WASHINGTON – Kash Patel, President-elect Donald Trump's nominee to be the next director of the FBI, has big plans.
He has called for the prosecution of a long list of people he accuses of conspiring to undermine Trump, including President Biden, Vice President Kamala Harris, former Secretary of State Hillary Clinton and outgoing FBI Director Christopher A. Wray.
“These people need to go to prison,” Patel said last year. If he carries out this threat, he would transform the once independent FBI into the Federal Bureau of Retribution.
Patel has vowed to purge the federal law enforcement agency of anyone who doesn't fully support Trump and says he will move all 7,000 employees at the agency's Washington headquarters to other cities – apparently including agents now focused on international terrorism and foreign espionage .
“Go hunt murderers and rapists,” Patel said. “They are police officers. Go and be police officers.”
On both counts, he reiterates Trump's long-stated desire to prosecute his political opponents and bring the FBI under control.
The president-elect has called on prosecutors to investigate the Biden family, Harris, Clinton, former President Obama, members of the congressional committee that investigated his attempt to overturn the 2020 election, and even the police officers who guarded the U.S. Capitol against rioters to initiate January 6, 2021 – “The police should be charged and the demonstrators should be released” – among many others.
And he has long harbored particular animosity toward the FBI, which he blames for investigating allegations that his 2016 campaign colluded with Russia and for the 2022 search of his home and club in Florida that resulted in more than 100 secret documents were found that he supposedly did not have.
Since his election last month, Trump has said, not entirely reassuringly, that he has no plans to order an investigation into the Oval Office.
“That will be the decision of Pam Bondi (candidate for attorney general), and to a different extent Kash Patel,” he said last week.
But he added: “If they think someone has been dishonest or corrupt or a corrupt politician, then I think they are probably obligated to do that.”
This shouldn't be a difficult decision for Patel. He has already published an enemy list of 60 people who he considers to be “corrupt actors of the highest order.”
The record of Trump's first term suggests that these threats should be taken seriously.
During his four years in the White House, Trump frequently called for the FBI and Justice Department to investigate his opponents. His aides often resisted, but eventually bowed to his pressure and opened investigations against Clinton, former Secretary of State John F. Kerry, former national security adviser John Bolton, former FBI Director James B. Comey and other former FBI officials. None have been accused of a crime.
These episodes reflect a sobering fact: It's easier for the FBI to launch an investigation than you might think.
“At least when it comes to initiating an investigation, there are basically no limits,” said Paul Rosenzweig, a former federal prosecutor.
For a comprehensive investigation, which could include search warrants and electronic surveillance (if a judge approves), the standards are stricter.
“You have to have an understandable factual basis to believe that a federal crime has been committed,” said Michael R. Bromwich, a former Justice Department inspector general. “A lot of things fit in there, but it’s not limitless.”
“If Patel goes to his deputies and says, 'Let's open an investigation into Liz Cheney,' they're going to ask, 'What's the factual predicate?'” he said, referring to the Republican former congresswoman from Wyoming, a forceful one Trump critics. “There will be resistance at the FBI…unless he finds willing officials willing to come up with something.”
Law enforcement is more difficult. A criminal charge requires clear evidence that the person being investigated committed a specific federal crime.
But just one investigation can have devastating consequences.
“An investigation can cause great harm, even if there are no charges,” Bromwich said. “Investigations are very expensive; A target needs to hire a lawyer. They affect a target's ability to earn a living. And they are extremely stressful.”
“Lives are being ruined,” said Faiza Patel of the Brennan Center for Justice (who is not related to Kash Patel). “People are being laid off from their jobs.”
An investigation also puts a target's private life under scrutiny, potentially putting embarrassing information into the hands of the FBI director.
Under J. Edgar Hoover, who led the FBI for nearly half a century until 1972, the FBI diligently collected private information on politicians and other prominent figures.
The most infamous example was the FBI's attempt to blackmail civil rights leader Martin Luther King Jr. by threatening to expose his extramarital affairs.
So if a president wants retaliation, launching an investigation is a good place to start.
The irony, of course, is that Trump and other Republicans have for years condemned what they said was a “weaponization” of the Justice Department and FBI under Democratic presidents.
Now that they are about to retake the White House, they seem to have decided that armament is now their friend.
But senators from both parties should resist this dangerous trend.
They should carefully consider Patel's tenuous qualifications beyond his loyalty to Trump. When Trump proposed giving Patel the second job in the office in 2020, his attorney general, William Barr, threatened to resign. “The very idea of putting Patel in a role like this showed a shocking distance from reality,” Barr later wrote.
You should ask Patel if he realizes that moving all FBI personnel out of Washington would undermine the FBI's efforts to stop espionage by Russia and China.
And they should ask themselves whether he really intends to turn the office into a weapon of partisan retaliation against any target of Trump's boundless wrath.
GOP senators may want to ask why so many of the names on Patel's enemies list are Republicans who disagreed with him during Trump's first term, including Barr, Bolton and former Defense Secretary Mark Esper.
Then they should think twice about giving Patel the power to investigate anyone he chooses. One day they too could come into his sights.