Patel FBI plans spark concern over agency independence, retribution

(The Hill) -- Kash Patel, President-elect Donald Trump’s nominee to lead the FBI, has promised to deliver a massive reform of a bureau he sees as among the agencies that have “weaponized the government.”

Patel hasn’t offered specifics on his plans for the FBI, but he’s made it clear that sweeping changes are on the table.

He regularly refers to the FBI as part of the “Deep State” and has described many of Trump’s adversaries as “government gangsters” who must be “held accountable and exposed.”

But among proposals to more swiftly declassify records and change government surveillance programs, the biggest concern from former FBI and Justice Department officials is that the agency could lose its independence, fearful that the bureau could be tasked with carrying out politically motivated investigations by a president who has said he will “go after” his perceived enemies.

“One thing that I think people lose sight of, and the senators need to really kind of refocus on, is the fact that our justice system works because the attorney general is not the president's lawyer. He or she is the people's lawyer. And the FBI is not the president's kind of private investigative firm, right? It's the public's investigative-slash-national security investigative arm,” said Greg Brower, a former U.S. attorney appointed by George W. Bush who also served as the bureau’s deputy general counsel.  

“And I think nominees are going to have to convince the senators that they understand that and that that's the reality for very good reasons,” added Brower, who also served as head of the FBI’s legislative affairs office under Trump.

“The rhetoric doesn't even pay lip service to that concept.”

Patel held a number of national security roles under the first Trump administration, but it was his “pivotal role in uncovering the Russia, Russia, Russia Hoax” as an aide to then-House Intelligence Chair Devin Nunes (R) that the president-elect mentioned first when announcing his decision.

“I'd shut down the FBI Hoover building on Day One and reopen it the next day as a museum of the ‘Deep State,’” he said during a September podcast interview with Shawn Ryan, referring to the agency’s headquarters. 

“And I take the 7,000 employees that work in that building and send them across America to chase down criminals. Go be cops.”

Patel has floated prosecuting journalists, saying, “we’re going to come after you” and putting the press “on notice.”

Trump and the GOP have repeatedly accused the FBI and others of weaponizing the government, and Trump has railed against the prosecutions brought against him as being politically motivated.

It’s not a topic Patel has shied away from, listing in his book “Government Gangsters” 60 people he says are part of the “executive branch deep state.”

And Trump over the weekend said that while he did not expect Patel to launch investigations nor would he direct Patel to do so, he left the door open to probes.

“If they think that somebody was dishonest or crooked or a corrupt politician, I think he probably has an obligation to do it,” Trump told NBC’s Kristen Welker on Sunday on "Meet the Press."

The Trump campaign pointed to the exchange when asked for comment on this story.

Concern over potential plans for retribution have spurred discussions at the White House, with President Joe Biden mulling preemptive pardons for Sen.-elect Adam Schiff (D-Calif.) and former Republican Rep. Liz Cheney (Wyo.), both of whom served on the Jan. 6 committee, as well as Dr. Anthony Fauci, a pivotal figure in the pandemic who fell out of favor with Trump.

“My biggest concern is anybody who says they're gonna go into the bureau and use the very, very significant authorities of that organization to investigate people. There's a lot of very strict requirements for us to open investigations. And anybody who says, ‘I'm gonna go in there and basically wield that power for my own agenda’ is terrifying,” said one former Trump DOJ official who worked with Patel when he was a staffer on the House Intelligence Committee reviewing the Crossfire Hurricane investigation.

“I think the bottom line is, people there — I've talked to several — are worried. They're worried about the institution’s powers getting used in the wrong way. That's what I'm worried about, too.”

It’s not clear what Patel’s path will be in the Senate.

Plenty who have likewise scrutinized the FBI were excited by the pick.

Sen. Ted Cruz (R-Texas) called him a “very strong nominee,” and Sen. Joni Ernst (R-Iowa) told Axios he is “going to be great.”

"We really do need people that will go in and shake up some of these organizations,” Ernst said.

But even those who have called for reform of the FBI stressed the need to do so thoughtfully.

“He's looking at a major overhaul of the organization,” said Chris Piehota, a former longtime agent who retired from the bureau in one of its top roles, executive assistant director for science and technology.

Piehota has been critical of the agency, penning a book that analyzes its challenges going forward.

“If the administration is only looking for a demolition operation inside the FBI, then anybody will do. If the administration is looking to actually fix some of the FBI internal problems and make them an organization that is once again trusted and revered by the American people, then Mr. Patel has a hard road ahead of him, and he won't be able to do it by himself," Piehota said.

Even with their concerns, former officials have questioned how far any problematic investigations might go.

“You must have predicating information that justifies an investigation. You must have various supervisory approvals for certain activities and certain actions taken. It all has to be documented, and it all has to be at the proper levels…there are safeguards in place if the organization is operating in a principled manner,” Piehota said.

“I think there would be a strong aversion to an investigative effort based solely on politics and political angles. There are many people in the FBI who would resist that strongly, because there are people in the FBI who are still believers in the apolitical, objective position that the FBI must hold.” 

And Brower noted advancement would also stretch beyond the FBI.

“Ultimately, you have to get lawyers from across the street at DOJ to agree to be able to facilitate obtaining grand jury subpoenas, etc., etc. So it's incredibly hard for one person to do, even if that person is at the top,” he said.

Patel has pushed other changes at the FBI, including calling for swifter declassification, saying the government should set up a “24/7 declassification office.”

“Get America the truth. And that's what that office would be for,” he said during the September podcast appearance.

He has also been a sharp critic of the Foreign Intelligence Surveillance Act (FISA), which governs both warranted surveillance of American citizens, as well as spying on foreigners located abroad, which under Section 702 of the law does not require a court order.

Patel has railed against the wiretapping of Trump aide Carter Page, but when the unrelated Section 702 was up for renewal in Congress, he encouraged letting the powerful spy tool lapse. Though there are FISA critics on both sides of the aisle, the stance sets him apart from other national security figures who cautioned against letting Section 702 expire for even a day.

“It needs major, major reform. Tons,” he said during the podcast interview, faulting Republicans for “bending the knee” when the program’s authorization last came up for review.

Patel’s selection signals Trump plans to fire current FBI Director Christopher Wray, whom Trump himself appointed to a 10-year term that otherwise would not come to an end until 2027.

The DOJ source who previously worked with Patel said the two are a study in contrasts.

“Director Wray has been insistent on that independence and that red line from the White House. Director Wray has been so, so clearly apolitical and has emphasized that politics can have no part in the investigations, policies, decisions, whatever,” the source said.

“And Kash is the opposite of that. He's going in there with an agenda that has a political bend. He said it very clearly.”