Today a group of FBI agents filed a class action lawsuit against Trump’s Department of Justice to block the creation of a Trump FBI Agent Enemies List and the likely purge of FBI agents. You can read the 16 page lawsuit HERE.
The lawsuit is well drafted but will likely face challenges. The class comprises only those agents who worked on January 6 related investigations, or the investigation of classified documents taken to Mar-a-Lago. Even so, the lawsuit represents that constitutes over 6,000 current and former FBI agents.
The agents have been required to fill out a survey that will detail their roles in the January 6 and/or Mar-a-Lago cases. Pointing to more senior FBI officials already terminated for their role in these investigations the FBI agents assert “the purpose for this list is to identify agents to be terminated or to suffer other adverse employment action.”
The Complaint cleverly turns Trump’s J6 mass pardons against him. The agents assert allies of Trump could leak the list “placing themselves and their families in immediate danger of retribution by the now pardoned and at-large Jan. 6 convicted felons.”
The Complaint asserts facts holding Trump personally responsible for the January 6 assault on the Capitol that will make things very interesting if those facts are accepted by the court:
28. It is also undisputed that while Donald Trump was keenly aware of the violence taking place at the Capitol on that day, for hours he did nothing to intercede or persuade the Jan. 6 Rioters to cease their activity.
29. Information obtained during the investigation of the Jan. 6 attack also established that Mr.Trump was an active participant in the planning of the attack on the Capitol, and of the coordinated effort by some members of Congress to evade certification of the election results.
30. Plaintiffs assert that the ultimate goal of both the Jan. 6 attack and the efforts in Congress by allies of Donald Trump was to block the peaceful transition of power to the winner of the 2020 Presidential Election, Joe Biden.
The Complaint alleges the requirement to complete the list violates agents rights under the Privacy Act and violates Constitutional due process and the First Amendment.
Evaluating the Complaint suggests a couple of quick expectations for challenge. First, Plaintiffs must certify the class. They will have to prove the number of plaintiffs is impractical for individual inclusion and that the named plaintiffs are common of the class, representative of the class, can adequately represent the entire class and that common issues of law and fact apply for all those in the class. Courts have made class action certification more and more difficult over the years. Still, I think this one has a good chance at such certification. Even if it doesn’t, the case could proceed with as many individual plaintiffs as can be brought in.
Another concern is I expect the defendants to argue that plaintiffs claimed harms are too speculative for the court to consider. Plaintiffs core arguments are that the answers to the list might be used to fire them, and that list might be leaked to J6 criminals. Expect counterarguments from the agents to include that they know Trump already fired more senior agents known to be involved, and they know Trump repeatedly threatened retribution against all of them when campaigning.
The case is filed in DC before judges well aware of the impact of Trump’s pardons on J6 defendants. That is indeed the proper venue for the case, with the DOJ and FBI headquartered in DC. At least temporarily injunctive relief will have to be quickly granted for the lawsuit to be meaningful. Watch to see what happens with that.