The Situation: The Stakes in Those Justice Department Firings

The Situation yesterday previewed the week’s coming confirmation battles.

Today I want to talk about the most dangerous of the nominees—Kash Patel—in the context of the latest disturbing Justice Department news.

Yesterday, the Justice Department fired more than a dozen career civil servants who had worked on the prosecution of Donald Trump. On Thursday, Patel will have his hearing before the Senate Judiciary Committee.

These events are intimately connected.

Understanding the connection between them is key to understanding the threat Trump poses to the apolitical administration of justice.

There is a temptation among Democrats to focus their nominations energy on Robert F. Kennedy Jr. and Tulsi Gabbard, both of whom seem a bit more vulnerable than Patel. This would be a mistake.

There simply is no more dangerous position in the wrong hands than the one to which Patel has been nominated, and there is no more dangerous reason to nominate a man to it than the one that drove Trump to name Patel. The events of the past few days show exactly what Trump has in mind for the Justice Department and its investigative components.

Note that these lawyers were not merely abusively reassigned. They were not—as were several career attorneys last week—removed from senior positions and sent to work for a supposed task force on sanctuary cities. They were fired outright. Moreover, they were fired on an explicitly political basis.

“Given your significant role in prosecuting the president, I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully,” the memo dismissing them reads.

There is no allegation that any of these lawyers engaged in any sort of misconduct or wrongdoing or poor performance. They were fired because they had played a significant role in the Trump cases.

Note as well that none of these lawyers decided to bring the cases in question. That decision was made by Special Counsel Jack Smith and a grand jury. And none of these lawyers was responsible for the decision to bring on Smith. That decision was made by Attorney General Merrick Garland. They are accused of nothing more or less than representing the United States in a litigation that the current administration disfavors.

Leave aside for a moment the legality of firing civil servants for the iniquitous crime of filing a (merited) pair of indictments and litigating them tenaciously. I’m sure I will have occasion in the future to emphasize the fact that such a firing is—in fact—not legal and will almost surely be subject to challenge.

The more important point for present purposes, however, is the relationship between the firing of 12 relatively low-profile career attorneys and the nomination of the rabidly partisan Patel to run an investigative agency that has to avoid politics at all costs. 

To truly assert control over the Justice Department’s investigative efforts—to be able to deploy them against one’s enemies and restrain them in the pursuit of one’s friends—one needs to do two things.

One is to put an attack dog in charge of the investigative apparatus. This is the Patel nomination. Patel will surely dispute this characterization of him, insisting that he is opposed to politicized law enforcement and has, in fact, spent the past eight years opposing efforts by Democrats and the “deep state” to use the legal apparatus to get President Trump. Such protestations are disingenuous.

When you have a tame dragon in your children’s book named “DOJ” whom you set upon your enemies, when you have an appendix in your book listing members of the “deep state,” when you promise investigations of your foes, and when you’re being installed because your predecessor didn’t do the boss’s will assiduously enough, you don’t get to also claim to speak in the name of depoliticizing law enforcement.

But having an attack dog is not enough. Installing Patel as the head of the FBI isn’t quite adequate if you have a bunch of career Justice Department lawyers who are going to insist on asking the wrong questions, putting the brakes on things that aren’t quite kosher, or who are too finicky about that whole even-handed justice thing.

The other critical component is making sure that the career prosecutors and agents know that investigating the president or his friends is ruinous for their careers. 

You need an attack dog on a very long leash. And that’s where the firings come in.

One person who gets this, by the way, is Kash Patel himself. In his book, Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, he writes: “The DoJ desperately needs a comprehensive housecleaning, and that starts at the top. First, we need an attorney general who will take on his own staff and put an end to abuses of prosecutorial discretion.”

In Patel’s worldview, of course, it is Joe Biden and the “deep state” who are responsible for these abuses of prosecutorial discretion—which is to say people like the prosecutors fired yesterday. When Patel talks about a “housecleaning” at the department—-when he says that “[p]erhaps more than any other corrupt federal bureaucracy in the Deep State, the DoJ can be fixed through a strong attorney general and tough lieutenants who are willing to take on the swamp and implement ... reforms”—he’s talking, among other things, about the sort of purge of career officials we are seeing.

If you believe, as Patel purports to, that the execution of a search warrant against Mar-a-Lago by people he calls “civilizational arsonists” will “go down in history as a sign of the destruction of our once great institutions of equal justice and fairness,” it only stands to reason that those people have to go.

But remember, the lawyers who the acting attorney general fired yesterday were not the ones who carried out the Mar-a-Lago search warrant. That was done by the agency Patel is slated to head.

Senators might consider asking Patel whether FBI agents who participated in the execution of the warrant also need to be purged. They might ask him as well whether a similar fate awaits bureau personnel who played a “significant role” in investigating the president in the Jan. 6 matter. Does he, like the “the leadership of the [Justice Department, now not] trust [such people] to assist in implementing the president’s agenda faithfully”? 

In short, when Patel talks about a strong attorney general taking on the swamp, he’s talking about intimidating the workforce, and these firings are part of that effort.

Is it also about simple revenge? Sure. Trump is a vindictive guy. But it is a mistake to think this in only about revenge. It is also about making sure the Justice Department’s and FBI’s career ranks will not raise their hands for future assignments involving the president and his coterie. It is about making sure the FBI as an agency can be deployed by the president or on behalf of the president but never against the president. 

All of which brings me to the offensive side of the equation.

An FBI that can guarantee the president a measure of impunity is only a partial win for Trump. Trump’s own repeated statements—and Patel’s—both suggest that they want more. If we take him at his word, Trump wants an FBI that will deliver impunity for friends, investigative woes for enemies.

And here is where impartial, high-quality Justice Department attorneys are really a problem. They require things like evidence before you can move against someone. They have obligations of candor before courts—and, worse yet, they generally take those obligations seriously. They know the law well. And they spend a lot of time telling you what you can’t do. A good prosecutor actually cares about the civil liberties of Americans. And the senior ones have experience, gravitas, and expertise to meaningfully prevent abuses that may—or may not—be related to Trump’s desire to sweep aside those who get in his way.

How do you get rid of such people and, along the way, bully thousands of others into submission so that Patel can do what he wants? The answer is that you pick a few and you make examples of them, and you do it not with some pretext that they defied an order or had porn on their computers or did something else. You fire them for being on the wrong side of the election—or the litigation that turned on the election results. You fire them for being the “deep state,” the “Government Gangsters.”

And by doing so, you let the career workforce know who is the dog and who is the fire hydrant.

The Situation continues tomorrow.