Lawyers for FBI employees who worked on cases related to the Jan. 6, 2021, Capitol riot argued before a federal judge Wednesday that the Department of Justice has compiled the agents’ names not for any internal investigation, but for public revenge.
“It was pretext … for either public release or release to the White House,” said Margaret Donovan, a lawyer representing anonymous FBI employees.
Lawyers for the Department of Justice made clear Wednesday that they had no intention of deleting the list of names.
It’s been nearly three months since bureau employees, operating under pseudonyms, banded together and sued the DOJ to block it from essentially doxxing them. The move came in response to Trump pardoning nearly all Jan. 6 rioters on his first day in office and signing an executive order commanding the attorney general to “review the activities” of law enforcement he said had “ruthlessly prosecuted” them.
In response to those orders, the Justice Department began an FBI employee questionnaire in February asking whether agents worked on Jan. 6-related cases. The administration has asserted that the questionnaire was merely part of an internal review.
U.S. District Judge Jia Cobb immediately intervened when law enforcement leaders would not commit to keeping the FBI agents’ names confidential — or passing them off to the White House. The DOJ and worried FBI employees then formed a tentative truce, with the government promising it wouldn’t disseminate the list “directly or indirectly” for a time.
Government lawyers still won’t clarify what the DOJ plans to do with these employees — and made clear the agency won’t let go of a list that includes more than 5,000 FBI special agents, analysts and others.
“I don’t suppose you can agree to destroy this list and we can all go home?” Cobb asked.
“No,” Justice Department lawyer Dimitar Georgiev-Remmel said.
Cobb said the White House or its political allies releasing the names could direct public harassment and threats to specific law enforcement personnel who helped identify, track down and prosecute Jan. 6 rioters.
“That’s pretty serious,” Cobb said.
Donovan and her team implored the judge to restrict what the DOJ can do with that list of names, particularly given the Trump administration’s exhibited penchant over the last 100 days to exercise executive authority to seek vengeance on political opponents.
Cobb seemed reticent to direct the DOJ to outright erase the list, given that a drawn-out internal review of department practices — even if politically driven — would probably identify everyone who did their jobs anyway.
However, the judge seemed unconvinced by the Justice Department’s claim that its review is a legitimate examination of its law enforcement track record in these cases — particularly given that, as a D.C. judge, Cobb and her colleagues oversaw hundreds of Jan. 6-related cases as they made their way from indictment to trial.
“I thought I knew a lot about January 6 cases. Apparently there was corruption?” Cobb said, in a half-sarcastic tone. “Was there planting of evidence?”
“I think that’s precisely what the internal review is trying to uncover,” Georgiev-Remmel said.
Cobb poked at that, questioning what the “proper purpose” would be of scrutinizing cases that already played out in court.
“The proper purpose is an executive order by the president,” Georgiev-Remmel said.
In court, government lawyers would not counter the notion that any FBI employees who worked on Jan. 6-related cases should consider themselves “under investigation.”
After the hour-long hearing, Cobb said she’d take the matter “under advisement” to consider the arguments before ruling.
Wednesday’s court hearing also displayed a peculiar legal debate that could make its way to some of the many other cases challenging the White House’s moves against much of the federal workforce. FBI employees accused of partisan law enforcement are claiming a violation of their First Amendment rights — not to be partisan in their government work, but to avoid punishment for refusing to adopt Trump’s politics.
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Jose Pagliery is a reporter at NOTUS.