The FBI should turn off the FARA faucet

Some lessons go unlearned like an online COVID-19 math class. Once upon a time, the FBI was badly burned by rogue executives at the top of the bureau who initiated a Foreign Agent Registration Act (FARA) investigation into Donald Trump’s 2016 presidential campaign without adequate justification. Thirty million dollars of taxpayer money and a blue-suit troop of Democratic lawyers couldn’t rehabilitate that nothing burger.

Nevertheless, FBI agents recently were seen conducting an early morning raid on Rudy Giuliani’s apartment and hauling away anything that boots and beeps, solely on the suspicion that Giuliani, a Trump attorney, committed a FARA violation. Here we go again.

Whether Giuliani is guilty or not, keep in mind that a FARA violation is primarily a compliance issue — kind of like a speeding ticket. Pay your fine and slow your roll.  It’s not normally a big, splashy investigation.  

In fact, FARA violations are rarely investigated or prosecuted. The only reason it is found on the list of statutes investigated by the FBI is a working theory that an American who fails to register as a foreign agent might be indicative of a spy among us. Over a 24-year FBI career, I investigated or managed nearly every criminal or counterintelligence violation within the bureau’s jurisdiction, yet never had a FARA case. And if one had presented itself, it likely would have gone unaddressed simply because we had bigger fish to fry.

If that sounds callous or negligent, here’s some needed perspective: As the news reveals every week, women and children are being attacked, abducted, trafficked, sexually exploited and killed in this country at a record pace. Law enforcement cannot keep up.

With cameras reaching ubiquity in our major cities, we are witnessing a series of savage, violent attacks on innocent, minding-their-own-business citizens. In some cities, police are being defunded by politicians who live in safe neighborhoods. Violent crime in New York, where Giuliani lives, is spiking dramatically. At this point, several cities probably should be surrounded entirely by crime-scene tape.  

Victimization by fraud has gone through the roof, with individual life savings ravaged. If you live in New York City and your fraud loss does not amount to millions of dollars, your crime will not be prosecuted federally. They don’t have the resources to address lesser amounts.

The federal government has dedicated an entire agency to combat the trafficking of illegal drugs.  How’s that working out? Fentanyl opioids, supplied significantly from China, are decimating our blue-collar communities while heroin numbs and incapacitates large swaths of the homeless. The Drug Enforcement Administration (DEA) and FBI could be given triple the resources for narcotics violations and still not make a dent.  

Foreign criminal enterprises and hostile intelligence services in China and Russia are using the internet to stick up our businesses with virtual extortions and scams while also stealing state secrets and intellectual property. Bad guys rarely can be identified and, when they are, they’re usually out of jurisdictional reach. For the first time in history, there is little to no law enforcement deterrence for a specific crime problem.  

With that reality check as a depressing backdrop, there was the FBI one early morning in New York City, diverting scarce resources to a labor-intensive search warrant operation in support of yet another controversial FARA violation. 

The misuse of FBI authorities by former director James Comey and former deputy director Andrew McCabe via their FARA-based Russia collusion counterintelligence case is now well-documented. But one abuse rarely discussed was the colossal waste of precious FBI resources in light of the monumental needs — just a few of which are listed above — that are significantly more important to the majority of Americans who are not part of the political elite jostling for power.  

Unfortunately, the Giuliani investigation seems to be a similar resource-overkill. Perhaps there is sufficient probable cause that he failed to register as a foreign agent. If so, a normal course of action would be for the U.S. Attorney’s Office to file a charging information, whistle him in with his attorneys, and negotiate a fine and maybe box him out from any future overseas business dealings. Why wasn’t it done that way, in the absence of potentially more serious charges that have not been disclosed? This pertinent question surfaces a couple of other reasons the FBI would want to distance itself.

First, the resource overkill in this instance for a potential FARA violation shouts that the investigation is payback via a Justice Department now controlled by the Biden administration, on which Giuliani attempted to collect political dirt prior to the election. Participation in anything with even a whiff of vindictive prosecution should be anathema to the FBI.  

Second, the FBI should be wary of any investigative operation such as a high-profile, early-morning armed search warrant that gives the impression that its actual aim is to mete out “extra” punishment by publicly shaming or embarrassing the subject under investigation. That could be a civil rights violation — ironically, the kind the FBI investigates. 

The FBI is now thick in the middle of a negative public perception battle to a degree it has not faced in the past, thanks to a parade of events that have created a nervous concern among half the nation that the FBI has picked political sides. Fair or not, these include the original fabricated Russia collusion FARA investigation; the falsification of evidence against former Trump campaign adviser Carter Page; the SWAT takedown of Trump’s friend Roger Stone; a sense that investigations of right-wing extremist rioters at the Capitol are pursued with an ardor that is lacking against left-wing antifa rioters who continue to do violence; downplaying a left-wing extremist’s attempt to assassinate several Republican congressmen as simply “suicide by cop”; and, now, the aggressive Giuliani apartment search.

The FBI cannot afford to be perceived as politically influenced. The bureau does not have to and should not participate in investigations that carry nakedly political overtones. It is an affront to the FBI’s supreme core value of impartial application of its authorities that the American people deserve and depend on. A good step forward would be a return of FARA to its original back-bench status, rather than a dubious launching pad for resource-imbalanced, politically charged investigations.  

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.