Chris Hinkle, Mississippi, FBI (retired)

With Donald Trump's election as the 47th U.S. President, in addition to selecting a new Attorney General (AG), it is almost certain he will also select a new FBI Director. Current FBI Director Chris Wray will either resign prior to Mr. Trump being sworn in or likely be fired shortly thereafter. This will be the first of many actions needed to return the Department of Justice (DOJ) and FBI within the guardrails of the U.S. Constitution.

                “The Bill of Rights is about protecting individual liberties and enumerating specific prohibitions on governmental power.”  These rights are absolute for citizens, which is why the framers used language like “shall not be infringed.”  In fact, the words “shall not” appear 31 times in the text of the U.S. Constitution, and all are directed at the government.

                All government representatives and appointees, including those inside the DOJ and the FBI, swear an oath to protect and defend the liberties of citizens as articulated in the Bill of Rights. Violation of this oath, particularly among those in the DOJ and FBI, can involve federal penalties under the Color of Law. 

DOJ’s policy (Domestic Investigations Operations Guide, Chapter 4) states, “No investigative activity may be conducted for the sole purpose of monitoring the exercise of these rights.”  It further states the Executive Branch, including law enforcement agencies, shall take no action “abridging” citizens’ rights.  The policy further defines abridging as meaning “diminishing.”  Any overt or implied actions by the DOJ and FBI can have a chilling effect on the free exercise of civil liberties.

                An example of overt actions taken by AG Merrick Garland would be his infamous October 2021 memo received as a warning to citizens attending local school board meetings.  At the request of Homeland Security Today, I wrote an article citing violations of the U.S. Constitution, federal law, and DOJ Policy and evaluating the claims made within the memo.  In my capacity as a citizen, contact was made with my local FBI office, Civil Rights Program supervisor, who assured me there would be no action in response to the memo. 

                Another example of the attempt to “chill” the exercise of 1^st Amendment Rights to Petition and Seek Redress was the August 2024 warning from Garland, where he repeatedly used the words “interfere” and protect our “democracy.”  First, the word “interfere” is subjective, as detailed in his response to the Supreme Court of the United States (SCOTUS) decision in Fischer v. United States.  AG Garland’s definition of interference directly conflicted with the SCOTUS interpretation.  Second, AG Garland knows or should know that the United States is not a democracy but a Constitutional Republic where power rests in the people.

                Now on to FBI Director Christopher Wray.  There are two things Director Wray does nearly every time he testifies before the U.S. Senate or U.S. House of Representatives.  First, he cloaks himself in the reputation of most of the good men and women of the FBI to obfuscate himself from accountability.  Criticism of FBI Executives is not a criticism of the institution itself.  It is a necessary function of our Constitutional Republic for our representatives to question and seek clarification of the actions directed by those executives.

Secondly, Director Wray will often deflect specific questions about his and other executives’ actions by citing “DOJ policy not to comment on ongoing investigations.”  He has sometimes refused to answer questions such as the presence of FBI assets, informants, and undercover agents at the U.S. Capitol on January 6, 2021, or concerning the validity of Hunter Biden’s laptop.  The FBI knew before the 2020 elections that the computer was not “Russian disinformation” and should have responded with facts at the time, which would have countered the letter from the lauded former U.S. Intelligence cadre.

                Under Article I, Section 8, Clause 18 of the U.S. Constitution, Congress’s power to conduct investigations stands on equal footing with its authority to legislate and appropriate.  Multiple SCOTUS decisions affirmed Congress’ power of inquiry—with the process to enforce it—is an essential and appropriate auxiliary to the legislative function.  In layperson’s terms, if the taxpayer is paying for it, the taxpayers’ representatives have the authority to ask questions and investigate how the money is being utilized.

                There is nothing DOJ prosecutes, nor does the FBI investigate anything outside the ability of our representatives to be briefed as part of oversight.  This can be accomplished in public or private hearings.  It can even be done in a secure facility.  Refusal and obfuscation of oversight are in direct conflict with the U.S. Constitution.  Congress holds the “power of the purse” and can withhold or rescind funding from agencies that do not comport with or violate the U.S. Constitution.  AG Garland or Director Wray may cite “National Security” as a concern to not respond.  There is no “security” exception to Constitutional Liberties.

                A step toward returning the DOJ and FBI within the guardrails of the U.S. Constitution would be Congress holding individuals responsible for their actions and withholding funding from agencies until they comport with the imposed Constitutional restrictions. Yes, that might mean a government shutdown. However, all government shutdowns have one thing in common: They are all temporary. Loss of liberties and the damages from that loss can be permanent.

Chris Hinkle is a retired FBI Supervisory Special Agent with over 25 years as a Federal Agent.  He supervised the FBI’s Civil Rights Program in Mississippi during his tenure.