A few days ago, I suggested in a post that every FBI agent should defeat Trump’s purge if every one said that he or she was involved in the arrest or investigation of the January 6 insurrectionists or the search of Mar-a-Lago. This is a good tactic of resistance.

But wiser heads at the FBI and its branch offices have another plan, which may also be effective. Basically, it is non-compliance.

Trump wants to fire every FBI agent who obeyed lawful orders.

Benjamin Wittes wrote about this strategy in Lawfare, a Brookings Institution blog:

He writes:

The Situation on Friday was too fluid to write responsibly on the ongoing purge at the FBI. 

Things have clarified enough today to say one thing clearly: A lot of people at the bureau—leadership and street agents, analysts and staff alike—are flirting with heroism right now.

Here is my best understanding of what is going on from a combination of press reporting and my own poking around. 

Last week, as has been widely reported, the Justice Department leadership sought to force into retirement a variety of senior leaders at FBI headquarters. In addition, the FBI’s interim leadership was pressured to identify agents and other personnel who had worked on the Jan. 6 investigations. And special agents in charge around the country were told to help identify such personnel. Specifically, they were told to administer a questionnaire to staff—a questionnaire that was due at 3:00 pm today—in which agents and others are asked to self-report on their own Jan. 6-related activities. 

From what I gather, the pushback has been remarkable. A large number of agents are refusing to fill out the questionnaire. The FBI Agents Association has sent around model language for agents who refuse to cooperate. At the management level, the leadership of a number of field offices has made clear that they will not take administrative action against those who do not self-report. And the bureau’s acting leadership itself is clearly pushing back against the demands for this information. 

In his email to the workforce, Acting Director Brian J. Driscoll, Jr. made clear that the demand for information “encompasses thousands of employees across the country who have supported these investigative efforts. I am one of those employees, as is acting Deputy Director Kissane.” 

How widespread is the internal resistance? I don’t know. But we are going to find out soon. 

The results of the questionnaire, over the next day or so, will be sent to the deputy attorney general’s office which—as Driscoll quotes a memo sent to him, “will commence a review process to determine whether any additional personnel actions are necessary.” 

Will the acting deputy attorney general, Emil Bove, receive a pile of actionable material or will he receive what amounts to a large pile of spoiled questionnaires? And either way, what will he—and the White House—do with whatever it receives? In one situation, it will have to take on the reality that a shockingly large number of bureau personnel played a role, quite unsurprisingly, in the largest federal investigation in American history. They executed search warrants, ran down leads, interviewed people, made arrests and testified in one or more of the 1,500 plus federal prosecutions that resulted.

Does Bove imagine that he will fire all of these people? Does he imagine administering loyalty tests to them somehow? What do you do when you want to punish FBI agents for enforcing the law—and thousands of them did it faithfully?

Conversely, as seems more likely, Bove may find himself with a whole lot of survey refusal—and thus limited useful data on who the villains are who actually did their jobs with respect to Jan. 6. What does he do then? Does he fire everyone who refused to self-disclose? Does he fire the management in the field offices who tolerated—or even encouraged—the refusal? 

What does an administration bent on revenge do when FBI personnel en masse choose to “hang together” rather than hanging separately?

The FBI rank and file have power in this equation that other agencies, such as USAID for example, do not have. The Trump administration does not need USAID. It wants to eliminate foreign aid anyway, so if the personnel at the aid agency get uppity, who cares? And if they quit? All the better. 

The FBI is not that simple. For one thing, the administration does need law enforcement. If there’s a terrorist attack, and there will be, and the FBI is not in a position to prevent it or investigate it quickly and effectively, the administration will take the blame.

This administration also draws its legitimacy from backing the blue. Even in their war on the intelligence community, Donald Trump and his people always tried to distinguish between the rank and file and the “bad apples” who were running things. Waging a full-scale war against the nation’s premier law enforcement agency, a war that is all about targeting street agents for having done their jobs, is a dangerous game—far different from sacking an FBI director, or even two, who went to some elite law schools and served at the upper levels of the Justice Department.

Then there’s the problem of capacity. FBI agents are actually very hard to replace—good ones are, anyway. The physical demands are significant. Most have specialized education of one sort or another. And while people often imagine FBI agents as glorified cops who kick doors down, the truth is that a lot of agents have exquisitely specialized expertise. The training of a good counterintelligence agent takes many years. Some agents have specialized scientific training. There are even agents who specialize in art theft. Take out a thousand FBI personnel for political reasons, and you destroy literally centuries of institutional capacity. A good FBI agent is much harder to create than, say, a good assistant United States attorney. 

It’s early yet, and I don’t want to wax over-optimistic in dangerous times. 

But I will say this: I’m very proud of how the FBI is performing under incredible stress. 

An FBI that was putting its collective foot down and refusing to be politicized, refusing to participate in a political witch hunt within its own ranks, and refusing to become political agents of the regime in power would, so far anyway, look almost exactly like what we are seeing.

It is always a dangerous thing to cheer when an armed component of the federal government resists political leadership. Nobody, after all, elected the FBI. 

But when the political leadership seeks to conduct personnel actions against career officials based on who was involved in lawful and appropriate law enforcement actions against those who now have the protektzia of the faction in power, a certain measure of conscientious objection is in order—lest the entire operation become an organ of authoritarianism. And when the Justice Department tried to fire people because Trump does not trust them, which violates the Civil Service Reform Act—a law that forbids the government from taking adverse action against those in the competitive service for improper reasons, politics foremost among them—agents who resist are upholding the law, which is closely aligned with their own oaths and the FBI’s culture, and the rule of law itself.

Whether this is happening in the numbers it will take to force the administration to back down I don’t know. Whether it is happening in the numbers it will take to make some Republican senators reconsider their race to install a partisan apparatchik at the helm of the agency, I don’t know either. And whether the next week will see a wholesale elimination of decades of investment in law enforcement and intelligence under the rule of law, I cannot say. 

Today, I can only say thank you to everyone who is doing the right thing in ways the public will probably never see. Right now. Today. When it’s very hard. To everyone who is telling Bove, “Fire me if you don’t like it but no, I’m not helping”: may all the gods keep you safe.