Robert Mueller and the 'up or out' management policy that damaged the FBI

Robert Mueller and the 'up or out' management policy that damaged the FBI
© Getty Images

The law of unintended consequences often applies to economics, but may be more broadly defined as the actions of people or government, that result in consequences that are unforeseen.

Much of the current criticism of the FBI can be traced back to a management policy enacted for the sole purpose of attracting more “talent” from the field office ranks and luring it to FBI headquarters in D.C. The lasting side effects, however, were never fully anticipated.

Robert S. Mueller, III, the current special prosecutor in the Russian election meddling investigation, was appointed the FBI’s sixth director a week before the terror attacks on 9/11.


Faced with an onerous emerging threat — one that had been historically mitigated by America’s geographical location — he set about to remake an agency that has stubbornly resisted change.

His predecessor at the bureau, Louis J. Freeh, had been wildly popular for defying the norms of a bureaucracy. He emptied out the management cubicles and unapologetically reassigned a large swath of headquarters denizens back to FBI field offices.

His plan was to create a larger federal footprint in American cities, commensurate with Presidents George H.W. Bush’s and Bill ClintonWilliam (Bill) Jefferson ClintonTrump endorses Glenn Youngkin in Virginia governors race Never underestimate Joe Biden Joe Biden demonstrates public health approach will solve America's ills MORE’s stated goals of  “more cops on the street,” during the high-crime era of the late-80’s and early-90’s.

Faced with a diminished headquarters apparatus, and hyper-focused on reshaping the bureau into more a domestic intelligence than criminal investigative agency, Mueller moved quickly to realign the FBI. Almost immediately, he redefined its mission priorities and made protecting the United States from terrorist attack its Job One.

The immediate order requiring an expansion of the counterterrorism division resulted in the forced-transfer of mid-career agents and managers from the criminal branch ranks to staff the vacancies.

Then, an intelligence branch was also stood up, taking its place alongside the bureau’s mainstays that included criminal, counterterrorism, counterintelligence, special operations, and administrative divisions.

And with these significant changes came one more identified deficiency: There simply weren’t enough bureau managers at headquarters to handle oversight of the shifting caseload.

In 2004, Mueller arrived at a solution. Recognizing that much of the bureau’s institutional knowledge and experience was located within the supervisory special agent ranks in FBI field divisions. He settled on a shortsighted plan to compel veteran agents off their “desks” — bureau parlance for supervisory oversight of a line squad — and force them down to headquarters, if they desired to remain part of management ranks.

And so, the wildly unpopular Field Office Supervisor Term Limit Policy (FOSTLP) was born.

The intended result of this policy was to force a migration of field “talent” to D.C. Which would also result in opening vacancies of field desks that had long been home to some of the bureau’s most seasoned and experienced managers.

And Mueller’s blunt assessment of the policy was that this myopic tactic would counter the bottleneck within the FBI’s mid-management ranks.

But many field supervisors balked at the 5-year term limit — which, by way of “compromise” was expanded to 7-years around 2009 — having made a life with family and indelible work relationships with local law enforcement colleagues within their territories.

Mueller’s team began offering attractive financial incentives, such as housing allowances, per diem. And he also promised additional allowances and step-increases upon return, while reducing the time requirement for headquarters assignment from a standard 2 to 3-year tour, down to just 18 months.

They also inexplicably allowed junior agents — some with just three years in the field — the opportunity to participate. This was a break from FBI tradition and culture which typically stipulated that an agent serve a decade in the field, learning the business and being successful case agents before considering a tour at headquarters and ascension up the career ladder.

Many senior agents on field desks elected to retire, taking with them decades of experience.

In government, immediate needs and instantaneous gratification by way of spreadsheets seldom fully consider the contraindications of policy decisions.

And so, in the early aughts, junior agents packed up in droves, taking advantage of the heretofore unseen financial incentives and shortened headquarters tour requirements, and flocked to D.C.

The FBI Agents Association (FBIAA) — whose current leadership declined to comment for this story —gamely fought the unpopular policy in the ensuing years, filing a lawsuit in D.C. federal court that was predicated on age discrimination on behalf of those former supervisors who could prove they had been unfairly impacted.

Though the court ultimately ruled against the plaintiffs in 2013, it acknowledged some financial compensation was due to those affected agents who had been in position at least three years prior to the 2004 policy implementation.

What seemed so utterly unfair to many of us in the bureau ranks at the time was this: Why was there no effort to grandfather those who were in the bureau before the new management program requirements were implemented?

Mueller, ever stern and taciturn, listened politely to these offered complaints and compromises by various FBI agent representatives, and firmly held his ground.

When James B. Comey, Jr. succeeded Mueller as director in September of 2013, many agents – including the author — hoped he would listen to the consensus from his 56 field division special-agents-in-charge and scuttle the policy.

Disappointing word leaked out to the field that Comey’s reverence for Mueller would never result in his undoing of one of Mueller’s signature policies.

So the program still exists, even under Comey’s successor Christopher A. Wray. It remains as wildly unpopular amongst the rank and file, except for those inexperienced and junior agents who have opportunistically reaped the benefits of premature advancement.

The FBI’s “up or out” policy is celebrating its fourteenth birthday. The details and effects of it are certainly not part of the current public discussion of some troubling and fairly damning developments within the FBI’s senior executive ranks.

But the omnipresent law of unintended consequences is inextricably linked to the FOSTLP.

And an inextricable connection can be made between some of the current players entangled in the web of alleged FBI politicized decision-making and their alumnus status in Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE’s early promotion incentive program.

Hopefully, the man who currently occupies the most powerful office space on the seventh floor at FBI headquarters has taken notice.  

James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He also serves as an adjunct assistant professor at St. John's University and is a leadership consultant at the Thayer Leader Development Group (TLDG) at his alma mater, the United States Military Academy at West Point. Follow him on Twitter @JamesAGagliano.