The Situation: Kash Patel’s “Odor of Mendacity”

The Offense Codes Applicable to the FBI’s Internal Disciplinary Process punish FBI employees for “lack of candor.” Offense Code 2.5 (Lack of Candor – No Oath) prohibits “[k]nowingly providing false information when making a verbal or written statement, not under oath, to a supervisor, another Bureau employee in an authoritative position, or another governmental agency, when the employee is questioned about his conduct or the conduct of another person.” Offense Code 2.6 (Lack of Candor – Under Oath) prohibits “[k]nowingly providing false information in a verbal or written statement made under oath.” Under both offense codes, lack of candor is defined to include “false statements, misrepresentations, the failure to be fully forthright, or the concealment or omission of a material fact/information.”

Justice Department Inspector General, Michael Horowitz

The Situation on Wednesday focused on the unique danger of Kash Patel among Donald Trump’s nominees, in the context of the purge of career employees at the Department of Justice—a purge that is now spreading to the FBI itself.

The parameters of the ongoing FBI purge being still unclear—for the record, I suspect it will prove much vaster than has been reported so far—I want to talk today about Kash Patel’s truthfulness at his hearing yesterday before the Senate Judiciary Committee. 

Last March, in response to the improbable testimony by Fulton County District Attorney Fani Willis and her special prosecutor, Nathan Wade, Judge Scott McAfee dryly observed that “an odor of mendacity remains” about the details of their relationship. He didn’t accuse either Willis or Wade of perjury. It was not his job, he wrote, “to ferret out every instance of potential dishonesty from each witness or defendant ever presented in open court.” But he observed that “reasonable questions” remained about whether Willis and Wade “testified untruthfully.”

I believe we should say something similar about Kash Patel’s testimony. I am not, to be clear, accusing him of perjury. I am accusing him, rather, of showing a lack of candor in yesterday’s hearing. 

The term “lack of candor” is one that has specific meaning in the FBI. It is a disciplinary code—a pair of them, actually—for whose violation agents are often terminated. It sweeps broader than perjury or the federal false statements statute. Whereas these statutes require a literally false statement on a matter of material fact, a lack of candor can include, as quoted above, “the failure to be fully forthright or the concealment or omission of a material fact/information.” 

It is the standard the FBI uses for one critical reason: agents have to testify before courts about all aspects of the investigations they conduct, and the government simply can’t call witnesses who have been found in internal investigations to have engaged with less than full candor. Because of the Supreme Court’s ruling in Giglio v. United States, prosecutors actually have to disclose to defense attorneys any material that could be used to impeach a witness, and the FBI interprets that to include “information about a component witness that includes . . . any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor” (emphasis added).

The result is that an agent who has been found to have responded with a “lack of candor” becomes useless to the bureau. It is thus also the correct standard through which to assess the testimony of a man who would head an organization that fires people for failures of honesty.

Patel failed to meet this standard—miserably and dramatically and repeatedly.

Again, I am not saying he perjured himself; that depends on the exact wording of particular statements—and on facts not available to me concerning precisely what he knew at the moment of his testimony. In any event, I’m not braying for Patel’s blood or prosecution.

But there is simply no way to describe his testimony as candid or honest.

For starters, he repeatedly misrepresented his own statements when confronted with them. He pretended they were taken out of context. He pretended senators were misrepresenting his meaning. He pretended they were mere “snippets” of a larger argument that had meant something else. In some cases, he refused to acknowledge having said or written the items at all, saying to the senators questioning him that he did not have the comment in front of him. I don’t know whether any specific sentence he spoke was a lie, but his testimony contained any number of textbook definitions of “misrepresentations [and] the failure to be fully forthright.”

Patel also testified that Trump had authorized 10,000-20,000 national guard troops to protect the Capitol, much as he had testified in a Colorado court case, in which the judge wrote, “The Court finds that Mr. Patel was not a credible witness. His testimony regarding Trump authorizing 10,000-20,000 National Guardsmen is not only illogical (because Trump only had authority over about 2,000 National Guardsmen) but completely devoid of any evidence in the record.”

Patel testified that he had never promoted the QAnon conspiracy theory. Wired Magazine ran this lengthy piece in response detailing his history of promoting the QAnon community. 

He claimed in his testimony that he had never suggested that the FBI planned or organized Jan. 6 or that he had only raised questions about the subject. There is a great deal of material suggesting he did rather more than that. Some of it is catalogued here. Some of it, relating to a man named Ray Epps, is in Patel’s own book, Government Gangsters, where he describes there being “all sorts of strange agitators who were at the Capitol on January 6 and stirred up the crowd to breach the Capitol beforehand but who have faced no consequences.” Epps was the most famous, he says, yet the FBI won’t answer questions about whether he is a “fed.” “All of the signs of a cover-up are on full display,” he writes.

With respect to the so-called Jan. 6 choir, he claimed to have nothing to do with the recording of the choir’s rendition of the Star-Spangled Banner and not to know anything about any of the violent criminals who formed the choir. This was a song he promoted and has elsewhere boasted of helping to produce. Are senators really to believe that he had no idea whose work he was promoting?

He suggested that he couldn’t legally talk about his own grand jury testimony. This is a man who has been a federal prosecutor and a public defender for years. Is it really credible that he doesn’t know the terms of Federal Rule of Criminal Procedure 6(e), which specifically does not cover witnesses who appear before the grand jury? This stuff is not esoterica. It is very basic criminal procedure of a sort that any reasonable federal prosecutor or defense lawyer knows. 

He claimed not to know who Stew Peters is, only to be told that he had been on the man’s podcast any number of times.

I could go on—and on and on. But my point is not a game of gotcha, showing that Patel said one thing, while the facts show another. My point is that there is no way to look at this testimony and see a good faith effort to “be fully forthright” and to avoid “the concealment or omission of . . . material fact[s]/information.”

One can ignore the reality that Patel on point after point flagrantly misled the committee, and many senators seem committed to doing just that. But there is no denying the reality.

An FBI agent who gave testimony like this would be fired. Anyone who doubts that should remember the Justice Department Inspector General’s report on then-Deputy Director Andrew McCabe. McCabe, the report found (rightly or wrongly), had shown a lack of candor on four occasions concerning a disclosure to the press. McCabe, a long-serving agent with a brilliant career, was fired as a result of that finding—and nothing more.

At the bureau, agents who carry with them an “odor of mendacity” don’t last. The FBI deserves a director who doesn’t arrive with one.

The Situation continues tomorrow.