In the days since Kash Patel’s nomination hearing for F.B.I. director, a crisis of historic proportions has engulfed the Justice Department and the Bureau. The idea of Patel leading the F.B.I. through this period should be too much to bear for senators who care deeply about steadying the bureau and keeping its enormous powers in line with the rule of law. Understood in the context of Justice Department memos that have leaked in recent days, the answers that Patel gave in his nomination hearing and more recently in questions for the record, should heighten those concerns.
While Patel sat answering senators’ questions and assuring them that no F.B.I. employee “will be terminated for case assignments,” we now know that senior F.B.I. officials right across town were being issued an ultimatum to resign or be fired. The following day, conspicuously after Patel’s nomination hearing was over, in a memo titled, “Terminations,” the acting Deputy Attorney General Emil Bove ordered the immediate firing of eight of the most experienced senior F.B.I. officials. Bove’s memo also demanded a list of every F.B.I. employee who ever worked on a January 6th case to determine if “any additional personnel actions are necessary.” Bove explained his move as making good on “what President Trump appropriately described as ‘a grave national injustice,’” a quote Bove took from Trump’s opening line in his order of clemency for all the January 6th defendants (including the scores who assaulted law enforcement officers).
This purge of career civil servants was a betrayal of “the commitment that Director-nominee Patel made to the F.B.I. Agents Association,” according to a statement by the organization. The forced resignations were also rightfully called “illegal actions” in violation of civil service laws, by another professional group, the Society of Former Special Agents of the F.B.I. Indeed, the orders of the Justice Department are so patently unlawful that the acting F.B.I. Director Brian Driscoll, as well as the acting deputy director and other senior F.B.I. officials across the country, outright resisted.
Patel’s use of “a deft duck-and-deny strategy” (as the New York Times aptly described it) to avoid senators’ questions on this very topic should now come back to haunt him, and to haunt the Senate.
During Patel’s nomination hearing, Senator Corey Booker (D-NJ) asked pointedly, “If there are actions against FBI employees that do not follow those standard process[es] that happen before you get in, will you commit to reversing any decision prior to your arrival so that those standard processes and the standard review by the FBI inspections division will take place?”
Patel ducked. “I don’t know what’s going on right now over there,” he said, adding: “I will honor the internal review process of the F.B.I.”
Senator Booker’s question is no longer a hypothetical. We all now know what’s going on over there, and Patel needed to provide a far better and direct answer as to whether he would reverse those decisions under those circumstances. The Senate, the F.B.I. associations, and the American people now need more than Patel’s elliptical answers. One is left wondering why he ducked the question.
What’s more, after testifying that he did not know what was happening, he gave a different answer in written responses – this time saying he did not recall whether he knew.
But that’s by far not the most worrisome part of Patel’s nomination process.
Other statements by the nominee can be seen as false assurances or worse. On whether he would investigate senior F.B.I. officials like former director Christopher Wray, who oversaw the Jan. 6 investigations, Patel said that he had “no plans in going backwards” and “no intentions of going backwards.” But whatever his personal “plans” or own “intentions,” we have since learned that the purges are being conducted, according to Bove’s Jan. 31 and Feb. 5 memos, pursuant to an executive order mandate — the “Ending the Weaponization of the Federal Government.” And, on her first day in office, Attorney General Pam Bondi issued a memorandum setting up a Weaponization Working Group, the outline of which already accepts Trump’s premise of outright corruption at the F.B.I. The working group is being led by Bove (Trump’s former criminal defense counsel) and the controversial Interim U.S. Attorney for D.C. Edward Martin, who represented Jan. 6 rioters. Bondi’s memorandum also invoked the executive order as its controlling mandate.
What is the executive order and how will it function in Patel’s hands?
The executive order declares that the “Department of Justice has ruthlessly prosecuted more than 1,500 individuals associated with January 6” and commands Trump administration officials “to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement.” The Attorney General “shall take appropriate action to review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States” and “identify any instances where a department’s or agency’s conduct appears to have been contrary to the purposes and policies of this order.” The Attorney General is also required to make “recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.”
It does not take much to connect these dots. The White House has declared that the prosecutions of January 6 rioters were wholly unjust – an example of the supposed “weaponization” of the federal government. Senior DOJ and F.B.I. officials have already been fired in accordance with this order. It strains credulity to think that their former boss, Chris Wray, and others have nothing to fear. (For more on Patel’s recriminations of Wray, see this interview.)
Now let’s closely examine what Patel said in his written questions for the record following the hearing.
Senator Adam Schiff (D-CA) asked: “Do you agree it would be improper for the President or the White House to direct, task, or otherwise provide input on whether the FBI or DOJ should initiate or undertake a review of activities by current or former U.S. government officials or other private citizens?” Patel replied, “This is a hypothetical question, and one I have no reason to believe would actually occur.” But it is not a hypothetical. In his first administration, Trump pushed the DOJ and FBI over a dozen times to criminally investigate or prosecute perceived enemies. What’s more, the executive order is the instantiation of the very question posed by Schiff.
Most significantly of all, in the questions for the record, Patel switched his line of answers away from the reassuring ones that he has “no plans in going backwards” and “no intentions of going backwards.” Indeed, those statements were so reassuring that a Republican senator cited his words near the end of the nomination hearing in support of Patel. Now, however, when pressed by Senator Christopher Coons (D-DE) on that same topic, Patel replied in writing that he would follow through on the weaponization E.O.
Sen. Coons: If confirmed, how do you intend to comply with Executive Order 14147 without “going backwards”?
Director-nominee Patel: If confirmed, I will direct the FBI to comply with all lawful Executive Orders. In accordance with EO 14147, it is appropriate for the FBI Director to ensure that the FBI is not weaponized or politicized.
What’s more, as to whether he would pursue retributive investigations or whether he had any discussions with the transition team to do so, Patel said in his nomination hearing that he would “use the Constitution.” But that’s no assurance at all. In one of the purge memos, the DOJ leadership told prosecutors that the Constitution’s Article II powers give the president the complete authority to fire career staff, rather than claiming that they were fired for cause in compliance with the civil service statutes. That move is consistent with the “dictatorial theory of executive power,” in which the second Trump administration has audaciously claimed the authority to override any statute the president thinks gets in the way of his policy agenda. Patel’s commitment to follow the Constitution is best understood as a feint, not a pledge of fidelity to the law.
Patel is among the last people who could or should lead the Bureau. His outrageous and repeated suggestions that the F.B.I. may have been responsible for the January 6th assault on the Capitol and planned it a year in advance are themselves disqualifying. Indeed, Patel’s success in persuading many Americans of conspiracies is one reason for the public’s lack of trust in the F.B.I. What’s more, his aggrandizing members of the January 6th prison choir and calling them “political prisoners” (when in fact several members had been convicted of assaulting law enforcement officers) is part of what led us to a place in which the Trump administration is purging civil servants – the same career officials who helped put violent January 6th rioters behind bars. (During his hearing and in questions for the record, Patel claimed he did not know the identity of the choir’s members. But even if that were true, he has then shown extremely bad judgment in his promotion of them without finding out.)
Much has changed since Patel’s nomination hearing. The new concerns expressed by the F.B.I. associations should alone cause the most principled senators who may have been inclined to support confirmation to reconsider.
Another piece of knowledge gained in the past few days is that the Bureau is currently in the care of leaders who have been tested and are holding the line on the rule of law. Senators across the aisle should oppose this nomination. Take a stand for the country that Patel, whatever one thought of him before, is surely not suited for the office under the new circumstances.