not a monolith. Different FBI agents, analysts, managers, and directors have different opinions and habits. The FBI is charged with doing a lot of different things, so it shouldn’t be surprising that one element of the bureau is acting differently from another. The key to me is accountability. The criminal justice side of the FBI has to present evidence to a judge and jury to obtain convictions. This trial process discovers and scrubs away bad practices on a regular basis, though of course, it requires constant vigilance. Similarly, if the FBI fails to stop crime, the public can measure this by rising crime rates. Public oversight tends to keep law enforcement more accountable.
The intelligence side rarely receives scrutiny, however, and that is where most of the serious errors and abuse occur as a result. The problem is since 9/11 we’ve empowered the intelligence side of law enforcement and allow them to obscure more of their law enforcement activities from public view. My hope is the public concern over the current state of affairs will embolden members of Congress to be more aggressive in their oversight. But we have to apply that pressure. I was excited to work with activists in San Francisco, who worked to improve accountability over the San Francisco Police Department’s participation in the local FBI Joint Terrorism Task Force. The SFPD suspended its participation in the JTTF earlier this year. But a new director at the FBI can certainly make things worse, so we must remain vigilant in compelling legal reform rather than depending on our perception of an individual’s personal integrity to protect our rights.