Making a Scarecrow of the Law: A Former Agent’s Reaction to Recent Events at the FBI

The annus horribilis for those of us still invested in the FBI’s integrity continues apace.

The most recent wound opened roughly two weeks ago with a series of events roundly condemned by most segments of the political commentariat. Erik Siebert was the acting U.S. attorney for the Eastern District of Virginia, and he previously supported the Trumpian changes afflicting the Justice Department and transformed with alacrity an office, previously most known for national security prosecutions, into an engine for immigration roundups. Yet he found that there were bridges too far even for him. He left the office after expressing doubts that a prosecution against former FBI Director James Comey for allegedly misleading Congress could be won, and was quickly replaced by Lindsey Halligan (although even more conservative voices question whether the appointment passes legal muster).

If Halligan’s main qualification—aside from her obsequious loyalty to the president—is that she has never lost a federal prosecution, it should be pointed out that her success rate is due solely to the fact that she has literally never tried one. And so, on the evening of Sept. 25, in what appears to have been almost a comedy of errors, Halligan made her debut treading the boards of the federal criminal system and just secured an indictment against Comey on two counts. As inevitably as death and taxes, current FBI Director Kash Patel felt the need to comment. He issued a nonsensical statement tying the charges to what he consistently characterizes as “Russiagate.” This correlation of the indictment to l’affaire Russe befuddled even those who normally support Patel—as whatever this indictment might be about, it has nothing to do with the Russia investigation.

The Elizabethan observation that “[w]hen sorrows come, they come not single spies, [b]ut in battalions” has in our own time become a platitude. But “in the day to day trenches of adult existence,” as David Foster Wallace once noted, “banal platitudes can have a life or death importance.” The day following Comey’s indictment I stumbled into those trenches anew, in a way I had avoided since my own leave-taking from the organization, as two more items of news further shook my faith in its leadership.

Rumors of more firings, at both the executive and working levels of the bureau, began percolating through the workforce and its alumni networks Friday morning, and a few hours later, more than a dozen employees found themselves no longer employed.

The road leading to this point meandered. In reaction to the combustible combination of protests, civil unrest, and criminal activity catalyzed into being by the police murder of George Floyd, the FBI’s Washington Field Office was ordered in 2020 to patrol the streets of the District of Columbia. It is still not entirely clear, with any degree of specificity, who first ordered agents to march up and down the streets of the city for 24 hours a day, nor what supposed statutes were being enforced, as what little criminal activity occurred tended to be of the municipal variety; informal arguments that agents patrolling the streets, armed with long guns and decked out in tactical gear, might chill First Amendment-protected activity did not seem to raise concerns at any executive or policy levels.

As a result of the nebulous orders and vague authorities, it was a fraught environment, and one accentuated by the fact that special agents receive zero training in crowd control or street patrols. So, at one point during these excursions, when a group of agents were surrounded by a crowd of angry protesters who closed in on them and blocked any points of egress, the FBI personnel sought to deescalate the situation by dialoguing with their interlocutors. After some discussion, the agents and their supervisors momentarily took a knee, after which the crowd, satisfied with the brief symbolic support from law enforcement, peacefully dispersed. The moment went viral, though, and soon enough, the usual suspects went ballistic.

Shortly after the incident, the FBI reportedly examined whether political motivations drove the agents’ actions, but in the end, the FBI and the Department of Justice found no policy violations. It should be emphasized, though, that the agents’ behavior during the protest caused no small amount of controversy within the FBI ranks and the retiree population. 

Speaking solely for myself, I do not know that I would have made the same decisions as they did, but I will also emphatically not insist that I would have acted differently. Everyone who has earned a badge and carried a duty weapon—and not just claimed those appurtenances as part and parcel of a political appointment—is by both nature and experience incredibly chary of second-guessing their colleagues’ decisions to deescalate or apply force in a volatile situation. Judging most tactical encounters for which one was not present presents almost a critical impossibility: Decision points in the moment of crisis are informed by an imprecise combination of training, experience, intuition informed by that education and past events, and a second-by-second, evolving appraisal of a rapidly changing situation. 

But Kash Patel does not suffer the hesitation of the well-informed, and despite his promise, made under oath that “[t]here will be no politicization at the FBI. There will be no retributive actions taken by the FBI,” all of the agents involved in the incident were summarily dismissed this past Friday. This indignity followed months upon months of reassignments, demotions, and demonization. Most of the supervisory agents who bore these burdens are unsurprisingly female or minorities, just like many of the special agents in charge who have been forced out of their positions. But while discerning what motivated Patel might prove difficult, the effect of his decision is easy to pin down: Public servants find their lives destroyed in order to throw red meat to a political base.

If this recounting of events sounds personal or bitter, that is very much intentional: I spent a number of years working with a number of the fired agents in various capacities at both the Washington Field Office and FBI headquarters. Regardless of how one views the choice they made during a single unsettling and agitated moment five years ago, they are—all of them—patriots who dedicated their professional lives to the service of their country and the safety of their fellow citizens.

We often think about the rule of law in overly intellectualized terms; we root discussions about the idea in concepts drawn from political theory and moral philosophy. But its erosion has a very real human cost, measured in fallen ideals and thwarted principles and, ultimately, shattered lives. It pains me that agents like the ones fired this past week will inexorably suffer emotional and financial losses. Some measure of grace should be afforded to those who dedicate their lives to protecting their fellow citizens, but the leadership of the FBI seem intent on denying them even that. These people deserve better treatment, and they deserve better leadership. But then again, so does our country.

The second piece of news I received Friday likewise affected me on a personal level, albeit in a more visceral way: I learned the identities of the two primary investigators who developed the case against Comey. 

One of the persons was unsurprising: A former special agent in charge, who has freelanced in a number of overly politicized matters since retiring—he served as John Durham’s factotum and enforcer, is now apparently back at the Hoover Building working in a similar capacity for Patel.

It was the second name that completely undermined my composure. I used to supervise this agent, and, at times, I would like to believe I served somewhat as a mentor to him. We overlapped on the squad I led for only a year or so, but it was not uncommon for him to sporadically reach out when he faced a career decision and needed counsel. He was an outstanding investigator, a natural leader, and someone whom I wanted to see rise in the organization; it goes without saying that I would make time for him when he needed advice. 

These two identities were not provided by any friends remaining in the FBI or the Justice Department—they would have known of the latter relationship and attempted to cushion the blow—but through a journalist’s tweet innocently forwarded by a Lawfare colleague. (I’m not providing a link to the post; the point of this article is not to name and shame someone but, rather, to use the situation as illustrative of how otherwise good people at the FBI, either voluntarily or by force, are being corrupted by its current leadership and overt weaponization.) Seeing my former agent’s name, though—once the shock subsided—made me think about the erosion of the rule of law once again not in terms of political theory or legal philosophy, but on a more human level: How does a special agent become involved in such a blatantly politically motivated revenge operation?

Before I progress, I want to explicitly state that I have not the slightest idea how the agent with which I was acquainted became involved in this matter; he may have raised his hand to take part, or he may have—in the parlance of the FBI—been “voluntold” that he would staff the case. But regardless of whether his own volition was involved in the decision, and irrespective of how he now feels about it, his name will be linked forever with arguably the most politically weaponized criminal investigation in our nation’s history.

Because in case anyone needs reminding, the president of the United States, on social media, demanded that the attorney general replace a U.S. attorney who did not think there was a legitimate legal case to be made against a political enemy. That U.S. attorney was quickly replaced by someone more pliable, in spite of the fact that she has literally no federal prosecutorial experience or the intellectual pedigree of someone usually appointed to that position, and she made her first order of business securing the indictment. But in order to accomplish this, she might have had to put the investigating agents before the grand jury. How could they have done that, keeping in mind their oaths of office?

The oath to which special agents swear carries an almost totemic status among them; it sets out the principles and ideals to which they will dedicate their lives. But in discussing the oath, there is a bit of a curious incident of the dog in the nighttime, because there is something missing from the oath that directly bears on the behavior of those willing or forced to carry out Patel’s politicized orders: The words make no reference, explicit or implicit, to any sort of allegiance owed to an individual, whether a citizen, a voter, a political ally, the FBI director himself, or even the president.

This very precept was explicitly laid out in an essay, originally published in the “FBI Law Enforcement Bulletin,” and whose abstract still appears on the Justice Department’s website. The article not only starkly refers to the experiences of the American colonists with the king but more darkly discusses the Third Reich’s requirement that oaths spell out allegiance not to the government, but to the Fuhrer, noting that “[a]lthough many of the officers in Hitler’s regime came to realize the error of his plans, they were reluctant to stop him because of the oath of loyalty they had taken to the Fuhrer.” (And lest anyone think this quote symptomizes Trump Derangement Syndrome or somehow runs headlong into Godwin’s Law, please note that the author made the analogy well before our current political era.) How, knowing what the public knows about how this case developed, and the political pressure that was exerted on the FBI and the Justice Department to conclude it with charges, could any agent in good conscience agree to assist in the matter?

As I noted earlier, it is entirely possible, of course, that the on-board agent did not feel he had a choice in whether to do the president’s bidding. But reaching that conclusion denies himself the agency that a democratic republic requires of its public servants; if one is not willing to say “no” to an illegal or explicitly politicized investigation, one might question himself as to whether he has the moral capacity, quite frankly, to justify being empowered by the state with the ability to take away someone’s liberty. The whole point of an oath, after all, is that it mandates certain ethical duties without consequentialist considerations. In order to carry out the functions of a special agent, the person wearing the badge needs to be willing to give it up for a just reason. Once that will has collapsed, the organization cannot stand.

I am angry about the destruction of the FBI’s integrity all the time, save for the brief respites when sorrow overtakes the fury. Shortly after my departure, I talked with another individual who suffered a similar—albeit more extreme—fate during the first Trump administration. He and I had never spoken before, let along worked together, but his solicitousness in proactively reaching out to check on my welfare was a balm: It is not an exaggeration to say that my circle of friends has shrunk by orders of magnitude since I was forced out of public service; almost everyone I counted as close to me is afraid to talk to me, for fear of meeting my same end. Individuals with whom I used to vacation and celebrate holidays, and who joined me at my bachelor party and raised glasses at my wedding, no longer acknowledge my existence. I asked the former executive at what point, following exits like ours, one began again to feel whole. His answer offered little hope of solace and merely confirmed what I already knew in my bones. A sense of mission, a sense of place, and a sense of community are not easily restored when sharply torn from one’s grasp.

The oath serves another function, in that it binds special agents to one another in a sense that outsiders often cannot understand. Special agents—probably more than other people, and definitely more than is healthy, assimilate their jobs into their personal identities that makes the organization both stronger and more difficult to leave. An oft-circulated cliché among the workforce is that the bureau will always take more than it gives, but that’s a sacrifice we willingly make for the good of our country, despite its very real emotional consequences. I have lost track of how many relationships I cut short in favor of focusing my energies on the exigencies of national security: More friendships than I can count gradually faded as my assignments moved me from city to city, and many budding romances died on the vine as I prioritized investigations over my own personal interests. But given the opportunity to relive those decades, there is little I would do differently. The mission has to come first. The country relies on agents to accept this prioritization, and agents lean on each other to bear the difficulties that entails; they are bound to each other by the shared ideals encapsulated in the oath. I do not know how the organization survives once its words ring hollow, for the rule of law requires them to resonate always.

I will conclude by noting that the retired special agent in charge who helped develop the case against Comey actually once did provide comments on the record about the person whose life he is trying to destroy: In the immediate aftermath of Comey’s unceremonious and unprecedented firing, he remarked to a reporter that the administration “will be hard-pressed to find someone who possesses his unique combination of personal qualities as well as his respect for the rule of law.” 

After 10 years, things have changed. The administration did not even try to find a director with those qualities or a respect for the rule of law. What pains me more to admit, though, is that a bit of that attitude toward the very concept may have seeped into the actions of individual investigators. Perhaps the apathy for democratic and constitutional norms is not as acute as I fear, but even so, I know that at least one agent held the potential of being an upstanding public servant, who embodied the best ideals of the FBI, and now will always be associated with an elected official’s unending quest for revenge.

I won’t pretend to know how the rest of the FBI feels about this, including my old squad. But I do believe that there very much is a special providence in the fall of even an individual sparrow, and right now there is some new agent trainee at Quantico, going through her paces at the FBI Academy, who will never know the honor of serving a bureau unblemished by the taint of political weaponization. Her loss is something worth noting, and it is certainly something worth mourning.