The President’s constitutional obligation to “take Care that the Laws be faithfully executed” requires evenhanded action in the national rather than his personal interest, a distinction Donald Trump does not grasp. His often-stated intention to seek retribution against opponents, if implemented, facially contravenes the Take Care clause.
Too many of Mr. Trump’s personnel selections evidence his assiduous search for personal fealty from subordinates, not loyalty to the Constitution and its Take Care clause. Stocking his administration with lickspittles will benefit him, but not America. Kash Patel’s nomination as FBI Director squarely fits this pattern.
Congressman Devin Nunes pushed Mr. Patel for the National Security Council staff after Republicans lost control of the House in 2018. Notwithstanding Mr. Patel’s utter lack of policy credential, the President ultimately ordered him hired. NSC staff has long been divided into Directorates responsible for different policy areas. Charlie Kupperman, my Deputy, and I placed Mr. Patel in the International Organizations (IO) Directorate, which had a vacancy.
Approximately five months later, an opening arose in the Counter Terrorism (CT) Directorate. The pressure resumed, and so Mr. Patel moved laterally. In neither case was he in charge of a directorate during my tenure as National Security Advisor, or thereafter, as he contends in his memoir, and has repeatedly stated elsewhere. He reported to Senior Directors in both cases, and had defined responsibilities. His puffery was characteristic of the resumé inflation we had detected earlier when he was first pressed upon us. He proved less interested in his assigned duties than in worming his way into Mr. Trump’s presence, which evidenced he was duplicitous, manipulative, and conspiratorial, as the following examples demonstrate.
Fiona Hill, NSC Senior Director for Europe, later testified to Congress during the impeachment hearings that Mr. Patel, at that time assigned to the IO Directorate, participated in a May, 2019, Oval Office meeting on Ukraine, and that he had engaged in various other Ukraine-related activities(https://d3i6fh83elv35t.cloudfront.net/static/2019/11/FionaHill-compressed.pdf). Whatever he did on Ukraine while an NSC staffer was unrestrained freelancing. He denies any communication with Mr. Trump on Ukraine(https://www.axios.com/2019/11/09/national-security-council-staffer-denies-secret-ukraine-conversations-trump).
In August, when I was overseas, Mr. Trump called Mr. Kupperman and White House Counsel Pat Cipollone to the Oval Office, finding Mr. Patel already there, to discuss making him an administration enforcer of presidential loyalty. Messrs. Cipollone and Kupperman strongly objected to any such vigilante role, whether in the NSC or the Counsel’s office, and the issue disappeared. I resigned shortly thereafter.
In October, 2020, during a hostage-rescue mission, as former Defense Secretary Mark Esper memoir described, Mr. Patel, then in the CT directorate, misinformed other officials that a key airspace-transit clearance had been granted. In fact, the clearance had not been obtained, thus threatening the operation’s success. Mr. Esper writes that his team “suspected Patel made the approval story up,” but was not certain. Typically, Mr. Patel’s version of this episode in his memoir denies any error, but, ironically, boasts of his acting beyond the authority of NSC staffers. Then-Secretary of State Pompeo also knew the day’s details, including the clearance problem. He has not spoken publicly about the incident. He should.
Last week, Olivia Troye, Vice President Pence’s former counter-terrorism advisor, elaborated on these concerns, tagging Mr. Patel with “making things up on operations” and lying about intelligence(https://www.dailymail.co.uk/news/article-14158977/trump-fbi-kash-patel-legal-threat-msnbc-olivia-troye.html). His lawyers responded by threatening to sue her for defamation, writing that “[a]t no point did Mr. Patel ever lie about national intelligence, place Navy Seals at risk, or misinform the Vice president.” Of course, what Mr. Esper and Ms. Troye are accusing Mr. Patel of lying about is the airspace-transit clearance, the lack of which would have made transit by US forces though the airspace of the country in question an act of war.
These are but a few of many cases that touch directly on Mr. Patel’s character, or lack thereof, and his consistent approach of placing obedience to Mr. Trump above other, higher, considerations, like loyalty to the Constitution. His conduct in Mr. Trump’s first term and thereafter shows clearly that his mantra as FBI Director would be Lavrenty Beria’s reported comment to Joseph Stalin, “show me the man, and I’ll show you the crime(https://www.washingtonpost.com/politics/2024/12/03/patel-deep-state-trump-retribution/).” These are precisely the character flaws, repeatedly displayed, which disqualify him for any senior law-enforcement or national-security role.
Mr. Patel has made numerous statements, many of which he has tried to walk back once they came to wider public attention. He has, for example, frequently called for investigations of journalists(https://www.nbcnews.com/politics/donald-trump/kash-patel-said-come-journalists-now-hangs-fbi-candidacy-rcna182661). He has been accused of seeking to declassify sensitive information for political or personal reasons rather than for legitimate national-security reasons(https://www.washingtonpost.com/opinions/2024/12/06/kash-patel-trump-fbi-director/). Tellingly, during Mr. Trump’s first term, both Attorney General Bill Barr and CIA Director Gina Haspell(https://www.axios.com/2021/01/16/kash-patel-cia-gina-haspel), respectively, threatened to resign if Mr. Patel were forced upon them as their deputy.
Mr. Trump argues he was unfairly, even illegally, targeted by partisan Biden prosecutors. His opponents believe this is false. The dispute is irresolvable in this brief article. What is true, is that if illegitimate partisan prosecutions were launched, those responsible should be held accountable in a reasoned, professional manner, not in a counter-witchhunt.
The worst response is for Mr. Trump to engage in precisely the prosecutorial conduct he so roundly condemns. Simply making the threats politicizes and degrades the legal process and people’s faith in even-handed law enforcement. A President possessed of civic virtue would not launch retribution against opponents, and he would certainly not appoint an FBI Director who saw himself solely as the President’s liege man. That kind of President would never consider Mr. Patel. If Mr. Trump is determined, wrongly, to remove Chris Wray, there are previous examples to follow that have restored faith in a battered Justice Department and FBI. In 1975, President Ford selected University of Chicago Law Dean Edward Levi as Attorney General, and in 1978, President Carter named Judge William Webster, a Republican, to be FBI Director.
Mr. Patel is no Ed Levi or Bill Webster. To resolve disagreements over his integrity and fitness, a full-field FBI investigation, as prior nominees have undergone, is clearly warranted. With more facts available and less rhetoric, the result will be clear. I regret I did not fully discern Mr. Patel’s threat immediately. I might have, to borrow Winston Churchill’s phrase, strangled his Trumpian-servility in its cradle. But we are now all fairly warned. Senators will not be able to escape history’s judgment if they vote to confirm him.
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During 1985-89, Mr. Bolton was Assistant Attorney General of the Office of Legislative Affairs and then of the Civil Division at the Justice Department. He is the author of “The Room Where It Happened.”
This article was first published in WSJ on December 10, 2024. Click here to read the original article.
