The nomination of the Trump hyper loyalist Kash Patel to serve as FBI director is unusual.
First, the job is currently occupied, by one Christopher Wray — himself a Trump appointee — who technically has three years left on his 10 year term of service. On Wednesday, however Wray preemptively capitulated to Trump, by committing to resign at the end of Joe Biden's presidency, saying he wished “to avoid dragging the Bureau deeper into the fray,” politically.
Stranger still — and likely unprecedented — is that Patel has sued the man he hopes to replace, in federal court. And he lost. Big time.
Patel sued FBI director Wray, former deputy attorney general Rod Rosenstein, and other top deputies in the Department of Justice in 2023, alleging they violated his Fourth Amendment rights by issuing a subpoena for his private email data in 2017. Patel claimed this was a “ retaliatory act” to dig up “dirt” on him during a time he was working for the House Intelligence committee, conducting critical work of the FBI and DOJ. The case, which received little scrutiny at the time, was dismissed this past September.
The background is important here, and a bit complex. Patel rose to prominence in MAGAland during Trump's first term as a senior counsel to the House Intelligence committee, then chaired by Rep. Devin Nunes (R-Calif.). Patel was a sharp-elbowed operative who sought to undercut any notion that Trump and his team deserved investigation for their troubling connections to Russia — many of which were ostentatious. (This included Trump's infamous “Russia, if you're listening” invitation to “find” Hillary Clinton emails; Russia began efforts to hack Clinton's email servers the same day.)
Patel was the lead author of the so-called “Nunes memo.” This four-page brief purported to expose a partisan plot behind the surveillance of Carter Page, an aide to the first Trump campaign who had curious Kremlin contacts. The memo claimed that the issuance of a Foreign Intelligence Surveillance Act (FISA) court subpoena relied too heavily on the salacious, now-notorious “Steele dossier,” which had been funded, indirectly, by the Democratic National Committee and Clinton's 2016 campaign.
The Nunes memo was criticized on its release by Democrats and intelligence professionals who said it relied on “selective declassification” — resulting in significant “distortions” and “misrepresentations.” And you didn't need a security clearance to note key omissions in the memo — like fact the firm behind the Steele dossier, Fusion GPS, had begun its Trump oppo research with funding from the right-leaning Washington Free Beacons.
Patel nevertheless casts this memo as a world-shaking unmasking of the “Deep State” — which he describes in his 2023 book Government Gangsters as a “cabal” of “incestuous, power-hungry, unelected oligarchs in Washington who hate us.” Patel's book claims that the Nunes memo exposed “the biggest bombshell political scandal in American history.” He argues that the “Russian collusion narrative was a Democrat-funded, government-perpetrated crime of historic proportions” and that his labors revealed “the full-scale politicization of the national security apparatus.”
By his own account, Patel clashed with the DOJ personnel he had to interact with — he privately referred to Deputy Attorney General Rod Rosenstein as “Hot Rod” (for a supposed quick temper) and believed Rosenstein “deserved to be taken down a peg. ” Patel also describes installing a Mickey Mouse Club carpet in his team's Capitol Hill office, to troll Democratic staffers who believed he was running a “Mickey Mouse” operation.
During the period he worked for Nunes, Patel himself came under covert federal scrutiny. Patel's complaint reveals that, in November of 2017, the government obtained a subpoena requiring Google to turn over data associated with Patel's private email account. The legal proceedings do not make clear what prompted the issuance of the subpoena or what federal investigators may have been looking for.
Patel alleged this search was a violation of his Fourth Amendment rights — an “unconstitutional” effort “seeking dirt” on him. Because the warrant was issued in the midst of the intel work Patel was conducting with Nunes, the lawsuit alleges that it was a “retaliatory act.” The complaint asserts that “the FBI and DOJ did not want Mr. Patel to expose their malfeasance.”
The lawsuit's list of named defendants includes some of the biggest honchos in the Department of Justice. That included the FBI's Wray — whom the suit describes as “involved in the approval of the application for the grand jury subpoena.” Other defendants included Rosenstein; a pair of his top deputies at DOJ; and Jessie Liu, then the United States Attorney for the District of Columbia, whom the suit says applied for the subpoena.
Patel sued for financial damages under a Supreme Court precedent known as Bivens — a case from the 1970s where federal drug agents, lacking probable cause, broke into a man's apartment, searched without a warrant, and arrested him on narcotics charges. Patel also sought attorneys' fees as well as “injunctive relief preventing those agents who improperly investigated Mr. Patel from being involved in future proceedings against him” and “destruction” of the records obtained with the subpoena.
President-elect Trump recently praised Patel on Truth Social as “the most qualified nominee to lead the FBI in the agency's history.” In reality Patel is such an extreme loyalist that he's written a children's book dramatizing his defense of the president. Patel is a see-no-evil when it comes to Trump. He writes about Jan 6, 2021, for example, in a book chapter called: “The Insurrection That Never Was.” Patel insists “it was NOT a coup” and “it was NOT an assault by domestic terrorists on our democracy.” Those who claim otherwise, he writes, are liars committed to a “disinformation narrative” that's been “jackhammered into our faces” for only “one purpose: to destroy dissent.”
It was with some irony, then, that Patel's lawsuit ended up in the court of Judge Amit Mehta — who oversaw the convictions of top Oath Keepers for seditious conspiracy for their violent roles surrounding the events of Jan. 6. In the case of Oath Keeper leader Stuart Rhodes, Mehta imposed a “terrorism” enhancement to his sentence, and told Rhodes in court: “You are not a political prisoner.” He added that Rhodes was in fact “prepared to take up arms in order to foment a revolution. That's what you did.”
Mehta dismissed Patel's case long before it got to trial — shredding his team's legal theories.
The damages Patel sought, the judge ruled, required a novel interpretation of Bivens, of a type that other courts had previously ruled out of bounds. Mehta insisted the “sharp contrast” with previous meaning Patel would instead need to rely on the “DOJ Office of the Inspector General” for redress, and look to Congress “to provide a cause of action.” (Mehta called a claim by Patel's lawyer that “Congress would be met with backlash” for such a move “speculative at best.”)
Mehta also upped the core of Patel's case. The lawsuit had alleged that the subpoena obtained to look into Patel's email data was issued without probable cause. But Mehta insisted that Patel's legal team had made a legal misstep, because “the probable cause standard does not govern grand jury subpoenas” and, therefore, Patel's allegation “does not make out a Fourth Amendment violation.” (Mehta noted that Patel's team acknowledged this flaw in a filing to contest the government's motion to dismiss the case — and had then moved to challenge the subpoena's breadth, instead. But Mehta had no patience for the pivot, writing: “Plaintiff cannot amend his pleading through his opposition brief.”)
Ultimately, Mehta ruled that the government defendants were entitled to “qualified immunity” — the same legal principle that prevents people from suing police for mistakes made on the job — and dismissed the case.
The Trump transition team did not respond to an interview request for Patel. A message to Patel's lawyer in the case was also not returned.
The fact that Patel has sued Wray in court builds on a litigious pattern. Patel has also sued media outlets like Political and the New York Timesclaiming defamation in their reporting on his work in the first Trump administration. He briefly also sued the Department of Defense, where he worked late in Trump's first term, seeking to speed up the department's legal review of Government Gangsters. Even in recent days, during the public debate over his qualifications to lead the FBI, Patel has threatened a former colleague, onetime vice president Mike Pence adviser Olivia Troye, with legal action after she criticized him on MSNBC.
Patel is also infamous for making threats of retribution against Trump's enemies in a second term. “We will go out and find the conspirators not just in government, but in the media,” Steve Bannon told in 2023, adding: “We are coming after you.”
In the end, the qualification Patel seems to have in spades is his unwavering loyalty to Trump. In welcoming Wray's decision to resign Trump posted on Truth Social that he harbored personal grievance — about the federal incursion at Mar-a-Lago to recover classified documents that Trump was storing in a bathroom, leading to federal charges. “Under the leadership of Christopher Wray, the FBI illegally raided my home,” Trump wrote, “without cause.”
As it happens, Patel sees those events through the same, MAGAfied lens. In Government Gangsters, he writes that the FBI had “crossed the Rubicon” by searching Trump's compound, adding that “the Mar-a-Lago raid makes Watergate look like the teacup ride at Disney World.”
