The FBI Needs to Be Reformed

Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign. Its publication predictably ignited a contest between Democrats and Republicans to extract from the 429-page opus what was most serviceable in the construction of competing political “narratives.”

But there is something much more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed in how the FBI and the Department of Justice, of which it is a component, open and conduct investigations—especially those related to politicians and political campaigns. The report prompted concerns from both sides of the aisle, suggesting that there’s an opportunity for serious reflection and reform—if Congress and the executive branch can seize it.

The mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party over another, or to serve the FBI’s institutional interests at the expense of elected officials.

These tactics, when publicly disclosed in the 1960s and ’70s, almost destroyed the bureau. The FBI survived with its powerful investigatory and surveillance powers intact only because it entered into a “grand bargain” with Congress and the American people about the use of such powers.

The central elements of that bargain, as one of us previously explained, were as follows:

The president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched