You Should Worry About Kash Patel Running the FBI

Some key pieces appear to be snapping neatly into place for Donald Trump’s much-feared prosecutorial revenge tour as the year draws to a close.

Trump’s new nominee to lead the Justice Department, Pam Bondi, is a staunch loyalist who predicted last year that after Trump’s reelection, “the prosecutors will be prosecuted — the bad ones.” Trump told NBC News that the members of the Jan. 6 committee should “go to jail” (even as he claimed that he would not direct his appointees to prosecute them). And his plan to install Kash Patel as FBI director was made easier after Christopher Wray, himself a Trump appointee, announced he would resign despite having more than two years left on his term.

Trump’s decision to nominate Patel has proven particularly controversial, since his principal qualification appears to be his sycophancy toward Trump. (The Trump transition team didn’t respond to a request for comment.)

Many observers, including former federal law enforcement officials, oppose Patel’s nomination on the grounds that he would likely use the FBI to pursue Trump’s political opponents and that he might substantially corrupt the culture and professionalism of the bureau. To some, Patel calls to mind the specter of J. Edgar Hoover, the infamous FBI director whose nearly 50-year stint running the agency until 1972 was marked by egregious abuses of power — including illegal surveillance, blackmail and the harassment of political dissidents.

Patel clearly lacks the qualifications, experience and temperament to lead the agency. But how worried should the American public really be about him at the helm of the FBI?

The truth is that there are stronger internal and external safeguards in place against law enforcement abuses than during the Hoover era. He will indeed face some constraints because of the culture and bureaucracy of the FBI. But they may not contain him. And he will have plenty of opportunity to damage the bureau and its work — and to use and abuse the FBI for political ends. His nomination poses a considerable and unjustifiable risk to the country.

On paper, there is no way to justify Patel’s ascension. He spent a few years as a federal prosecutor focused on national security and was an aide in Congress and the first Trump administration on intelligence and national security issues. Even setting aside the decidedly mixed and often controversial results of that work (more on that below), Patel has no experience managing anything remotely like the FBI’s sprawling bureaucracy — 35,000 employees, 55 field offices throughout the country and more than 60 offices overseas.

What he does have is years spent endorsing Trump’s conspiracy theories and railing against many of Trump’s perceived enemies in the “deep state” — often in deeply unserious appearances on Steve Bannon’s War Room podcast, on other conservative media outlets and on the campaign trail.

Those appearances — replete with comments from Patel that would disqualify him from consideration for the post in pretty much any other era — have since become a central part of the case against him.

He has frequently denigrated the employees he hopes to lead — perhaps most infamously, when he said he would “shut down the FBI Hoover Building on day one and reopen [it] the next day as a museum of the deep state” and “take the 7,000 employees that work in that building and send them across America to chase down criminals.” He has accused the FBI and Justice Department of “politicizing targets and manufacturing crimes” and questioned “how Americans can have any faith in this FBI anymore.”

Patel went even further in his book, “Government Gangsters,” in which he describes the FBI as “an existential threat to our republican form of government.”

Still, Patel’s stated interest in a full-scale overhaul of the FBI faces some obvious challenges, even setting aside the fanciful notion of immediately shutting down the bureau’s headquarters.

“It takes a year to learn the place, and then only at a surface level,” said a former senior FBI official, who was granted anonymity to speak candidly.

“The truth is that even the most intelligent, thoughtful, engaged, diligent director can’t really bend that place to his will,” the former official told me. “It’s a hard culture and a good culture. Folks are law-abiding, and they’re process-oriented.”

The fear that Patel would use the FBI to go after Trump’s political opponents is also well-founded given Patel’s own public statements. Perhaps most notably, he has threatened to “go out and find the conspirators, not just in government but in the media … who lied about American citizens, who helped Joe Biden rig presidential elections.” He added, “Whether it’s criminally or civilly, we’ll figure that out. But yeah, we’re putting you all on notice.”

He has since tried to walk those comments back, but the rhetoric alone ought to be disqualifying for a position that demands the confidence of the American public.

Patel has also publicly zeroed in on some of Trump’s most prominent antagonists. Among others, he has suggested that Attorney General Merrick Garland, Manhattan DA Alvin Bragg and Anthony Fauci should be investigated or potentially arrested. So far as I can tell from the rhetoric, the legal theories underlying Patel’s claims are at best highly dubious, if not transparently ridiculous.

Still, some of this rhetoric may, at the end of the day, amount to just that: talk.

That’s because the legal and bureaucratic dynamics surrounding the FBI’s work are very different today than they were during the Hoover era, and there are limits to what the FBI can do on its own without drawing serious scrutiny. The bureau’s Domestic Investigations and Operations Guide — known as the DIOG — contains extensive internal procedures for running investigations and cases, and in the decades since Hoover, the bureau has become far more professionalized, and investigative steps are now more thoroughly and meticulously documented.

“Policies have changed. Guidelines have changed. Internal enforcement mechanisms have changed,” the former FBI official told me about the legacy of Hoover. “It would be very hard” to change those things, the person continued, “but it’s a bit of an open question.”

To be sure, a malicious or incompetent investigation by FBI agents can still wreak havoc on someone’s life, but the most potent and intrusive forms of federal surveillance and investigation require lawyers at the Justice Department to cooperate and sign off first.

For instance, in order to issue grand jury subpoenas for things like telephone records, a prosecutor first has to empanel a grand jury — a simple but still necessary undertaking. In order to execute search warrants — both for physical searches and to acquire someone’s personal email communications — lawyers have to submit applications to federal judges for their approval.

Despite these sorts of guardrails, the risks of Patel’s nomination remain real.

For one thing — and it is no small thing — many of Patel’s former colleagues in the first Trump administration describe him as dishonest and unsuited for a top law enforcement post.

“He’s absolutely unqualified for this job. He’s untrustworthy,” Charles Kupperman, Trump’s deputy national security adviser and Patel’s former supervisor, recently told The Wall Street Journal. “It’s an absolute disgrace to American citizens to even consider an individual of this nature,” he said.

During Trump’s first term, former Attorney General William Barr blocked Patel’s appointment by Trump to serve as deputy FBI director. “Patel had virtually no experience that would qualify him to serve at the highest level of the world’s preeminent law enforcement agency,” Barr wrote in his book. Likewise, when Trump considered installing Patel as the deputy CIA director during his first term, Gina Haspel, who was then leading the agency, reportedly threatened to resign. Another former Trump DOJ official who worked with Patel recently described the prospect of him running the bureau as “terrifying.” Again, these aren’t liberal activists: They are Trump officials.

One episode that continues to raise eyebrows: Former Trump Defense Secretary Mark Esper said Patel once nearly bungled an overseas hostage rescue by apparently lying to colleagues about whether the foreign country’s government had approved the operation — and that, as a result, Patel put American lives at serious risk.

There is also opportunity for abuse even in ostensibly straightforward areas, notwithstanding the legal and bureaucratic constraints on the FBI director.

It would be an extraordinary — but not necessarily shocking — move, but Patel could waive the DIOG requirements and order investigations despite the requirements and procedures laid out in bureau guidelines. Patel could also recruit politically sympathetic FBI agents and prosecutors to help on particularly controversial or dubious cases. The process would likely be easier with the help of Bondi at the Justice Department.

The notion of weaponizing the FBI and DOJ in this way is not speculative. After all, Barr appointed special counsel John Durham to investigate the origins of the Trump-Russia investigation amid Trump’s incessant complaints — and came up with little to show for it.

Patel would also be empowered to punish agents who worked on cases that he disfavors on political grounds — like the Trump prosecutions and cases targeting far-right extremists.

“You could pull people’s clearances. You can reassign them. You could promote people you favor over people you don’t favor,” the former FBI official told me. “You have a lot more leverage over the personnel side of the house.”

That could have a durable impact on the temperament and culture of the bureau by disincentivizing agents from working on necessary but politically contentious investigations.

Patel could also use his authority and influence with Trump to selectively de-classify or otherwise release information designed to discredit the bureau and employees who have worked on investigations and cases that they do not like. We have seen a version of this distortion already, in the form of Trump’s claim earlier this year that internal FBI records showed that the agents who searched Mar-a-Lago for potentially classified documents had been authorized to kill him. The language at issue was standard, but that did not prevent Trump from using it to generate a political uproar on the right.

The first Trump administration also provides several important cautionary tales about how a more Trump-friendly FBI could be deployed against Trump’s supposed political opponents — particularly with the assistance of Bondi if she is inclined to help.

During the first Trump administration, for instance, the DOJ’s public affairs office invited a group of reporters to review text messages from FBI officials Peter Strzok and Lisa Page in an apparent — and illegal — effort to embarrass them and discredit the FBI’s Trump-Russia investigation. Earlier this year, the department agreed to pay the pair $2 million to resolve claims resulting from the unlawful disclosure of their communications, but similar efforts could be undertaken again.

It is also possible to start dubious investigations and to then try to trip people up based on alleged process crimes — like lying to the FBI — even if there was no underlying misconduct to begin with. Here too, we saw troubling precursors during the first Trump administration — in the form of the Durham trials and also the effort to prosecute Andrew McCabe, the former acting FBI director during the Trump administration. McCabe was never charged, and two indictments from Durham led to acquittals, but the personal, professional and financial costs of being targeted by these sorts of efforts are high.

There’s one other, perhaps unlikely, episode from the first Trump administration to draw on when thinking about Patel: the family separation saga.

Trump officials at the time tried to implement an illegal and immoral crackdown at the southern border, and they were aided by federal agents and prosecutors. The effort ultimately came to a halt after bureaucratic chaos, public blowback and a ruling from a federal judge, but in the relatively short period of time during which the policy was in place, the government managed to separate over 5,000 children from their families, inflicting incalculable harm on them in the process. Hundreds of them have still not been reunited.

There is a grim but essential lesson here as the Senate weighs Patel’s nomination to lead America’s top law enforcement agency: Malicious and powerful government officials can cause incredible harm — even if they are incompetent, and even if they are eventually stopped.

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