Why the FBI appears politicized, and what to do about it

Contrary to the current narrative, former FBI executive Andrew McCabe and former FBI director James Comey did not make decisions based on political penchants.

According to the New York Times, McCabe authorized the October 2016 release of confidential information to the Wall Street Journal. It appears he did so in part to ensure the FBI could pursue the Clinton Foundation investigation unfettered by Justice Department concerns about affecting the outcome of the presidential election. Hardly a partisan maneuver.

{mosads}Comey, of course, famously decided not to prosecute then-Democratic presidential candidate Hillary Clinton. His decision was based on a careful analysis of Mrs. Clinton’s actions against a careful analysis of the law. Yet, both political sides attributed a partisan motive to his actions.

They cannot both be right.

As current and former FBI employees will tell you, the FBI does not make decisions based on politics but rather because of a unique mindset rooted in the fundamental principle that “no man is above the law.” This mindset is what drives FBI agents to serve and drives their actions throughout their careers. It is why McCabe ensured the Clinton Foundation investigation moved forward. It is why Comey ensured that decisions about Mrs. Clinton were made solely based on the facts and the law. 

Both, I believe, acted in good faith and according to this fundamental principle.

So, if McCabe’s and Comey’s actions were driven by this noblest of ideals, why did the public vilify the FBI by attributing to it a partisan motive? Moreover, what can the FBI do about it?

As a former FBI agent, I believe the answers lie in the FBI’s failure to recognize the relative importance of another principle — one that competes with and occasionally overrides the importance of enforcing the law.

This principle is that the electorate, under the right conditions, will make the wisest possible choice as to which presidential candidate should lead the country. However, because the investigative steps required to enforce the law are unavoidably perceived by the electorate as an authoritative judgment about a candidate’s qualifications for office, enforcing the law can interfere with one of those conditions: independence of thought. Therefore, the two principles are largely exclusive from each other. The FBI cannot easily adhere to both.

Throughout my career, I found, perhaps counterintuitively, that there are circumstances in which enforcing the law is the wrong thing to do. I’m not referring to the public perception, valid or not, that some people are unfairly treated as “above the law.” I’m referring to the rare occasion when enforcing the law must take a back seat to other ethical considerations.

As the FBI’s representative in Ukraine — a nation long the object of a tug-of-war between the United States and Russia — I once had to derail the interview of a Ukrainian oligarch who was the subject of an FBI money-laundering investigation. I did this because he was aligned with State Department policy goals and the interview was unlikely to produce anything other than antipathy toward the United States. I made a choice between two competing moralities: enforcing the law, or furthering U.S. interests at the expense of a foreign adversary.

A similar choice, to either enforce the law or protect the wisdom of the electorate, exists every time an FBI investigation can potentially influence an election of significant size and importance. It’s not that the FBI should turn a blind eye to potential violations of law by one or more candidates. It is that, in these circumstances, the judgment of the electorate — “the crowd,” as social scientists might refer to it — is the wiser and therefore the higher moral authority in evaluating a candidate’s qualifications for office. It is wiser than an investigative body, which often has a narrow view of a candidate’s qualifications, based on investigative findings untested by a jury.

For the crowd to remain wise, however, it must adhere to the condition that each member maintains his or her independence of thought. This cannot happen if the FBI does not follow established Department of Justice guidance to throttle down investigations related to major political candidates during the run-up to a national election. And it certainly cannot happen if, on the eve of the election, the head of one of the country’s most revered institutions qualifies a candidate’s actions as “extremely careless.”

Some social scientists argue that the principle of collective wisdom does not hold when there is no definitive answer to a question being posed, such as in an election. Others cast doubt on the principle by demonstrating that accurate results are more often obtained when information-sharing is increased, not decreased. However, I believe the FBI’s “voice” is so influential that it compromises the electorate’s ability to think independently of that voice.

Consequently, the FBI’s “voice” during the run-up to a national election influences the electorate’s judgment about a candidate’s qualifications to the extent that it leads to the perception of political bias.

There were clearly other forces that affected the 2016 presidential election. I’m not arguing that any force, individually or collectively, changed the outcome. However, to ensure the FBI doesn’t repeat its role, a set of rules should be adopted that governs how the FBI addresses any scenario in which it might affect the electorate’s independence of thought. These rules should permit limited investigative steps while maintaining the FBI’s ability to preserve evidence of a crime. Most important is that these rules be publicized to prevent any future charges of partisanship.

Framing the need for such guidance as a moral imperative should make it easier for the FBI to accept the temporary subordination of its primary mission. Moreover, adopting such guidance would protect the thousands of FBI investigations across the country that have nothing to do with politics, but which now are hampered by the perception of bias.

James S. Davidson was an FBI special agent for 23 years. He investigated major crimes in Texas and California and served in Ukraine, Israel and Washington, D.C. He is now the CEO of Vendy, a Silicon Beach technology startup. Follow him on Twitter @JamesSDavidson2.