Constitutional rights are at the center of FBI agents’ lawsuit

The suit filed by 12 fired FBI agents against their former agency for illegal termination is bringing constitutional rights to the fore and could have ramifications across the federal government. It comes as the FBI is already facing accusations of political motivations.

Challenging the top brass

In June 2020, the defendants were photographed kneeling during a rally in Washington, D.C., related to then-ongoing George Floyd protests. The agents have said they took a knee “not to reflect a left-wing political point of view but rather to de-escalate a situation that threatened to spin out of control,” said NPR.

The agents were fired earlier this year at the start of the second Trump administration. Their dismissals “violated their First Amendment rights to free association, including non-association, and Fifth Amendment rights to due process; were taken in violation of the separation of powers, without any constitutional authority; and are a legal nullity,” the lawsuit alleges.

The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

The lawsuit further alleges that FBI Director Kash Patel “began working to terminate all agents that had kneeled” almost “immediately upon becoming director of the bureau,” said Politico. It also claims these agents would “not have been fired had they had the same perceived political affiliations” as the people who participated in the Jan. 6, 2021, insurrection at the U.S. Capitol.

An ‘unusual’ case

The fired FBI agents were not from a single unit, but spanned several branches of the agency, including “counterterrorism specialists and agents with more than 15 years’ experience in combating criminals,” said CBS News. The lawsuit cites Patel’s 2023 book, “Government Gangsters,” in which the now-FBI director wrote that “some government employees should ‘be removed from their posts and replaced with people who won’t undermine the president’s agenda,’” said CBS. The civil suit is just one of many “alleging Patel is engaged in political retribution at America’s top law enforcement agency.” The FBI has not commented on the litigation.

Experts say the lawsuit “may not ultimately hinge on First Amendment claims, considering that the complaint says the agents’ actions were not meant as political statements but that they were interpreted as such by the administration,” said USA Today. Because the suit asserts that the agents were fired in retaliation by the Trump administration, it’s a “much harder case to win” on First Amendment grounds because it “requires proving what’s inside someone’s head,” attorney Brett Nolan of the Institute for Free Speech told USA Today.

The government is allowed to “restrict employees’ speech while performing official duties during work hours without violating the First Amendment,” said USA Today. But First Amendment claims aside, the lawsuit “focuses on due process and an alleged failure of the FBI to follow its internal disciplinary rules, which may well determine the outcome,” said Ken Paulson, the director of Middle Tennessee State University’s Free Speech Center, to the outlet. This makes it a particularly “unusual” case.