We would go further and propose not just better notice rules up the chain of command, but also concrete guidance to FBI officials about when they can or cannot open cases in politically sensitive areas. Horowitz noted that the FBI rulebook uses the same low threshold for opening sensitive cases connected to a political campaign, which implicate First Amendment activity and electoral integrity, as in ordinary, nonsensitive cases. The FBI should develop a heightened threshold for opening such cases to ensure that First Amendment activity is not unduly investigated. It is a fair concern that the new standard could invite risk aversion within the bureau and leave undetected criminal or adverse national-security activity related to a campaign. This requires particularly close attention in an era likely to be marked by increased activity to illicitly influence our political process. But given the very large costs of the investigations in the past three years, these risks seem acceptable and can be mitigated if the heightened standard is carefully crafted.
We would also propose a heightened standard, and mandatory notice to the Justice Department, before the FBI opens a counterintelligence investigation on the president, as it did in May 2017. Such investigations focus on threats to national security from foreign intelligence agencies. The FBI is authorized to open such investigations but lacks specific guidance when the possible foreign asset is the president. The FBI appears to have concluded that Trump posed a national-security threat, and warranted counterintelligence scrutiny, because he was harming the FBI’s Russia investigation. But the president is not like other individuals who might pose a threat to national security, because he is constitutionally empowered to determine the national-security interests of the United States and to conduct its foreign policy, which includes the authority to change foreign policy on a dime.
We are not saying that the FBI should be barred from investigating a president who appears to be a Manchurian candidate, but the situation requires special guidance. The lines between a Manchurian candidate, a president engaged in quid pro quo foreign-policy bargaining that is possibly corrupt, and the very large discretionary control that presidents have to conduct U.S. foreign policy are not always easy to discern. The decision to open a counterintelligence investigation of the president is so consequential for the nation (and the FBI), and so politically fraught, that it should not be made without much clearer guidance. It also should not be made by the FBI alone. FBI leadership wisely realized this truth, even without specific guidance, because they quickly briefed the acting attorney general and relevant congressional leaders. Such briefings should be mandatory—both for the FBI’s sake, and to ensure that Justice Department leaders do not eschew their responsibilities.