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Some Comey-Inspired Thoughts on the FBI

James Comey released a book. Did you hear? Oh, you did. Great, so we don’t need to wade into the debate about his service in government, how he stood up to Trump and, most importantly for the coverage, how he should or should not be celebrated.

Since James Comey is so closely associated with the FBI, instead it seems like a good time to reflect on the venerable institution that is the Federal Bureau of Investigation. Does On V have some thoughts? Oh yeah. Some are old ideas updated, and some are new. (And we’ll have some come out tomorrow.)

1. You can’t forget the FBI has a horrific history, at worst, and checkered history, at best.

One of James Comey’s key arguments is that he cares first and foremost about respecting the institution of the FBI and its independence. I agree with him: in the age of Trump, protecting the rule of law is paramount, and independent institutions like the FBI help to do that. We need the FBI to investigate corruption of all kinds.

Of course, independent institutions need careful oversight and constant improvement to ensure they still do their jobs equitably and constitutionally. We can’t have law enforcement trying to influence politics or trample the Constitution.

The FBI has a checkered history in this regard.

For example, in the 1960s, the FBI spent a lot of time harassing, investigating and prosecuting civil rights leaders, up to and including trying to get Martin Luther King Jr. to kill himself. That happened. They also have a history of investigating anti-war groups. Since its founding and up to the death of J. Edgar Hoover, the FBI also collected blackmail on politicians.

These trends haven’t entirely gone away. In response to 9/11, in addition to infiltrating mosques, the FBI started investigating anti-war groups, including Greenpeace. That happened. The FBI Director at the time? Robert Mueller. As a naturally conservative group, during times of national emergency the FBI tends to key in on perceived threats to America by liberal groups. They did this during the Cold War and continue to this day. There are even some articles who note that in the current day the FBI seems unwilling or unable to break up white supremacist plots until after the fact, and rarely entraps white supremacists, but continues to do so for suspected Muslim terrorists.

So we need to protect the independence of the FBI. But we also need strong oversight of an institution with the power to destroy politicians. That’s a delicate balance.

2. Lying to the federal prosecutors is a terrible law.

The Mueller investigation has further revealed the FBI and federal prosecutors reliance on one law--lying to federal investigators--to get a number of their prosecutions, especially of high profile suspects. I really would love to know exactly how many times it is used either as the sole charge or threatened to get cooperation out of suspects.

Frankly, the bar for being convicted of lying to the FBI is way too low. Honest mistakes can be interpreted as lying to an FBI agent, and have been. The best example of this I’ve ever heard was from this episode of This American Life. A simple conversation with one or two misremembered facts? Well now you are threatened with a federal felon and going federal prison. Meanwhile, the FBI can lie to suspects and face no repercussions, which just lacks basic fairness.

So how do we solve this problem? Well, we remove the statute. Basically, raise the bar to, “The FBI must prove motive to deceive the FBI and intent to deceive.” Basically, the same bar as perjury, which is really, really high. This way the FBI can still prosecute mobsters who lie to cover up a crime, but not petty criminals who say something wrong. Especially if they aren’t under oath. Alternatively, just remove the law (saying it is unconstitutional and infringes on first amendment rights) and keep obstruction of justice on the books or make the crime simply a misdemeanor with minimal prison sentences.

3. Lying by law enforcement needs to be severely curtailed.

At the same time, I would severely curtail the ability of all police officers and FBI agents to lie to suspects and the public. There are lots of examples, but the most egregious is lying to cover up a crime. Here would be a fun law:

“If a domestic law enforcement officer offers a false statement on a police form or document, it is punishable by five years in prison.”

What would this law do? Well, the next time a police shooting happens, the police officers will have to give a statement. On the top of the form where they fill out their statement, that law above will be printed. The officers witnessing the shooting now need to write their statements. (Ideally, independently from all other officers.)

At this point, they don’t know if a camera will later turn up revealing exactly what happened. If it does, the FBI and Department of Justice can easily come in and charge all the police officers with lying on an official form, if, for example, they claimed a suspect was running towards them when he was running away. They will suffer the same fate as those who they prosecute for lying to the FBI. (FBI agents? They’d face the same punishment and fate if they lied on official forms.)

I'm a huge supporter of civil rights, which is why it distresses me how frequently police officers have been caught lying on official forms. Only after video footage revealing the lies emerges do we understand the scope of the problem. This is really what the shootings of unarmed black men has revealed: that police officers will routinely lie at the most important times. That's why we need additional measure to ensure honesty by those who serve.