It’s going to be awkward at FBI headquarters next month when President-elect Donald Trump’s pick to lead the bureau likely takes over.
According to a new government watchdog report, the FBI spied on its prospective new boss, Kash Patel.
Patel has promised to “clean house” at the Hoover Building, and hold all those who “abused their power” during the Russiagate “witch hunt” accountable.
He might start with the officials and agents who secretly vacuumed up his phone records and emails starting in late 2017, when he led a House Intelligence Committee investigation into the FBI’s reliance on Hillary Clinton’s false opposition research to surveil a Trump campaign official as a supposed “Russian agent.”
According to a nearly 100-page report by the Justice Department’s inspector general, the FBI subpoenaed the records as part of an investigation it opened to find out whether congressional staffers leaked classified information about its Trump-Russia “collusion” case to the Washington Post and other media.
Working with career prosecutors at Justice, the FBI compelled Google and Apple to turn over the sensitive private information of subjects the FBI identified “between September 2017 and March 2018,” a period when Andrew McCabe was the acting FBI director. (Then-Attorney General Jeff Sessions was out of the loop, the report said, having recused himself from the Russia probe.)
The court orders gagged the service providers from notifying Patel and other customers of the intrusion.
As chief counsel, Patel had no idea that the subject of his investigation — the FBI — was collecting his data and increasing the visibility of witnesses he was communicating with, including whistleblowers.
At the time, Patel was demanding to see FBI documents and depose FBI witnesses to find out if the bureau had abused its power in obtaining a FISA warrant to spy on Trump aide Carter Page.
But Patel remained in the dark until 2022, when Google finally was cleared to send him a copy of the subpoena. Outraged, he told me at the time: “The FBI and DOJ subpoenaed my personal records while I caught them doing this to Page back in 2017.”
He said the McCabe FBI didn’t want anybody to find out that it “literally copied and pasted” Democrat opposition research, wholesale, into wiretap-warrant applications.
He added that he hoped those behind the abuses would be prosecuted by a future Trump administration: “They must be held accountable or they’ll only abuse their power again.”
The IG probe reveals that the FBI had renewed the subpoenas each year, snooping on congressional staffers for up to five years. That means McCabe’s successor, Christopher Wray, signed off on the continued collections.
Justice Department IG Michael Horowitz found the unprecedented surveillance created “at a minimum, the appearance of inappropriate interference” by the FBI in “legitimate oversight activity” by Congress. He warned that it could have a “chilling” effect on whistleblowers coming forward.
On Wednesday, the day after the IG report came out, Wray announced he would step down at the end of President Biden’s term, clearing the way for Trump nominee Patel to head the agency.
“This [IG] report highlights exactly why Kash Patel is the perfect leader to reform and rebuild the FBI,” a spokeswoman for Patel told The Post. “Kash understands the critical balance between national security and protecting civil rights [and] will work hand-in-hand with Congress to restore trust.”
A former ally of Patel on the Hill, who was also spied on by the FBI, called the leak investigation a “fishing expedition”: Former Senate investigator Jason Foster claims McCabe used it as a “pretext” to find out what he and Patel were doing to expose FBI corruption in its Russiagate probe of Trump.
At the time, his Senate panel, the Judiciary Committee, had forced the FBI to turn over the shady Page FISA applications. Foster noted that the inspector general determined that no one was ever charged in the FBI’s years-long investigation of the unauthorized disclosures to the media, despite the wide net McCabe cast.
Foster also noted that McCabe himself was investigated for leaking to the media about an earlier Clinton-related investigation, and then lying about it to the IG, as well as FBI inspectors.
“Mr. McCabe lied about his own leaking and should have been prosecuted for it, according to the Obama-appointed Justice IG [Horowitz], but wasn’t,” he told The Post. “Now that this fishing expedition into the communications of congressional attorneys has been confirmed by the same IG, the new administration needs to finally hold people accountable.”
Currently chairing a whistleblower support group, Empower Oversight, Foster said that what the McCabe FBI did is more egregious than reported. It also swept up the phone records of spouses, including his own wife.
He said, “My head was spinning” when he found out. And he said agents and prosecutors withheld from the DC magistrate judge who approved the subpoenas and non-disclosure orders the fact that the targets were congressional attorneys.
“They misled the court,” he said. “They left out the key fact we were all congressional attorneys. They claimed over and over, with no basis, that we were flight risks or would ‘destroy evidence.’ “
IG Horowitz agreed that the language agents and prosecutors used in the subpoenas was “boilerplate,” making it more likely the judges would rubberstamp them.
As a result, “they got all kinds of information on who we were talking to, and when, with no probable cause and no notice to congressional leadership, so there was no chance for Congress to challenge it,” Foster added.
“And they can still get that kind of information,” barring reforms to protect separation of powers in the future.
Horowitz confirmed the personal data collected from the subpoenas (including more than 75,000 text messages), along with the electronic communications documenting the opening of the investigations and the FBI interview reports, are stored at FBI headquarters.
He noted he only reviewed “a select number” of the thousands of files, which leaves loose ends for Patel to investigate.
A handful of agents and supervisors involved in the case are still employed there, the IG said, and maintain access to the files.
Bad actors remaining at the bureau could be fired, but how can those who have left be held accountable? The five-year federal statute of limitations has expired, making prosecution of suspected criminal abuses by current and former FBI officials and agents a non-starter.
Foster suggested they still could lose their coveted national security clearance. As FBI director, Patel would have the authority to strip McCabe and other former officials of their classified credentials, making it virtually impossible for them to work again in federal law enforcement. Patel said in a recent podcast that any official involved in framing Trump as part of the “Russiagate hoax” should have his clearance revoked.
On CNN, where he works as an analyst, McCabe recently opined that Patel wasn’t qualified to lead the FBI: “He doesn’t really have a fraction of the qualifications that any former FBI director chosen by any president has.”
McCabe says he worries Patel will turn the bureau back to the days of J. Edgar Hoover, when it was “essentially the enforcement arm for the president’s political activities.”
He fears Patel will trample over civil liberties? That’s rich, Patel points out, as it was “gangster” McCabe who signed one of the illegal FISA warrants to spy on Page.
Paul Sperry is a senior reporter for RealClearInvestigations. Follow him on X: @paulsperry_
