Vigorous Senate Review for the FBI Director Nominee
By the New Jersey Law Journal Editorial Board
December 20 2024
We hope that our senators will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
In 1968, Public Law 90351 provided that, at the conclusion of the service of longtime FBI director J. Edgar Hoover, the director would be nominated by the president for a 10-year term subject to confirmation by the Senate. The purpose of the law was to affirm the independence of the chief national law enforcement agency. The attorney general serves at the pleasure of the president. But the FBI director is outside the ordinary chain of command.
One result of that reform has been that directors have generally been reliably independent of the sitting president, whose terms of office the director is sure to exceed even if the new director is appointed at the beginning of a presidential term.
Kashyup Patel, a former public defender and federal prosecutor, now serves as senior director of the Counterterrorism Directorate. That would be reassuring if it were not for the fact that Patel in 2023 published the book "Government Gangsters," a partial memoir that criticizes the "deep state." In his book, Patel wrote a list of 60 people who, he believed, were members of the "Deep State," which included: Joe Biden, Kamala Harris, Hillary Clinton, Merrick Garland, Bill Barr, Robert Mueller, James Comey, Mark Esper, and Robert Hur, among others.
The political independence of the FBI is thus threatened by the appointment of a person such as Patel. But the current director, Christopher Wray—appointed by President Trump, who has publicly soured on him—has regrettably decided to resign. Patel was an aide to the House Intelligence Committee run by Rep. Devin Nunes, a fierce ally of then-President Trump. Patel also served briefly on the National Security Counsel and Defense Department staffs. Patel was the primary author of the partisan 2018 Nunes memo, alleging the FBI and Justice Department had erred in obtaining a warrant to surveil a former Trump campaign volunteer, a claim later shot down by the Department of Justice’s Inspector General.
A former Justice Department lawyer with 17 years of practice at Atlanta’s King & Spalding, the FBI, under Director Wray’s leadership since 2017, has competently pursued the Justice Department’s mission to keep our country safe, protect civil rights, and uphold the rule of law. That’s not to say the agency’s actions have always been perfect, but it is a daunting task leading the agency’s efforts to confront a broad range of threats from nation-state adversaries and foreign and domestic terrorism to violent crime, cybercrime, and financial crime. There are few leadership positions more central to keeping the American people safe than the director of the FBI.
Patel is another story altogether. Shortly after the first Trump administration, Patel launched Fight with Kash (now the Kash Foundation), an organization that funds defamation lawsuits and sells a wide variety of merchandise, including branded socks and water bottles, sweatshirts and baseball hats, a deck of playing cards with Trump as the ace and a bumbling Joe Biden in a jester costume as the king. He has spent recent years as a consultant and on the board of the president-elect’s media group, which owns Truth Social, and writing books that lionize the president-elect.
Though few would say today, with John Marshall, that they consider "Congress to be my government," we hope that our Sens. Andy Kim and Cory Booker will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
