The FBI’s disciplinary system consists of four stages: Investigation, Proposal of Penalty, Decision of Penalty, and an Appellate process to review the Decision.
In 2004, the FBI placed the Investigation function in a separate entity but placed the Proposal and Decision stages in the hands of the FBI director’s surrogate, the head of the Office of Professional Responsibility (OPR).
This meant that the OPR head — contrary to a principle of judicial fairness — would be both prosecutor and judge: assembling the case against an FBI employee and then deciding the outcome of that same case.
In 2009, when the Department of Justice (DOJ) criticized the FBI for failing to separate these stages — something other federal law enforcement agencies had done to ensure a system of checks and balances — the FBI refused to make this change.
This refusal came on the heels of a 2005 decision to weaken the appellate standard for reviewing disciplinary Decisions, thus undermining the Appellate stage’s effectiveness as a check and balance on a system that the FBI had already made inherently unfair.
Protect the FBI has found that since the 2004/2005 changes, OPR has engaged several astounding and potentially unlawful practices to determine the outcome of disciplinary cases.
Chief among these practices is the use of specious lack of candor charges, which manifest most often in cases where the OPR head or the FBI director subjectively believes an employee should be fired despite facts that might suggest otherwise to an appellate board.
The tactic is effective because the 2005 change to the appellate standard – aggressively lobbied for by OPR – made it exceedingly difficult for a charged employee to overturn a lack of candor charge, which carries a mandatory-dismissal penalty that cannot be reduced on appeal.
This meant an employee would have to overturn the charge to retain his or her job. Thus, by simply charging lack of candor, even disingenuously, the OPR head can often push a charged employee to resign rather than accept the stigma of being fired and potentially becoming unemployable.
As a result, lack of candor charges are often grounded in little more than the untested testimony of someone with an ax to grind, or are contrived by branding honest failures of recollection or candid clarifications as lies. To disguise the superficial nature of the charge, OPR often misrepresents the significance of supporting evidence or declines to pursue exonerating evidence.
The indomitable power vested in the OPR director – who reports to a politically-appointed FBI director – reflects a flawed system that has potential consequences far beyond the harm it causes FBI employees. The system is ripe for a partisan FBI director to co-opt the disciplinary process and quietly purge employees unwilling to help advance his or her party’s political interests.
This type of political maneuvering would be imperceptible to the media and the public. Subtle personnel decisions by means of specious disciplinary charging, achieved out of public view and without meaningful third-party scrutiny, can be used to derail an ongoing investigation that might affect a presidential administration or its allies.
Worse, the practice can be used to discourage an investigation of a political ally from being opened in the first place, or a whistleblower from reporting a politically-motivated decision.
To mitigate the potential for the FBI's disciplinary system to be co-opted for partisan gain, Protect the FBI recommends the FBI implement the 2009 DOJ recommendations as well as a number of other procedures that would ensure the disciplinary system adheres to our nation's most important judicial tenet: due process with checks and balances.