Trump’s New FBI Guy Has Quite an Interesting Past With QAnon!
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President-elect Donald Trump’s pick for FBI director, Kash Patel, is unusual in several key ways. For one, Patel doesn’t have a job to accept until Trump fires the current director, Christopher Wray, whom he appointed when he fired the last director. Also, if appointed, Patel will arrive at the Department of Justice with a list of enemies that includes the names of people who work within the department, and a clearly expressed commitment to dismantling the FBI as an organ of the “Deep State.” On this week’s Amicus podcast, Dahlia Lithwick was joined by Joyce White Vance, a former U.S. attorney and the distinguished professor of the practice of law at the University of Alabama School of Law. Their conversation has been condensed and edited for clarity.
Dahlia Lithwick: Something that struck me in Elaina Plott Calabro’s Atlantic profile of Kash Patel was the fact that many of almost 40 of Patel’s former Trump administration colleagues who cooperated with the piece would not give their names. They had to be anonymous because they were so terrified of retaliation. Let’s talk about what this all means—retaliation, retribution, enemies’ lists. This is J. Edgar Hoover on steroids. I think it’s hard for people to imagine, and to communicate how fundamentally, existentially dangerous that is.
Joyce White Vance: I think it’s like J. Edgar Hoover on steroids and on acid at the same time. Because what we rely on FBI directors to be is to be steady hands, to be cool heads in difficult times. The FBI has this incredibly difficult job of protecting national security against terrorist attacks. That means that they’re playing defense all the time. They can’t let one football go through the goalposts. That requires someone who is focused 105 percent of the time on that part of their portfolio, even though they have really significant other parts of the portfolio, like violent crime, or public corruption (which I expect will also die in this next administration), civil rights, trafficking, drugs, cartels … You name it, it’s in the FBI director’s portfolio.
But keeping the American people safe from foreign terrorist attacks is really job No. 1. Would Kash Patel walk away from the revenge tour for long enough to take that job seriously? Maybe he would get in the chair and understand that that was the job, and that every day starts at 5 a.m. with a security briefing.
An FBI director has special agents in charge in field offices across the country, and traditionally—at least when I was in “Main Justice”; maybe it’s done differently now—the FBI director would meet with them on Zoom once a week. The director is their boss, their ultimate boss. The FBI director really can look down at a special agent in charge in, say, Des Moines and say, “You really need to prosecute these three people. You need to go ahead and do that now.” And that special agent in charge knows that future promotions and their career are contingent on making the director happy.
Most directors exercise this power in a very robust way to make sure the priorities that matter to the American people are the ones being effectuated. You might disagree about whether civil rights should have a higher priority than it does, for example, but the director’s main concern is what makes the country safer and better off. The risk that you would have a director who would not have that as his north star is utterly terrifying.
There are two pieces of this that I want to probe with you. One is threats to journalists. You’re both a career DOJ person and also a journalist. I think a lot of journalists took it very, very seriously when Kash Patel told Steve Bannon, “We will go out and find the conspirators, not just in government, but in the media. Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections.” Sure, you can call that typical Trumpian language and theater—put journalists in a cage, have people throw stuff at them at rallies. This is not really new, going after journalists by name. This is the MO. But at the same time, when you start saying you’re going to go after the people who thought Joe Biden actually won the 2020 election, that isn’t just frightening on its own terms; it also has this profound chilling effect. The thought that the FBI director would have an enemies list—you and I have both seen the list and it has in the crosshairs a whole bunch of people you and I think of as serious lawyers and journalists—that is really next level, right?
I think we live in a moment where both for people in the media and people who are targets on one or more of the lists that are circulating, and for average everyday Americans, we need to adopt courage as our mantra, not fear.
Courage is something that we can summon, and it’s something we have as groups. Olivia Troye had this moment of incredible courage last week where Kash Patel directed her to back down from criticisms of his fitness to be FBI director that she had made on television, and threatened legal action, and she said she would not be retracting what she said.
I think it is incumbent upon everyone who’s in the position to do so to show that sort of pro-democracy courage, and for those of us who are not in the line of fire, it’s incumbent upon us to support those people. That is how we get through the next four years.
I would like to think about the other piece of this, which is the threats to the FBI itself, and the threats to the Justice Department. Earlier this month, Patel said, “I’d shut down the FBI Hoover Building on day one and reopen it the next day as a museum of the ‘deep state.’ Then, I’d take the 7,000 employees that work in that building and send them across America to chase down criminals.”
As we’ve now both said, there are various target lists circulating. What are the lawyers on these lists, these Justice Department lawyers, meant to do? Some of these lawyers are really, really afraid for their families, they’re really afraid for their savings, they’re afraid for their careers. I would love to have you think through, what’s the line between sticking around, toughing it out, being the person who’s at minimum saying “no,” at maximum, I guess at some point being Sally Yates?
How should Justice Department lawyers, including Jack Smith’s team, be thinking about their futures, their reputations, their complicity in something they may hate doing. Do you have a theory of the case?
The first thing is: No lawyer who works at the Justice Department is well off, unless they went into the job with family money. I made less money as a U.S. attorney than I made in private practice. So these are not folks who have the ability to take themselves and their families out of the country, to protect and insulate their resources, or to pay for expensive lawyers.
Nobody on Jack Smith’s team has committed a crime. But that doesn’t really matter if you want to harass them; you can investigate, you can force them to come in for interviews, so they need to hire fairly expensive lawyers and show up, you can go through their taxes with a fine-tooth comb. There is a lot of stuff you can do if you’re committed to harassment. My hope would be that some of the people that it would take to conduct that harassment would stand up, would blow the whistle, would refuse to go along. The men and women I worked with at both DOJ and the FBI are sort of hardwired to do the right thing for the right reasons, in the right way. I would hope that they would stand up.
But it is asking an awful lot for line prosecutors and agents to shoulder the entire burden for preserving democracy when, for instance, the United States Senate cannot be bothered to do so. This, frankly, is where I struggle. I think where we should focus our efforts is on insisting that Republicans in the Senate do their goddamn job, and refuse to confirm people who are unqualified. If you are an election denier, you are unfit to take the oath of office. You cannot do so. Honestly, you should not be permitted to serve. That shouldn’t be tough for anyone in the Senate to agree with. If in fact, their loyalty to the cult of Trump now is more important to them than the Constitution and the country, we’re gonna find that out pretty quickly. That may be a signal to some of these folks that we hope would stand up for democracy, that it is time to either keep their heads down or to cut and run because you cannot, as a line prosecutor or as one agent in an agency, fight and win under those circumstances. Our strength comes in collective action, and I think that starts with demanding that people who have responsibility and opportunity do the right thing now.
We’re hearing more and more that Joe Biden should do some kind of massive blanket pardon for absolutely everybody, including all of Jack Smith’s team, including the Mueller team, to protect everyone. Do you have thoughts on that?
I don’t think I have a position yet, but I do have thoughts. I see the obvious attraction of the idea, but I have questions like, Where does it end?
You know, if we do it now, then is this just what every president does from now on, and can nobody be prosecuted anymore? If presidents are pardoning these big groups of people, like for example, “Nobody who was involved in this gambling scandal can be prosecuted,” just based on their whims?
Then there’s also this notion that accepting a pardon implies that you are acknowledging that you did something wrong and that you were guilty. I think that we will see some people who will not accept pardons, even if they’re offered, and are willing to sort of face the dragons rather than say that what they did was wrong, when they believe that what they did was right.
So a blanket pardon is not a comprehensive, perfect solution. That’s the real problem—the issue isn’t so much pardons, the issue is what is Donald Trump going to do to good people who were doing their jobs, in an effort to punish them—and how are we as a country going to prepare for that. The pardon is a tool that might work for some people in some situations—it certainly got Hunter Biden out of hot water pretty quickly and comprehensively, but I worry that we will focus too much on the issue of the pardon, and not enough on the issue of the realities of this incoming presidency.
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