Capitol ‘Terrorism’ Commentary by Former Counterintelligence Chief Highlights FBI’s Politicization Problem By Andrew C. McCarthy
The erosion of public trust in the FBI is a big problem for the country — for both the rule of law and national security.
S tories such as the one Isaac Schorr reported Wednesday are a big part of why the FBI has lost so much of its good will on Capitol Hill and among the public.
It is not like some barroom blabbermouth called for the prosecution of former Trump officials and a number of congressional Republicans on the theory that they constitute the “command and control element” of a “terrorist group” that attacked the Capitol. Frank Figliuzzi was, for some of the Obama years, the FBI’s top counterintelligence official. And that was after he held other major supervisory positions, managing the work of hundreds of agents, particularly in Cleveland and Miami.
Figliuzzi knows he is mouthing Democratic Party political messaging that has no grounding in a rigorous analysis of evidence and applicable law — the kind of analysis the FBI wants Americans to believe it performs without grinding political axes. Yet he also knows that people who care what Frank Figliuzzi says care only because of his perceived authority as a former high-ranking FBI national-security official. His audience figures that Figliuzzi is an insider, publicly saying what the bureau is quietly thinking.
In reality, what he’s saying is bunk.
Federal prosecutors are a notoriously ambitious bunch. They well know that making cases against the former president, his aides, and pro-Trump congressional Republicans, especially terrorism cases, would thrill the Biden Justice Department. It would also please the FBI — not just the top echelon but rank-and-file agents who are not partisans, but who are well aware that over 100 cops were injured in the lawless melee at the Capitol. A prosecutor who could make such a case would be a star for life: invited to hold forth on the NBC news circuit even more often than Figliuzzi.
Figliuzzi is echoing Attorney General Merrick Garland, who told the Senate that the Capitol riot was the most “dangerous threat to democracy” he’s ever seen. For context, President Biden’s AG made that absurd claim in the course of decrying white supremacism as the nation’s “top domestic violent extremist threat.” (In Obama/Biden-speak, “violent extremist” means terrorism.) We are to believe that Trump supporters are neo-Nazis, more dangerous than Hamas, more dangerous than the Taliban, and — applying the standards of Democratic congresswoman Ilhan Omar — even more dangerous than the United States itself.
Prosecutors hear this stuff. They want nothing more than to make the case. If it were makable.
Government lawyers are also well aware that Democratic lawmakers, egged on by progressive legal scholars, larded their “Incitement of Insurrection” impeachment article with an allusion to the 14th Amendment — specifically, to Section 3, which potentially bars from holding federal office people who have “engaged in insurrection or rebellion” against the United States. The transparent point of this was to lay the groundwork for legal efforts to disqualify the 147 Republicans who supported the untenable Trump gambit to pressure Vice President Pence and Congress into rejecting the certified electoral votes of states whose election results Trump was contesting.
It is these Republicans whom Figliuzzi has in mind when he refers to “people sitting in Congress right now” who are part of “the command-and-control element of a terrorist group” that needs to be “dismantled.”
If that could be proved, the 14th Amendment claim would be viable. Federal prosecutors understand that. If there were facts and law supporting the Democratic talking-points Figliuzzi is spouting, you wouldn’t be wondering where the indictments are. They’d already have been announced at a bells-‘n’-whistles DOJ press conference — held only after Garland refereed turf wars between zealous U.S. attorneys trying to call dibs on the Trial of the Century.
But there is no support for such charges. Figliuzzi laments that only “low-level operatives” have been arrested — and none of them on terrorism charges. That, however, is because the FBI and the Justice Department toil in a realm where conduct and charges must be proved beyond a reasonable doubt under the rigor of procedural and evidentiary rules. The political officials Figliuzzi bays about on TV have not been charged as the “command-and-control” apparatus of a “terrorist group” because there is no proof that they were willfully complicit in any forcible activity — much less in terrorism, of which not even the hundreds of people charged, including those charged with assault, have been accused.
This is not to minimize what happened on January 6; it is to describe what happened accurately. The Capitol riot was a national disgrace. The charges that have been filed (about 465 people have been charged so far) are appalling. I’ll be writing separately on that subject. For now, suffice it to say that, morally and politically speaking, President Trump and the congressional Republicans who backed his campaign to delegitimize the 2020 election and, in blatant violation of the Constitution, to pressure Congress to reject state-certified electoral votes, have much to answer for.
Let’s freely concede that it is irresponsible for public officials to endorse ludicrous legal positions. We can nevertheless grasp that this type of misconduct is very different from urging a violent protest, let alone a terrorist attack. And if we were talking about Democrats who cavalierly stir the grievance pot of the radical Left but stop short of explicitly calling for violence — or , à la Trump, pepper their figurative “fight” rhetoric with an occasional nod to the need to remain “peaceful” — rest assured that the familiar battalions of progressive pundits and professors would be lecturing us nonstop on this core First Amendment distinction.
Similarly, revving up supporters with unsubstantiated claims of fraud and election-rigging, and urging thousands of them to protest on the Capitol grounds, is condemnable behavior by a president and other public officials. Yet it is simply not the crime of inciting violence, much less the “command and control element” of a terrorism offense, under federal law.
The FBI knows these things. They are basic. It is elementary that there is no actionable incitement to violence under federal law absent an unambiguous, clearly intentional call for the use of force, made under circumstances where the resulting threat of violence is imminent and probable.
Figliuzzi’s FBI career spanned a generation during which the bureau was transformed from a primarily high-brow law-enforcement agency to one that, by the time he ran counterintelligence, had prioritized its anti-terrorism mission. More than any other agency, the FBI must wrestle, in the domestic-security context, with the line between protected political speech (which includes even inflammatory, demagogic speech) and criminal incitement. That is why young agents are schooled in such matters as the COINTELPRO scandal and the principle that investigations must not be triggered solely by constitutionally protected activity.
The average person, untrained in the criminal law and unaware of some dark history, can be forgiven for not knowing such things. The same could not be said for lowest ranking FBI agent, to say nothing of the bureau’s onetime chief domestic-security official. Legally speaking, Figliuzzi’s remarks are ignorant. And he is not an ignorant man. We can only conclude, then, that he was making a partisan political argument. In that vein, what he said, though fatuous, is at least rational.
In recent years, the FBI has undermined the perception that it is non-political and can be trusted to wield its awesome and insufficiently checked counterintelligence powers. This is confirmed by inspector-general investigations, as well as a probe directed by the Foreign Intelligence Surveillance Court. These uncovered blatant political bias, serial abuse of FISA (not merely in the Russia-gate investigation), the use of an informant to infiltrate a Republican political campaign based on woefully inadequate suspicions of Russian espionage, strategic leaking to the media, and two-tiered law-enforcement in politically freighted cases, where the degree of investigative aggression varies depending on whether the subject is a Republican or a Democrat.
The erosion of public trust in the FBI is a big problem for the country — for both the rule of law and national security. When such former officials as Frank Figliuzzi exploit their status to peddle the Democratic political narrative, it may help their new careers, but it pours still more fuel on the fire engulfing the J. Edgar Hoover Building.
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