Where is the FBI’s authority written down?
The FBI has a range of legal authorities that enable it to investigate federal crimes and threats to national security, as well as to gather intelligence and assist other law enforcement agencies.
Federal law gives the FBI authority to investigate all federal crime not assigned exclusively to another federal agency (28, Section 533 of the U.S. Code). Title 28, U.S. Code, Section 533, authorizes the attorney general to appoint officials to detect and prosecute crimes against the United States. Title 18, U.S. Code, Section 3052, specifically authorizes special agents and officials of the FBI to make arrests, carry firearms, and serve warrants.
Constitution Check: Does the FBI have power to decide who gets prosecuted?
July 6, 2016 by Lyle Denniston
THE STATEMENTS AT ISSUE:
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case…In looking back at our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts….There is evidence that they were extremely careless in their handling of very sensitive, highly classified information. For example, seven email chains concerned matters that were classified at the top secret, special access program at the time they were sent and received.”
– Excerpt from a statement that FBI Director James B. Comey made during a news conference about the conclusion of the federal investigation of how Hillary Clinton and her aides used e-mail servers for communicating messages during her time as Secretary of State.
“The major functions of the Bureau include…investigate violations of the laws of the United States and collect evidence in cases in which the United States is or may be a party in interest, except in cases in which such responsibility is by statute or otherwise specifically assigned to another investigative agency.”
– Excerpt from the FBI’s statement of its mission, as shown on the Justice Department’s official website.
From the beginning of the new national government in 1789, the president has had an attorney general to act as a legal adviser. For a time, actually prosecuting criminals was a sideline for that officer. Private lawyers were hired to do that task, and that approach grew – by the end of the Civil War – to be very expensive.
In 1870, Congress decided to create a Department of Justice, with its own staff of lawyers, and, from then on, it was the chief law enforcement agency in the presidential Cabinet.
While the department and all of its sub-agencies do work under the president’s leadership, and that can raise the prospect that politics will enter into the department’s work, most attorneys general have tried to keep a wall of separation between how and who they prosecute, on the one hand, and the politics of law-and-order, on the other.
The public’s perception of justice has depended on that wall, attorneys general have said, over and over again.
From the attorney general, down through the ranks of the department’s employees and sub-agencies, the tradition of political impartiality is taught as a matter of professional ethics. In fact, every lawyer in the department each year must attend a refresher course in legal ethics.
As an integral part of the department, the Federal Bureau of Investigation is supposed to share in that tradition.
But the public may not always understand that the FBI does not have the job of deciding who should, or should not, be prosecuted for crime. It was created to do investigations – period.
When it finishes one of its probes, it can and usually does make recommendations, but someone else has the job of deciding what to do with the results of those investigations – an actual prosecutor.
The Supreme Court has raised the role of prosecutor to a level of eminence that is close to that of a judge.
Judges have long been immune to being sued for the way they perform their tasks on the bench, and the Supreme Court – in a famous decision in 1976, in the case of Imbler v. Pachtman — declared for the first time that prosecutors, too, are almost entirely immune for the choices they make about filing charges and pursuing them at trial.
Of course, even the Supreme Court cannot insulate prosecutors from public – and political — criticism about how they perform their jobs. And, if a given prosecutor abuses the office, by going outside the scope of their official duty, they are subject to legal claims of “malicious prosecution.’
But, because their normal legal immunity is so expansive, it is very difficult to prove the misuse of power in a given case. The Supreme Court has made clear, repeatedly, that this broad immunity is designed to encourage behavior by prosecutors that will keep the public’s trust while at the same time maintaining prosecutors’ independence.
All of these questions of professional responsibility and legal immunity of prosecutors can suddenly gain very high political visibility, especially when a criminal investigation is aimed at a prominent political figure.
No matter how impartial the FBI may be in conducting such an investigation, or a federal prosecutor may be in deciding what to do with the results of an FBI investigation, there is almost no way to avoid political controversy in such a case. That is where we are today in the case of the raid on Former President Trump’s home.
History.com
On July 26, 1908, the Federal Bureau of Investigation (FBI) was born when U.S. Attorney General Charles Bonaparte ordered a group of newly hired federal investigators to report to Chief Examiner Stanley W. Finch of the Department of Justice. One year later, the Office of the Chief Examiner was renamed the Bureau of Investigation, and in 1935 it became the Federal Bureau of Investigation.
When the Department of Justice was created in 1870 to enforce federal law and coordinate judicial policy, it had no permanent investigators on its staff.
At first, it hired private detectives when it needed federal crimes investigated and later rented out investigators from other federal agencies, such as the Secret Service, which was created by the Department of the Treasury in 1865 to investigate counterfeiting.
In the early part of the 20th century, the attorney general was authorized to hire a few permanent investigators, and the Office of the Chief Examiner, which consisted mostly of accountants, was created to review financial transactions of the federal courts.
Seeking to form an independent and more efficient investigative arm, in 1908 the Department of Justice hired 10 former Secret Service employees to join an expanded Office of the Chief Examiner.
The date when these agents reported to duty—July 26, 1908—is celebrated as the beginning of the FBI. By March 1909, the force included 34 agents, and Attorney General George Wickersham, Bonaparte’s successor, renamed it the Bureau of Investigation.
The federal government used the bureau as a tool to investigate criminals who evaded prosecution by passing over state lines, and within a few years the number of agents had grown to more than 300.
The agency was opposed by some in Congress, who feared that its growing authority could lead to abuse of power. (really?) With the entry of the United States into World War I in 1917, the bureau was given responsibility in investigating draft resisters, violators of the Espionage Act of 1917, and immigrants suspected of radicalism.
Meanwhile, J. Edgar Hoover, a lawyer and former librarian, joined the Department of Justice in 1917 and within two years had become special assistant to Attorney General A. Mitchell Palmer.
Deeply anti-radical in his ideology, Hoover came to the forefront of federal law enforcement during the so-called “Red Scare” of 1919 to 1920. He set up a card index system listing every radical leader, organization, and publication in the United States and by 1921 had amassed some 450,000 files.
More than 10,000 suspected communists were also arrested during this period, but the vast majority of these people were briefly questioned and then released.
Although the attorney general was criticized for abusing his power during the so-called “Palmer Raids,” Hoover emerged unscathed, and on May 10, 1924, he was appointed acting director of the Bureau of Investigation.
During the 1920s, with Congress’ approval, Director Hoover drastically restructured and expanded the Bureau of Investigation.
He built the agency into an efficient crime-fighting machine, establishing a centralized fingerprint file, a crime laboratory, and a training school for agents.
In the 1930s, the Bureau of Investigation launched a dramatic battle against the epidemic of organized crime brought on by Prohibition.
Notorious gangsters such as George “Machine Gun” Kelly and John Dillinger met their ends looking down the barrels of bureau-issued guns, while others, like Louis “Lepke” Buchalter, the elusive head of Murder, Inc., were successfully investigated and prosecuted by Hoover’s “G-men.”
Hoover, who had a keen eye for public relations, participated in a number of these widely publicized arrests, and the Federal Bureau of Investigation, as it was known after 1935, became highly regarded by Congress and the American public.
With the outbreak of World War II, Hoover revived the anti-espionage techniques he had developed during the first Red Scare, and domestic wiretaps and other electronic surveillance expanded dramatically. After World War II, Hoover focused on the threat of radical, especially communist, subversion.
The FBI compiled files on millions of Americans suspected of dissident activity, and Hoover worked closely with the House Un-American Activities Committee (HUAC) and Senator Joseph McCarthy, the architect of America’s second Red Scare.
In 1956, Hoover initiated COINTELPRO, a secret counterintelligence program that initially targeted the U.S. Communist Party but later was expanded to infiltrate and disrupt any radical organization in America. During the 1960s, the immense resources of COINTELPRO were used against dangerous groups such as the Ku Klux Klan but also against African American civil rights organizations and liberal anti-war organizations.
One figure especially targeted was civil rights leader Martin Luther King, Jr., who endured systematic harassment from the FBI.
By the time Hoover entered service under his eighth president in 1969, the media, the public, and Congress had grown suspicious that the FBI might be abusing its authority.
For the first time in his bureaucratic career, Hoover endured widespread criticism, and Congress responded by passing laws requiring Senate confirmation of future FBI directors and limiting their tenure to 10 years.
On May 2, 1972, with the Watergate scandal about to explode onto the national stage, J. Edgar Hoover died of heart disease at the age of 77.
The Watergate affair subsequently revealed that the FBI had illegally protected President Richard Nixon from investigation, and the agency was thoroughly investigated by Congress.
Revelations of the FBI’s abuses of power and unconstitutional surveillance motivated Congress and the media to become more vigilant in the future monitoring of the FBI.
So this brings us back to present day.
Who is the current US Attorney General, and who does he answer to?
The United States attorney general (AG), Merrick Garland, leads the United States Department of Justice, and is the chief law enforcement officer of the federal government of the United States. The attorney general serves as the principal advisor to the president of the United States on all legal matters. So I find it hard to believe that the President was unaware of the raid on Trump’s home.
This leads to the next question. Who has authority over the FBI?
Federal law gives the FBI authority to investigate all federal crime not assigned exclusively to another federal agency and Title 28, U.S. Code, Section 533, authorizes the attorney general to appoint officials to detect and prosecute crimes against the United States.
Furthermore, The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. So, the US attorney General works directly for the President.
28 U.S. Code § 503 – Attorney General
https://www.law.cornell.edu › … › PART II › CHAPTER 31
U.S. attorneys are appointed by the President of the United States for a term of four years, with appointments subject to confirmation by the Senate. A U.S. attorney continues in office, beyond the appointed term, until a successor is appointed and qualified.