The Missing Review of FBI’s January 6 Intelligence and Law Enforcement Failures

by Asha Rangappa

[Editor’s Note: For a deeper dive into Rangappa’s thoughts on the FBI’s reaction to January 6th and the culture inside the Bureau, listen to her in conversation with former FBI Acting Director Andrew McCabe on the Just Security Podcast]

Much attention has been paid to the troubling institutional culture among agents at the U.S. Secret Service who sympathized with, and since minimized their advanced knowledge of, the violent assault on the Capitol on January 6. It is time to focus similar attention on the FBI. To be sure, the Bureau has done a commendable job over the last eighteen months. It has helped bring to justice hundreds of the “foot soldiers” from January 6 as well two organized militia groups – the Oath Keepers and Proud Boys – indicating that by and large agents across all field offices are following their constitutional duty to uphold the law without fear or favor. However, these victories have masked what appears to be internal resistance by at least a small minority of agents who believe that the January 6 investigations are unjustified or overblown. That’s a factor which, it stands to reason, may have played a role in the lack of proactive measures taken by the FBI in the face of multiple warnings of potential violence on January 6. The evidence presented by the January 6 Committee, combined with reporting over the last year, offer clues into what may be going on behind the scenes at the Bureau. If the picture painted by these sources is true, it suggests an internal, long-brewing problem that the FBI needs to investigate and nip in the bud. That, to date, FBI Director Christopher Wray has not taken action to address the problem internally also suggests that congressional oversight committees may need to get involved and demand answers.

Early Red Flags

Indications that the FBI did not have a coherent answer to the Bureau’s actions and awareness preceding the January 6 attack was evident from the beginning.

Within two days of the assault on the Capitol, Director of the Washington field office, Steve D’Antuono “had told reporters … that the FBI had no intelligence suggesting that violence was brewing before Jan. 6.” At the first press conference following January 6, held six days after the attack, neither Director Wray nor the Acting Attorney General, Jeffrey Rosen, were present – a notable absence in the aftermath of a domestic terrorist attack of this magnitude. The individuals who were there, D’Antuono and Acting U.S. Attorney for the District of Columbia Michael Sherwin, skirted around the issue of what the FBI knew before the attack. D’Antuono did acknowledge that the FBI had received a report from its Norfolk field office indicating plans for violence at the Capitol, contradicting his statements four days earlier that the FBI had no information in its possession indicating that the pro-Trump events would be anything other than a lawful demonstration. The Norfolk memo referenced “an online thread discuss[ing] specific calls for violence” against members of Congress. At the press conference, D’Antuono indicated that since the Norfolk memo was unattributable to any individual, there was nothing actionable for the FBI to do – which seemed to indicate that this was a singular, isolated piece of intelligence.

In short, the FBI’s statements in the first week following January 6 foreshadowed the contradicting information that would emerge in later months.

In June 2021, Director Wray reiterated D’Antuono’s assessment in his testimony before Congress, stating that the Norfolk memo had been appropriately shared with other law enforcement partners but that, “to my knowledge,” the FBI had no other intelligence indicating that individuals planned violence at the Capitol. However, both of these claims are belied by actions taken by the FBI at the time. Specifically, D’Antuono stated shortly after the attack that prior to January 6, the FBI had “developed some intelligence that a number of individuals were planning to travel to the DC area with intentions to cause violence,” and persuaded them not to travel (yet another statement that was at odds with his initial one following the attack). This type of “knock and talk” intervention would be permitted only if these individuals were subjects of open investigations into potential criminal activity, given the civil liberties concerns that would otherwise be implicated in law enforcement disrupting travel to a political event.  Wray, along with the Deputy Director for Counterterrorism, Jill Sanborn, also testified that the FBI could not, under its internal rules, monitor social media posts of people publicly advocating or planning violence, due to First Amendment concerns. This was not entirely accurate. The FBI had latitude to monitor social media in order to conduct threat assessments and to use evidence of planning and coordination of violence on social media to open a predicated investigation (which happened with at least four people later charged under an anti-riot statute in the aftermath of the killing of George Floyd). Indeed, Wray told Congress that the Attorney General Guidelines prohibited the Bureau from performing such online monitoring without proper predication, but the Attorney General Guidelines explicitly encourage the FBI to conduct such online monitoring in advance of a major national event like the one at the Capitol without the need for the predication Wray described.

A final red flag in the early months following January 6 was an August 2021 Reuters article reporting that the FBI had “scant” evidence that Jan. 6 violence was coordinated.  The article was sourced by four “former and current law enforcement officials” who claimed to have direct knowledge of the investigation. The sources made several conclusive claims, including that “there was no grand scheme with Roger Stone and Alex Jones to storm the Capitol and take hostages” and that there was “no evidence” that the Oath Keepers and Proud Boys had “serious” plans for what to do if they made it inside the facility. No evidence? None? “One source said there has been little, if any, recent discussion by senior Justice Department officials of filing charges such as ‘seditious conspiracy.’”

Of course, Stewart Rhodes and four other members of the Oath Keepers were charged with seditious conspiracy five months later, with the indictment laying out a highly detailed plan for taking over the Capitol, including planting reinforcements outside of D.C. The Proud Boys seditious conspiracy charge followed. In addition, Stone’s role in creating the “Stop the Steal” movement as well as his association with both the Oath Keepers and the Proud Boys (including an encrypted chat group “Friends of Stone” that the leaders of the two militias used to communicate with each other during the violence on January 6) makes his role in planning the attack at least an open question, at best. The information provided by the anonymous sources was therefore not just premature and oddly specific, but also wrong – which raises the question of whether there was an intentional attempt by FBI insiders to shape the public narrative on January 6.

So what do we make of these conflicting, sometimes incoherent, and even incorrect statements by FBI leadership and anonymous internal sources following January 6? The most generous interpretation was that the FBI, at this early stage, was simply caught flat-footed by the January 6 attack, much like it was on 9/11. If the Bureau did not have enough actionable intelligence, and was treading extra-cautiously to avoid being accused (again) of engaging in politically biased investigations based on animosity toward Trump, then maybe there was another failure to “connect the dots”  – perhaps facilitated by implicit institutional and individual biases that did not view the rhetoric leading up to the Trump rally through a terrorism lens. Until the January 6 hearings this year, that was at least a plausible explanation.

New Details That Have Emerged

Unfortunately, recent revelations by the January 6 Committee and now the Oath Keepers seditious conspiracy trial make clear that the FBI’s inaction was not a lack of intelligence, or merely a failure to connect the dots. In its most recent hearing, the January 6 Committee revealed that the FBI, in coordination with other law enforcement agencies including the Secret Service, was closely monitoring activity leading up to January 6, including tracking 52 threat reports from field offices across the United States. One FBI intelligence bulletin indicated that right wing groups were establishing “quick reaction forces” outside the Capitol. These QRFs would later be cited in the seditious conspiracy indictment against the Oath Keepers. One member of the Proud Boys who was an FBI informant had advised his handler in December of plans by some members to bring weapons to the Capitol on January 6, and texted his handler as the attack took place. At the Oath Keepers trial, the “first major piece of evidence” that DOJ prosecutors introduced to establish the group’s scheme to head to Washington and oppose the peaceful transfer of power was a secret recording of a Nov. 9 meeting with the group’s leader Stewart Rhodes. The member of the group who recorded that meeting contacted the FBI in November 2020 with his concern that the Oath Keepers were planning on “going to war with the United States government.” It was only after he contacted the FBI again in March 2021 that he was interviewed and the authorities obtained the recording.

These pieces of threat information preceding January 6 are in addition to information which had been provided to the FBI – ranging from tips and warnings to finished intelligence products – that have surfaced through various government and press reports. Based on Just Security’s January 6 Intelligence Failure Timeline, the FBI received at least 20 independent pieces of intelligence between November 9 and January 6, from sources including sister agencies, social media platforms, and public officials. They are summarized in the Table below.

From Erik Dahl, January 6th Intelligence Failure Timeline, Just Security, June 7, 2022)

In short, the dots had apparently been connected and were simply not acted upon.

Adding to this disturbing picture are additional revelations about the institutional culture behind the scenes at the FBI. In an email written to then FBI Associate Deputy Director Paul Abbate a week after the Capitol attack, the author (who appears to be a former agent or otherwise familiar with individuals from multiple field offices across the country), warns that “a sizeable percentage of the employee population…felt sympathetic to the group that stormed the Capitol.” (Abbate was later promoted to Deputy Director of the FBI.) The email contains specific details from different field offices. The author also chillingly recounts an awareness of several Black agents who turned down opportunities to join the SWAT team because they were not confident that their fellow SWAT agents “would protect them in an armed conflict.”

While the email author’s perception of the pervasiveness of such sentiments are subjective, the revelation of this email came on the heels of the suspension of an FBI agent , Steve Friend, who refused to participate in a SWAT raid of a suspected January 6 defendant, believing that the investigations violated the individuals’ Sixth and Eighth Amendment rights. (NB: The Sixth and Eighth amendments deal with speedy trial and cruel and unusual punishment post-conviction, respectively, not investigations or arrest.) The New York Post, which interviewed Friend following his suspension, reported his claim that “his concerns are shared by large numbers of rank-and-file FBI agents across the country” but who do not vocalize them.”

By contrast, agents familiar with the Hunter Biden investigation have been quick to leak that the FBI has enough evidence to prosecute him for tax crimes and a false statement on his application to purchase a gun. The sourcing is odd, mainly because DOJ prosecutors – not agents (many of whom are not lawyers) – make the final determination regarding whether the evidence gathered is sufficient to prosecute based on the facts. (Recall that a bipartisan and DOJ Inspector General critique of former FBI Director James Comey was that he usurped this role from the Attorney General.) As with the Reuters report last year, the story appears to push a partisan narrative or at least to create public pressure for the U.S. Attorney for Delaware to act. In this vein, it has echoes of the vocal, anti-Hillary Clinton “Trumplandia” contingent in New York who apparently leaked details about her investigation to Rudy Giuliani before the 2016 election and arguably forced Comey’s hand in informing Congress that her investigation had been reopened before the election.

Given all of these facts, it is more than fair to wonder whether the DOJ’s delay in investigating Trump’s role in January 6 was due to stonewalling or slow rolling by agents who did not want to aggressively pursue investigations into Trump. The New York Times report following Cassidy Hutchinson’s testimony hinted that might have been the case. The article stated that the hearing had “jolted” the Justice Department into looking at Trump’s central role in the violence on January 6, noting that earlier efforts to expand the seditious conspiracy investigation had been “shot down” by top officials at the FBI. Although there may have been valid legal reasons for doing so (top DOJ officials were also opposed), the August 2021 Reuter’s report all but absolving Trump and his inner circle of responsibility raises the specter that this was effectively a preordained conclusion on this topic by investigators. More recently, Bloomberg reported that there is even resistance among FBI agents to pursuing charges against Trump for the Mar-a-Lago documents – an arguably much more straightforward case with ample precedent for prosecuting similar conduct – because they do not feel that it would be fair, given that Hillary Clinton was never prosecuted for having classified emails on a private server. (It should be noted that the factual and legal differences between the Trump and Clinton cases, including the applicable statutes, make this an apples-to-oranges comparison.)

Needed Answers

After 9/11, the FBI was under intense scrutiny by the 9/11 Commission, which painstakingly reviewed each missed “dot” in the timeline leading up to that attack. The FBI’s failure was considered so severe that there were proposals at the time to break up the Bureau’s intelligence and law enforcement functions, and create a separate agency for the latter. It is a testament to former Director Bob Mueller’s persuasiveness and perseverance that this did not happen; Mueller held the agency together, upgrading its technological infrastructure and standing up an Intelligence Division tasked with coordinating and sharing information with the rest of the intelligence community.

Perhaps because of his experience with 9/11, Mueller took similar steps with other national catastrophes. For example, he ordered an independent internal investigation into the FBI’s actions preceding the 2010 shooting at Ft. Hood, Texas, which left 13 DoD employees dead and 32 wounded. That investigation, like the 9/11 Commission, identified loopholes in protocol and identified specific recommendations to prevent such a tragedy from occurring again.

Yet, to date, there has been no action taken by Wray to examine what failed internally with respect to January 6, whether as a matter of policy or culture or both.

On January 15, 2021, the Justice Department’s Office of Inspector General (OIG) announced a review of “the role and activity of DOJ and its components in preparing for and responding to the events” of January 6, but this investigation falls short of what the current moment requires for a few reasons. For one, an OIG investigation does not have the same stature as a director-driven review, nor does it signal to agents the importance placed on the Bureau’s response to this event by its own leadership. In addition, the OIG’s review does not include within its ambit a review of the institutional culture, including sympathy among agents with January 6 insurrectionists, nor a review of leaks that may be emanating from these same agents. Even if it did, there is reason to doubt it would be fruitful: The last OIG investigation into the “Trumplandia” leakers took almost four years, and ultimately concluded that it could not identify who they were. (The head of the New York field office in 2016, Bill Sweeney testified to Congress in 2018 that the OIG had never even interviewed him – even though the leaks were coming from that office.) An OIG investigation is not an adequate substitute for an inquiry ordered by Wray himself.

In light of this inaction, there should be a comprehensive congressional oversight review of the FBI. Director Wray should be called to personally account for the Bureau’s inaction leading up to January 6, with respect to at least the following five issues:

1. Discrepancy between congressional testimony and the intelligence information the FBI possessed;
2. Clarification on use of social media in investigations, and why it was not monitored leading up to January 6th;
3. Specific efforts made to curb the “permissive” culture of leaking which the Office of Inspector General found in its 2021 report;
4. Attempts made to identify agents who sympathize with the attack on January 6, and to screen new agents for extremist views; and
5. Specific steps taken to prevent January 6th failures from occurring in the future.

The status quo at the Bureau is an untenable situation, given that politically-motivated violence continues, even against the FBI itself. And the kinds of political pressures on the Bureau during the Trump presidency may yet return in one form or another. With an intelligence and law enforcement failure of the magnitude of January 6, the country needs an examination of the structural flaws and the personal ones as well that brought us to this point.

Click here to access original article.

Asha Rangappa

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