Elephants, donkeys and the ironic failure of the 2016 FBI whistleblower enhancement act
Updated: Jul 13, 2019
Republicans want to know whether the Justice Department and the FBI exceeded its authority during the run-up to the 2016 election. Democrats are wary it is doing so right now.
Republicans want to know, "Did the Obama administration politicize the Justice Department and the FBI?," "Was there valid predication to investigate the Trump campaign?," "Was the Carter Page FISA warrant properly predicated?," "Did the FBI properly vet the Steele dossier?" "Did it ignore intelligence from the State Department about Steele's veracity and motivation?"
Democrats have misgivings about the Trump Justice Department, including the FBI.
Their burning question? "Will the Justice Department and the FBI maintain an independent ethos or cave to a president who sees the department as an appendage of his own political operation. They are especially frustrated with three executive orders the president signed in May 2017, making it easier for agency heads to fire federal employees. As they see it, these orders brought the country one step closer to replacing a civil service that works for all taxpayers with a political service that serves at the President’s whim.
At least on the surface, the misgivings of both parties are well-founded. Exacerbating their concern is that both parties know the FBI can be politicized. Not too long ago, at the request of the White House, L. Patrick Gray, the acting FBI director during Nixon's second term, destroyed documents related to the Watergate break-in.
There is irony in the concerns of both parties.
In early 2016, well before the presidential election, Congress failed to pass a robust package of whistleblower protections. These protections would have made FBI employees an effective watchdog for the American public, ensuring they could report abuses of authority, such as partisan influence on the FBI's decision-making, without fear of reprisal.
The bill was squarely in the public's interest. Had it become law, it would have implemented the recommendations of the Government Accountability Office, the Department of Justice's (DOJ) own Office of the Inspector General, and numerous whistleblower advocacy groups.
Instead, following intense pressure from FBI executive management, which did not want to be subject to a rigorous whistleblower process, Congressional Republicans and Democrats caved. They passed only one relatively meaningless provision of the original bill.
Incredibly, the bill signed into law omitted provisions that would have:
--minimized the lengthy delays in DOJ's investigative and adjudicative process, making it economically viable for an employee to pursue a grievance
--provided relief whenever the DOJ Inspector General found in a whistleblower's favor, thus encouraging the FBI to settle such cases instead of wasting taxpayer money defending them
--made DOJ decisions on cases publicly available so future whistleblowers would have access to important case precedent
--ensured FBI employees were afforded the opportunity for a fair and independent hearing, including the ability to seek relief from a court of appeals.
Notably, the last provision would have ensured someone outside DOJ was the final word on whether to hold the FBI (its component agency) accountable for retaliation against an FBI whistleblower. Put another way, it would have ensured the FBI and DOJ, as the "defendant" in any whistleblowing retaliation case, would not also be the "judge."
If the FBI was politicized during the run-up to the 2016 election, or if it is being politicized now, the lack of adequate whistleblower protections make it substantially less likely it will be reported by an FBI employee.
For this, Republicans and Democrats have no one to blame for themselves.
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 president of Protect the FBI, a non-partisan organization whose mission is to safeguard the FBI from the partisan politics of both political parties. Twitter: @protectthefbi