Unresolved Questions: The FBI and January 6

Earlier this week, reporting surfaced about a dispute between federal prosecutors and the FBI over whether to seek a search warrant for Mar-a-Lago. The dispute dragged on for months and resulted in what the reporting characterizes as a “tense showdown” in late July between agents and prosecutors, before prosecutors ultimately won out and the search warrant was obtained and executed on August 8, resulting in the recovery of 103 classified documents.

The dispute included:

• FBI field agents who wanted to terminate the criminal investigation into Trump’s retention of classified material at Mar-a-Lago in early June, because Trump’s legal team told the Bureau they’d turned over everything in their possession

• A desire by agents in the FBI’s Washington field office, beginning in May, to slow down the pace of the investigation out of concern for the sensitive issues involved in investigating a former president

• Opposition to using a search warrant from two senior FBI officials who wanted to ask for permission to search Mar-a-Lago (a “consent search”) because they thought it was too aggressive to go in with a search warrant

All of this came as prosecutors pointed out the need to use a search warrant because of evidence that despite months of negotiations, issuance of a subpoena, and the Trump team’s certification that all materials had been returned, there was new evidence that Trump was knowingly concealing secret documents at his home. Prosecutors had agreed to proceed by subpoena at first because of pushback from the FBI over use of a search warrant. But as they learned more and became increasingly more concerned that classified material remained in Trump’s possession, they obtained surveillance video that showed movement of boxes from the area that records were stored in after Trump was put on notice that any records that remained in his possession had to be returned. Prosecutors got their search warrant.

But the delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

In my experience, it’s not unusual for teams of prosecutors and agents to have differences of opinion, sometimes animated ones, about how to proceed. In fact, investigations benefit from a robust, candid back-and-forth about possible strategies and their merits. One thing that does is ensure that the rights of people under investigation are protected. So the fact of disagreements alone would not be particularly alarming. It is, however, unusual for the agents to be the ones dragging their feet. Typically, it’s prosecutors who want to compile more evidence to justify a search warrant or an indictment, knowing they’re the ones who must stand up in court and face any challenges.

The troubling question the reporting raises, but cannot answer, is whether the FBI reacted to investigative issues in this case differently than they would have in any other. There is a small, but legitimate, zone of concern when the person under investigation is the former president that may counsel in favor of a very careful process to avoid any appearance of political motivation. Care is warranted. None of us wishes to see the country descend the slippery slope into banana republic territory, where the criminal justice system becomes a tool of political leaders. But the questions that must be answered are whether the FBI reaction in this investigation was different than it would have been in other cases with similar evidence and whether that difference was out of concern in investigating a—any—former president, or whether it was specifically because it was Trump.

That doesn’t necessarily imply any bias in favor of Trump. It could mean, and the reporting reflects, concerns about the former president’s playbook of attacking individual investigators. But ultimately, if the FBI wants the public to have confidence in its work, they’re going to have to find a way to answer the why questions here. Why was the agency apparently hesitant to execute a search warrant—something they routinely do in thousands of cases across the country every year when they believe it will uncover evidence of a crime. I can’t remember the last time an agent told me that a defendant’s lawyers had advised him they’d turned over all the contraband in their possession, so we could go ahead and shutter the investigation.

So this news raises questions, both about what happened with Mar-a-Lago as well as larger questions about whether the FBI fully appreciates the domestic terror threat the country faces from right-wing groups.

Jen Rubin at the Washington Post has written an extraordinary piece about this that I’d encourage you to read. Her argument is measured, thoughtful, and takes lots of important facts into account. It’s the best kind of writing.

Jennifer "Pro-privacy" Rubin @JRubinBlogger

he problem is not that Wray, a Trump appointee, is showing favoritism to a Democratic administration. It’s that he is not doing his job when it comes to threats from right-wing authoritarianism.

washingtonpost.comOpinion | Christopher Wray is getting away with doing a lousy jobThe FBI is a mess. It’s time for a new director.

Rubin turns to a newly issued report from the Government Accountability Office that assesses performance at a number of different government offices with regard to the insurrection. She points to a key finding: The FBI “did not consistently follow agency policies or procedures for processing tips or potential threats because they did not have controls to ensure compliance with policies.” Rubin reviews the evidence and concludes that “the extent to which the FBI was aware of credible threats but did not prepare is breathtaking,” including information gleaned from social media and the fact that the FBI was tracking multiple people possibly traveling to Washington for January 6, including 18 domestic terrorism subjects. The FBI failed to follow up on leads and share information with other law enforcement and agency partners. The GAO report concluded the FBI compounded these failures with inadequate internal review designed to assess and redress them.

Rubin compares it to September 11. “Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable.”

Democratic institutions can only function effectively when the public has confidence in them. The FBI is no exception. The fact that there are leaks about internal DOJ deliberations is troubling. But the subject of the leaks, even more so. After 9/11, the Bureau, under the leadership of its director and the Attorney General, made a radical shift to address the national security risk posed by foreign terrorist groups. Here, more than two years after January 6, it’s not at all clear that FBI believes and is acting upon the belief that the threat is coming from inside the house in 2023. It’s past time for that course correction to happen, even if it requires changes at the top.

We’re in this together,

Joyce