Two days after the Midterm elections, the federal Office of Special Counsel (OSC) rejected a complaint by FBI whistleblower Stephen Friend. Special Agent Friend had complained of alleged bias and mishandling by the Dept. of Justice and FBI when it comes to prosecuting cases from the January 6, 2021 pro-Trump rally and Capitol riots.
In a letter, the OSC noted that the agencies are offered wide latitude in how they handle various cases, and so "we cannot find with a substantial likelihood that the agency has violated a law, rule, or regulation, or has abused its authority. Therefore, we will take no further action in this matter."
Friend is among more than a dozen FBI agents and employees who have allegedly blown the whistle to Congress about the agency's allegedly politically-motivated bias and practices.
Friend told me in an interview on Full Measure that he was suspended after refusing to take part in what he saw as heavy-handed and unnecessarily harsh SWAT-style raids of January 6 suspects who, in some cases, he says, were shown on video doing nothing violent and perhaps not breaking any laws.
Read the letter Friend received from the Office of Special Counsel below.
Mr. Stephen Friend
c/o Mr. Daniel Meyer Tully Rinckey PLLC 2001 L Street, Suite 902 Washington, DC 20036
U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W., Suite 218 Washington, D.C. 20036-4505 202-804-7000
November 10, 2022
Re: OSC File No. DI-22-000924 Dear Mr. Friend,
The U.S. Office of Special Counsel (OSC) has completed its review of the information you referred to the Disclosure Unit. You alleged employees of the Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Washington, D.C., engaged in activity that may constitute a violation of law, rule, or regulation and an abuse of authority.
OSC is authorized by law to determine whether a disclosure should be referred to the involved agency for investigation or review, and a report; however, OSC does not have the authority to investigate disclosures. OSC may refer allegations of violations of law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety; or censorship related to scientific research. Disclosures referred to the agency for an investigation and a report must include information sufficient for OSC to determine whether there is a substantial likelihood of wrongdoing.
You alleged that the FBI engaged in manipulative casefile practices related to its investigation of events that took place at the U.S. Capitol on January 6, 2021. You indicated that the FBI established a task force, based out of the FBI’s Field Office in Washington, D.C., to identify potential subjects and initiate investigations into any criminal activity that may have occurred during the incident at the Capitol (J6 Task Force). You indicated that J6 Task Force members in the Washington Field Office perform much of the case management, investigative work, and presentation of J6 cases to the U.S. Attorney’s Office for prosecution—but do not act as the case agents or originating office for the case.
You alleged, instead, that the J6 Task Force has followed an atypical process by assigning J6 cases to field offices throughout the country, usually based upon where the subjects reside. While this practice doesn’t necessarily violate the FBI Domestic Investigations and Operations Guide (DIOG), you alleged it is not proper in these cases because the DIOG assigns overall responsibility for supervision of the investigation to the originating office and case agent, yet the critical investigative decisions are routinely being made by the J6 Task Force members at the Washington Field Office. You further alleged FBI officials used this irregular casefile management process to manipulate crime statistics. You also alleged this administrative irregularity could constitute a violation of J6 investigation subjects’ constitutional rights.
Mr. Stephen Friend Page 2
When determining whether there is a substantial likelihood of wrongdoing, OSC looks at several factors—including whether the whistleblower has first-hand knowledge of the wrongdoing. We understand that you were assigned to the Jacksonville Florida Field Office Joint Terrorism Task Force (Jacksonville JTTF) from October 2021 to August 2022. During that time, you were assigned as “case agent” on approximately six J6 Task Force casefiles with subjects who resided in and around the Jacksonville area. You were not involved in the decision to open those cases or to identify the Jacksonville Field Office as the “office of origin,” nor did you identify the individuals from the Washington D.C. or Jacksonville offices who made those decisions.
We have carefully reviewed and considered the information you provided, including your sworn declaration and the DIOG, as a possible abuse of authority or a violation of a law, rule, or regulation. The DIOG is internal guidance that is “not intended to...and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter, civil or criminal, nor [does it] place any limitation on otherwise lawful investigative and litigative prerogatives of the DOJ and the FBI.” DIOG § 2.5. The DIOG also provides the FBI Director discretion to approve departures from its requirements. DIOG § 2.6. Thus, your allegations concern a matter of agency discretion. Agencies are generally afforded a wide degree of latitude in these areas, and the DIOG expressly allows departures from its requirements. Although we understand you strongly object to the FBI leadership’s decision to depart from the DIOG’s guidance for J6 Task Force casefiles, you were not involved in the decision-making process, and you have not provided specific information to establish that the departure was made improperly. Therefore, we cannot find with a substantial likelihood that the agency has violated a law, rule, or regulation, or has abused its authority. Therefore, we will take no further action in this matter.
Should you wish to pursue these allegations further, you may contact the Department of Justice, Office of Inspector General at 950 Pennsylvania Avenue, N.W., Suite 4706, Washington, D.C. 20530; hotline number: (800) 869-4499; main number: (202) 514-3435; or online here: Hotline (justice.gov).
(Personal information edited out here)
Attorney, Disclosure Unit