How Kash Patel could quietly — and even legally — use the FBI to target Trump critics

Government agents interviewing your co-workers and friends, examining your phone data, rummaging through your trash, email history and transaction records — if the Federal Bureau of Investigation deems you a threat to national security, its agents don't need a judge or a warrant to launch an intrusive investigation. Now these powers, abused by the FBI in the past, are in the hands of new bureau chief who has promised to "go after" the perceived enemies of President Donald Trump.

Indeed, FBI Director Kash Patel and Deputy Director Dan Bongino's loyalty to Trump — and the technology at the modern FBI's disposal — could make the bureau's surveillance regime even more of a threat to political dissidents and others deemed threats by this administration, experts and former agents told Salon.

Nominally, the FBI is subject to oversight by the so-called Attorney General Guidelines upheld by the Department of Justice. But because those guidelines are indeed guidelines, not legally binding mandates, their effectiveness is almost wholly dependent on the FBI director to adhere to the rules and the good faith of the attorney general to follow her oversight responsibilities. Absent these conditions, Yale senior lecturer and former FBI agent Asha Rangappa said in an interview, the Trump administration could act on its "expansive view" of Article II of the Constitution, which vests the president with authority to “take care that the laws be faithfully executed" and which some on the right have interpreted as license to govern more or less like a king.

"Under the idea of unitary executive, the president could assert personal influence or control over the Justice Department and any federal investigations," Rangappa said. That's the same legal theory relied on by the President George W. Bush and his administration to circumvent normal administrative procedures to enact unpopular and perhaps unlawful policies, like detaining terrorist suspects without charge and subjecting them to torture. 

In a statement to Salon, an FBI spokesperson insisted that the administration will respect constitutional rights, saying the bureau will "focus on individuals who commit or intend to commit violence and criminal activity that constitutes a federal crime or poses a threat to national security."

"We can never open an investigation based solely on protected First Amendment activity and we do not conduct investigations based on a person’s views," the spokesperson said.

As it stands, however, the FBI can conduct preliminary investigations on the "on the basis of any allegation or information indicative of possible criminal or national security-threatening activity" without needing court approval, according to DOJ guidelines. While those investigations are time-limited, FBI agents can use the allotted time to practice techniques against targets, like recruiting informants and ferreting through their mail, financial transactions, phone data and abandoned trash.

The reason why there are any guardrails for the FBI in the first place — or that people know about historical abuses at all — is, in part, because eight Vietnam War protesters broke into an FBI field office in 1971 and stole hundreds of government documents. Those documents revealed a systematic campaign to target and harass political dissidents, shocking a nation and prompting a congressional investigation.

Instead of placing the FBI under legislative charter or statutory control, however, the resulting reforms placed supervisory responsibility in the hands of the Justice Department, now run by Attorney General Pam Bondi, who like Patel has been criticized for politicizing her office and valuing loyalty to Trump above all else.

"We don't need a crystal ball or to be clairvoyant about what could happen at the FBI. We can simply look back to FBI history and [its first director] J. Edgar Hoover, who planted evidence, used illegal wiretaps, had a Black Panthers leader killed and wrote a letter to MLK telling him to commit suicide," Frank Figliuzzi, a former FBI assistant director, told Salon. "From the DOJ perspective, Hoover actually briefed attorneys general on what he was doing, and they were okay with it. People think we aren't facing that very same situation. Here, I say we are, and I say it could get worse."

While the FBI has been accused of overstepping its authority multiple times between Hoover and Patel, University of Richmond law professor Carl Tobias told Salon it has largely stayed within guidelines (or at least avoided the most egregious abuses) due to "layers and legal and supervisory review" that go all the way back to the DOJ. Now that the Trump administration has been firing high-ranking lawyers and administrations at the FBI, DOJ and other departments, Tobias thinks "a lot of this supervision will go away."

In pursuing a preliminary investigation, the FBI could operate under maximum secrecy with the goal of "fishing" out anything that could be used against a target. Alternatively, a person whom the FBI wanted to intimidate or harass might find black vans parked outside their home or hear of agents aggressively interviewing co-workers and friends, which also serves to create a cloud of suspicion around them.

"What the Hoover years revealed is that people often don't know and can't prove that they're under investigation, so they wouldn't be able to go to court and try to enforce their civil liberties," Rangappa, the former FBI agent, said. "Eventually, there is a point were if the FBI chooses to charge someone or get a search warrant for your residence, then they would need to convince a grand jury that there's probable cause of a crime being committed. But there's a lot of what they call 'less intrusive' investigative techniques that's up to the discretion of the agency."

The result of widespread and vaguely-defined surveillance, she continued, could have an "incredible chilling effect" on legitimate political opposition and efforts to seek accountability from the federal government, with the possibility that journalistic sources, for example, could "face retaliation from the FBI and other bodies of government."

Electronic surveillance as part of full investigations concerning national security typically falls under Foreign Intelligence Surveillance Act Court, which consists of seven rotating federal judges picked by the chief justice of the Supreme Court. While on their tour of duty, the judges decide on FBI requests to wiretap alleged foreign spies.

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But those judges cannot necessarily be trusted to be partial, Figluizzi said, as the federal bench is full of Trump appointees who critics have accused of showing overt ideological bias and loyalty to Trump. The combination of a "MAGA director, MAGA attorney general and MAGA judges sitting in FISA and other courts" could result in some "really harmful things," he said. Moreover, legislation by a GOP-controlled Congress could change how judges are picked and give more decision-making power to Trump in particular, who might decide to select only those judges he believes he can count on. And less than two months into Trump's second term, Congress has been more than happy to meet Trump's legislative demands, often with substantial Democratic support.

If there's almost no recourse at the federal level to curb an FBI run amok, state and local authorities could defy federal authorities by refusing to cooperate in joint task forces, such as those that might be re-directed to round up immigrants and deport them. This tactic was used before, such as when the San Francisco Police Department pulled out of a joint anti-terrorism effort in 2017 amid concerns that the Trump administration was trampling on local laws. State attorneys general could also sue the federal government over potential state law violations, assuming there's any awareness that the FBI is abusing its power.

But according to Figliuzzi, those probably won't be enough to really make an impact — participation in task forces offers grant money and prestige, while federal authorities more often win jurisdictional arguments in court than not.

"I don't see a lot of people putting the skids on this, except lots of lawsuits that we're seeing and injunctions," he said. "The problem is that we may not hear about what the FBI is doing. In criminal cases, it ends up in court. But what about national security cases? That's what J. Edgar Hoover was saying, that MLK and Panthers were national security threats, therefore he could do whatever the hell he wanted, and it would never see the light of day. And it didn't see the light of day until the famous break in of a small FBI office in Pennsylvania, where the protesters grabbed the documents and showed them to reporters."