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The FBI Deserves Better

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The Federal Bureau of Investigations is an agency of over 35,000 employees. Its agents, specialists, experts, and analysts are the gold standard in law enforcement. The FBI is on the front line of the war on terror, and they are involved in our nation’s biggest and most important federal cases.  The agency hires the best because America deserves the best.  Still, the FBI deserves better.

The FBI deserves better leadership and more accountability.  It deserves the respect of our country, our President, and the world. It also deserves an overhaul.

The FBI is a world-class organization, but it must be better.  Like any part of our government, it is not and should never be immune to useful, constructive, and frank criticism.  Like any part of our government, it should never be the target of malicious political attacks or cynical political undermining.

I know or have met innumerable FBI employees and agents. My reaction when I meet them is always the same.  “Wow, this person works for the FBI.”  I’m not impressed easily, but nothing says impressive to me more than FBI. Those people I know best at FBI are in impressive jobs, and each them are remarkable professionals.

When an agency has a scandal or failure, sadly, all its members are painted by critics with the same unfair, broad brush.

At the FBI, it has have specialized in one unmistakable standard over time. The agency and its agents are not merely excellent, they are beyond reproach.  They avoid even the appearance of impropriety.  They are the squares, the boy-scouts, the professionals.

I hate what is happening to the FBI.  I hate what is happening in our country.  I hate that the disease of political zealotry and partisanship infects us and spreads like Ebola.  I hate that even in the FBI, partisanship now taints and colors the agency.

Like a law school Dean … or Presidency … or any other agency … nothing destroys credibility more than either impropriety or the appearance of impropriety.  We have come to expect it in our politics, but we need to flush it from law enforcement, judiciary, and all federal agencies.

As our standards for acceptable conduct drop, and as Americans increasingly view everything through the colored, distorted, bent prism of political partisanship, it is more critical than ever before that special agencies like the FBI increase ethical standards.

The FBI has failed to raise its ethical standards.

The Appearance of Impropriety

The first time I ever heard this phrase was in an ethics class in law school. If I heard it before, it surely never stuck with me. When I heard it in law school, I became smitten with it.  It sounds snooty in some respects.  Still, most can easily understand the concept. It takes lawyers to make it complicated.

What does it mean?

To avoid the appearance of impropriety, one must avoid doing, saying, or taking some action that can be perceived, in the slightest way, by the most unfair person, as showing bias or favoritism. For lawyers, this idea of avoiding bias permeates much of what we do.  Bias destroys credibility, and once evidence is no longer credible, it is valueless.

Here’s an example.  If you are the newly appointed Dean at a state law school, you probably shouldn’t appoint your latest wife to a state job making 80K more than the last person to hold the job, or more than anyone who has ever held the job.  You probably shouldn’t make the appointment without even the charade of an open application process.  Why?  Well, you want to avoid the appearance of impropriety. You certainly would not want people to think the job is about nepotism or cronyism, or that you are trying to personally profit, even if you think your wife is the best candidate.

My forthcoming book looks at these issues in higher education.  They are instructive in analyzing how the FBI has gone off the rails too. Like responsible, credible, ethical, law school deans, federal agencies ought to be able to identify an obvious conflict or the appearance of a conflict and avoid it.

From Comey to McCabe, to Mueller, the FBI has completely lost its ethical moorings at the highest levels. It has permitted itself to be criticized, fairly and harshly, for moves that many Americans rightly view as biased, political, and untrustworthy.  In so doing, these men have unfairly tarnished the FBI, our country, and far more troubling than that … the innumerable heroes who give their lives and expertise to the agency.

Mr. Comey inserted himself, outside of agency policy, into a ridiculous legal decision about a high stakes FBI investigation involving Presidential candidate Hillary Clinton.  He then re-inserted himself in a way that probably changed the presidential election.  Mr. Obama should have fired him.  When he didn’t, Comey later leaked investigation information about the new President, and while telling members of Congress the President was not under investigation for Russian collision, he actively worked to make it seem like he was.

Comey earned his firing from President Trump, and all he got for it was an equally bogus allegation that the President was engaged in obstruction.

Comey alone hurt the FBI’s reputation.

Before Comey, however, there was Andrew McCabe.  McCabe’s wife took over $500,000 from a Hillary Clinton connected political PAC to run for office as a Democrat in Virginia.  There is nothing illegal about that. Of course, McCabe then got clearance from the FBI internal ethics group permitting him to stay on politically sensitive investigations involving Hillary Clinton.

That entire group should be fired, and Mr. McCabe should have known better.

If Mr. McCabe understood the very simple concept of avoiding the appearance of impropriety, he would have asked someone to transfer him to cases and a post where no person could have linked politics to any of his investigative activities.  That he failed to recognize the need to do that smacks of either ethical incompetence per se, or perhaps the same version of ethical impropriety of the Dean I mention … an incompetence born of arrogance.

Arrogance like that comes from the belief that one is not and cannot be held accountable. Americans hate a government that is biased and arrogant.

As if Comey and McCabe are not bad enough, the FBI appointed Robert Mueller as a special counsel in the Russian election investigation.  Muller had obvious legal conflicts that should have disqualified him as a choice by the FBI chooser, or as a candidate by Mr. Muller.  Muller read a few too many of his own headlines to understand or appreciate why he should not have been appointed, and why I rightfully said he should have been immediately fired.

As I noted in my June piece, Mueller’s team wreaks of political bias.  Not surprisingly, it has undermined all his actions as an investigator, as did the early leaks from his politically charged team.

Now, most recently, Americans find out that one of the investigators in the Hillary Clinton and President Trump scandals is a raging, anti-Trumper whose affinity for incriminating political texts is only surpassed by his appetite for an extramarital affair with an anti-Trump lawyer from within the agency.

The FBI deserves better.

We recently broke the news on the re-assignment of the FBI general counsel, Jim Baker.  Baker, the General Counsel, was also purportedly being investigated for leaking.

I later spoke to an FBI source thought the media emphasis on special agent Strzok was probably unfair, as Strzok likely was a “small player.”  Maybe, but there are 35,104 FBI employees, and just under 14,000 special agents.  How many investigated Hillary Clinton and Trump, spent time in the Assistant Director’s office, and had input on the working language and document used by the director to clear Mrs. Clinton from indictment?

Sometimes those inside an operation are least able to see the appearance of impropriety.

Americans can see it. They can feel it. They smell it.

Americans already have less faith in their government since the last time Americans were shooting at each other. They don’t believe objective facts, and they are easily led to believe that acts with innocent explanations that appear untoward are not merely wrong, but part of a larger, untrustworthy, conspiracy.

Comey, McCabe, Mueller, and Baker, all served at the highest levels in the FBI, and every one of them failed the most rudimentary test of avoiding the appearance that they are biased and politically motivated.  Agent Strzok, a man in the most unique of investigatory places, shows he thought the Trump investigation would be a good insurance policy against his presidency.

Then, of course, the President of the United States is using nuclear weapons against the FBI, instead of thoughtful, compelling, and essential surgical strikes.  Perhaps if I were the target of an FBI investigation I thought frivolous and the product of a nefarious plot, I too would be harsh on the entire FBI.  But, then, I am not President.  The President cannot use overwhelming force to lay waste to a great agency even if some in the agency have profoundly cheapened its reputation and damaged it.

In fact, when the FBI is most injured, it is exactly at that moment that Presidential leadership is essential to remaking the agency and protecting the good people who serve therein.

Make no mistake, the FBI has a serious problem. It needs a profound change at the highest level of its leadership. When the current and most recent leadership is so profoundly compromised, mere replacing of the head cannot change a culture or reputation.

The FBI needs wholesale change.  It deserves better, stronger, more ethical leadership.  More importantly, no matter what the FBI deserves, that type of systematic change at the top is what Americans must demand.

It is time for the appearance of unbridled propriety in all our valued institutions. Why not start with the FBI.

Richard Kelsey

Author: Richard Kelsey

Richard Kelsey is the Editor-in-Chief of Committed Conservative.

He is an Attorney, a former Assistant Law School Dean, Law Professor, and Virginia state court law clerk. Dean Kelsey was also the CEO of a technology company specializing in combating cyber-fraud. He is a regular commentator on legal and political issues in print, radio and on TV.

Rich graduated from George Mason law school, clerked for the Arlington Circuit Court, and later joined an AM LAW top 10 law firm practicing commercial litigation. He left the firm to be counsel and CEO to a consulting firm, rising to CEO of Turiss, LLC, a technology firm specializing in computer forensics, digital investigations, and fighting cyber-fraud through civil intel services and new technologies. Upon the sale of the company, Kelsey returned to Mason Law, where in the years before his return, he both taught at the school and served as President of the Law Alumni Association. Kelsey was the Assistant Dean for Management and Planning.

At Mason, Dean Kelsey taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation. While serving the former George Mason Law, Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP.

Rich has appeared on radio, TV, and in print hundreds of times as both a legal expert and political and legal commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL. He writes on occasion for the American Spectator and CNSNews.com. He returned to private practice in September of 2016, and he is working on a book/expose on legal education.

In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.

Rich has many opinions, and they are his own. His Twitter handle is @richkelsey.

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