Mark Ames: The FBI Has No Legal Charter But Lots of Kompromat

By Mark Ames, founding editor of the Moscow satirical paper The eXile and co-host of the Radio War Nerd podcast with Gary Brecher (aka John Dolan). Subscribe here. Originally published at The Exiled

I made the mistake of listening to NPR last week to find out what Conventional Wisdom had to say about Trump firing Comey, on the assumption that their standardized Mister-Rogers-on-Nyquil voice tones would rein in the hysteria pitch a little. And on the surface, it did—the NPR host and guests weren’t directly shrieking “the world is ending! We’re all gonna die SHEEPLE!” the way they were on CNN. But in a sense they were screaming “fire!”, if you know how to distinguish the very minute pitch level differences in the standard NPR Nyquil voice.

The host of the daytime NPR program asked his guests how serious, and how “unprecedented” Trump’s decision to fire his FBI chief was. The guests answers were strange: they spoke about “rule of law” and “violating the Constitution” but then switched to Trump “violating norms”—and back again, interchanging “norms” and “laws” as if they’re synonyms. One of the guests admitted that Trump firing Comey was 100% legal, but that didn’t seem to matter in this talk about Trump having abandoned rule-of-law for a Putinist dictatorship. These guys wouldn’t pass a high school civics class, but there they were, garbling it all up. What mattered was the proper sense of panic and outrage—I’m not sure anyone really cared about the actual legality of the thing, or the legal, political or “normative” history of the FBI.

For starters, the FBI hardly belongs in the same set with concepts like “constitutional” or “ rule of law.” That’s because the FBI was never established by a law. US Lawmakers refused to approve an FBI bureau over a century ago when it was first proposed by Teddy Roosevelt. So he ignored Congress, and went ahead and set it up by presidential fiat. That’s one thing the civil liberties crowd hates discussing — how centralized US political power is in the executive branch, a feature in the constitutional system put there by the holy Founders.

In the late 1970s, at the tail end of our brief Glasnost, there was a lot of talk in Washington about finally creating a legal charter for the FBI—70 years after its founding. A lot of serious ink was spilled trying to transform the FBI from an extralegal secret police agency to something legal and defined. If you want to play archeologist to America’s recent history, you can find this in the New York Times’ archives, articles with headlines like “Draft of Charter for F.B.I. Limits Inquiry Methods”:

The Carter Administration will soon send to Congress the first governing charter for the Federal Bureau of Investigation. The proposed charter imposes extensive but not absolute restrictions on the bureau’s employment of controversial investigative techniques, .including the use of informers, undercover agents and covert criminal activity.

The charter also specifies the duties and powers of the bureau, setting precise standards and procedures for the initiation ,and conduct of investigations. It specifically requires the F.B.I. to observe constitutional rights and establishes safeguards against unchecked harassment, break‐ins and other abuses.

…followed by the inevitable lament, like this editorial from the Christian Science Monitor a year later, “Don’t Forget the FBI Charter”. Which of course we did forget—that was Reagan’s purpose and value for the post-Glasnost reaction: forgetting. As historian Athan Theoharis wrote, “After 1981, Congress never seriously considered again any of the FBI charter proposals.”

The origins of the FBI have been obscured both because of its dubious legality and because of its original political purpose—to help the president battle the all-powerful American capitalists. It wasn’t that Teddy Roosevelt was a radical leftist—he was a Progressive Republican, which sounds like an oxymoron today but which was mainstream and ascendant politics in his time. Roosevelt was probably the first president since Andrew Jackson to try to smash concentrated wealth-power, or at least some of it. He could be brutally anti-labor, but so were the powerful capitalists he fought, and all the structures of government power. He met little opposition pursuing his imperial Social Darwinist ambitions outside America’s borders—but he had a much harder time fighting the powerful capitalists at home against Roosevelt’s most honorable political obsession: preserving forests, parks and public lands from greedy capitalists. An early FBI memo to Hoover about the FBI’s origins explains,

“Roosevelt, in his characteristic dynamic fashion, asserted that the plunderers of the public domain would be prosecuted and brought to justice.”

According to New York Times reporter Tim Wiener’s Enemies: A History of the FBI, it was the Oregon land fraud scandal of 1905-6 that put the idea of an FBI in TR’s hyperactive mind. The scandal involved leading Oregon politicians helping railroad tycoon Edward Harriman illegally sell off pristine Oregon forest lands to timber interests, and it ended with an Oregon senator and the state’s only two House representatives criminally charged and put on trial—along with dozens of other Oregonians. Basically, they were raping the state’s public lands and forests like colonists stripping a foreign country—and that stuck in TR’s craw.

TR wanted his attorney general—Charles Bonaparte (yes, he really was a descendant of that Bonaparte)—to make a full report to on the rampant land fraud scams that the robber barons were running to despoil the American West, and which threatened TR’s vision of land and forest conservation and parks. Bonaparte created an investigative team from the US Secret Service, but TR thought their report was a “whitewash” and proposed a new separate federal investigative service within Bonaparte’s Department of Justice that would report only to the Attorney General.

Until then, the US government had to rely on private contractors like the notorious, dreaded Pinkerton Agency, who were great at strikebreaking, clubbing workers and shooting organizers, but not so good at taking down down robber barons, who happened to also be important clients for the private detective agencies.

In early 1908, Attorney General Bonaparte wrote to Congress asking for the legal authority (and budget funds) to create a “permanent detective force” under the DOJ. Congress rebelled, denouncing it as a plan to create an American okhrana. Democrat Joseph Sherley wrote that “spying on men and prying into what would ordinarily be considered their private affairs” went against “American ideas of government”; Rep. George Waldo, a New York Republican, said the proposed FBI was a “great blow to freedom and to free institutions if there should arise in this country any such great central secret-service bureau as there is in Russia.”

So Congress’s response was the opposite, banning Bonaparte’s DOJ from spending any funds at all on a proposed FBI. Another Congressman wrote another provision into the budget bill banning the DOJ from hiring Secret Service employees for any sort of FBI type agency. So Bonaparte waited until Congress took its summer recess, set aside some DOJ funds, recruited some Secret Service agents, and created a new federal detective bureau with 34 agents. This was how the FBI was born. Congress wasn’t notified until the end of 1908, in a few lines in a standard report — “oh yeah, forgot to tell you—the executive branch went ahead and created an American okhrana because, well, the ol’ joke about dogs licking their balls. Happy New Year!”

The sordid history of America’s extralegal secret police—initially named the Bureau of Investigation, changed to the FBI (“Federal”) in the 30’s, is mostly a history of xenophobic panic-mongering, illegal domestic spying, mass roundups and plans for mass-roundups, false entrapment schemes, and planting what Russians call “kompromat”— compromising information about a target’s sex life—to blackmail or destroy American political figures that the FBI didn’t like.

The first political victim of J Edgar Hoover’s kompromat was Louis Post, the assistant secretary of labor under Woodrow Wilson. Post’s crime was releasing over 1,000 alleged Reds from detention facilities near the end of the FBI’s Red Scare crackdown, when they jailed and deported untold thousands on suspicion of being Communists. The FBI’s mass purge began with popular media support in 1919, but by the middle of 1920, some (not the FBI) were starting to get a little queasy. A legal challenge to the FBI’s mass purges and exiles in Boston ended with a federal judge denouncing the FBI. After that ruling, assistant secretary Louis Post, a 71-year-old well-meaning progressive, reviewed the cases against the last 1500 detainees that the FBI wanted to deport, and found that there was absolutely nothing on at least 75 percent of the cases. Post’s review threatened to undo thousands more FBI persecutions of alleged Moscow-controlled radicals.

So one of the FBI’s most ambitious young agents, J Edgar Hoover, collected kompromat on Post and his alleged associations with other alleged Moscow-controlled leftists, and gave the file to the Republican-controlled House of Representatives—which promptly announced it would hold hearings to investigate Post as a left subversive. The House tried to impeach Post, but ultimately he defended himself. Post’s lawyer compared his political persecutors to the okhrana (Russia, again!): “We in America have sunk to the level of the government of Russia under the Czarist regime,” describing the FBI’s smear campaign as “even lower in some of their methods than the old Russian officials.”

Under Harding, the FBI had a new chief, William Burns, who made headlines blaming the terror bombing attack on Wall Street of 1920 that killed 34 people on a Kremlin-run conspiracy. The FBI claimed it had a highly reliable inside source who told them that Lenin sent $30,000 to the Soviets’ diplomatic mission in New York, which was distributed to four local Communist agents who arranged the Wall Street bombing. The source claimed to have personally spoken with Lenin, who boasted that the bombing was so successful he’d ordered up more.

The only problem was that the FBI’s reliable source, a Jewish-Polish petty criminal named Wolf Lindenfeld, turned out to be a bullshitter—nicknamed “Windy Linde”—who thought his fake confession about Lenin funding the bombing campaign would get him out of Poland’s jails and set up in a comfortable new life in New York.

By 1923, the FBI had thoroughly destroyed America’s communist and radical labor movements—allowing it to focus on its other favorite pastime: spying on and destroying political opponents. The FBI spied on US Senators who supported opening diplomatic relations with the Soviet Union: Idaho’s William Borah, chairman of the Foreign Relations Committee; Thomas Walsh of the Judiciary Committee, and Burton K Wheeler, the prairie Populist senator from Montana, who visited the Soviet Union and pushed for diplomatic relations. Harding’s corrupt Attorney General Dougherty denounced Sen. Wheeler as “the Communist leader in the Senate” and “no more a Democrat than Stalin, his comrade in Moscow.” Dougherty accused Sen. Wheeler of being part of a conspiracy “to capture, by deceit and design, as many members of the Senate as possible and to spread through Washington and the cloakrooms of Congress a poison gas as deadly as that which sapped and destroyed brave soldiers in the last war.”

Hoover, now a top FBI official, quietly fed kompromat to journalists he cultivated, particularly an AP reporter named Richard Whitney, who published a popular book in 1924, “Reds In America” alleging Kremlin agents “had an all-pervasive influence over American institutions; they had infiltrated every corner of American life.” Whitney named Charlie Chaplin as a Kremlin agent, along with Felix Frankfurter and members of the Senate pushing for recognition of the Soviet Union. That killed any hope for diplomatic recognition for the next decade.

Then the first Harding scandals broke—Teapot Dome, Veterans Affairs, bribery at the highest rungs. When Senators Wheeler and Walsh opened bribery investigations, the FBI sent agents to the senators’ home state to drum up false bribery charges against Sen. Wheeler. The charges were clearly fake, and a jury dismissed the charges. But Attorney General Dougherty was indicted for fraud and forced to resign, as was his FBI chief Burns—but not Burns’ underling Hoover, who stayed in the shadows.

Under FDR, the FBI’s powers and its mass surveillance programs were greater than ever. When FDR died and Truman took over, he was both intrigued by that power, and horrified by it as Hoover ingratiated himself to the president with kompromat files on other political figures. A few weeks after taking office, Truman wrote in his diary,

“We want no Gestapo or Secret Police. FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail … This must stop.”

With the Cold War, the FBI became obsessed with homosexuals as America’s Fifth Column under Moscow’s control. Homosexuals, the FBI believed, were susceptible to Kremlin kompromat—so the FBI collected and disseminated its own kompromat on alleged American homosexuals, supposedly to protect America from the Kremlin. In the early 1950s, Hoover launched the Sex Deviates Program to spy on American homosexuals and purge them from public life. The FBI built up 300,000 pages of files on suspected homosexuals and contacted their employers, local law enforcement and universities to “to drive homosexuals from every institution of government, higher learning, and law enforcement in the nation,” according to Tim Weiner’s book Enemies. No one but the FBI knows exactly how many Americans’ lives and careers were destroyed by the FBI’s Sex Deviants Program but Hoover—who never married, lived with his mother until he was 40, and traveled everywhere with his “friend” Clyde Tolson.

In the 1952 election, Hoover was so committed to helping the Republicans and Eisenhower win that he compiled and disseminated a 19-page kompromat file alleging that his Democratic Party rival Adlai Stevenson was gay. The FBI’s file on Stevenson was kept in the Sex Deviants Program section—it included libelous gossip, claiming that Stevenson was one of Illinois’ “best known homosexuals” who went by the name “Adeline” in gay cruising circles.

In the 1960s, Hoover and his FBI chiefs collected kompromat on the sex lives of JFK and Martin Luther King. Hoover presented some of his kompromat on JFK to Bobby Kennedy, in a concern-trollish way claiming to “warn” him that the president was opening himself up to blackmail. It was really a way for Hoover to let the despised Kennedy brothers know he could destroy them, should they try to Comey him out of his FBI office. Hoover’s kompromat on MLK’s sex life was a particular obsession of his—he now believed that African-Americans, not homosexuals, posed the greatest threat to become a Kremlin Fifth Column. The FBI wiretapped MLK’s private life, collecting tapes of his affairs with other women, which a top FBI official then mailed to Martin Luther King’s wife, along with a note urging King to commit suicide.

FBI letter anonymously mailed to Martin Luther King Jr’s wife, along with kompromat sex tapes

After JFK was murdered, when Bobby Kennedy ran for the Senate in 1964, he recounted another disturbing FBI/kompromat story that President Johnson shared with him on the campaign trail. LBJ told Bobby about a stack of kompromat files — FBI reports “detailing the sexual debauchery of members of the Senate and House who consorted with prostitutes.” LBJ asked RFK if the kompromat should be leaked selectively to destroy Republicans before the 1964 elections. Kennedy recalled,

“He told me he had spent all night sitting up and reading the files of the FBI on all these people. And Lyndon talks about that information and material so freely. Lyndon talks about everybody, you see, with everybody. And of course that’s dangerous.”

Kennedy had seen some of the same FBI kompromat files as attorney general, but he was totally opposed to releasing such unsubstantiated kompromat—such as, say, the Trump piss files—because doing so would “destroy the confidence that people in the United States had in their government and really make us a laughingstock around the world.”

Imagine that.

Which brings me to the big analogy every hack threw around last week, calling Trump firing Comey “Nixonian.” Actually, what Trump did was more like the very opposite of Nixon, who badly wanted to fire Hoover in 1971-2, but was too afraid of the kompromat Hoover might’ve had on him to make the move. Nixon fell out with his old friend and onetime mentor J Edgar Hoover in 1971, when the ailing old FBI chief refused to get sucked in to the Daniel Ellsberg/Pentagon Papers investigation, especially after the Supreme Court ruled in favor of the New York Times. Part of the reason Nixon created his Plumbers team of black bag burglars was because Hoover had become a bit skittish in his last year on this planet—and that drove Nixon crazy.

Nixon called his chief of staff Haldeman:

Nixon: I talked to Hoover last night and Hoover is not going after this case [Ellsberg] as strong as I would like. There’s something dragging him.

Haldeman: You don’t have the feeling the FBI is really pursuing this?

Nixon: Yeah, particularly the conspiracy side. I want to go after everyone. I’m not so interested in Ellsberg, but we have to go after everybody who’s a member of this conspiracy.

Hoover’s ambitious deputies in the FBI were smelling blood, angling to replace him. His number 3, Bill Sullivan (who sent MLK the sex tapes and suicide note) was especially keen to get rid of Hoover and take his place. So as J Edgar was stonewalling the Daniel Ellsberg investigation, Sullivan showed up in a Department of Justice office with two suitcases packed full of transcripts and summaries of illegal wiretaps that Kissinger and Nixon had ordered on their own staff and on American journalists. The taps were ordered in Nixon’s first months in the White House in 1969, to plug up the barrage of leaks, the likes of which no one had ever seen before. Sullivan took the leaks from J Edgar’s possession and told the DOJ official that they needed to be hidden from Hoover, who planned to use them as kompromat to blackmail Nixon.

Nixon decided he was going to fire J Edgar the next day. This was in September, 1971. But the next day came, and Nixon got scared. So he tried to convince his attorney general John Mitchell to fire Hoover for him, but Mitchell said only the President could fire J Edgar Hoover. So Nixon met him for breakfast, and, well, he just didn’t have the guts. Over breakfast, Hoover flattered Nixon and told him there was nothing more in the world he wanted than to see Nixon re-elected. Nixon caved; the next day, J Edgar Hoover unceremoniously fired his number 3 Bill Sullivan, locking him out of the building and out of his office so that he couldn’t take anything with him. Sullivan was done.

This isn’t remotely like Watergate. Along with this flaws and demons, Nixon had many fine qualities of intellect and character.

— David Frum (@davidfrum) May 13, 2017

The lesson here, I suppose, is that if an FBI director doesn’t want to be fired, it’s best to keep your kompromat a little closer to your chest, as a gun to hold to your boss’s head. Comey’s crew already released the piss tapes kompromat on Trump—the damage was done. What was left to hold back Trump from firing Comey? “Laws”? The FBI isn’t even legal. “Norms” would be the real reason. Which pretty much sums up everything Trump has been doing so far. We’ve learned the past two decades that we’re hardly a nation of laws, at least not when it comes to the plutocratic ruling class. What does bind them are “norms”—and while those norms may mean everything to the ruling class, it’s an open question how much these norms mean to a lot of Americans outside that club.