What Kash Patel’s Confirmation Hearing Made Clear

The Federal Bureau of Investigation (FBI) has enormous power to investigate crime. Leading the agency requires judgment, restraint, and, above all, fidelity to the rule of law over loyalty to any individual. On this, Kash Patel, Trump’s nominee for FBI director, falls short.

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While some senators may disagree about whether Patel has sufficient experience to manage the Bureau’s 38,000 employees, his lack of independence is disqualifying. During his confirmation hearing on January 30, Patel refused to acknowledge that Donald Trump lost the 2020 presidential election. That answer, combined with his history of kowtowing to Trump, made it clear that Patel is unlikely to stand up to the executive branch if abuses of power occur.

I know from my work as a former national security prosecutor and law professor that the FBI has a stained history. J. Edgar Hoover, the FBI’s director for almost half a century, used warrantless wiretaps to intercept communications of people he deemed to be “subversive,” including Rev. Martin Luther King, Jr. In the 1960s and 1970s, the Bureau’s COINTEL program infiltrated student groups, civil rights organizations, and the anti-war movement, all in the name of domestic security. The FBI identified targets based on First Amendment-protected activity and used underhanded propaganda campaigns to discredit them.

When a senate committee revealed these aggressive tactics in the 1970s, the FBI responded by creating its Domestic Investigations Operations Guide, known internally as the “DIOG,” a policy manual that provides stringent safeguards for opening cases and using invasive investigative techniques. Strict adherence to those requirements prevents the FBI from abusing its power.

But the DIOG is policy—not law. A new director could erase it with one press of the delete key. One would hope that career FBI agents would balk at opening cases without a factual predicate or at using invasive investigative techniques as fishing expeditions. But if the boss changes the FBI’s policy, then they would be expected to comply with his orders.

During questioning from senators, Patel refused to say whether he would resign if Trump directed him to engage in conduct that was unethical or unconstitutional, simply parroting the stock answer used repeatedly by Pam Bondi at her confirmation hearing for attorney general: “I will follow the law.”

Read More: Kash Patel Rewrites His Own History in FBI Confirmation Hearing

After Trump’s first term, Patel’s public displays of loyalty to his former boss have been hard to miss. According to a 2022 Breitbart report about the classified documents found at Trump’s Mar-a-Lago home, Patel claimed to have been present when Trump declassified “whole sets of documents,” but “the White House counsel failed to generate the paperwork to change the classification markings.” Trump was later indicted for unlawfully retaining national defense documents, but the charges were dismissed after Trump was elected in November.

Patel also produced the “Justice for All” musical recording, in which Trump recited the pledge of allegiance backed by the voices of the “J6 Prison Choir”: charged Jan. 6 defendants held in custody, singing the national anthem over a jailhouse phone line. And, perhaps most astonishingly, Patel authored a children’s book called The Plot Against the King, in which “King Donald” is falsely accused of cheating to win an election by working with Russia. The hero who saves the day? A wizard named “Kash.”

Fierce loyalty to the president would be worrisome in any administration in light of the FBI’s law enforcement mission. But it is especially troubling when the president has vowed retribution against his political enemies, as Trump has. Many of Trump’s targets appear in another book authored by Patel called Government Gangsters, an attack on the so-called “deep state.” The book lists the names of government officials he calls “a cabal of unelected tyrants,” including former Attorney General William Barr and former FBI directors James Comey and Christopher Wray. While Patel has denied that the names constitute an enemies list, Patel has indicated that he plans to target not just former government officials, but also journalists. In a 2023 podcast interview, Patel said that in a second Trump administration, “We will go out and find the conspirators not just in government, but in the media.”

It seems unlikely that Trump’s rivals would be convicted of baseless criminal charges in light of due process protections, such as the right to a grand jury and judicial review, representation by counsel, and a requirement that guilt be found by a unanimous jury beyond a reasonable doubt. But even undergoing an investigation can be costly and emotionally draining, and it can irreparably tarnish the reputation of a public figure.

The decision to subject anyone to the criminal justice process should be made by responsible professionals making objective decisions based on fact and law. Based on his track record, Kash Patel cannot be trusted to make those decisions.

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