Raising the Barr isn’t always the best way to combat corruption

Attorney General William Barr’s latest restrictions on the FBI’s opening of certain politically sensitive investigations actually says a lot more about his distrust of career prosecutors in the Justice Department than it does about his feelings toward the FBI.

Why? Because Justice Department approval and notification policies already existed for politically sensitive and public corruption investigations, including campaign finance and election-related violations — but the attorney general is not allowing Justice Department leadership to approve those investigations in certain situations. And that’s after the primary headline grabbing executives in the FBI have already been removed.

According to a memo obtained by the New York Times outlining the policy changes, Mr. Barr’s written approval must now be obtained prior to opening an investigation into any of the 2020 presidential or vice-presidential candidates, including their senior staff and advisors.

The FBI must also notify and consult with appropriate department heads in the U.S. Attorneys Office before investigating Senate or House candidates or their campaigns, or opening an inquiry into alleged “illegal contributions, donations or expenditures by foreign nationals to a presidential or congressional campaign.”

Mr. Barr appears to have adjusted policy approvals to account for counterintelligence investigators and prosecutors who are less accustomed to having their FISA investigations land in the public domain, whether through trial or press. Both the Hillary Clinton and Donald Trump investigations were handled by counterintelligence, but the policy appears to apply to all investigative programs, including public corruption.

On the surface, many would see this as a reasonable response to some of the well-earned criticisms leveled against the FBI over recent years — not the least of which include former FBI Director James Comey’s break in protocol during his July 2016 press conference where he discussed details of the Hillary Clinton investigation, and the very critical 400-plus page report issued by Justice Department Inspector General Michael Horowitz that reported material omissions and misleading statements were included in FISA court applications.

A presumably unintended consequence of Mr. Barr’s pivot in policy has been echoed loudly on social media — the belief that the new policy will not only lend itself to corruption, but also hinder the effort of those charged with combatting corruption and foreign influence. Those concerns are not without some merit.

Those of us who have worked our share of public corruption investigations know the appearance of corruption can be just as damaging as actual corruption. And a presidential appointee responsible for the equitable and proportionate distribution of blind justice now solely responsible for deciding if his appointer — the president — can be investigated does present poor optics.

Removing authority from non-cabinet members within the Justice Department leadership suggests a degree of distrust with those previously entrusted with that responsibility. And while he may have sufficient cause to be concerned about their judgement, the attorney general can’t publicly take over control of the decision to investigate without at least acknowledging how that control can be used to thwart righteous investigations and protect the potential corrupt actions of a president.

This is not me weighing in on the strategic banter of calling one’s political opposition corrupt. Most often the word “corrupt” is thrown around in fantastic fashion to intimidate and manipulate voters. And while that’s politics, this isn’t.

This is not about Mr. Barr or President Trump, or any feelings of distrust I have towards them. This is about the responsibility of the Justice Department to not only do the right thing, but to look like they’re doing the right thing.

While prosecutorial discretion already gives the attorney general the ability to block prosecution, there is an enormous difference between the FBI being able to conduct a righteous investigation to determine the extent and gravity of potential misconduct and not being allowed to investigate at all.

The Justice Department is supposed to determine criminal conduct, but that can only be accomplished after that conduct is learned through a properly predicated investigation. If an investigation is prevented from even starting, then there can be no evaluation of that conduct. Additionally, the intelligence received from a criminal or national security/counterintelligence investigation — even ones that don’t result in prosecution — are invaluable to understanding criminal and foreign intelligence trends and vulnerabilities, and aid in more swiftly and accurately identifying future bad actors.

Mr. Comey made an enormous miscalculation of appearances when he appointed Andrew McCabe the Deputy Director of the FBI with responsibilities over all investigations. Mr. McCabe’s wife was a former candidate for the Virginia State Senate — a fact this former public corruption agent knew immediately could eventually sow seeds of doubt in the minds of the public under certain circumstances. Obviously, Mr. McCabe did little to help his case, but it was Mr. Comey’s miscalculation of public perception that set much of Mr. McCabe’s troubles in motion.

A reasonable person might contend Mr. Barr’s new restrictions on some politically sensitive investigations involving the president could lay the groundwork for more seeds of doubt to once again be sown. Fortunately, the policy shift is scheduled to be reviewed after the 2020 election, but, unfortunately, the precedent has been set for future attorneys general — a chilling effect indeed if a dishonorable man or woman were to be appointed to the position.

Mr. Barr might have served the Justice Department and the FBI better if he anticipated public perception of his new restrictions on investigations involving the president. Maybe the best option would have been a different, threefold approach: 1. require counterintelligence investigations obtain concurrence through public corruption prosecutorial channels for investigations at the congressional and presidential levels; 2. reiterate requirements be followed with consequences for those who deviate; 3. require the relevant case openings be sent to the attorney general for review, not for an explicit approval.

The FBI has agents in the public corruption program who have extensive experience with sophisticated criminal investigations into high level government officials, and they are very accustomed to sensitivities around discovery, the investigative process, and undue influence on an election. Their experience should be leveraged by the national security side of the FBI when appropriate.

I am aware that many will be unmoved by this argument. But to those on the Right (most likely) who believe no perception problem actually exists, I would say: Reread this article when a party other than your own is in control of the White House and preparing for re-election. Now, what say you?

Jeff Cortese, a financial crimes manager in the private sector, is the former acting chief of the FBI’s Public Corruption Unit. Before his 11-year career with the bureau, he worked as a dignitary protection agent with the U.S. Capitol Police and served on the security detail for the Speaker of the House. Follow him on Twitter @jeffreycortese or find him at his website www.jeffcortese.com.