What the FBI Has Done, and Kash Patel Could Do

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On Saturday, The New Yorker published the online version of a column by David Remnick, the magazine’s editor, ahead of its appearance in this week’s print edition. The subject was the many ways in which Donald Trump might go after the press in his second term, from messing with regulatory oversight of media owners’ businesses to the use of subpoenas, court orders, and search warrants to seize reporters’ notes and devices. “Retribution is in the air,” Remnick wrote, before quoting Kash Patel, a “leading MAGA soldier,” in Remnick’s words, who has, among other things, written a children’s book detailing how a wizard named Kash disrupts a “plot” against his “king.” (“Full of fake heralds and keeper Komey’s spying slugs, this is a story of daring and danger,” the Amazon listing reads.) “We’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections,” Remnick quoted Patel as saying, on a podcast with Steve Bannon last year. “Whether it’s criminally or civilly, we’ll figure that out.”

On that podcast, Bannon had prefaced Patel’s remark by asking him whether he would be able to “deliver the goods”—meaning supposedly incriminating documentary evidence that would enable Trump’s allies to “get rolling on prosecutions”—in what Bannon described as the likely event of Patel being tapped to lead the CIA in a second Trump administration. On a separate right-wing podcast prior to the election, Patel was asked about the prospects of his taking on a different job, FBI director; according to an illuminating pre-election profile by The Atlantic’s Elaina Plott Calabro, Patel initially laughed off the question, but then answered it. (“Who would turn that down?” he said.) Plott Calabro noted that even some figures in Trump’s orbit viewed Patel as unlikely to win Senate confirmation for such a post. But over the weekend, we learned that that’s not enough to deter Trump from trying. Between Remnick’s column appearing online and in print, Patel had gone from MAGA soldier to nominee to run the FBI.

Unlike with Trump’s other nominations, the post of FBI director is, at least theoretically, not about to be vacant: its current occupant—Christopher Wray, himself a Trump pick, albeit one who has since fallen out of Trump’s favor—has more than two years left in the ten-year term to which he was appointed. Presidents can, of course, fire the FBI director (Trump’s firing of James Comey infamously preceded his appointment of Wray), but the idea of the ten-year term has been, in part, to insulate the holder of the position from the partisan pressures of the normal political appointment cycle. Over the weekend, a senior law enforcement official told the New York Times that a change of FBI director directly following a change of administration is “extremely dangerous.” Many pundits agreed. “Trump is declaring his intention to reinvent the FBI as something it has never been before: an instrument of personal presidential power, which will investigate (or refrain from investigating) and lay charges (or refrain from laying charges) as the president wishes,” The Atlantic’s David Frum wrote. If he succeeds, he will spark “a constitutional scandal far greater than Watergate.”

The FBI, of course, has been an instrument of personal power before (if not the president’s) and has often shown itself to be no protector of journalists or the First Amendment freedoms on which their work rests—in its older, darker days, but also more recently. We should be careful not to paint Patel as a pure perversion of a righteous history; his nomination is a radical break in many respects, and his threats to go after journalists have been unusually explicit, but at least as far as press freedom goes, we should perhaps view him less as a total departure than a potential rapid-fire accelerant of concerning broader trends within the broader Justice Department. We should stress, too, that there is something that Congress can do about this right away—quite independently of the battle to confirm Patel, the outcome of which remains uncertain.

The modern FBI was sculpted by J. Edgar Hoover, who ran the agency and its precursors for nearly fifty years right up to his death, in 1972, and accumulated immense personal power in the process. On his watch, activists, particularly in the anti-war and civil-rights movements, were subjected to surveillance campaigns and worse besides. (A letter sent by the FBI famously suggested that Martin Luther King Jr. ought to kill himself.) As the journalism academic Patrick Washburn has written, targets of the FBI’s sprawling investigations “unquestionably have included publications and journalists who dared to criticize the government or express dissident views”; during the Second World War, Hoover sought to persuade the Justice Department to bring sedition charges against critical Black editors, and, while he failed at that, he succeeded in harassing them. After the war, the FBI trailed some journalists with communist sympathies or who were active in newspaper unions. And the agency maintained intrusive files on high-profile journalists including Edward R. Murrow and Ben Bagdikian, who reported on the Pentagon Papers (and whose writing about them for CJR ended up in his file). Hoover personally described Jack Anderson, the famous columnist, as a “jackal” with a mind “lower than the regurgitated filth of vultures.” Katharine Graham, the publisher of the Washington Post, was an “old bitch.”

Hoover made the latter remark on a phone call with Richard Nixon (that, of course, was taped). Nixon did not need Hoover’s help in stoking his own anti-press animosity: indeed, Nixon apparently viewed Hoover as overly cautious in going after whoever had leaked the Pentagon Papers to the press; as Remnick noted in his weekend column, Nixon’s aides kept their own list of enemies in the media and even talked about assassinating Anderson, plans that were reportedly abandoned to focus on the break-in at the Watergate complex (a little over a month after Hoover died). A few years later, the ten-year term limit for FBI directors was established—a reaction to the length of Hoover’s tenure, but also to the Watergate scandal and an ensuing broader appetite for reform of America’s intelligence and law enforcement apparatus in that period.

And yet the FBI, obviously, did not become a haven for civil liberties, even if the Hoover era seems a distant memory. Over the years, the agency has continued to monitor and infiltrate various activist groups and causes, including on thin grounds. For years in the 2000s, it reportedly surveilled an anti-war website, a step that was seemingly justified in part by a basic misreading of an email that an editor forwarded to FBI agents warning that the site was about to be hacked. (An FBI staffer appears to have thought that the editor’s email was a threat to hack the FBI website.) In the mid-2010s, The Intercept reported on secret FBI policies allowing agents to obtain journalists’ phone records with only internal (as opposed to judicial) oversight, rules that Trevor Timm, of the Freedom of the Press Foundation, described at the time as “incredibly weak and almost nonexistent”; last year, Timm’s group noted that the FBI has spied on journalists via the “backdoor” of a provision that allows intelligence agencies to view Americans’ communications without a warrant if they’ve been swept up in surveillance of a foreigner. Earlier this year, an FBI agent visited Ken Klippenstein, an independent journalist who had just published an internal Trump campaign document that was likely hacked by Iran, ostensibly to warn him that he’d been the target of a foreign influence operation (even though Klippenstein had clearly reported on the document’s likely provenance). “No subpoena, no search warrant, no prior announcement, no claim of illegality,” Klippenstein wrote at the time. “America’s most powerful law enforcement agency wants me to know that it was displeased.”

Meanwhile, the wider Justice Department—under presidents of both parties—has in recent years intensified investigations into officials who have leaked sensitive documents to the press; a number have been charged under the Espionage Act, which the Trump and Biden administrations both also used to pursue the WikiLeaks founder Julian Assange, despite fears among press-freedom advocates that the nature of the charges against him could theoretically criminalize basic reporting practices. (Trump’s Justice Department insisted at the time that the Assange case was unique; he reached a plea deal earlier this year.) As Kyle Paoletta reported for CJR ahead of the election, close observers fear that a second Trump administration could now use the same law to prosecute journalists, in addition to their sources. In his article, Paoletta quoted Patel’s threat to go after journalists on Bannon’s podcast, and name-checked him as a possible future attorney general. Not quite, but close.

Of course, Patel still has to be confirmed; if that were to happen, how exactly he might weaponize the FBI against members of the press and Trump’s other perceived enemies remains to be seen. In many respects, he has promised to massively disrupt the agency as currently constituted on behalf of a president who apparently views it as poisoned against him: in a social media post announcing the nomination, Trump praised Patel for his supposed “pivotal role in uncovering the Russia, Russia, Russia Hoax”; Patel has proposed shutting down the FBI’s headquarters in Washington—named for Hoover—and reopening them as a museum of the “deep state.” There may yet prove to be a gulf between Bannon-adjacent podcast bloviating and what Patel would be prepared—or, perhaps more pertinently, able—to do in practice. But his pledge to “go out and find the conspirators, not just in government but in the media,” is so overt that it demands to be taken seriously. And, while it’s accurate to depict Patel as a bomb-thrower, he would be entering into a legal structure that already has immense power and only voluntary compunction not to wield it against reporters. (The MSNBC analyst Hayes Brown mused that Patel as FBI director would be like crossing Hoover with the conspiracy theorist Alex Jones.)

In this way, this story is already bigger than Patel, and will remain so whether or not he gets confirmed to replace Wray. Trump himself has explicitly said that reporters who publish leaked information should go to jail; whoever eventually leads his FBI may not have written a sycophantic children’s book, but is likely to have to share this and related views, or at least pay lip service to them. As such, a perhaps more important fight than the one over Patel’s nomination concerns a piece of legislation that has already passed the House with bipartisan backing but has languished in the Senate: the PRESS Act, a so-called “shield law” that would curb the surveillance of journalists and protect them against efforts to make them identify their sources. Shield laws exist at the state level, but a federal equivalent has never been passed—despite decades of trying, ever since the Hoover-era surveillance of members of the press was revealed. Unsurprisingly, Trump opposes the latest bill’s passage before he takes office: last week he wrote on his Truth Social platform that “REPUBLICANS MUST KILL THIS BILL!” Journalists should advocate the opposite. Trump’s win and comments like Patel’s make doing so urgent. Even if Kamala Harris had won, the bill would be a good idea. 

Other notable stories:

• Politico’s Natalie Allison reports on Trump’s likely communications strategy once he takes office again: he’s likely to continue to engage with the podcasters and other content creators who helped boost his appeal in the run-up to the election, particularly among young male audiences, and could shake up the White House briefing room. (An unnamed Trump official told Allison that they “could very well see a press briefing room where Maggie Haberman sits next to Joe Rogan,” though they cautioned that it’s too early to say what changes Trump will make to briefings; various media reporters noted that Rogan, obviously, is not going to come to DC to sit through them.) Allison also reports that the Nelk Boys, a group of YouTube pranksters, invested heavily in registering voters and turning them out for Trump.

• Last week, a court in the far east of Russia sentenced Nika Novak, a journalist who has worked with the US-backed broadcaster Radio Free Europe/Radio Liberty, to four years in prison; she is reportedly the first journalist to be incarcerated under a law criminalizing cooperation with a foreign organization in order to discredit Russia. Also last week, Russia said that it would expel two journalists with Germany’s public broadcaster in retaliation for what it described as the closure of a Russian state media bureau in Berlin; Germany denied ordering this, but local authorities did deny residency permits to two staffers there. And a UK court heard evidence that a spy ring in the country surveilled targets, including a journalist, on Russia’s behalf.

• In recent days, massive protests have rocked the nation of Georgia after the ruling Georgian Dream party moved to suspend the country’s progress toward joining the European Union; as I wrote recently, the party has been accused of a pro-Russian orientation, not least after forcing through a Russian-style law requiring certain NGOs and news outlets to register themselves as “foreign agents.” In response, police have fired tear gas and water cannons at protesters; according to RFE/RL, journalists covering the protests “have been deliberately targeted by security forces,” with several reporting injuries and one RFE/RL reporter having been beaten and arrested.

• The left-wing government of Mexico has moved to eliminate seven independent agencies—with functions including the evaluation of government policies and facilitating freedom of information requests, not least from journalists—in a congressional vote; the agencies are embedded in Mexico’s constitution and their abolition must thus also be approved by a majority of state legislatures, though this isn’t expected to prove an impediment. The move has increased fears that Claudia Sheinbaum, the new president, is moving to gut checks on her party’s power.

• And Politico’s Ali Bianco profiled Radio Mambí, a station that has long been a touchstone for Miami’s exiled Cuban population and has more recently aired disinformation about the 2020 election and other matters, but was surprisingly taken over in 2022 by a network run by Democratic operatives, with help from George Soros. “Few expected Mambí’s content to remain the same after the sale, even as its owners insisted they wouldn’t change the integrity of the station,” Bianco writes—but in the end, “it did stay the same. Actually, some argue, it’s become even more MAGA.”

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, The New Yorker, and The Atlantic, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.