Late last week, the Senate Judiciary Committee voted along partisan lines to advance the nomination of Kash Patel for director of the FBI. As with many of President Donald Trump’s cabinet picks, Democrats expressed deep reservations about his character and qualifications for the job. As Patel’s nomination heads to the full senate, it may seem that Patel is merely yet another controversial nominee. But the position of FBI director is far more powerful than almost any other agency head, and the least constrained by laws or external checks. For this reason, more than any other confirmation, the FBI director must be someone in whom there is zero doubt about their intention to act as good faith stewards of the rule of law.
Most people are unaware that, unlike its sister agencies like the CIA and the National Security Agency, the Federal Bureau of Investigation lacks a formal legislative charter. Rather, it is a creation of the Justice Department, founded by Attorney General Charles J. Bonaparte in 1908 to investigate suspected radicals and anarchists. Over the decades that followed, J. Edgar Hoover, the bureau’s first and longest-serving director, professionalized federal law enforcement in important ways, but also secretly wielded his authority beyond what was constitutionally allowed by conducting “internal security investigations” and creating intelligence files on over 500,000 Americans suspected of subversive activity, including civil rights activists, anti-war protesters and women’s rights advocates.
Those abuses came to light following Hoover’s death during the Church Committee hearings, which revealed that the FBI employed counterintelligence tactics — including electronic surveillance, informants and disinformation — on domestic citizens and organizations under a program called COINTELPRO. As a result of these revelations, then-Attorney General Edward Levi promulgated internal guidelines, known as the Levi Guidelines, in 1976. For the first time, the guidelines placed limits on the FBI, creating categories for different kinds of investigations, delineating the evidentiary standards needed to initiate them and establishing how informants could be used. Since then, subsequent attorneys general have expanded and refined these rules, which became the Attorney General Guidelines, as new threats and agency concerns surfaced.
The importance of the guidelines in guiding FBI investigations and providing standards for oversight is illustrated by the controversy surrounding Crossfire Hurricane, which investigated Russian interference in the 2016 presidential election. The debate over whether that case was properly “predicated” rested on whether the factual basis for opening that investigation met the standard for “full investigations” outlined in the Attorney General Guidelines. (An inspector general’s report on that case found that it did.)
In short, these guidelines provide agents, Congress and the American public with a clear, transparent and agreed-upon yardstick against which to measure whether the FBI is legitimately exercising its authority. Importantly, however, the Attorney General Guidelines are intended to provide guardrails on the FBI in lieu of subjecting the agency to a legislative charter or statutory control. This means that the bureau is entirely dependent on the good faith of the attorney general to keep these guidelines in place and of the FBI director to adhere to and enforce them.
The events of the last few weeks call into question whether the Justice Department and the FBI can be trusted to do this in the Trump administration.
Last week, the Justice Department suffered a slew of resignations from top lawyers at its Criminal Division, known as Main Justice, and its flagship office in the Southern District of New York after being ordered by acting Deputy Attorney General Emil Bove to take actions contrary to the department’s policies and principles. Bove has also placed politically-appointed lawyers into positions that review employee ethics and discipline.
For his part, Patel has ensured members of the Senate Judiciary Committee that he will pursue investigations in accordance with the law. However, as noted above, the Attorney General Guidelines are not legally binding — and can even be rescinded by the attorney general. The “law” that is then left is Article II of the Constitution, which grants the president the power to “take care that the laws be faithfully executed” — an authority that has been interpreted expansively under the unitary executive theory to eviscerate any daylight between the Justice Department and the White House and include the power of the president to influence — and even direct — investigations.
It’s true that Americans’ due process rights would be protected and enforced in court. But as the Church hearings revealed, there is a long runway from when an investigation is initiated and when it ends up in a courtroom — if it ends up in court at all. Counterterrorism and national security investigations, in particular, are designed to allow law enforcement to begin investigating even before a crime ever occurs. In the absence of clear guidelines or an unquestioned commitment to follow them, any FBI director holds incredible latitude — with zero transparency — to harass, intimidate and intrude into the life of anyone who is a thorn in the administration’s (or their own) side.
In its findings, the Church Committee placed the blame for the bureau’s gross violations of civil liberties not only with the agency but with the executive branch as a whole, observing: “If fault is to be found, it does not rest in the Bureau alone. It is to be found also in the long line of Attorneys General, Presidents, and Congresses who have given power and responsibility to the FBI, but have failed to give it adequate guidance, direction, and control.”
As senators contemplate whether to confirm Patel as director of the FBI, they would do well to take heed of the lessons of the past before they repeat them.
