notice to the Department is not enough; the Attorney General must approve the opening of the investigation.[1]
The memorandum also directs:
- Department components to “review their existing policies governing notification, consultation, and/or approval of politically sensitive investigations,” provide a summary of those policies, and recommend “any necessary changes or updates.”[2]
- The Department to study, after the 2020 elections, “its experiences and consider whether changes” to the requirements in the memorandum are necessary.[3]
The Attorney General recently reaffirmed the need to adhere to the requirements of the Sensitive Investigations Memorandum that govern “the opening of criminal and counter-intelligence investigations by the Department … related to politically sensitive individuals and entities.”[4]
b. CHS guidelines and policy
In 2020, following various OIG reviews, the FBI undertook a “comprehensive review” of the 2006 CHS Guidelines “to ensure that the FBI’s source validation process was wholly refocused, revised, and improved across the FBI.”[5] The 2020 CHS Guidelines thus provide additional direction to the FBI in the handling of human sources. They require information about whether the CHS “is reasonably believed to be a current or former subject or target of an FBI investigation.”[6] There is also a new requirement for information about a source’s reporting relationship with other government agencies.[7] At the time when the Attorney General approved the Guidelines, he also directed that “pending further guidance” he or the Deputy Attorney General must approve “any use” of a CHS “to target a federal elected official or political campaign … for the purposes of investigating political or campaign activities.”[8]
- ↑ Sensitive Investigations Memorandum at 2 & n.3.
- ↑ Id. at 3.
- ↑ Id.
- ↑ Attorney General Memorandum, Election Year Sensitivities (May 25, 2022).
- ↑ Stephen C. Laycock, Memorandum to the Attorney General, Re: Proposed Revisions to the Attorney General Guidelines Regarding the Use of FBI’s Confidential Human Sources (Dec. 23, 2020).
- ↑ 2020 CHS Guidelines § II.A.3.c.
- ↑ Id. § II.A.3.d.
- ↑ Letter from Attorney General William Barr to FBI Director Christopher Wray (Dec. 23, 2020).
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