NRPLUS MEMBER ARTICLE F acing an imminent contempt citation by the House Oversight Committee, FBI director Chris Wray reached a compromise with committee chairman James Comer (R., Ky.): The FBI will bring the subpoenaed document at the center of the dispute to the House on Monday. There, Comer and the committee’s ranking member, Jamie Raskin, will review it and receive a related briefing from the bureau.
As Rich and I discussed on the podcast this week, the document in question is an informant report alleging that, while he served as vice president, now-president Joseph Biden was complicit in a bribery scheme involving unidentified foreign actors. (Comer has recently stated that the foreign country involved is not China, nor is it one the committee has previously addressed in its Biden-family investigation — which we discussed in this NR editorial.) The report is memorialized in the FBI’s standard FD-1023 form, which is used to record statements by confidential human sources (CHSs) — i.e., persons who provide information to the FBI, as distinguished from other means of intelligence-gathering (e.g., electronic surveillance).
On balance, this is a win for Comer, who stuck to his guns and overcame FBI intransigence. But the deal struck to end the contempt threat is a compromise, not a wholesale bureau surrender. That is as it should be.
In defiance of the subpoena, Director Wray initially resisted any disclosure. He even refused to concede the existence of the document, to which whistle-blower investigators had alerted Comer and Senator Chuck Grassley (R., Iowa), who has done a great deal of investigative work on the Biden family influence-peddling business. After over three weeks, Wray grudgingly acknowledged that the document existed but countered that the FBI would produce only a significantly redacted version of it. Moreover, he tried to dictate that committee members would have to come to FBI headquarters to review only what the FBI was willing to permit them to see, under the bureau’s supervision.
As I’ve explained this week (see here and here), the FBI does not have a valid legal basis to withhold the information Congress is seeking. Legally, Comer knew he had the whip hand; politically, he knew that Wray, who heads a law-enforcement agency that relies on subpoena compliance, was keen to avoid being held in contempt for illegally defying a subpoena. The chairman thus admonished the director that nothing less than the production of the document to the entire committee would constitute satisfactory compliance.
In the end, however, Comer prudently retreated a bit. At least for now, the document will be shown, and the briefing given, only to Comer and Raskin, not the full committee, in a secure Capitol Hill room normally reserved for reviewing classified intelligence (the FD-1023 in question is not classified). This gives the committee what it needs for the purposes of its significant investigation, while giving Wray a face-saving nod to the FBI’s concerns.
Those concerns are worthy. It would cripple the government’s ability to gather evidence and intelligence for law-enforcement and national-security purposes if the FBI could not assure confidentiality to informants. Comer and Speaker Kevin McCarthy (R., Calif.) both made clear to Wray that the House’s objective was to obtain the information, not compromise the FBI’s mission. That said, they also were firm in insisting that the FBI’s concerns do not exist in a vacuum; they must be weighed against such imperatives as Congress’s capacity to check the abuse of executive power and ensure that the FBI is not chanting “sources and methods” as a smokescreen to cover up malfeasance or incompetence.
The deal struck should satisfy everyone’s interests.
This illustrates why courts should not get enmeshed in battles pitting the political branches and their divergent but legitimate interests against each other. Even though a lot of furniture can get broken in the heat of the confrontation, rational compromises are typically arrived at. This happens when it is clear that (a) under our constitutional structure, one side gets to be the decision maker — here, Congress; and (b) that side respects the legitimate concerns of the other side — here, the bureau. In this instance, there was more drama than there needed to be, but if things had gotten tied up in court, it would have taken months to get a resolution.
The key lesson of this episode: The FBI must come to terms with the reputational damage it has sustained after eight years of politicization and poor performance. The bureau is simply not as formidable as it used to be in clashes with Congress because the public is not as convinced as it used to be that the bureau is a nonpartisan, by-the-book law-enforcement agency. Lawmakers, who are accountable to the public, are no longer going to take bureau’s “sources and methods” mantra for an answer.
Law-enforcement whistle-blowers did not just point Comer and Grassley to the document at issue. The investigators have complained that, because the politically powerful Biden family is at the center of this probe, their chains of command (which ultimately lead to the Biden Justice Department) have not permitted them to take the rudimentary investigative steps they’d take in a typical case.
According to Comer and Grassley, the subpoenaed FD-1023 form
describes an alleged criminal scheme involving then-Vice President Biden and a foreign national relating to the exchange of money for policy decisions. It has been alleged [by whistleblower agents] that the document includes a precise description of how the alleged criminal scheme was employed as well as its purpose.
Comer has not only demanded access to the document. The committee also wants to know what the FBI did to investigate the allegations. It is a vital question, especially in light of disturbing indications that, prior to the 2020 election, top bureau investigators helped congressional Democrats discredit the Biden corruption story as “Russian disinformation” and took steps to shut down investigative leads. To repeat my previous summary:
Three months before the [New York Post] reported on the [Hunter Biden] laptop, there was already not only a Hunter Biden criminal investigation but a Senate Republican investigation of the scandal the media-Democrat complex continues to bury: the cashing in on Joe Biden’s political influence by his family members, with his knowing and willful involvement, to the tune of millions of dollars that poured into Biden family coffers from agents of corrupt and authoritarian regimes, including some, such as China and Russia, that are hostile to the United States.
Obviously worried about the potential effect of these revelations on their party’s presidential nominee, congressional Democrats turned to some of their many sympathizers in the FBI brass. These included Timothy Thibault, who ran the Bureau’s Washington field office until he was forced into early retirement over anti-Republican, anti-conservative posts on his social-media account, and Brian Auten, an intelligence analyst who played an important role in the deeply misleading FISA-warrant applications the FBI filed in federal court, leading the judges to believe the 2016 Trump campaign had colluded with the Kremlin. Through these officials, the FBI helped Democrats peddle a political narrative that the evidence of foreign money lining the Bidens’ pockets was “Russian disinformation” — notwithstanding that much of this evidence was simply money-trail records generated by financial institutions, easily verifiable.
That is, before there ever was a Hunter Biden laptop story, the FBI hadn’t just helped Democrats craft a political storyline to dismiss evidence of Biden family corruption; bureau whistleblowers also reported to Senators Chuck Grassley (R., Iowa) and Ron Johnson (R., Wis.) that Thibault took internal steps both to bury the Biden investigation and obscure his rationale for doing so.
On Monday, the FBI is going to honor the Oversight Committee’s subpoena for the document alleging Biden’s complicity in a bribery scheme. Chairman Comer, in turn, is dropping — at least for now — the plan to hold Wray in contempt of Congress. Still, we are closer to the beginning than the end of this saga. It is good that the document is being produced, but the FBI has more explaining to do.