The FBI has long been considered the most powerful and the most incorrigible federal domestic agency. Yesterday, the Senate Judiciary Committee held a confirmation hearing for Kash Patel, President Trump’s nominee to head the Bureau. Can Patel, the author of Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, find a way to compel the FBI to obey both the law and the Constitution?
Former FBI chief James Comey described himself in 2018 as the “guardian” of the FBI’s role “as an independent force in American life.” But when James Madison crafted the Constitution, he wisely omitted including a fourth branch of government consisting of an all-powerful secret police. That “independent force” FBI has repeatedly sought to rig presidential elections and perpetually scorned constitutional limits on its own power.
In 2016, top FBI officials effectively crippled any investigation of the corrupt Clinton Foundation, according to a 2023 report by Special Counsel John Durham. FBI chieftains rescued Hillary Clinton’s presidential campaign by treating her perpetual violations of federal laws on classified documents as a harmless, unintentional error.
In May 2017, President Donald Trump fired FBI chief Comey. As journalist Aaron Mate recently revealed, the FBI immediately retaliated by launching a massive surveillance investigation of the new president. Did they presume Trump was guilty of Lese Majeste for dissing the FBI or what?
That investigation fueled the probe by Special Counsel Robert Mueller of suspected collusion between the Trump 2016 campaign and the Russian government. Though Mueller found no collusion to prosecute, the leaks and controversies from his probe helped Democrats capture control of the House of Representatives in the 2018 elections and partially crippled the first Trump presidency. As a staffer on the House Intelligence Committee, Patel helped lead the congressional investigation into FBI shenanigans with Russia-gate.
In 2019, the FBI came into the possession of Hunter Biden’s laptop, containing bushels of evidence of corrupt dealings by numerous Biden family members. Though the laptop was quickly confirmed as authentic, the FBI failed to object when other federal agencies and former top officials portrayed the laptop as a Russian disinformation ploy. The FBI thereby helped defuse perhaps the biggest bomb beneath the 2020 Biden presidential campaign.
FBI agents run wild because the Bureau has defined entrapment out of existence. Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, estimated that only about 1 percent of the 500 people charged with international terrorism offenses in the decade after 9/11 were bona fide threats. Thirty times as many were induced by the FBI to behave in ways that prompted their arrest. The FBI relied on entrapment, (by any common definition, and the opinion of two juries) to concoct an absurd scheme to kidnap Michigan Gov. Gretchen Whitmer led by paid FBI informants and undercover agents. The alleged kidnapping was then strategically announced to boost Democratic candidate Joe Biden just before the 2020 election.
The First Amendment did nothing to deter the FBI from becoming a lead player in the Censorship Industrial Complex. The FBI pressured Twitter to suspend accounts for posting “possible civic misinformation” (not including FBI press releases). The FBI hammered Twitter to torpedo parody accounts that only idiots or federal agents would not recognize as humor. As journalist Matt Taibbi noted, “Requests [to Twitter to suppress accounts] poured in from FBI offices all over the country, day after day, hour after hour. If Twitter didn’t act quickly, questions came: ‘Was action taken?’”
Congress and federal courts tacitly entitle the FBI to be a secret fiefdom. The FBI continues refusing to disclose its “articulable factual basis” for its 2017 decision to treat President Trump as a Russian agent, despite a 2022 Freedom of Information Act (FOIA) request from Aaron Mate. The FBI deleted the names of Clark Kent and Lois Lane from a letter that made reference to the famous Superman characters — because disclosing them in a FOIA response would “constitute a clearly unwarranted invasion of personal privacy.” Louis Freeh, director of the FBI from 1993-2001, repeatedly denounced my articles on Ruby Ridge; but when I filed a FOIA, the FBI claimed to have no records of those published letters to the editor.
The FBI admitted a couple of years ago that it had abused the Foreign Intelligence Surveillance Act (FISA) to wrongfully spy on hundreds of thousands of Americans. The FBI abused FISA to target people who notified the FBI of crimes, repairmen entering FBI facilities, and even chumps who volunteered for the FBI “Citizens Academy” program. For each American that the FISA court authorized the FBI to target, the FBI illicitly surveilled almost a thousand additional Americans. Sen. Mike Lee (R-Utah) quipped that FISA stands for “Federal Investigators Stalking Americans.”
But Congress did make one crucial reform when it renewed FISA last April. It required that the FBI notify any member of Congress who falls under their warrantless surveillance under FISA. This is the “close enough for government work” standard for defending the Constitution in Washington.
Kash Patel was a staffer for Congressman Devin Nunes (R-CA), one of the few congressmen to persistently and savvily challenge FBI power. (Nunes is now the chair of the President Trump’s Intelligence Advisory Board.) But going back to the era of J. Edgar Hoover, Congress has usually been worse than useless on the FBI.
“How are you so great and how can we help you?” is the usual response that FBI chiefs receive when testifying before congressional committees, as Guardian columnist Trevor Timm noted. I saw the same kowtowing when I covered House hearings on Waco in the summer of 1995. After a standoff concluded with an FBI tank assault and 80 people dead, most Republican congressmen fizzled their time in hearings trumpeting their slavish devotion to federal law enforcement. When Attorney General Janet Reno was asked why she approved the use of 54-ton tanks to assail the Davidians, Reno replied that these were “not military weapons…. it was like a good rent-a-car.” Most Republicans ignored Reno’s whitewashing of the federal iron fist.
Actually, Capitol Hill cowering started long before Waco. In 1971, House Majority Leader Hale Boggs (D-LA) declared that members of Congress were terrified of the FBI: “Our very fear of speaking out [against the FBI] has watered the roots and hastened the growth of a vine of tyranny… Our society… cannot survive a planned and programmed fear of its own government bureaus and agencies.”
It has been nearly 50 years since a Senate committee exposed sweeping FBI abuses and proclaimed that no federal agency should ever again “be permitted to conduct a secret war against those citizens it considers threats to the established order.” But instead of Congress imposing strict leashes on FBI power, the Washington establishment sufficed in 1976 with an Attorney General announcing administrative reforms. The flowery rhetoric did nothing to curb the growth of the FBI’s power in subsequent decades.
If Kash Patel is confirmed, will he give the orders to open the files on the FBI’s follies, crimes, and cover-ups? So far, Trump has shown more enthusiasm for securing the FBI a “new and spectacular [headquarters] building” than for exposing the FBI’s perpetual trampling of Americans’ rights and liberties. But Patel would be a Bureau boss who understands why people scoffed that the agency’s acronym stood for Following Biden’s Instructions.
As James Madison warned in 1788, “Wherever the real power in a Government lies, there is the danger of oppression.” It is long since time to dethrone the FBI from its pinnacle in American politics and life. The Constitution will not survive unless the FBI is taken off its pedestal and placed where it belongs — under the law.