Last week, some of us discussed concerns over the demand of the Trump Administration for the names of all FBI agents involved in January 6th cases. While noting that we did not have all of the details, I wrote that this would be a critical test for the Administration between reform and revenge. Line FBI agents should not face punishment for carrying out the orders of their superiors or courts. Now, the Trump Administration has offered additional information, alleging an alarming defiance by a high-ranking official in sharing information. If true, the controversy involving Acting FBI Director Brian Driscoll is reminiscent of the entirely improper conduct of former acting Attorney General Sally Yates.
Acting Deputy Attorney General Emil Bove released a statement stating that FBI agents were never being rounded up or targeted for their work on the cases. A reported force of over 5,000 agents was assigned to these cases.
According to Bove, Driscoll refused to turn over the “core team” involved in Washington, D.C., in the cases as part of its review of the weaponization of the legal system under the Biden Administration. Bove’s memo stated that:
“That insubordination necessitated, among other things, the directive in my January 31, 2025 memo to identify all agents assigned to investigations relating to January 6, 2021. In light of acting leadership’s refusal to comply with the narrower request, the written directive was intended to obtain a complete data set that the Justice Department can reliably pare down to the core team that will be the focus of the weaponization review pursuant to the Executive Order.”
Bove dismissed allegations of a purging of the ranks:
“Let me be clear: No FBI employee who simply followed orders and carried out their duties in an ethical manner concerning January 6 investigations is at risk of termination or other penalties. The only individuals who should be concerned about the process initiated by my January 31, 2025 memo are those who acted with corrupt or partisan intent, who blatantly defied orders from Department leadership, or who exercised discretion in weaponizing the FBI.”
Again, we have not heard Driscoll’s side. Yet, I cannot understand the basis for an FBI official to refuse to share such information with his superiors in the Administration. One can raise concerns over the motivations or even the legality of measures taken against line agents. One can also object that there is no reason to collect the broader information after being allegedly denied the narrower request. However, the Administration has every right to such information, particularly as part of its long-promised review of the agency during the campaign.
I was critical of the initial memorandum supporting the travel ban, particularly its failure to exempt lawful residents. However, I also said Trump’s underlying authority would likely be found constitutional. Despite revisions tweaking its scope and affected countries, opponents insisted it remained unlawful and discriminatory. They continued to litigate on those same grounds all the way to the Supreme Court, where they lost two years ago.
The Supreme Court ruled in Trump v. Hawaii that the president had the authority to suspend entry of noncitizens into the country based on nationality and had a “sufficient national security justification” for his order. It also held that, despite most of the banned countries being Muslim-majority, the ban “does not support an inference of religious hostility.”
That is why Yates deserved to be fired. Yates issued her order shortly after learning of the travel ban and despite being told by Justice’s Office of Legal Counsel it was a lawful order. She never actually said it was unlawful, only that she was not sure and was not convinced it was “wise or just.” Rather than working to address clear errors in the original ban, she issued her categorical order as she prepared to leave the department in a matter of days. Yates maintained afterward that she believed the ban might still be discriminatory, even with revisions. The courts rejected those claims.
Yates was due to retire from Justice within days when she engineered her own firing. It made her an instant heroine and allowed her to denounce Trump at the convention for “trampl[ing] the rule of law, trying to weaponize our Justice Department.” But that’s precisely what she did when she ordered an entire department not to assist the recently elected president.
It is not clear what transpired between Bove and Driscoll, but I cannot imagine a basis for refusing to share personnel information and records with the Trump Administration.
The initial coverage of the request clearly omitted this context and led to the usual media stampede declaring a purging of the ranks by political commissars. The irony is that, once again, the true story may be even more interesting in an alleged defiance of the Trump Administration within the FBI. We have seen recently the actual locking out of Trump officials from agencies like US AID, leading to a security official being placed on leave.
As someone who covered the first Administration, this is a very different profile and approach. Trump learned in his first term how officials could stymie and delay reforms. That process has begun anew, including a plethora of lawsuits designed to slowdown such efforts. However, the Administration is moving far more aggressively in this second term. If Trump wanted to defibrillate the federal system and shock the status quo, he is succeeding in doing so.
I have no problem with officials raising concerns over possible personnel action against agents who were only carrying out their assigned tasks. These officials have a duty to advocate for their agents and insulate their institution from concerns over political retaliation. However, if the FBI refused to supply personnel information, it would move the matter from internal deliberation to outright defiance of a lawful order.