In-Depth: Rep. Elise Stefanik (R-NY) introduced this bill to direct the FBI Director to brief the Congressional intelligence committees on the FBI’s counterintelligence activities and ensure Congressional oversight of FBI investigations:
“Despite informal protocols followed in the past, James Comey failed to notify Congress about his investigation into the Trump Presidential campaign. This loophole in the law allows the FBI to circumvent Congress and unilaterally conduct investigations without any congressional oversight. My bill will ensure that the right congressional overseers are informed of sensitive counterintelligence investigations into campaigns for Federal office, and I’m proud to lead this effort for transparency.”
In another statement when this bill’s language passed the House as part of the Intelligence Authorization Act (IAA), Rep. Stefanik added:
“The FBI should not be able to circumvent Congress and unilaterally conduct investigations without any congressional oversight due to a loophole in the law, and I’m proud to continue leading the effort for transparency and provide the American people with the certainty that the FBI is subject to the same standards as other intelligence agencies.”
Sen. Patrick Leahy (D-VT) spoke about the need for better Congressional oversight of the FBI in a June 20, 2001 Senate Judiciary Committee hearing, “Oversight of the FBI”:
“The FBI has long been considered a crown jewel of law enforcement agencies. Unfortunately, today it has lost a lot of its earlier luster. Unfortunately, the image of the FBI in the minds of too many Americans is that this agency has become unmanageable, unaccountable and unreliable. Its much-vaunted independence has been transformed for some into an image of insular arrogance… An erosion of public trust threatens the FBI's ability to perform its mission. Think of the effect it will have on judges and juries and people who must rely on the FBI. Think of what happens when FBI agents perform forensic and other critical work for law enforcement and we cannot trust them. We have allocated to the FBI millions, even billions of dollars in increased funding because we wanted to have it become one of the world's leading crime-fighting agencies. Simply throwing money is not enough; we must do the oversight necessary… We have to ask ourselves, who polices the FBI?”
It’s worth considering how this bill’s provisions could conflict with an FBI official’s responsibilities under the Hatch Act, which prohibits federal officials from using their authority to influence an election’s outcome. When then-FBI Director James Comey notified Congress on October 28, 2016 that the FBI had found new emails tied to its investigation of Hillary Clinton’s private email server — mere days before the November 8, 2016 presidential election — some critics argued that his actions were partisan and could influence the election’s outcome. At that time, Comey characterized his decision to communicate the new emails to Congress as a matter of personal discretion. In a memo to FBI employees, he wrote:
“Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.”
However, were this bill to be enacted, future FBI directors wouldn’t have a choice about whether or when to reveal this type of information to Congress — they would have to reveal it immediately, regardless of potential risks to elections.
This legislation has eight Republican cosponsors, including every Republican on the House Intelligence Committee. Language from this bill was included in the Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act (IAA) (H.R.3494) for FY2020, which passed the House by a 397-31 vote on July 17, 2019.
Of Note: Rep. Stefanik introduced this bill after questioning then-FBI Director James Comey at a 2017 hearing in which he revealed that he didn’t follow the proper protocol of notifying Congress about opening a counterintelligence investigation into the Trump campaign in 2016. In the hearing, then-Director Comey said he didn’t follow the typical protocols or procedures for notifying Congress of his opening of a counterintelligence investigation in part because he wasn’t required to do so.
Defending his decision, Comey said, “I think our decision was, it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.” Following this hearing, Rep. Stefanik has repeatedly said that Comey’s decision not to brief even the bipartisan Gang of Eight (leaders of the congressional intelligence committees, plus the top Republican and Democrat from each chamber) was a mistake.
Summary by Lorelei Yang(Photo Credit: iStockphoto.com / South_agency)