- - Wednesday, January 3, 2018



My father joined the FBI and, after a few years, was posted overseas. He then transferred to the CIA at its founding in 1947, where he spent the rest of his career. Even though he left the Bureau, he was very proud of his service there. He used to say that one of the worst things you could be considered to do as an agent in Hoover’s FBI was to lose discipline and control of a situation.

Times have changed. It looks like discipline in the Bureau is in disfavor. We now know that in 2016 the FBI conducted simultaneous investigations of personnel in both presidential campaigns, focused on politically explosive allegations relating to each one. For the Clinton campaign, of course, it involved the handling of classified information while Hillary Clinton was secretary of State. For the Trump campaign, it involved alleged contacts with the Russians. The FBI handled those investigations so poorly that it makes a mockery of Hoover’s legacy.

The first thing that competent management at the FBI should have done was segregate the investigations and staff to ensure their impartiality and objectivity. The election of a president was at stake, one of the most important political processes set forth in our Constitution. Investigations under the best of circumstances tend to turn up details about people that can influence the perception of any law enforcement personnel. These were the worst of circumstances.

The investigations involved potentially explosive allegations about the conduct of public figures. There was and is no conceivable excuse for not staffing and conducting the two investigations in a manner that would ensure their complete impartiality and isolation from each other. Instead, and incredibly, that was not done. The same officials were involved in both. And as it turned out, they were far from impartial.

James Comey presided over this chaos. For that, and that alone, replacing him would appear to be justified. The same may be true for other senior officials of the FBI, including its deputy director. It is not that they lost control of these investigations; the fact is that they never had control over them. One wonders whether Mr. Comey’s late and controversial disclosure of the contents of the Weiner/Abedin laptop was compelled by embarrassment that his investigative team never compelled Ms. Abedin to turn over all of her storage devices in the first place.

If that team was going easy on Mrs. Clinton, and it certainly appears that way, it backfired spectacularly. It is high irony that the Bureau staffers that appeared to be trying to favor Mrs. Clinton were so careless that they, at least according to Mrs. Clinton, may have had the opposite effect.

Highly charged and controversial cases require a higher standard. It is not that much different from being entrusted with the nation’s national security. That makes it really hard, if not impossible, to take seriously the notion that Mr. Comey was in any position to call someone’s conduct “extremely careless.”

One might have expected that Robert Mueller would take one look at all this and try a different approach. Instead, he doubled down on the same mistake, putting someone whose role in the Clinton investigation was already suspect into a position of responsibility in his investigation of the Trump campaign. That decision also backfired spectacularly, as unprofessional text messages and reported scandalous conduct suggested a disqualifying lack of objectivity and discipline on the part of his staff. Now it is his investigation that is suspect.

It also appears that the same team may have been influenced by the so-called Steele dossier. As I have observed in more than one column, that document, which not surprisingly was funded by the Clinton campaign and the Democratic National Committee, is so fantastic and unprofessional that it literally boggles the mind to think that anyone in Washington would be stupid enough to take it seriously. But the FBI apparently did. The president has called it garbage, and he is right.

One has to wonder what is wrong at the FBI. One wonders how the Bureau could be so oblivious to the potential for, and perception of, bias and conflict of interest when it used the same staff in both of these investigations. Its leaders are lawyers. Any first year lawyer knows that the same legal team cannot be involved in both sides of a controversy. By injecting itself into the 2016 presidential campaign in the way it did, it effectively did that in perception if not reality.

Bottom line, it is hard to find any discipline or control in this situation. And now it is the conduct of the FBI itself that has become a scandal, and it may soon be the focus of yet another investigation. It has no one else to blame for that.

Warren L. Dean Jr. is a lawyer and adjunct professor of law at Georgetown University Law Center.

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