FBI Got Patelled. Now What?

In one sense, it’s no surprise the US Senate approved Trump’s nomination of Kash Patel to be FBI director. Though he doesn’t have anything like the qualifications of past directors, Patel isn’t among the most questionable nominees already approved by a quiescent Republican majority.In another sense, his approval should be a surprise, as it breaks with the traditional non-partisanship of the position, in the most recent example of the collapse of US Congress as an equal branch of govt.The case for Patel has focused less on his qualifications for the job than his outsider perspective. In the past, the position of FBI director has been non-partisan, with directors chosen from the ranks of high-level federal prosecutors.Past directors Robert Mueller and James Comey both had decades of experience as federal prosecutors. Christopher Wray was a federal prosecutor who served as a deputy US attorney general for more than 15 years before becoming FBI director. Louis Freeh was an FBI agent, then a prosecutor and judge before taking on the role.In contrast, Patel was a low-level prosecutor for a few years, then served in a variety of appointed roles in Congress and the first Trump administration. He’s mostly known for working to try and discredit allegations of Russian interference in the 2016 election and promoting conspiracy theories about Covid and the 2020 US presidential election.In the waning days of his first administration, Trump floated the idea of appointing Patel to head FBI or CIA but backed down in the face of opposition from cabinet members and threats of mass resignations.Compared to his predecessors, Patel’s resume is flimsy, but compared to other Trump appointees, it’s not bad. Picks like Pete Hegseth, a friendly cable news commentator as defence secretary, or former professional wrestling executive Linda McMahon as education secretary are far more questionable.What Patel has on his side is loyalty to Trump and an expressed willingness to tear down existing institutions. As one Republican senator explained, insiders aren’t going to reform FBI, so it might be good to bring in someone from outside the organisation.Patel has promised to shake things up. As he told a podcast interviewer last year, his first action as FBI director would be to shut down the FBI headquarters, turn it into a museum, “cleaning house” and removing FBI agents who aren’t loyal to the president. He has written that the agency he now heads is part of a “deep state” of govt agencies that have been conspiring to oppose Trump.During his confirmation hearings, Patel downplayed or refused to address his past remarks, claiming that he would never put political interests above obligations of the job. Americans of any political stripe should hope that’s true: the abuses under past directors like J Edgar Hoover are a case study in what happens when federal law enforcement powers are used for political ends.Concerns about Patel might be overblown. Many a sceptical presidential appointee has come in to head an agency, only to come to appreciate the important work it does. Past Republican presidents appointed heads of Environmental Protection Agency or Department of Education only to have their appointees “go native”, and become advocates for the agency’s mission.The position of FBI director was set up to be non-partisan. Directors serve a 10-year, non-renewable term, and cannot easily be removed, a setup designed to insulate them from political pressure. Partisanship or loyalty to a president has never been a consideration.Indeed, while several Democratic presidents have appointed FBI directors, no Democrat has ever held the office. In that sense, Patel’s appointment is even more of a break with tradition than Trump’s other appointments.The larger question is why the Senate – a group that historically has had no problem rejecting nominees – is going along with these appointments.* Part of it is political calculation. Republican senators fear Trump will campaign against them, or back a challenge to them from a loyalist in the next election. Senators who were thought to be wavering on controversial appointees have been subject to intense criticism from the president.* Part of it is that Republican members of Congress sceptical of Trump have largely retired rather than have these fights.* And part of it is fear, with Senators telling reporters that they’ve faced credible death threats for being insufficiently loyal to Trump or opposing his nominees.More important than Trump’s radical claims of executive power, or appointments favouring loyalty over experience, is the complete failure of Congress to do its job. The US system is built around the idea that Congress will guard its power, checking the actions of the other branches. But instead, we have a Congress incapable of passing any substantial legislation.Even with Republican control of both houses of Congress and the presidency, leaders can expect to pass perhaps one major bill this year, and even that will require special rules that prevent it from addressing non-budgetary matters.Whether Congressional leaders intend to or not, their abrogation of power doesn’t make that power go away. Rather, it flows to the other branches: to a judicial branch that re-interprets or nullifies laws passed by Congress, and to an increasingly unfettered executive branch. The approval of Patel and other less qualified nominees is a break with past practices but the underlying problem isn’t Trump – it’s the failures of Congress to live up to its constitutional responsibilities.Professor of Govt and Politics. The writer teaches at Fairleigh Dickinson University, US