Oakland Mayor Sheng Thao heads into recall election with FBI raid over campaign

Here is how the FBI raid of Oakland Mayor Sheng Thao's home is impacting efforts to recall her.

OAKLAND, Calif. - It’s been roughly two months since the FBI raided Oakland Mayor Sheng Thao’s home and there are roughly two months to go to the November recall election where voters will be asked if they want to remove her from office.

The raid and the recall didn’t start as connected, but Thao’s critics have certainly used the June 20 high-profile seizure of boxes from her home as ammunition that she should no longer be mayor.

But these critics don’t have proof of what she is accused of doing, and neither does the public.

As is policy, the FBI has remained mum on what agents were looking for. The mayor's raid came on the same day as the homes of the Duong family, a politically connected family who own Cal Waste Solutions, the city’s recycling company, who have been investigated by Oakland and the Fair Political Practices Commission over bundling of campaign contribution allegations.

And it’s likely the public won’t know anything before the election.

The FBI told KTVU there are no updates on the raids, and the agency didn’t give a timeline for when they would – if ever.

Thao has consistently said she is innocent of any crime or wrongdoing. And she reiterated that last week in a one-on-one interview with KTVU.

"I am 1,000% confident that I will be vindicated," she said. "I still have the same questions. What was the probable cause to come into my home, to make this huge scene? You know, at the end of the day, the reason why I'm still making sure that we're moving with all the successes in the city of Oakland is because I know I did nothing wrong."

No interactions with FBI

During that interview, Thao said that to date, she has yet to sit down with any FBI investigator.

She also said her attorney, Jeff Tsai, has asked FBI agents what they allegedly are looking for, but received no real response. Tsai did not return a comment to KTVU.

Thao said she feels it is unfair that the FBI "knocked down" her doors, but won’t say anything more.

"However, we're not going to focus on stuff that we can't control," Thao said. "We're going to continue to do our job."

She said at this point she was "purely focused" on being the mayor of Oakland.

The FBI and elections

Does the FBI have a legal – or even an ethical – obligation to either clear a subject or charge them, knowing that an election is around the corner?

According to former FBI agent Stuart Kaplan, the answer is: Sort of.

The FBI and the U.S. Department of Justice have guidance to enforce laws in a "neutral and impartial manner," especially in an election year, so as not to appear partisan.

The guidance doesn't spell out what that means. In past situations, sometimes federal authorities have spoken up before an election and sometimes they haven't.

"The bottom line is any action shall not interfere with an upcoming election," Kaplan said.

Kaplan added that investigations, like the one into the mayor and the Duong family in Oakland, can often take about a year or two. Because of that, Kaplan added that the public likely won’t know anything until long after the November election.

2 FBI investigation-before-election examples

There are a couple of prior investigation-before-election examples to point to; each yielded different results.

Kaplan highlighted a New York case where then-US Rep. Michael Grimm was indicted in 2014 for mail fraud, health care fraud and filing false tax returns, which were kept under seal until after his election.

Once he was reelected, the indictment was disclosed to the public. Ultimately, he ended up resigning at the end of that year.

Then, in 2016, FBI Director James Comey took the unusual step – without the pre-approval of the Justice Department – in announcing he didn’t think Hillary Clinton’s use of personal email on government computers rose to the level of filing criminal charges. He said he felt it necessary that the public have this information before the election against Donald Trump to make an informed decision. Trump won the election.

In Kaplan’s mind, Comey overstepped his authority as the head of the FBI and believes he should have left the public announcement to the federal prosecutors.

"The FBI's sole mission and sole responsibility is to collect evidence," Kaplan said. "And it is the sole responsibility of the United States Attorney's Office to decide whether or not there is sufficient evidence to charge someone. When Jim Comey came out and took a position to say the FBI felt that there wasn't sufficient evidence to charge someone, he misspoke."

As for how Thao is handling herself, Kaplan said he’s "not impressed by the mayor's steadfast position that she didn't do anything."

What politician would ever say he or she did something? Kaplan asked rhetorically.

‘Dark cloud’ over Thao campaign

Until Thao is legally cleared, the image of FBI agents raiding her home "sends a dark cloud" over her campaign, KTVU political analyst Brian Sobel said.

"And that becomes somewhat problematic," he said, "especially during an election year."

On the one hand, the FBI has to do its job and investigate possible crimes when they come up, Sobel said.

But on the other hand, when those investigations come up during election years, they "do have the ability to change the outcome of an election, just by intimating that there may be something wrong with the candidate," he added.

And that becomes "hugely damaging to a public official," Sobel said.

Absent the FBI clearing Thao’s name, Sobel said in his political opinion, the mayor should be hammering home to her constituents that she is innocent – if, in fact, she is.

"She should have vociferously been out there every day saying, ‘I remind law enforcement, put up or shut up,’" Sobel said. "‘Otherwise, I've got a campaign to run, and I'm going to go out and tell the people of Oakland, that I have nothing to fear and they have nothing to fear by voting for me.’"

And then ultimately, Sobel said, it’s up to the voters to say, "Well, I either believe her or I don’t."