Harry Litman [00:00:06] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. We bring you today a special episode focusing on the Federal Bureau of Investigation, traditionally thought of as the crown jewel of US law enforcement and arguably the premier law enforcement agency in the world. The bureau found itself in the bizarre and painful position of being the target of continual vilification and harassment by the president of the United States over the last four years. What impact did that have on morale, and how might it have affected the FBI's on the ground work? Are there ongoing effects of the presidential whipping, and if so, how can you get at them now?
Then, looking ahead, what does the FBI, which retooled its whole mission after 9/11, now have to do to address the threat that bureau director Chris Wray has called, quote, 'the greatest threat we face in the homeland,' namely domestic violent extremists, especially racially or ethnically motivated ones? Our focus on the FBI is particularly timely because this week bureau officials, along with officials from the Pentagon and Department of Homeland Security, will be on the hot seat in Congress, testifying before a joint session of the Senate Rules and Administration Committee and the Homeland Security and Governmental Affairs. And they surely will face sharp questioning, in the bureau's case about why it didn't get, didn't absorb or else didn't communicate to Capitol Police the intelligence of the violent conduct that the January 6th insurrectionists were plotting.
To discuss where the bureau stands today and the toughest challenges it faces going forward, we have the perfect group of experts, scholars and commentators and friends of the podcast, all of whom have previous extensive experience at the FBI. They are: Asha Rangappa, the director of admissions and senior lecturer at Yale University's Jackson Institute for Global Affairs, where she teaches national security law and related courses. She's also a member of the Board of Editors for Just Security and contributes to CNN as an analyst and commentator. Asha, welcome back. Good to see you.
Asha Rangappa [00:02:49] Good to be back.
Harry Litman [00:02:51] Andy McCabe, a distinguished visiting professor at George Mason University. He was the former deputy director of the FBI from 2016 to 2018, and briefly in that juncture, the acting director as well. He is the author of The Threat: How the FBI Protects America in the Age of Terror and Trump. He's also, to my mind, the casualty of the most vicious and unjust treatment of anyone in the former president's administration. Andy, good to see you.
Andrew McCabe [00:03:26] Great to see you, Harry. Thanks very much for having me back.
Harry Litman [00:03:29] And Frank Figliuzzi, who sort of brings us all together, in a sense, based on his recent national bestseller book about the FBI, The FBI Way. As most everyone knows, he's an MSNBC columnist and national security contributor for NBC News and MSNBC. He's also the former assistant director for counterintelligence at the FBI, where he served twenty five years as a special agent. And his book on the FBI is now, what, two months off the presses?
Frank Figliuzzi [00:04:03] We're on week six Harry, and so far so good.
Harry Litman [00:04:06] You've had a kind of whirlwind promotional tour on this.
Frank Figliuzzi [00:04:08] Yeah, yeah. It's been busy, but it's also been fun. A lot of great discussions and I'm sure we'll have another one today.
Harry Litman [00:04:15] All right. So I want to, as I say, do a more general stocktaking of the bureau, both what the last few years has wrought and then going forward. So let's start in that first the sort of state of damage from the Trump administration. Just basically how bad was it? Did it seem to you and to people in the bureau that the bureau was basically Trump's number one whipping child for law enforcement? And what impact did that have?
Andrew McCabe [00:04:45] Harry, I'll take a shot at that one. I think that's definitely the case. I think FBI people detest being the subjects of attention in the media. So just being in a place of controversy and being constantly part of this public discussion about law enforcement and politicization, everything that just is unnerving, I think, to most FBI people generally. Then put on top of that, a lot of these attacks were focused on the institution or on people from the FBI who were they know us as human beings, not as like these crazy political targets in the media. So it's just, I think it's probably been an incredibly tumultuous period for them. I would expect that that's been reflected in lower morale and it's really unfortunate, and I would also hope that there's renewed hope for the future, because I think things seem to be looking up, especially with the soon to be confirmation of the new attorney general.
Asha Rangappa [00:05:42] I think that one thing to note is, given the attacks of the Trump administration on the FBI, the agency weathered it very well. Christopher Wray is probably the only Trump appointee who A, made it through without being fired, and B, I think largely without kowtowing to Trump's demands. And especially, I think in the last year with the BLM protests, the attempt to shift the narrative to Antifa, Director Wray really held the line in terms of being straightforward about what the threat was and even raising the specter of right wing extremism as being a significant threat moving forward. And so I think all of that is a credit to the FBI in its ability to stay steady in what was really an unprecedented assault on the institution. And even when the Department of Justice had essentially gotten hijacked as well.
Harry Litman [00:06:45] Let me follow up on that, because there there has been some criticism or analysis of Wray that suggested that because they were taking fierce in coming from the White House and couldn't look to, or could only slightly look to say Bill Barr, that Wray was sort of forced to let Barr have more influence over the bureau than other AGs have had. To stay steady, he had to kind of become a little more passive. Do you agree with that analysis?
Asha Rangappa [00:07:19] Well, I think in many ways for Christopher Wray, there was a decision to either lay low and continue to lead the bureau or to ruffle feathers. And I think he still ruffled feathers, right? Because he didn't go along with it, but I think he had to temper what he could do to some degree just to survive, I think through the end. I suspect, and I know Andrew and I were on in the immediate aftermath of January 6th, when it was noted, for example, that he wasn't a part of any kind of press conference. I think this was a part of it. This is really, I think, more a manifestation of the fact that what we had was a quasi-authoritarian regime going on, which purges people when they don't go along. So I don't know that he was passive as much as being savvy about how to balance his leadership role with what was a mercurial and crazy president.
Frank Figliuzzi [00:08:18] I concur, and I'll go a step further and say that I think as history plays out, as time goes on, we're likely to learn a lot more about the interaction between DOJ and FBI headquarters, Chris Wray and Barr, and I think that may be what appears outwardly is passivity may turn out to be one hell of a fight at times, perhaps about, 'hey, I'm not doing that or you do that, I'm not doing it,' and and that may have played out. And I think there was kind of a masterful strategy that allowed Chris Wray to speak out when he needed to. So I'm thinking particularly about congressional testimony, where he clearly said and incurred the wrath of Trump for saying it, that the top priority was domestic, and that the subset within that was a hate based violence. He got a lot of heat from the White House for saying that, and he needed to.
But then he laid low when he needed to, and people may mischaracterize that as 'oh, that he was just trying to survive.' Well yes, and and I think his survival wasn't about whether he'd have a paycheck or not, but rather it was an institutional survival because he knew that the alternative might be an FBI director named Rudy Giuliani or Judge Jeanine from Fox News. And he knew that that would be a disaster, and so I think he did what he needed to do. And the kind of bureau bashing, as I call it, is really what prompted me to jump the fence on my... I'd always had the posture of I'm not, I'm not being the guy who writes the book, I don't need to do that, and then I felt like, 'God darn it, I do need to do it.' The bureau that I love and spent 25 years at was being denigrated and it's affecting national security, its effect — it's not just a moral issue, it's affecting whether the public cooperates or not with FBI investigations.
Harry Litman [00:10:06] So that's what I wanted to zero in on, so I think everyone here, you know, they were nodding when Asha said that the bureau weathered it well and Wray, who is an extremely smart and smooth administrator, would maybe hold back. But you have this, what Andy is described as demoralization. You've got that on a bunch of professionals who are proud of the FBI and follow Frank's seven C's and eight core values. But what do you think is the sort of concrete bottom line effect on the bureau's mission of being the target of Trump's wrath?
Frank Figliuzzi [00:10:46] A couple of thoughts. One is overarching worst case scenario concern, which is worst case scenario, there was a kind of gun shyness on cases that might have been opened or more aggressively worked, that maybe because they ran right up to a political area might not have been. And do I have any evidence of that? I do not.
Harry Litman [00:11:08] And would that have happened at the agent level or the supervisor level?
Frank Figliuzzi [00:11:12] It certainly wouldn't have happened at the street level at all, and maybe not even at a field office level. But rather, I mean, one area that I'm sure we'll talk about is domestic terrorism. And the whole issue of do we open a case on this, on this group, on this person? And while at the field level, everything I heard was that they remained equal opportunity arresters. And much of what I heard from the field was, you know what, a lot of these guys and gals we're arresting have like no political bet. They're just general knuckleheads, and that's good. But I'm concerned that maybe in the domestic terrorism arena, there was a little bit of gun shyness about what how to characterize or what case to open or not.
And I hope that didn't lead directly to the violence at the Capitol. But then, I'm also getting anecdotal information, this is not scientific, I want to say that, but even when I talk to state and local prosecutors, as well as some AUSA's, they're getting a sense - and this could turn around in a second, but in the past four years, they saw almost a kind of jury nullification occurring when law enforcement was on the witness stand. And that might be a cop or it might be an FBI agent, but some of them are telling me there was more of a distrust of law enforcement on the witness stand, which is which is a bad thing.
Harry Litman [00:12:32] And remarkable because I loved putting an FBI agent on as the sort of case agent. That's really the impact on the DOJ, so there were prosecutors who felt they didn't go in with the same kind of assumption of credibility as they had before and that that affected things. And we also saw it concretely, Rod Rosenstein definitely a few times thought it was the better part of valor to kind of break the rules and leak some information in response to very strong pressure from the Hill, backed by Trump, et cetera. So I'm just wondering if there are analogous ways in which there might have been on the ground effects by the bureau itself. And it sounds like maybe like one worry is where they gunshy in domestic terrorism cases.
Frank Figliuzzi [00:13:21] One area that I've gotten some hints around, and I'm curious if Asha and Andy have heard this, is certainly there's been some constraint in what's briefed, not only disseminated to the larger community and law enforcement, but to what's briefed or pushed up to the White House or even the DNI, particularly around the area of Russia. You know, we've all heard that the president, the former president simply didn't want to hear it when it came to anything Russia.
Harry Litman [00:13:46] And that message was clear within the bureau.
Andrew McCabe [00:13:48] Absolutely. Yeah, I can attest to that. There was no question about it. I mean, there were there were all kinds of challenges when we knew when Director Wray or someone else is going to be in front of the president, the first of which would be getting his attention, which is generally considered impossible to do without video, which, as you guys know from intelligence briefings, not a lot of it occurs in little cartoons and videos. But yeah, Russia didn't nobody wanted to hear about that. We've now heard from people who from inside DHS over the last couple of years that the same was true for the domestic terrorist threat, which also doesn't surprise probably any of us. So I do, I do think that like and what you're trying to get at Harry, like, that's really the impact of the politicization and the attacks.
Agents are agents, and they get a scent of something's gone wrong, there's a federal criminal violation to go after, they're going to go after it. But knowing, for instance, how political the upper echelons of DHS had been, you wonder, like what's the state of the FBI, DHS relationship right now? You could almost imagine that there would be some separation there. We had gone to great lengths to figure out how to work better with, particularly the DHS's intelligence arm, and if they're basically turning off the spigot on domestic terrorism or something like that, because that's the signal they're getting from their political folks, like, that makes them hard, a hard partner for us to work with us, the FBI.
Harry Litman [00:15:11] Right. And of course, they have, like other agencies, a cadre of political folks who really under Trump, were being very assertive. There's just Wray, and I mean, it's different in the FBI, except to the extent that the political leadership at DOJ actually tries to keep a boot on the neck.
Andrew McCabe [00:15:30] Yeah. Or even look at the fact that Barr changed the rules on opening political cases in the wind up to election. And so any, anyone who I think I can't remember the memo exactly was you had to submit.. you couldn't open a case without his approval. And there were, there was US attorneys in other jurisdictions who are in charge of any cases that might be opened against some people. I mean, you can certainly see how that would have an impact on cases going forward.
Harry Litman [00:15:55] Yeah, and so and just for listeners sake, it's normally the case that the bureau has free rein when it comes to opening cases and investigating. And the Department of Justice calls the shots when it's a question of actually prosecuting. It's also fair to say that while the attorney general is nominally the boss of the director of the FBI, it's a more complicated relationship than that. And there are certain aspects where the FBI director has traditional prerogative. All right, I just had one little question and then let's start looking forward. Frank, so you reported that when Wray testifies, he came back and got woodshedded by the White House. How exactly does that work? Who calls and says what, and what do they say when they wanted to chew you out? White House counsel? Chief of staff?
Andrew McCabe [00:16:52] You know, the first indicator was always Twitter. I mean, Trump didn't hesitate to get right on there and tell the world what he thought of you. And I think we saw some of that with respect to Director Wray. But then there's the back channels, there's the chief of staff, there's the White House counsel and...
Harry Litman [00:17:08] Calling you directly.
Andrew McCabe [00:17:10] I don't remember getting called directly, I do remember getting kind of called on the carpet by the deputy attorney general who I suspected had been hearing it from the White House. It's, that's pretty typical to come through those channels, but the thing that made it so surreal was the president speaking directly on Twitter repeatedly, immediately and really personally derogatory in just wildly false ways. That puts an FBI person, any FBI person in a really, really awkward position because we don't comment. We don't respond to things like that, so you just kind of have to keep your mouth shut and take it.
Asha Rangappa [00:17:44] Can I just add as a big picture to everything that was just discussed? Because I think it can't be emphasized enough how dysfunctional and insane this whole situation was over the last four years, because you basically had someone who was himself a national security threat as the ultimate consumer of intelligence. And this creates an inherent conflict. Trump is the one who is looking at this and then basically creating these priorities. He doesn't want to see this stuff, he needs this extremist wing to be very agitated for his own electoral prospects. It can't help, I don't know that we can really ever tease out how it played out. It breaks the system internally in terms of how things are supposed to flow. And then on top of that, he's doing these things on Twitter, which is also a national security threat because it's advertising to the rest of the world that the president is not even on the same page as his own agencies, which is exploitable in and of itself. I'm just putting that all out there as like the big picture of this, and how how much it really compromised us as a country in addition to whatever was going on at the micro level in terms of investigations.
Frank Figliuzzi [00:18:58] I think that's that's worth teasing out a little more, although it's been said and done. But in discussing it within the context of the impact on the bureau, specifically intelligence community writ large, our whole system is based on the general premise that people are generally going to follow the rules, that we're not going to have a president who is a national security threat himself, that people might respond to congressional subpoenas once in a while, all of those kinds of basics that we just took for granted.
And within the the bureau, I think, which is really comprised, the bureau is composed of a lot of rule followers. And, boy, there are a lot of rules and regulations to follow. And yet when you, so you contrast that culture of, 'yep, we've got a manual provision for that.' Ok, and then you got a guy at the White House going, 'yeah, I couldn't care less. I couldn't care less, and by the way, I'm probably siding with our adversaries,' so that just has never been encountered before. And I think we need to rebuild, quite frankly, there's a long list of things that probably need to get addressed because there are gaps that assumed that people would just go along and get along with the system.
Harry Litman [00:20:01] I do a weekly op ed in the L.A. Times, and the one today is about the sort of norms and Garland's first job of just reestablishing those rather than trying to sort of legislate around, but just kind of showing up and doing the job. By the way, picking up from Asha's point, it was more than a national security threat. He was the subject of a counterintelligence investigation, is it known, permissible to know whether that investigation has been resolved? You often don't know when a counterintelligence investigation is...
Asha Rangappa [00:20:33] Oh, my God. If it, if it was resolved, it's reopened. I mean, the guy is now walking around carrying all of our national secrets and likely likely willing and able to give them to the highest bidder. I mean, what is he up to? He is hundreds of million dollars in debt. He has information, he's a transactional person. Every one of our adversaries knows this. This guy is going to blab everything. All I can say is I can only imagine that the FBI and CIA, one conflict that may have been happening, and I'm curious to know, when this comes out, there have to be things that they were actually actively not putting in to the president's daily brief.
Harry Litman [00:21:08] Which he didn't read anyway...
Asha Rangappa [00:21:09] Knowing that these are things that could be compromised at some point.
Frank Figliuzzi [00:21:13] But, Andy, do you have any confidence that no one in the original counterintelligence case went anywhere? I was so disturbed by this kind of this kind of, 'I thought you had it. No, I thought you had it.' And then, as Asha says, confidence that you think the threats being addressed now in some way?
Andrew McCabe [00:21:30] I don't have a great deal of confidence in that. I think one of the most troubling revelations in the last year or two after the Mueller report came out was this discovery that this awareness of the way that Rod Rosenstein essentially limited the scope of Mueller's inquiry to those criminal allegations. That was not the understanding that we had at the beginning. It was it was absolutely my understanding as the acting director and the entirety of the FBI, national security and counterintelligence infrastructure that Mueller was taking the entirety of what we had opened, which was both a national security investigation and a criminal investigation into possible obstruction.
We actually had some counterintelligence folks, we had specific people embedded in Mueller team and also folks who were in FBI headquarters who were there to kind of do the handoff of any counterintelligence issues that might come up in the course of the investigation, but that Mueller was not going to pursue because they might not be specifically relevant to the Trump investigation. So we thought all this through, we had a process in place to now find out that the Mueller team wasn't even really looking in that direction. It was, if anything, a masterful sleight of hand by Rod Rosenstein.
Harry Litman [00:22:44] Our friend Andrew Weissman has written about this. But and I just see it as part and parcel of a remarkable series of really important questions that we don't know the answer to. And it's not clear that we will, which is a very troubling state of play for me, even more than people getting away with crimes for, you know, a democracy.
Frank Figliuzzi [00:23:06] Just to follow up further on Bush's statement about the ongoing threat posed by Trump. I wrote a column on this issue of, if you remember, before the Super Bowl, CBS News did an interview with Joe Biden. During that interview, he was asked by Norah O'Donnell, I think, do you think the former president should continue to get intelligence briefings or have a clearance? I wrote about this in that I don't think it's just Trump. I don't think any former president should automatically, for the remainder of his or her life, maintain a clearance. I think it's very simple to give a temporary clearance, give a briefing of the moment if there's a need to get their input on something or make them aware or use them as an emissary. This notion that you kind of just automatically can pick up the phone and say, 'hey, I'd like to be briefed on Saudi right now,' and, you know, you're secretly developing a hedge fund with Middle Eastern sovereign wealth. That's a problem. And I think to kind of curtail the threat in an ongoing way, I don't think any former president should just automatically for life get briefings and clearances at will.
Harry Litman [00:24:08] It really is an excellent point.
Andrew McCabe [00:24:09] Agree. Agree.
Harry Litman [00:24:10] All right. Well, so let's turn it. I want to highlight two points that have been made, one by Andy and one by Frank. So you were hopeful, Andy, that just the sort of arrival of the cavalry will be 80, 90 percent of what's needed to get things right. Yet, Frank, you had mentioned maybe the need to look hard at a lot of different legal provisions or how do we shore things up? What weaknesses have we not even know we had that we now know? So that's the main question I want to pose is, all right, we've got now a traditional institutionalist, Merrick Garland atop the department, at least imminently. The crisis is averted and and certain things are restored. Is that enough to set the ship right?
Andrew McCabe [00:25:00] I think it's a great first start, but there's clearly a lot of work that needs to be done. Garland, from all perspectives, seems to be kind of the ideal candidate to restore some true independence and that he's got just such an incredible way about him. He's got the history of having been a judge for as long as he's been. You just assume he's a guy who's going to call things based on the facts and the law in front of him, not not based on politics, which is great. I think he also has some terrific people around him, I know the selection of Lisa Monaco as deputy attorney general, I think was a really, really strong one. Lisa is someone who not only knows the department incredibly well, but she also knows the FBI incredibly well from her tenure as Mueller's chief of staff. And she's also a very — whereas Garland may be a little more cerebral, kind of brings that, you know, judicial temperament to the role, Lisa is...
Harry Litman [00:25:56] A deputy attorney general type.
Andrew McCabe [00:25:58] Yeah, yeah. I took a lot of red hot phone calls from her in the middle of night, I can't tell you how many times Lisa called me at 2:00 in the morning and said, 'Are you seeing this?' And I'd be like 'no, I was sleeping but ok.'
Harry Litman [00:26:10] Do you think this is the sense of the current rank and file? You've seen it from the top, but do you think everyone is so glad that Garland and Monaco are at the helm?
Andrew McCabe [00:26:22] I think so, I hope so. Maybe I'm just being optimistic, but it certainly is an improvement to what they had the last few years.
Asha Rangappa [00:26:30] And I'm curious what Andrew thinks about this. I mean, I think probably maybe the majority are, but look, part of what we know about the FBI is that there was a contingent in there that was rabidly anti-Clinton, and I think that's a problem, I don't even know what happened to that supposed leak investigation that was going on. We never heard about it again, that's another thing that sort of vaporized.
Harry Litman [00:26:56] In New York you mean? The Giuliani pipeline?
Asha Rangappa [00:27:00] Ever since that story broke that has bothered me, and it makes me question. Listen, I mean, there's always going to be a spectrum of political affiliations. But I think what is different over the last four years and what we've seen and what kind of relates to January 6th is that there is a radicalizing part of Trump's appeal. And I'm wondering how much of that is there. I know one of the questions that the FBI and other agencies are going to have to answer next week is whether there were any agents or former agents at January 6th, and I am dreading the answer to that question because I think that will be terrible for this institution.
Harry Litman [00:27:41] If there's even one, it's terrible.
Asha Rangappa [00:27:43] If there's even one, I would like to think that it would be unlikely only because of the screening mechanism that the FBI goes through. But Frank and Andrew, I'm curious what you think. I think it would be wrong to paint... as much as I love the bureau, as being completely immune from having this component.
Frank Figliuzzi [00:28:01] You know, the FBI is not a monolith. The employees don't all think the same way, and we wouldn't want them to. But, yeah, I mean, do I think that they have the problem internally that many police departments and sheriff's departments have? No. Do I think it's quite possible that retired agents showed up? I don't know if they were inside, I hope to God they weren't, but yeah, I cringe at that as well. But I think the public is savvy enough now to understand that, hey, particularly when people retire, they seem to just become themselves on steroids, number one. And so who knows, and the guardrails are off, but I think this topic of what has to be done moving forward. And look, I think DOJ and FBI employees welcome stability and security and some sense of normalcy. I think that's a good thing, I'm hearing good things about that.
I get asked a lot what can be done trying to restore the morale and all of this, and there's a simple answer here, which is politicians should stay the hell out of the way of the career professionals. Don't intervene in any way, shape or form that appears to be political intervention. Don't do things like have dinner alone with the FBI director and demand his loyalty, that's not a good thing. But by the way, I don't think directors should show up. And I realize you might be confused about whether you're alone that night with the president or not.
Harry Litman [00:29:14] And by the way, if they do, they should have protection. The deputy attorney general, Lisa Monaco, should call up and give hell to remind the White House how things have to be played.
Frank Figliuzzi [00:29:25] Exactly. But, you know, just some short list of things like... I'd like to see things like FBI background investigations of nominees. This goes back to the Kavanaugh thing, this notion that the nominating agency, which in the case of a Supreme Court justice is the White House, that they are somehow the FBI's client. There's nothing else the FBI does where they have a client other than simply the American people. And the fact that the White House can actually dictate parameters of a reinvestigation. 'Look here, do these five things, don't interview that woman, but you can interview this woman,' that needs to be changed. That kind of protocol needs to be addressed, of course, on a much larger level, I'd love to see DOJ reexamine that policy memo that says that you really shouldn't criminally pursue a sitting president, we need clarification on that, but we'll get there.
Andrew McCabe [00:30:18] If I could just to what Asha was just saying before, I think you're absolutely right. And there's definitely people in the FBI who are probably really unhappy with the results of the election and maybe some of whom still believe the lie that it was not legitimate. And that's concerning to me. Like you guys, I hope like hell none of them showed up at the rally, but I also think that although they may not be standing on their desks and cheering those people for the arrival of Merrick Garland and Lisa Monaco and others, at the end of the day, they want to be able to do their jobs. They want to get the support they think they deserve to do their jobs and putting professionals into those slots who aren't going to be just there to do the president's bidding, but are instead there to do the work, to be, as Garland said, the attorney for the United States. I think even the hardest of the conservative parts of the bureau and of DOJ will appreciate that. If the guy does what he says he's going to do, it's hard to imagine that he's going to really alienate very many people.
Harry Litman [00:31:17] So I just had a quick comment there as a prosecutor, because it really was my general take that AUSA has tended to lean left and FBI agents tended to lean right, although the professionals were looking for the same stability. But, you know, when Trump would again, you know, vilify Pete Strzok and Lisa Page for stupid, certainly stupid texts, I was certain that if they were looking for texts dumping on Hillary Clinton, they they would have found quite a treasure trove. So let's get concrete, and the, I think really priority issue that Frank's identified a few times, which is domestic terrorism. What do you see that the bureau will be doing or needs to do going forward? It famously retooled itself after 9/11 to make international or even non-state sponsored terrorism the number one priority and given the evidence of our own eyes, but also what Director Wray has said, that's got to be a big piece of the mission going forward. And yet you don't have the same kinds of tools, there's no domestic terrorism statute, etc.. So what does in practical terms, the new focus on domestic terrorism entail, and is the FBI positioned to do it?
Andrew McCabe [00:32:40] This is going to be really interesting to watch. This is a 9/11 type moment, right? And so we need to see a pivot, a new dedication of resources and attention and an intensity brought to how we work domestic terrorism. That's going to include some soul searching as a result of January 6th to really rethink how we think about domestic terrorism, intelligence and how we assess domestic terrorism threats. So I'll use, for an example Abdul Mohammed, Umar Farouk Abdul Mohammed, who tried to blow up Northwest 253 on Christmas Day 2009. In the aftermath, the CIA realized that they had information about him, that Mohammed's father had come into an embassy and talked about him and and they had his biographical information, but they never watchlisted him in a way that would have kept him off of an American bound plane.
And so as a result of that, they realized that they weren't thinking about the threat that a guy like Mutallab posed to the United States in the right way. So they recalibrated how they thought about those threats and it caused them to then watchlist many, many additional people. And that may have saved us however many times, we don't know at this point. That's the sort of review we need to have here. We need to go back and say, OK, this is what we knew going into leading up to the 6th, this is information, intelligence that was readily available. What kind of assumptions or biases did we have in our analysis of that intelligence that led us to conclude that this massive group of angry Trump supporters, some of them extremists of all kinds of different stripes, did not pose a threat to the capital?
Harry Litman [00:34:21] Did the bureau so conclude or did it just do nothing? Is it your understanding that they actually said, you know, peaceful protests coming up?
Andrew McCabe [00:34:29] I think that's what we need to find out.
Harry Litman [00:34:31] So we don't know, ok.
Andrew McCabe [00:34:32] We don't know, but we do know they got a pretty explicit memo from the North Field Office, and rather than picking up the phone and telling the Capitol Police chief, 'you could have a real problem on your hands tomorrow,' they just went through the normal distribution email through the JTTF of normal channels. That's not how you handle something that you're worried about.
Harry Litman [00:34:50] That's the Joint Terrorism Task Force.
Asha Rangappa [00:34:51] Can I jump in? I think because this gets to Frank's op ed that he wrote, We have been conditioned since 9/11 to think of terrorism in a very specific way. On what it looks like, on how it manifests, on where it comes from. And so that already creates, I think, institutionally a certain kind of bias because we're trying to stop explosions that are coming from religious fundamentalists who are coming from outside the country. And many of the tools that we've created have been designed to combat that specific manifestation. But I think there's also just inherent implicit biases that come to this. And I think it also gets to why diversity becomes very important for national security, right? And this goes in a lot of different directions. In one hand, you know, when I was in the FBI, I was able to go into communities and talk to people and do things because I didn't look like an FBI agent, and that was a benefit.
But I think also now I've been thinking about how it also creates a new lens through which to view things. Franks op ed, which was excellent and I encourage everyone to read it, said, 'we don't think of people who look like us being a threat.' Well, the MAGAs don't look like me, you know what I'm saying? If you have more people who are coming from diverse perspectives, you have more of a likelihood for someone to say we need to pay attention to this, even if someone else's selection bias might cause them to pass it over. So those are two things, there's the institutional view that we've been conditioned to look at what terrorism looks like, and then just implicit biases that come into play that I think is willing to give people the benefit of the doubt that they're just exercising their First Amendment rights if they appear a certain way. And I think I mean, that was noted on January 6ht, that had that crowd looked any different, you would have seen a much different police response.
Andrew McCabe [00:36:47] Yeah, I think that's exacerbated by the fact that it's not just that they look like us, that's certainly a big part of it, but they all support the same person. There's an embedded conflict there if the people who are coming to support the candidate who you support, it's much harder for you to think of them as a threat rather than just folks who are there to conduct politically protected speech. I think we expect to see white conservative domestic terrorism as guys wearing white hoods or with swastikas tattooed on their necks, and this was very different. This was white conservative supporters of Trump. And let's face it, in the FBI and across government intelligence, there's a lot of people who are white, conservative supporters of Trump, so I think it exacerbates those implicit biases. It's bias not just on demographics, but it's also bias in terms of political beliefs. So and clearly, they didn't think of this in the way they should have. That's why we got caught flat footed.
Frank Figliuzzi [00:37:43] I think this concept of larger biases is really important, as Andy is saying, because part of the reason this problem was amplified was because these people were supporters of the current person in power. Regardless of party, it's really hard to not get lawyers telling you, 'hey, wait a minute, this could you may be involved in political free speech and civil liberties when these people are simply trying to support the guy in office, so let's be careful about this.' I think that's an issue, you're going to hear a lot about legal constraints and you should, we don't want Big Brother spying on Americans...
Harry Litman [00:38:17] Because they're citizens.
Frank Figliuzzi [00:38:18] Of course, we don't want free speech regulated and all of that. But I think we could get really embarrassing with these hearings and FBI officials testifying is if the senators, if they're really intent on getting to the bottom of this, if they start displaying exhibits, 'hey, look at this post. Did you see this post? Any intelligence analysts anywhere in the FBI see this post? This video, this tweet.' 'Uh, yes.' 'OK, and you didn't see this as a threat, this talk of overwhelming the Capitol Police barriers. Did you see that as a threat?' 'Uh, no.' Because now you can't say, well, the lawyers won't look at it because somebody looked at it. It's hard to believe no one saw what many people saw.
Harry Litman [00:38:55] I remember the same thing with Muhammad Atta's flight lessons in the Minnesota field office. Let me just say, you know, your're Chris Wray, each of you guys, and you're now having, as Mueller had to do in 2001, retool the FBI to be fighting domestic terrorism. What's the first two or three things that you do? What's your concrete command to the agency?
Frank Figliuzzi [00:39:19] There's no one simple solution to this. Asha spoke very eloquently about the FBI needs to look far more like American so that decision makers aren't all white guys. So they can see through different lenses, that's certainly important. But I'm a strong advocate for a domestic terrorism law and I don't see it as a panacea. I'm not going to pretend that that's going to help a lot. But I have to tell you, when an agent walks into the U.S. attorney's office and says something like, 'boy, have I got a trespass case for you.' It doesn't go anywhere. But if they walk in and go, 'I've got a domestic terrorism investigation for you?' It's a whole different ballgame, and it tends to legitimize and encourage investigators to go after something because there's a law with like 20 years to life attached to it.
The other aspect of this is I think having a law actually helps mitigate the risk of exploitation. So a lot of people, particularly ACLU folks who want to debate me, say as soon as we have a domestic terrorism law, there goes free speech and civil liberties. And, you know, it's going to fall on the heads of minorities and Black Lives Matter s gonna be declared a terrorist organization. And what I say to that is actually a lot of our abuses have come from not having a law over history. If you look what J. Edgar Hoover did with the Black Panthers, Martin Luther King, he just made stuff up. He didn't like their ideology, right? He said, 'let's try to prevent a black messiah from rising up.' OK, he didn't have a law of point to. If we have a law that says if you do this, you are a domestic terrorist, you kind of constrain and mitigate the risk of exploitation and abuse.
Harry Litman [00:40:52] All right. So great point. Sounds like Wray is going to push Congress for that law. Sounds like trying to diversify the workforce some, anything else we're doing?
Asha Rangappa [00:41:02] Can I play devil's advocate to to Frank? I think he makes an excellent point in terms of incentivizing cases that look at this and that also it cabin's the definition to potentially reduce abuse. But what I would say is that the way that we address international terrorism, foreign terrorism, is that we have a lot of tools that we can use left of boom, right? Before the criminal act takes place, and that's really what you need to disrupt something before you kind of even, pre, like the pre conspiracy, you know, conspiracy tools, which is what we use, things like FISA, where the standard is lower and you don't want to have those in a domestic context. That's what Hoover was trying to do, is trying to basically infiltrate and just get an idea of what these people are up to. And we create very high barriers even in the foreign terrorism arena for U.S. persons, right? I actually think that maybe we're using the wrong framework, that we we are looking at domestic terrorism versus foreign terrorism.
And I have no problem calling them domestic terrorists, but I think the game changer that we've seen in definitely with what we're seeing coming out of January 6th, but it's probably taking place in the last few years, is the organizational capacity of these right wing extremists, which to me seems to lend itself more to an organized crime toolkit rather than a terrorism tool kit, that if you have an organizational structure with leaders and with funding, and I'm curious to see what Andrew and Frank think, that using that model, I know that they're already talking about using RICO statutes and things like that to counter these organizations. Maybe that's just a better avenue to look at than trying to find the domestic analog to how we treat foreign terrorism.
Andrew McCabe [00:42:56] I think that's right. A lot of that we've been trying to do for years, some of it just comes down to not prioritizing the work. DT has always been the redheaded stepchild of the counterterrorism division at the FBI, and that needs to end. So they need additional resources, they need to expand the number of agents in the field that are doing it, but also the number of analysts and program managers doing it back at headquarters, kind of overseeing the program at the level of intensity and focus that is equivalent to international terrorism. I think you're right Asha, the statute doesn't fix a lot of those problems, but it brings enough benefit to the table that it's worth doing. It's worth being able to convict these guys for terrorism offenses. It opens up some interesting possibilities of conspiracy that you don't currently have.
And a lot of those predicates that we're arresting people on, and simply for means of data capture, we're arresting DT subjects and we're charging them with felon in possession of a weapon or attempted use of a weapon of mass destruction. So it's, when you look at the work, it's really hard to capture exactly what we're doing, and that makes it hard to come up with accurate pictures of the threat. And I think the more we can organize that effort under the rubric of true terrorism prosecutions, I think we'd be a little bit better off. Doesn't solve all the problems, but I think it would help.
Harry Litman [00:44:14] I'll make just one point as a prosecutor here, which is I think the DOJ's sort of biggest success stories in the last 30 years have been where they've brought down, you know, groups with use of whatever is out there. So I'm thinking both of organized crime and also kind of gang driven crime. And they've consciously, I consciously thought in these terms when I was U.S. attorney, try to get at the group because these domestic terrorists are formidable in some ways, but have a lot of vulnerabilities in others. And for example, I think they're kind of ragtag and don't have much money and you have certain tools to bring a group down.
Andrew McCabe [00:44:54] I totally agree, but that's undercovers and that's really good surveillance. And the fact is we have the ability to do that now, we just haven't been doing it. We developed all kinds of undercover platforms and highly trained agents and task force officers to do that work for us in international terrorism cases. We need to do that on the DT side right now.
Harry Litman [00:45:13] I think you're going to see exactly that coming out of the Department of Justice. OK, so we're out of time, and we haven't even talked about the foreign threats and how the FBI adapts to, among other things, China's emerging near parity as an economic power but a malevolent actor. You guys are going to have to come back for another episode, but for now, we just have a couple of seconds for our Five Words or Fewer final feature, and today's question comes from Tina Smith. It is, Will Wray serve out his full term? Five words or fewer, anybody?
Frank Figliuzzi [00:45:50] Im gonna go with four words: I certainly hope so.
Harry Litman [00:45:52] OK.
Frank Figliuzzi [00:45:53] Really, that's not about Wray, it's about the good of the institution.
Andrew McCabe [00:45:56] Yeah, I'm going to say: safe for now. For the same reason, I think that Wray's an institutionalist and I think Biden is as well, and I think what the institution needs right now is some stability and he seems to be the guy to do it.
Asha Rangappa [00:46:07] I think he'll serve half. That's my answer.
Harry Litman [00:46:10] And I'll say: if he wants to. That is I think he's becoming an FBI director of real stature, but it's a long slog.
Thank you very much to Asha, Andy and Frank. And thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter, @TalkingFedsPod , to find out about future episodes and other Feds-related content. You can check us out on the Web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, patreon.com/talkingfeds , where we post discussions about special topics exclusively for supporters. We just posted an interesting discussion with Professor Larry Tribe about whether the removal remedy for impeachment must now be considered a dead letter.
Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer, or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Additional research by Abigail Meyer. Talking Feds' consulting producer is Andrea Carla Michaels. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see ya next time.
