Former FBI employees warn that the law enforcement agency — which has reportedly agreed to assist Texas Republicans in hunting down Democratic legislators who’ve left the state in protest — is throwing itself headfirst into an ethical dilemma it narrowly avoided 22 years ago.
Texas state Democrats have fled to Illinois, denying Republicans a quorum in the state Legislature and preventing them from passing a proposed gerrymandered map that could cost Democrats up to five congressional seats. The situation escalated on Thursday, when Sen. John Cornyn said the FBI’s director, Kash Patel, approved his request “to assist state and local law enforcement in locating runaway Texas House Democrats.”
It’s unclear what exactly that assistance entails. There are certain penalties for breaking a quorum, but how far the federal government can or would go to bring the lawmakers back is unclear. Republicans have signed civil warrants calling for their colleagues’ arrests, but there’s no federal law prohibiting quorum-breaking. Still, half a dozen former FBI employees told NOTUS that special agents could employ terrorist tracking surveillance tools to geolocate these Democrat lawmakers’ phones and even arrest them to forcefully transport them back home, which would amount to a drastic escalation.
The FBI already faced this exact situation in 2003, when Gov. Greg Abbott, then Texas’ attorney general, tried to rope in the bureau to help him pursue Democrats who crossed into Oklahoma over the same redistricting concerns. The scandal led to a Justice Department inspector general report that documented how federal prosecutors resoundingly rejected the effort, save for a lone FBI special agent who was willing to place a phone call to track down a legislator who was a personal friend.
A former FBI employee familiar with that episode, who spoke on condition of anonymity to avoid reprisal from the Trump administration, told NOTUS that the bureau is flagrantly violating ethical rules — ignoring its own history by aiding Texas Republicans and consigning itself to commit a mistake it avoided the last time around.
“The correct approach is for the FBI to not get involved. Period,” they said. “We are down the rabbit hole now.”
The FBI on Thursday declined to comment about the matter.
The 2003 episode paints a picture of a very different agency than the one set to aid Texas today. At the time, several members of Congress demanded to know exactly how federal agencies responded when the chief clerk of the Texas House of Representatives issued warrants directing “any Peace Officer of the State of Texas” to “send for and arrest” the protesting Democrats, followed by Abbott’s official request for help from the DOJ. Investigators concluded that, eight times over, “the relevant DOJ employees promptly and appropriately declined to become involved in this state matter.”
A senior DOJ official brushed off the entreaties from the office of Tom DeLay, the Republican House majority leader from Texas. A special agent at the FBI’s resident agency in Sherman, Texas, took a call from a Republican whose name they couldn’t remember and declined to help, telling them that the issue should be up to voters. A senior captain with the Texas Ranger Division called the U.S. marshal in the state’s western district, a personal friend, for advice on how cops dealt with it when senators tried the same thing in 1979, until their call was interrupted. And two FBI agents in Brownsville, Texas, rebuffed a ranger who asked how to employ a “trap and trace,” the kind of spy tool used to identify the source of incoming phone calls or computer signals.
“Both special agents informed the ranger that this investigative technique required a court order,” the inspector general’s report found. “Neither agent provided any assistance to the Texas Ranger on this matter.”
Upper brass at the Western District of Texas U.S. Attorney’s Office moved fast, with the head of the criminal division there quickly drafting a memo that concluded federal prosecutors couldn’t use the “Fugitive Felon Act” because the absconded Democrats were neither fugitives nor felons.
That analysis could change as the FBI shows willingness to get involved.
Special agents routinely take part in what are called UFAPs, short for “Unlawful Flight to Avoid Prosecution,” which are quick roundups of people accused of “unlawful flight to avoid prosecution.” It’s a task that typically falls on an FBI field office’s violent crime squad, which tracks a person down and presents them in court for an initial appearance before a federal magistrate judge before extraditing them to the state they fled.
J.J. Klaver, a former FBI supervisory special agent who did a dozen or so during his time in Indiana in the 1990s, said it’s “not really the FBI’s job to evaluate whether or not the charges are legitimate.” However, he stressed, the Texas arrest warrants are still civil in nature — and purely administrative, not criminal.
“This definitely runs counter to the restrictions in the FBI [manual]. It runs counter to everything really the FBI stands for. There’s no federal crime here,” he said.
David Froomkin, who teaches election and administrative law at the University of Houston, called the entire episode “stunning” — with Texas’ executive branch intruding into the state Legislature, only to have yet another intrusion by the federal executive branch.
“It’s not the first time that we’ve seen overreach by federal law enforcement. I’m reminded of what happened in Los Angeles earlier this year, which was similarly without strong legal authority,” he said. “I am concerned that we are entering an era in which officials act like compliance with the law is optional.”
James S. Davidson, a former agent who now runs the FBI Integrity Project to provide current employees a channel for addressing ethical quandaries, warned that the law enforcement agency is running the risk of morphing into a political extension of the Trump White House.
“The FBI is creating the equivalent of the White House plumbers of the 1970s,” he said, referencing the covert operatives who broke the law as President Richard Nixon’s fixers during the Watergate scandal.
“This is a violation of norms … even if you [think] the Democrats are absolutely wrong on every level, it would still be inappropriate for the FBI to get involved with a nonviolent fugitive purely for partisan intervention,” Davidson continued.
Other former FBI agents noted that the Trump administration has quickly dismantled key pillars at the FBI that would normally stand in the way by restructuring the bureau and firing top officials, like Justice Department senior ethics attorney Joseph Tirrell. And they warned that FBI special agents who balk at partisan assignments that clearly violate the bureau’s internal guidelines would likely face swift retaliation.
“Under the current administration, you can say no — at your peril,” said Frank Scafidi, who retired as an FBI special agent in 2004 after 20 years there.
One former bureau employee pointed out that the FBI recently remade its chain of command, eliminating the position for an assistant director of ethics, which reported directly to the bureau’s second-highest-ranking official, and instead “buried” the ethics bureau chief deep within the general counsel’s office.
“There’s no more independence or access to the highest levels of the FBI,” this person said.
Still, others wonder whether that would make a difference, now that the bureau is led by a MAGA loyalist in Patel.
“That’s the trouble when you put in a director who has no loyalty to the Constitution and only to the president who appointed him,” Scafidi said. “I would hope that Patel thinks about this, reaches down and finds a pair, and says, ‘This is improper and we’re not going to do that.’”