On February 2nd, 1980, the FBI announced the results of a massive sting operation, codenamed “Abscam,” conducted against members of the U.S. Congress. At the time, this was the largest FBI political corruption operation ever conducted: two years in the making, involving over a hundred agents and hundreds of thousands of dollars in operating costs. The details of the operation were so outlandish they sound like they could have been lifted from a Hollywood movie. The FBI recruited an international con artist named Melvin Weinberg for “creative direction” of the operation, and then had agents pose as wealthy Arab sheiks (hence the name of the operation, a contraction of “Arab scam” or “Abdul scam”) that came a-calling to Capitol Hill to purchase favors and votes. The operation took place on Key West yachts and in Atlantic City casinos, in limousines and on chartered jets, where the “sheiks” lured politicians to glitzy affairs with offers of $50,000 for a favorable licensing deal or immigration waiver. They had astonishing success. Not only were the approached targets receptive, several actively recruited other elected officials to the bribery scheme. Congressmen were caught on tape accepting paper lunch bags stuffed with cash, paired with made-for-movie dialogue such as: “Money talks in this business,” “I’m no Boy Scout,” and “I got larceny in my blood. I’ll take [the bribe] in a goddamn minute.” Weinberg and the FBI reckoned that the sting easily might have nabbed a great deal more Congressmen if the FBI hadn’t run out of bribe money and the press hadn’t scored an early scoop. What followed was a flurry of resignations, hearings, and criminal trials. After the dust settled, six representatives and one senator had been convicted of bribery and conspiracy. Despite controversy over the ethics of the FBI’s methods, every conviction was upheld on appeal.
The fact that these convictions stuck is a reflection of the fact that although the undercover FBI agents involved in Abscam got very close to the line that separates legal deception from unlawful entrapment, the FBI had been scrupulous about staying on the right side of that line: all tapes were immediately reviewed to ensure that agents had not improperly induced wrongdoing; the cash transfers were witnessed and monitored by Justice Department attorneys; and judges signed warrants and sanctioned the FBI’s methods. Nevertheless, Congress—perhaps unsurprisingly—thought that the FBI had gone too far. At hearings before House Subcommittee on Civil and Constitutional Rights and the Senate Select Committee to Study Undercover Activities, Members of Congress aired grievances over FBI undercover procedures, and argued that while undercover investigations could be valuable, the FBI had gone too far, and had engaged in a wildly inappropriate exploratory fishing expedition.
Now, Congress’s actions may not have been purely self-serving. A few years prior to Abscam, a Senate select committee, known as the Church Committee, revealed significant FBI abuses, documented in a whopping fourteen reports that laid out intelligence agency abuses in extraordinary detail. Some suggest—controversially—that Abscam was the FBI’s retaliation against Congress for this public excoriation.
Whatever Congress’s motives, in the decade following Abscam, Congress circled the wagons, pressuring the Department of Justice to implement internal reforms by way of proffering dramatic legislative packages staunchly opposed by Attorneys General. The “compromise” result was a series of restrictive guidelines for undercover and sting operations, guidelines that effectively bar the FBI from ever again conducting an operation similar to Abscam.
The first of these guidelines, the 1981 Civiletti Guidelines, imposed strict limits on the future use of the methods deployed in the Abscam operation. The Guidelines curtailed the ability of FBI operations to authorize informants to engage in criminal activity, and while undercover agents would still be allowed to offer bribes to public officials, the proffered bribe could not be “excessive.” The Guidelines also give prosecutors an oversight and coordination role in undercover missions, and informants such as Weinberg would no longer be carte blanche protected from arrest or prosecution, Most notably, under the new Guidelines any operation involving activity “high public officials” (including, or course, Members of Congress) would require additional checks; future operations against high public officials would require the authorization of Special Agents-in-Charge and approval of a U.S. Attorney, with FBI Headquarters and the Assistant Attorney General immediately informed of such authorization..
By 1983, Congress seemed to recognize an overcorrection regarding oversight of FBI undercover missions. The Smith Guidelines revamped and loosened constraints, chiefly focusing on boosting the FBI’s freedom to conduct antiterrorism efforts. However, though Congress highlighted the need for agency flexibility in undercover operations, congressional rebuke of FBI efforts as it pertained to Congress remained. The unanimous report from the Senate Select Committee investigating Abscam and the revival of the “Undercover Operations Act” demonstrated clearly Congress’s view that investigations into high-level public officials should be subject to stricter rules. And indeed, the Smith Guidelines went even further in restricting the FBI’s ability to conduct undercover operations targeting high-level public officials. In addition to the procedures outlined in the Civiletti Guidelines, the new guidelines carved out a class of activities (with the new and improved label of “Tier 1 Otherwise Illegal Activity”) that required express approval, and not merely the notification, of FBI Headquarters.
Moreover, while later policies (in the form of guidelines, executive orders, or legislation) did relax oversight and expand FBI independence, the retention of post-Abscam constraints on FBI undercover investigations of high-level public corruption was a notable exception to this trend. These procedural obligations and notification requirements effectively eliminate the possibility of an Abscam part II, and more generally make it more difficult for the FBI to check political corruption by high public officials. By the time a mission is approved by undercover review committees, senior FBI officials, a U.S. Attorney, FBI Headquarters, and the Assistant Attorney General (in addition to all other conventional review processes regarding logistics), Congress may already know what’s coming.
Now, the push for increased oversight of undercover anticorruption operations, particularly investigations that are politically sensitive, is far from unreasonable. Congress had good reasons (and still does!) to want greater checks on the FBI. Sting operations must avoid improper entrapment, and informants should not be given blanket immunity for crimes committed while on the FBI payroll. But why are members of Congress allowed to insulate themselves from FBI attention?
This feels wrong, because it is wrong. Congress ought to be facing increased scrutiny, not least because Congressional corruption seems to have only increased since the 1970s, while narrow judicial constructions of the federal anti-bribery statutes have made it much more difficult to get the sort of evidence necessary for conviction without using undercover operations. The corruption is there—Philip Heymann, overseer of Abscam and now Harvard professor, noted that “there is more corruption [on Capitol Hill] than I ever thought imaginable” and that a single FBI sting could result in “very large numbers” of prosecutions. But while FBI corruption stings have been used in abundance against elected officials at the state level and congressional staffers, they have not been seriously applied to Members of Congress since Abscam. And without the robust threat of genuine legal accountability, the preservation of integrity in Congress depends mainly on Congress policing itself though ethics committees that are not terribly effective.
Abscam demonstrated that corruption stings, despite their inherent flaws and risks, are an effective way to keep members of Congress in check. Of course safeguards are necessary. But those safeguards shouldn’t be selectively designed to give Congress special treatment, nor should they functionally prevent the FBI from foreclosing one of the most powerful tools for fighting congressional corruption.
Jaylia, this is a fascinating post. Of course controls on undercover operations shouldn’t prevent the FBI from rooting out Congressional corruption, but I’m not sure that I agree that there shouldn’t be a special set of rules for members of Congress — or elected officials more generally. It would seem that special guidelines governing, for example, how long an operation can continue would be appropriate. If not, can agents keep a sting going as cash is exchanged for actual votes on legislation?
I agree with you that elected officials should have a special set of rules governing undercover operations, but I think those rules should be more lenient than those governing private citizens, not less. First, I should note that this is a strange argument for me to be making because I’m generally a proponent of reigning in police powers, but public officials feel very different to me. First of all, what constitutes an excessive bribe? A company that stands to save $5 million in taxes annually if a certain provision is passed could find a $1 million bribe to be a bargain. The ridiculous quotes pulled from FBI tapes indicate that at least some members of Congress got some sort of thrill from feeling above the law. Imposing additional hoops for investigations into high-level public officials seems like exactly the opposite of what sound anticorruption policy would require. Higher ranking officials are more likely to feel untouchable and more likely to achieve the goals of the briber. They thus deserve more scrutiny, not less. But regardless of rank, I want to live in a world where my elected officials are working for me, not bribers (there’s already enough legalized bribery in lobbying and election law). I actually think I’m okay with the FBI engaging in prolonged so-called fishing expeditions into public officials. While I’d prefer an elected official not take a bribe out of a sense of integrity, refusing a bribe out of fear of a potential sting works just as well. I can’t believe Congress had the audacity to complain about the methodology of a legal and wildly successful sting operation as our prisons filled with those caught through stop and frisks. I just don’t understand why the public didn’t demand greater accountability in the aftermath of Abscam instead of letting Congress actively decrease anticorruption oversight.
Hi Sam, though setting aside special provisions for elected officials is certainly up for debate (see the impassioned argument below!) I’m going to treat this as though Congress has pushed for essentially procedural impunity. Elected officials, especially Congressmembers, are especially vulnerable to bribes and have very few oversight functions regarding how bills will get made and what pork goes in (how can you tell if a provision was written for a constituent or a company?)
As for the limits to how long a sting can go, this is already subject to ethical and resource constraints set forth by the FBI in conventional sting operations. It’s a delicate balance of flexibility versus efficiency versus justice, and there probably will not be a perfect solution. But perfect cannot be the enemy of the good, especially when it comes to checking governing figures.