I’m Not a Constitutional Scholar” — Jeff Merkley Confronts FBI Director Kash Patel on Due Process
When America’s Top Law Enforcer Hesitates on the Constitution: The Exchange That Shocked Washington
What began as a routine budget oversight hearing quickly transformed into one of the most revealing constitutional confrontations in recent memory. Senator Jeff Merkley’s questioning of FBI Director Kash Patel was not dramatic because of raised voices or theatrical gestures, but because of its precision. With a series of deliberate, tightly framed questions, Merkley forced the discussion away from politics and into the heart of American constitutional law. At the center of the clash stood a single, foundational principle: does due process apply to everyone in the United States, and who is responsible for enforcing it when liberty is taken away?
The exchange unfolded against the backdrop of conflicting budget signals from the FBI. Merkley began by pressing Patel on a basic issue of credibility and clarity. One day, Patel had testified that the FBI needed an additional billion dollars to strengthen drug interdiction, combat fentanyl trafficking, and enhance counterterrorism efforts. The next day, the budget presented to Congress reflected a cut of half a billion dollars. Merkley’s question was simple: which position was the FBI actually taking? Was it asking for more resources, or agreeing to do less with less?
Patel’s answer revealed an early pattern that would define the rest of the exchange. He framed the issue as conditional and abstract, suggesting that with more funding the FBI could do more, while still supporting the budget as proposed because opposing it would mean opposing any budget at all. This ambiguity frustrated Merkley, who made clear that Congress cannot responsibly allocate funds without understanding how the agency intends to prioritize its mission. Accountability, after all, begins with clarity.
But the budget discussion was only the prelude. Merkley then shifted the hearing onto far more consequential ground by invoking the Fifth Amendment. He described it not merely as a legal clause, but as one of the core freedom guarantees of the United States, born from the framers’ fear of an overreaching government. The Fifth Amendment’s promise that no person shall be deprived of life, liberty, or property without due process of law was written precisely to prevent arbitrary detention and unchecked state power.
Merkley emphasized that the Constitution deliberately uses the words “no person,” not “no citizen.” This distinction is critical. From the nation’s earliest days, constitutional protections were designed to constrain government power, not to reward membership status. Over decades, the Supreme Court has repeatedly affirmed that due process applies to all persons physically present in the United States, regardless of citizenship or immigration status. Merkley was not introducing a controversial theory; he was citing settled constitutional law.
The senator then raised the issue that has sparked widespread concern: reports that several hundred immigrants were swept off American streets and sent to El Salvador without due process. He did not ask whether those individuals had a right to remain in the country. He asked whether their removal without judicial process concerned the FBI director. Patel’s response stunned the room. He said he was not in a position to comment on whether due process had been given or should have been afforded, emphasizing that the FBI’s role was simply to arrest individuals who violated the law.
This answer exposed the central tension of the hearing. Merkley pointed out that arrests themselves require investigations, and investigations fall squarely within the FBI’s jurisdiction. If liberty is taken away, he argued, the Constitution is triggered. The FBI cannot claim neutrality when its actions directly deprive individuals of freedom. To arrest is not a neutral act; it is the exercise of state power with profound constitutional consequences.
As the questioning continued, Patel resisted Merkley’s framing. He stated that he did not agree with the senator’s characterization of events and reiterated that the FBI investigates criminal acts, not removal proceedings. This distinction, however, is precisely what Merkley sought to challenge. The Constitution does not hinge on bureaucratic labels. Whether an action is called criminal enforcement or civil removal, the deprivation of liberty remains the same.
Merkley returned to first principles. He asked Patel directly whether he agreed with the Fifth Amendment and whether he was prepared to defend it. Patel answered that he agreed with the Constitution and the Fifth Amendment. Yet when pressed on whether every individual involved was constitutionally entitled to due process, Patel said he did not know the answer and described himself as “not a constitutional scholar.” That statement became the most quoted moment of the hearing.
The remark was striking not because Patel lacked legal training, but because of his position. The FBI director is one of the most powerful law enforcement officials in the country. The bureau’s authority rests on its legitimacy, and that legitimacy depends on unwavering adherence to constitutional limits. Saying “I’m not a constitutional scholar” in response to a question about due process signaled a troubling reluctance to own that responsibility.
Merkley did not let the moment pass. He reminded Patel that the Constitution’s language is plain and that Supreme Court precedent has repeatedly affirmed due process protections for all individuals, including non-citizens. He cited cases such as Miranda v. Arizona and Reno v. Flores, underscoring that these principles are not obscure or unsettled. They are foundational to American law.
Patel attempted to reassert his credibility by noting that he was the first public defender ever to serve as FBI director and that he was deeply aware of due process. He again emphasized the distinction between criminal acts and removal proceedings, insisting that his job was limited to investigating crimes. Yet this response only highlighted the structural problem Merkley was exposing. When agencies narrowly define their responsibilities, constitutional accountability can vanish between institutional cracks.
The senator pressed further, pointing out that when people are detained, arrested, or removed from the country, their liberty has undeniably been taken away. The Fifth Amendment explicitly protects liberty. Patel responded by saying that Merkley was asking a constitutional question that was not for him to answer. This answer underscored the paradox at the heart of the exchange: the official charged with enforcing federal law declined to engage with the Constitution that defines and limits that enforcement.
Merkley then stated plainly that the Supreme Court has already answered the question and that violations of due process constitute violations of law. As such, he argued, it is the FBI’s responsibility to investigate them, regardless of which agency carried out the underlying action. Patel countered that the FBI is not the agency involved in removal proceedings and that those actions fall under a different branch of government.
This back-and-forth revealed a dangerous potential logic. If each agency disclaims responsibility by pointing to another, constitutional violations can occur without investigation or remedy. Everyone is “just doing their job,” and yet no one is accountable for the harm caused along the way. This is precisely the kind of fragmented authority the framers feared when they drafted the Bill of Rights.
Merkley made the stakes explicit. He asked whether Patel was saying that if another agency violates the Constitution, the FBI will not investigate because it was not the originating agency. Patel responded that he would investigate every violation of law, but then stated that he disagreed with Merkley’s interpretation of what constituted a violation. This circular exchange illustrated how constitutional protections can be weakened not by open defiance, but by semantic disagreement and procedural deflection.
The senator reminded Patel that he had taken an oath to the Constitution. That oath is not symbolic. It is a binding commitment to uphold constitutional principles even when doing so is politically inconvenient or institutionally uncomfortable. Merkley’s tone conveyed genuine concern, not partisan attack. He expressed disbelief that someone trained in the law and entrusted with such authority could appear unfamiliar with what he called the core protection of freedom in American governance.
Patel responded by emphasizing his duty to protect the American public. This framing is common in national security and law enforcement contexts, but it raises a critical constitutional question. Protection of the public and protection of rights are not mutually exclusive. In fact, the Constitution assumes that true security depends on the rule of law. When liberty can be taken without process, no one is ultimately secure.
As the exchange drew to a close, Merkley asked a final, carefully crafted question. He asked whether Patel would ensure that due process is honored in every action of the FBI during his tenure as director. This question offered Patel a path to reaffirm constitutional commitment without conceding specific points. Patel answered yes, agreeing to send a message throughout the FBI that due process is constitutionally required.
That commitment, while important, also highlighted why the earlier hesitation mattered so much. Promises are only meaningful when paired with understanding, enforcement, and accountability. Due process is not self-executing. It must be actively protected by those with power, especially when the individuals affected have little ability to defend themselves.
What makes this exchange so consequential is that it strips away political framing and exposes a foundational issue of governance. The Constitution is not a document for scholars alone. It is the operating manual of American power. When officials treat its requirements as abstract or optional, the balance between law and force begins to tilt.
Merkley’s approach was methodical and educational. He grounded the discussion in history, reminding listeners that the Fifth Amendment was written by people who had experienced arbitrary rule firsthand. The framers understood that governments naturally seek efficiency and control, and that only clear, enforceable limits prevent abuse. Due process is one of those limits.
The broader lesson for the public is equally important. Constitutional rights are often tested first in cases involving unpopular or marginalized groups. History shows that once exceptions are normalized, they expand. Protections weakened for immigrants today can be eroded for protesters, journalists, or political opponents tomorrow. Rights rarely vanish overnight. They erode gradually through deflection, redefinition, and silence.
This hearing matters not because it produced a dramatic policy change, but because it created a public record. Oversight hearings are not just about extracting answers; they are about drawing lines and reminding institutions that constitutional boundaries still exist. Merkley’s insistence ensured that this issue cannot be dismissed as a misunderstanding or ignored as a footnote.
In the end, the exchange between Jeff Merkley and Kash Patel was a moment of constitutional clarity amid bureaucratic fog. It revealed how fragile due process can be when responsibility is fragmented and when power hesitates to acknowledge its limits. It also demonstrated why vigilant oversight is essential in a system that claims to be governed by law.
If freedom means anything in practice, it means that the government must justify itself before it takes away liberty. That principle does not depend on citizenship, popularity, or political convenience. It depends on officials who understand their oath and are willing to honor it fully. The question raised in that hearing remains open for the country to answer: will due process remain a living constraint on power, or will it become an empty phrase recited when convenient and ignored when inconvenient?
That is why this exchange deserves attention. It is not about one senator or one director. It is about whether the Constitution still governs those who govern us.
