'I'm Not A Constitutional Scholar': FBI's Kash Patel & Jeff Merkley Have Tense Exchange About Due Process

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At today's Senate Appropriations Committee hearing, Sen. Jeff Merkley (D-OR) questioned FBI Director Kash Patel about a range of topics.

Transcript

00:00Senator Merkley.

00:02Well, thank you, Mr. Chairman.

00:04And thank you very much, Director Patel.

00:07And so, as I understood it, you testified yesterday

00:11that you'd like to have another billion dollars added

00:15onto the FY25 level to do the additional work you'd like to do

00:18on drug interdiction, fentanyl in general, and anti-terrorism.

00:24And today you gave us a budget that requests cutting half a billion.

00:28Which is it?

00:30What are you asking of this committee?

00:32To add funds, add a billion dollars, or to cut half a billion dollars?

00:37Thank you, Senator.

00:38I appreciate the opportunity.

00:40What I'm asking for is that with more I can simply do more.

00:44And I was giving examples of what more I could do.

00:47I can do the mission and am in support of the budget here,

00:52and I'm working with appropriators and you to fill the gaps.

00:56So you support the budget presented that cuts half a billion,

00:59but you also support us adding a billion should we choose to do that?

01:02Well, I can't not support the budget as proposed

01:05because then I would be supporting no budget.

01:08Okay.

01:09Well, we've got those two options.

01:11We do look forward to further details from you about how you plan to modify the function of FBI

01:21on these different missions that you've highlighted today so that we can give it the appropriate consideration.

01:27And, Director Patel, you're familiar with the Fifth Amendment.

01:33Yes, Senator.

01:34And it is really the Freedom Clause of the United States.

01:39It was four years into being a nation when Congress and the states said,

01:45hey, we have to make sure that there's not an over-aggressive government in the future

01:50that deprives us of life, liberty, or property without due process of law.

01:56And you're familiar that that applies to all persons in the United States.

02:02Yes, Senator.

02:04So, there's been a lot of concern about the several hundred immigrants

02:10who were swept off the streets of America and sent to El Salvador without due process.

02:17And does that concern you?

02:20Senator, I'm not in a position to comment on whether or not they were given or not given due process

02:26or are supposed to be afforded due process.

02:28All the FBI did and all the FBI will continue to do is arrest those that have violated the law.

02:33Okay, but to arrest, you have to investigate.

02:35Have you launched an investigation of this violation of the Freedom Clause of the U.S. Constitution?

02:40Senator, I don't know that I agree with your characterization.

02:43Well, that was my first question, whether or not you agree with the Fifth Amendment

02:48and are prepared to defend it.

02:50It is your job to investigate crimes.

02:52Yes, I agree with the Fifth Amendment.

02:54I agree with the entire Constitution.

02:56And the men and women at the FBI decide—

02:58So, are you going to launch an investigation of the reported violation

03:02of the due process of several hundred individuals?

03:05Again, Senator, it's not for me to call the balls and strikes on it.

03:09The men and women at the FBI who are trained to open investigations will make those calls.

03:13So you have no influence over whether an investigation is opened?

03:18I have influence over it, but you're asking me a constitutional question.

03:21I'm not a constitutional scholar.

03:23It's actually not a—it's a question also of law.

03:26Your position is that every one of those individuals is by constitutional right afforded due process.

03:32I don't know the answer to that.

03:33I'm telling you—

03:34You don't?

03:35You haven't read the Constitution?

03:36It says all persons.

03:37I've got it right here, but what you're saying is that every single one of the illegals

03:41that was sent down to El Salvador is supposed to be given due process pursuant—

03:45That's what the Constitution says.

03:46It says no person.

03:47It doesn't say that.

03:48It does say no person.

03:50I'll encourage you to read it because it's also been affirmed by the Supreme Court repeatedly

03:57on the case of Miranda versus Arizona, held the right of all individuals regardless of

04:03citizenship status, the Supreme Court in Reno versus Flores.

04:07I mean, but it's the plain language of the Constitution.

04:09It concerns me that you're not familiar with the core concept of due process applying

04:14to all persons as written in black and white in the Constitution.

04:17As the first public defender who's ever served at the FBI as its director, I am more aware

04:21of due process than any predecessor in my seat.

04:24You are delineating between removal proceedings and criminal acts.

04:27My job is to investigate criminal acts.

04:29That's what we do.

04:30You are aware that the Fifth Amendment refers to taking away liberty, and when people are arrested

04:37on the street, detained, or detained, and sent out of the country, that their liberty

04:41has been taken away.

04:42Senator, that is a constitutional question that you are asking me to answer.

04:46It's not for me to answer.

04:47It's not for me to answer.

04:48The question has already been answered by the Supreme Court that they're protected.

04:52Therefore, it's a violation of law.

04:53And it's your responsibility to open an investigation, and you're saying today you

04:56will not do so?

04:57I am not the agency involved in removal proceedings.

05:00That is a different branch of government.

05:02So if an agency other than the FBI violates the law and the Constitution, you will not investigate

05:07because it's a different agency?

05:08I will investigate every violation of law.

05:10Well, you have – but you just said you're not investigating.

05:13No.

05:14You and I are in disagreement on what is a violation of law.

05:17I have yet to hear from the Supreme Court your position as you have adjudicated it.

05:22Well, very interesting because the Supreme Court's been very clear, and I had heard you

05:26were trained in the law, so I expected maybe you would try to uphold it.

05:30You also took an oath to the Constitution.

05:31Thank you for the reminder.

05:33Well, it's important to remind you since you're apparently unfamiliar with the very

05:38basics of the core protection of freedom in our Constitution.

05:41What I am familiar with is protecting the American public, and that's what I'm –

05:44Let me close with one question, Mr. Chairman.

05:46Will you make sure that due process in every action of the FBI is completely honored under

05:51your time as Director?

05:53Will I ensure that due process is followed?

05:56Yes.

05:57Under the Constitution?

05:58Completely.

05:59You know, send that message throughout the FBI that due process must be followed as constitutionally

06:03required.

06:04Make sure that it's done under your direction.

06:05Sure.

06:06Great.

06:08Senator Murkowski.

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