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We are about to find out, in real time, whether the Federal Bureau of Investigation remains a neutral law-enforcement agency or whether it has been transformed into an instrument of Republican power. Will the FBI help the Republican Party force through a partisan redistricting plan in Texas, or not? The answer to that question is of vital importance to sustaining American democracy.
Republican state legislative leaders want to redraw Texas’s congressional districts to give their party as many as five more seats in next year’s midterm elections. Dozens of Democratic state lawmakers have fled Texas in an effort to prevent the legislature from reaching a quorum and passing the law. The lawmakers who left are now staying in Illinois, Massachusetts, and other locations. To force the legislators to return, Republicans have voted to issue civil warrants, which authorize Texas law-enforcement officers to find the missing lawmakers and forcibly return them to the statehouse, in Austin.
But neither the civil warrants nor the powers of Texas police extend outside the state’s borders. No Texas sheriff can go to Chicago, find the missing legislators, and drag them home. And, naturally, the law enforcement in Illinois and the other Democratic states to which the Texas representatives have fled are offering no assistance. Indeed, blue-state political leaders are promising to resist any such effort and are practically salivating at the prospect of a confrontation.
[Elaine Godfrey: How the Texas standoff will (probably) end]
This is where the federal government might step in. Senator John Cornyn of Texas has asked the FBI to help his state track down the missing legislators. He has publicly claimed that FBI Director Kash Patel has agreed to assist state and local law enforcement in the effort. So far, the FBI has declined to comment on the matter. But if the agency actively assists Texas police in locating and detaining the missing legislators, then it will be acting in an utterly lawless manner—and that will be of even graver concern than the underlying redistricting effort.
Granted, the location of many Texas legislators is so well known that the St. Charles, Illinois, hotel where some are staying was the subject of a bomb threat. If the FBI does nothing more than provide Texas officials with information that is already publicly available, then its activities are hardly worth the worry. But the agency isn’t an arm of the Republican Party and should studiously avoid getting drawn into the political fight in Texas.
Congress created the FBI, which by statute is authorized “to detect and prosecute crimes against the United States.” In other words, the FBI may investigate and prosecute federal crimes, not state-law-based criminal charges. That limitation has a few small exceptions. For example, the FBI is authorized to investigate the murder of state and local law-enforcement officers even if those murders involve crimes only under state law. But the existence of explicit statutory exceptions serves only to reinforce the general rule. The jurisdiction of the FBI, as the first word in the agency’s name suggests, is limited to federal crimes.
Americans’ historical aversion to the FBI’s engagement in state and local issues is a reaction to the excesses of the J. Edgar Hoover era. Today, that general rule of limitation is so strong that the FBI’s own internal guidelines, outlined in the Domestic Investigations and Operations Guide, require identification of a predicate federal crime before the FBI may even open an investigation, much less conduct intrusive investigative activities. Likewise, the FBI can typically assist state and local investigations only when they involve possible violations of federal law. (The exceptions involve extreme, rare circumstances such as mass killings or serial murders.)
Nothing about the Texas redistricting dispute would plausibly justify the FBI’s active engagement. For one thing, the Texas lawmakers’ flight from the state isn’t even criminal under Texas law. The warrants issued are merely common-law civil instruments to compel presence, much like a civil subpoena to testify. For the FBI to become involved in the enforcement of civil law would be an extraordinary expansion of its authority. Proving a negative is hard, but I am unaware of any other circumstance in which FBI authorities have been engaged in a civil matter.
Second, the Texas state matter is—well, a state matter. Even if it did involve some criminal allegations, those would relate to Texas’s criminal law—and thus be outside the bounds of the FBI’s federal jurisdiction. No one can credibly argue that the Democrats’ effort to defeat a quorum has anything in common with the mass killings or serial murders that may trigger FBI involvement in state crimes.
To avoid these rather obvious issues, Cornyn almost half-heartedly suggested that the missing Democrats are “potentially in violation of the law.” He maintained that “legislators who solicited or accepted funds to aid in their efforts to avoid their legislative duties may be guilty of bribery or other public corruption offenses.” But this claim was a transparent attempt to manufacture a federal “hook” for the FBI, given that he offered no evidence that the legislators had solicited money as an inducement for their actions. Indeed, manifestly, they aren’t seeking self-enrichment in fleeing their homes. Moreover, as the Supreme Court held just last year, contributions for already-completed acts (such as leaving Texas) can never be considered violations of the federal anti-gratuity statute. No doubt Cornyn, a former judge, knows all this. But he appears to have concluded that political necessity required some pretext, however frivolous, for a federal investigation.
[Tom Nichols: Tinker tailor soldier MAGA]
In short, if the FBI provides Texas Republicans with substantive assistance in bringing their Democratic counterparts back to Austin, that will be utterly unmoored from the FBI’s statutory authority and completely outside the bounds of its existing domestic-operations guidelines. Americans now face transgressions of settled legal norms every day, it seems. But the particular norm under threat in Texas—the need to prevent the party in power from using federal law-enforcement officers to implement its own political ends—is especially important because of the coercive authority that police carry with them.
One hopes that the FBI will step back from the brink of legal chaos. But if the FBI jumps off the cliff and does the Republican Party’s bidding on a manifestly political question, it will be a dark day for American democracy. Enlisting the FBI as the enforcement arm of a political party is a step toward a literal police state.
