Kash Patel Is Getting in the Way of His Own Retribution
There are rules about identifying the defendants before the crimes.
LAVRENTY BERIA, THE HEAD OF THE SOVIET secret police is (perhaps apocryphally) remembered for saying, “Show me the man and I’ll show you the crime.” That chilling phrase is the very definition of what, in American law, we call a vindictive prosecution—the claim that a prosecution is being brought as retribution against a person for acts that are unrelated to the crime being charged.
The assertion is not uncommon in American jurisprudence. Almost every political figure who has been investigated by a federal prosecutor has made the argument that he is the victim of a vindictive prosecution. They usually argue that their political enemies are out to get them and that they’re innocent of any real crime. But almost every such argument fails because, until now, the claims were almost completely factually groundless.
But if Kash Patel becomes director of the Federal Bureau of Investigation, as President Trump has suggested he should, he will be the poster child of vindictiveness—and his infamous public declarations of retribution may lead to the dismissal of any politically motivated prosecutions he initiates against his enemies list of “Deep State” opponents.
The law says that any presumption of vindictiveness on the part of the government can be rebutted by showing that a legitimate and objective reason supports the charges in the indictment or the basis for the indictment itself. Trump himself made the vindictiveness claim during the recent prosecutions against him. He was unsuccessful (as are most defendants) because there were objectively reasonable grounds for thinking that his prosecutions were grounded on solid factual bases.
There is, however, a further twist to this general rule: Even if no presumption of vindictiveness arises because the prosecution is objectively reasonable, a defendant may still prevail if he can show that the prosecutor was actually vindictive in his prosecution. In other words, a defendant can still succeed if he or she can present direct evidence showing that the prosecution was intended as retribution, notwithstanding the fact that actual crimes may have occurred. This is the Beria scenario—find the man first and then identify the crime.
Patel has gone a long way to supporting a claim of vindictiveness and helping defendants who might be charged to make their case. Consider, for example, this interview (most particularly at 1:07:00) where Patel promises the retribution of prosecution and civil suits against political opponents for “borderline treason.” Or, consider this clip (at about 4:58–5:30) where Patel explains that he’s already decided that he will go after members of the “Deep State” and the media, “whether it’s criminally or civilly, we’ll figure that out” because he’s made the judgment (apparently without investigation) that such actions are necessary.
In his book, Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, Patel includes an enemies list of those he wants to target for prosecution. And, in an intemperate interview with Steve Bannon, Patel lists a number of names (including by reference all of the people from his enemies list) and ends his screed by declaring “these people need to go to prison.”
These are not the words of a neutral investigator. Rather, they are stark evidence of a pre-disposition to prosecution and strong circumstantial evidence of vindictive intent. Patel has already identified who needs to be prosecuted and what their crimes appear to be—all without the benefit of having conducted a criminal investigation.
The motion to dismiss almost writes itself. From his own mouth, Patel will give evidence of his retributive intent. It seems quite likely that many of those whom Patel wishes to prosecute will be protected from that prosecution by the courts. (Of course, as director of the FBI, it wouldn’t be Patel who would bring the retributive prosecutions, but the U.S. attorneys at the Justice Department, but judges should be able to put two and two together.)
To be clear, this is of no real benefit to those on Patel’s enemies list. Even being subject to a federal investigation is a significant burden—in time, money, attention, and mental stress, not to mention the possibility of public harassment. Dismissal of any indictments brought may be some surcease, but it will be cold comfort indeed to those whom Patel and Trump target.
What this record suggests, however, is that Patel’s nomination presents senators with a stark moral choice: They can allow Trump to pay no price for firing the FBI director whom he appointed just seven years ago (and who therefore still has three years left on his term) and replace him with someone whose interest is not in enforcing the law but in punishing his perceived enemies, or they can force Trump to nominate someone who doesn’t sound like an American Beria bent on Stalinesque vindictiveness.
 | A guest post by
|