You can’t consent to impeachable abuses and then object to impeachable abuses.
The Situation last week had me waxing thankful.
Just a few days later, I’m pondering President Biden’s pardon of his son and the paradox of Donald Trump’s nomination of Kash Patel to head the FBI. I’ll deal with the former tomorrow.
The Patel Paradox can be stated as follows: the only reason to nominate someone like Patel to run the FBI is to commit impeachable abuses of power. Trump makes no secret that this is, in fact, his purpose. Patel is similarly explicit on the point. Yet the Senate might very well confirm the man once Trump removes the incumbent FBI director and nominates Patel to replace him. If it actually does so, would that constitute “consent” to impeachable offenses?
Let’s break the paradox down into its component elements.
Without going into a whole lot of details, let’s just say that Patel believes that the FBI needs to be redone root and branch. He wants most of FBI headquarters disbanded and sent out in the field. He wants everyone associated with the Russia investigation, which he considers a malicious hoax, fired and prosecuted. He wants the FBI to go after Trump’s enemies. He wants the FBI brought “to heel” on Trump’s behalf. He wants the DC headquarters turned into a museum to the deep state. He wants to stock the Justice Department with Trump loyalists. He’s even suggested that the FBI should reduce its intelligence operations, a central part of its mandate.
Trump has been incredibly unsubtle about what he’s after here. Remember the “enemy within” comments? Remember the threats to put Liz Cheney in jail? Or his suggestion that “cheating” poll workers and election officials be prosecuted? Or his promises of retribution against district attorneys like Fani Willis and Alvin Bragg?
Indeed, Trump has never made the slightest pretense of believing that law enforcement should be apolitical—not even when he named Patel to be FBI director. In that statement on Truth Social, he explicitly mentioned that Patel “played a pivotal role in uncovering the Russia, Russia, Russia Hoax, standing as an advocate for truth, accountability, and the Constitution.” Which is to say that he mentioned—before saying anything about Patel’s formal qualifications—that the man had worked to protect Trump against a legitimate FBI counterintelligence investigation.
Patel, for his part, has similarly been nothing but explicit about what he wants to do. The Washington Post compiled this helpful montage of video clips for anyone who thinks I may be exaggerating. In particular, notice what he has said about going after journalists: “We’re going to come after the people in the media who lied about American citizens who helped Joe Biden rig presidential elections. We’re going to come after you, whether it’s criminally or civilly. We’ll figure that out. But yeah, we’re putting you all on notice.”
In other words, a president-elect who has been explicit and consistent for the past nine years about going after his political opponents and critics using federal law enforcement has decided to remove the FBI director (one he appointed, by the way) and replace him with a man who has been similarly explicit about his plans to pursue the president-elect’s political enemies, protect him from investigations, and go after journalists. That’s the first key element of the Patel Paradox.
Element number two—and this a critical point—is that these ambitions, though stated with admirable clarity and forthrightness, constitute gross abuses of power. This point should not be a matter of dispute and, in a sense, it isn’t. If I said that President X had called up phony investigations of his political enemies and had deployed the FBI to go after journalists who criticized him, nobody would argue that this was abusive.
The only sense in which this second element is disputed is that Trump claims to be the victim of abusive political investigations by the FBI—which did make some genuine errors during the Russia investigation—and claims abuse at the hands of former intelligence figures as well. So Trump and Patel (and many others) will often claim that the abuses they aspire to commit are merely depoliticizing an agency that was weaponized against them.
But don’t be fooled: When Trump talks about going after the “enemy within” and he specifically mentions Adam Schiff and Nancy Pelosi, this is pure political retaliation—and nothing more elevated than that. When he talks about investigating Liz Cheney or larding the FBI and Justice Department with loyalists, there is no “reform” at issue. There is just revenge for political opposition and professionalism—and building an institution capable of delivering that revenge.
Element number three: building a law enforcement cadre to maliciously target with selective investigation and prosecutions one’s political opponents and critics is not merely a garden variety abuse. It is a textbook impeachable abuse. (Whether it is also a crime depends on precisely how it is done.) In other words, Trump in his candor about his aspirations in frankly announcing his intention to commit offenses a reasonable Congress would find impeachable.
Indeed, Trump is removing Wray and replacing him with Patel specifically in order to commit these abuses, and he’s making virtually no attempt to hide it. I say “virtually” because I concede that Trump never quite connects the dots and says that he expects Patel to go after the “enemy within” using vindictive or politically motivated investigations. And Patel, to my knowledge, has never said that as FBI director, he would launch the many malicious and selective prosecutions Trump has called for. So the crowd committed to putting their heads in the sand about what Trump is doing here have at least some sand with which to work.
But they don’t have much. And I suspect that the supply of sand will dwindle as Trump keeps mouthing off and as journalists spend more time mining the many statements of the loquacious Patel.
This brings us to the paradox. Senators have a veto. They know who Patel is. And they know who Trump is. And they know precisely why the latter wants to oust Wray in favor of the former.
They also know that “consent” here does not merely mean consent to put a certain person in a certain role, at least not in practice. It means consent to put that person in that role with the specific understanding that you and he both intend for him to do certain things.
If the Senate voted to consent, for example, to a hypothetical president’s nomination of me to run the presidential wardrobe—given my known position on dog shirts and that president’s very hypothetical praise of my views on the subject—it would thus be giving its consent to a certain amount of presidential dog shirt wearing. Likewise, if and when the Senate votes to consent to Patel’s nomination to displace the incumbent FBI director, it is similarly consenting to gross abuses of the FBI.
Which is to say that it would be voting its consent to impeachable offenses. Trump will not be wrong when he later argues that, in nominating Patel, he was (all but) completely clear about his intentions and senators cleared it in advance.
I flag this issue now because I don’t want to let senators pretend there is some kind of plausible deniability here about what the choice is before them. I don’t want them to be able to say down the road that they voted to confirm Patel because they supported “reform” of the FBI—and that they are shocked that “reform” turned out to mean arson.
There is no resolution of the Patel Paradox. You can’t consent to impeachable abuses and then object to impeachable abuses. And Trump and Patel have left senators no plausible deniability. Because they are not, in fact, talking about reform. The arsonists are promising only arson. They just spell it with an “r.”
– Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books. Published courtesy of Lawfare.
