In April 1981 Richard Nixon sent a bottle of champagne, along with a note reading “Justice ultimately prevails,” to Mark Felt.
The triumph of justice that called for libations? The disgraced former FBI agent Felt had just received a presidential pardon, as the disgraced former president Nixon had some years earlier.
Today, Felt is best known as the mythical Deep Throat, the man who helped bring down the chief executive synonymous with the unchecked “imperial presidency.” Back in 1981 — before Deep Throat’s identity had been revealed — Felt was known for different reasons. He was one of two FBI agents to be convicted of having “unlawfully, willfully, and knowingly combine[d], conspire[d], confederate[d], and agree[d] together and with each other to injure and oppress citizens of the United State.” The two agents had authorized break-ins, or black bag jobs, of relatives and acquaintances of suspected Weather Underground members. (While such a conviction could carry up to ten years in prison, Felt had merely been fined.)
Knowing now the role that Felt played in Nixon’s downfall, such a supportive gesture may be seen as a humorous twist of fate. But Nixon’s gift, along with Reagan’s pardon, is more than a risible historical event: it also exposes larger truths about the FBI and the growth of executive power.
Trump’s firing last week of FBI director James Comey has many screaming “Nixon.” That Trump nixed the man heading up an investigation into his activities has troubling implications, whether Comey was in fact closing in on Trump or Trump was merely acting as a “petty, tantrum-throwing child.”
Either way, however, the prevailing discussion around Comey’s departure suffers from an extreme ignorance about the basic structure of the FBI.
The FBI cannot plausibly be considered a check on the imperial presidency — of Trump or anyone else — for the simple reason that it is, even for an executive agency, the heavy product of unilateral executive power. Its predecessor organization was founded over the objection of Congress. To this day it has no congressional charter. Its internal rules and safeguards are set by — and changed at will by — the attorney general.
Through its one-hundred-plus year history, the FBI’s power has tracked with the ebbs and flows of executive power more broadly. Imperial presidencies have beget imperial bureaus, buttressing and reinforcing one another.
If someone’s going to curb Trump’s authoritarian tendencies it won’t be the FBI, an agency that embodies domestic authoritarianism more than any other.
Burglary in Defense of Liberty
Nixon invested far more in Felt’s case than a bottle of champagne. He personally paid for part of Felt’s defense. And at the former FBI agent’s trial, without a hint of irony, Nixon testified that so-called FBI black bag jobs were the norm for national security investigations.
Nixon, for once, was telling the truth. The FBI had engaged in such behavior and worse for decades.
The FBI displayed a repressive cast from the very beginning. The man most responsible for shaping the FBI, J. Edgar Hoover, cut his teeth in the Department of Justice’s “Radical Division,” which was formed as a political police and is credited with originating the agency’s modern intelligence functions. The agency’s emergence mirrored the trend at the local level of “red squads,” intelligence divisions designed to sabotage anticapitalist movements. Great liberty-minded men all agreed: it was okay to abridge freedom of speech and association to protect the freedom of the market. After assuming power over the FBI, Hoover would make hunting “subversives” one of his top personal priorities.
Congress effectively sat back and watched, only intervening to attack groups and figures who exposed the FBI’s chicanery.
In the 1950s, for example, the National Lawyers Guild, an association of progressive lawyers formed as an alternative to the segregated, anti–New Deal American Bar Association, was preparing a report detailing the FBI’s illegal wiretaps and dirty tricks. The FBI, after discovering the plan through its surveillance of the organization, drafted a report asserting that the National Lawyers Guild was an agent of Moscow. Only a tool of the Soviet Union, after all, would assert that the FBI engaged in illegal surveillance. The House Un-American Activities Committee published the report under its own name.
A couple decades later, the hubris of HUAC’s most famous alum — forever immortalized in his utterance “when the president does it that means it’s not illegal” — would send scholars scrambling for a new term to describe Nixon’s power grabs. Arthur Schlesinger Jr responded with the idea of the imperial presidency.
Two key components of Schlesinger’s concept were the president’s increasingly unilateral war-making — Nixon bombed Cambodia without congressional authorization — and the political uses of intelligence. The FBI is not merely a law enforcement agency; it is also an intelligence agency. Its domestic intelligence capabilities are the direct fruit of its role as a political police, and have been useful for thwarting domestic antiwar sentiment.
With his brazen actions, Nixon crossed an important threshold. He investigated his establishment opponents and illegally surveilled his counterparts in the Democratic Party. His crime was not subverting the democratic process — electoral subterfuge, suppression, and criminal prosecution of radical groups were and are a venerable American tradition — but instead harassing elected Democrats.
The FBI’s civil liberties abuses during the Nixon era are often rolled into the story of the imperial presidency. The truth is that the imperial presidency was just as much enabled by the imperial bureau as vice versa.
Nixon was accused of spying on political opponents and breaking into the Democratic National Committee offices. While the Watergate burglars were in Nixon’s employ, not the state’s, two of those involved in the burglary — G. Gordon Liddy and James W. McCord — were former CIA and FBI agents. The tactics used — wiretaps and break-ins against political opponents — were the same that the FBI had employed for decades against domestic dissidents.
These connections were not lost on everyone. Nelson Blackstock, commenting on those who were horrified by Watergate but fine with the FBI’s treatment of subversives, specifically the Socialist Workers Party, noted that the targets of such tactics could never remain limited to socialists.
Whether the FBI’s widening net would propel Congress to act on behalf of the agency’s longstanding victims — or just recently entrapped elites — remained to be seen.
Congress Misses Its Chance
After Watergate, and as the result of powerful social movements, particularly those against racism and imperialism, the out-of-control expansion of the presidency and executive branch agencies, including the FBI, came under increasing scrutiny. A popular groundswell forced Congress to act.
The Church Committee was one of the most prominent responses. Chaired by Idaho senator Frank Church, the committee, most known for its condemnations of the CIA’s war against democracy abroad, was equally scathing toward the FBI for its war against democracy at home. Reviewing the FBI’s notorious COINTELPRO — which ensnared everyone from the Communist Party to the Southern Christian Leadership Conference — the Senators concluded that “[m]any of the techniques used would be intolerable in a democratic society even if all the targets had been involved in violent activity.”
Yet in spite of such rhetoric, the Church Committee did not take any measures to rein in the FBI. Apparently, they were satisfied by new attorney general guidelines limiting the FBI’s behavior. Likewise, after seriously considering imposing a charter on the FBI, Congress declined to take any sweeping action in light of the new guidelines.
Attorney General Edward Levi created the guidelines in 1976, supporters touted them as a prophylactic against investigations of purely political speech and activism. But if an attorney general can create guidelines, then an attorney general can change them. Which is precisely what happened.
Reagan’s decision to pardon Felt did not occur in a vacuum. A right-wing backlash had erupted, portraying Felt as the victim of an unpatriotic Carter administration and the Church Committee as an unscrupulous meddler in their darling repressive agencies. Ron Paul sent out fundraising mailers warning his supporters that “here at home Jimmy Carter and Kennedy have joined forces on a new FBI Charter that all but eliminates effective spying on terrorists and foreign agents”; under the proposed charter, “most break-ins by our FBI agents could be treated like any felony.”
Reagan, who came to power by channeling these reactionary forces, was eager to roll back what little progress had been made in the previous decade. Pardoning Felt wasn’t just score-settling; it was meant to send a message that the FBI was back.
And his attorneys general played an important role, illustrating how foolish it was to count on their guidelines to check the FBI. Reagan’s pardon of Felt came at the request of his then-counselor and future attorney general, Edwin Meese; his then–attorney general, William French Smith, amended the guidelines to give the FBI freer rein.
While it is unlikely that the FBI ever genuinely reformed (even after the original promulgation of the attorney general guidelines), during the Reagan years, the FBI found itself in its largest post–Church Committee scandal. Beginning in 1981 the FBI spied on the Committee in Solidarity with the People of El Salvador (CISPES) and other groups opposed to Reagan’s vicious wars in Central America. After allegations of black bag jobs against peace and solidarity activists, the Senate Intelligence Committee started looking into the FBI’s actions.
There was a major push to get Congress to pass legislation forbidding the FBI from investigating First Amendment activity without reasonable suspicion of criminal wrongdoing. Representative Don Edwards, a former FBI agent who became one of the agency’s fiercest congressional opponents, introduced the FBI First Amendment Protection Act.
But in spite of repeated attempts to approve the bill, oftentimes with new revelations of FBI perfidy, it never passed.
Edwards did successfully amend the Violent Crime Prevention Act of 1994 to include a prohibition on FBI investigations of First Amendment activity, greatly displeasing President Bill Clinton. Less than two years later, Clinton signed into law the grotesquely named Antiterrorism and Effective Death Penalty Act of 1996, striking Edwards’ amendment from the statute book.
Then he handed the baton to George W. Bush.
Before Trump, no president evoked so many comparisons to Nixon’s imperial presidency as Bush. Unsurprisingly, Bush’s reign also saw an expansion of the imperial bureau’s power. Attorney General John Ashcroft amended the guidelines to enlarge the FBI’s prerogatives in conducting “preliminary inquires” (which require less evidence to initiate than a full investigation) and allowing the FBI to attend any meeting open to the public without disclosing their identities.
The most egregious changes came courtesy of Bush’s third attorney general, Michael Mukasey. In late 2008, just a month before his tenure expired, Mukasey created an entirely new category of FBI inquiries called “assessments.” The new category empowered the FBI — for the first time in the post–Church Committee era — to investigate individuals they have no factual basis to believe are involved in criminal activity or threaten national security.
These fact-free inquires are allowed to include extremely intrusive means, such as using paid informants. That American mosques are crawling with FBI infiltrators, paid informants, and agents provocateurs is the direct result of these Bush-era guideline changes. And their legitimization under the Obama administration.
The imperial presidency and the imperial bureau, after all these years, remain an abiding symbiosis.
Comey is out, but Trump remains. This has sparked comparisons to the “Saturday Night Massacre,” when Nixon fired the special prosecutor investigating Watergate. Some have gone so far as to suggest that Trump is worse than Nixon, since even Nixon didn’t fire his FBI director.
These claims require a good deal of unpacking. For starters, while it is troubling for someone to terminate the person investigating them, there are few things worse than an unchecked FBI. We’ve seen what happens if people don’t say no to the FBI. During the Korean War, for instance, J. Edgar Hoover suggested that President Harry Truman carry out mass detentions without charge. In spite of past orders to disband such a list, Hoover had an index of people for Truman to round up. Truman refused. The only tragedy is that he did not fire Hoover and disband the FBI.
The FBI’s lack of independence is not the problem; its concentration in the executive branch and origins as a political police is the issue. This is, of course, by design. The only meaningful limitation Congress put on the FBI, the Edwards Amendment, was quickly repealed. Allowing the attorney general to set the FBI’s rules has proven disastrous.
Trump, like Nixon, is human, and while humans “make their own history . . . they do not make it as they please.” Trump is frightening in part because the FBI is frightening. He has access to a vast domestic spying apparatus whose raison d’etre is to spy on dissenting voices. In fact, even if the FBI did uncover criminal information that brought down Trump, it wouldn’t stem domestic authoritarianism.
In recent years, including under Comey, this apparatus has grown increasingly vicious toward Muslims in particular, infiltrating mosques for no reason and enticing random people to participate in phony terror plots. Already, Trump has used the fruits of the FBI’s state-sanctioned Islamophobia to justify his state-sanctioned Islamophobia. If Trump is to carry out the worst parts of his program, he will be enabled by the FBI in its current form.
If we fear an imperial Trump presidency, then the antidote is to work for the abolition of all political police and the placing of intelligence and law enforcement agencies under democratic control. Ending the imperial bureau, not removing it even further from democratic accountability in the name of “independence,” is the only way forward.