In a move that many worry will open a door to public reprisal by President Donald Trump and potentially spark violence from his allies, a federal judge on Thursday dismissed a lawsuit that sought to stop the administration from publicly naming FBI agents who investigated the Jan. 6 attack on the U.S. Capitol.
“They do not plausibly allege that Defendants are about to engage in any of the conduct agents are worried about,” wrote U.S. District Judge Jia Cobb, an appointee of former President Joe Biden.
Emil Bove, Trump’s onetime personal lawyer-turned-deputy attorney general, demanded the FBI turn over names of agents who had investigated Jan. 6 and compiled the list of roughly 5,000 names in February. Bove, whose nomination to a lifetime appointment as a judge on the 3rd Circuit Court of Appeals advanced on Thursday, claimed this spring that the request aligned with Trump’s executive order vowing to end the political “weaponization” of the federal government, but it was narrowly tailored to those who had investigated Jan. 6 rather than an agency-wide review sussing out any potential ethical or legal violations.
FBI agents swiftly sued in federal court to keep the list from going public, arguing having their names released would endanger them.
Agents tried to convince Cobb to destroy the list by pointing to Trump’s history of praising Jan. 6 rioters, as well as his calls for retribution against prosecutors like special counsel Jack Smith, who had charged him with conspiring to overturn the 2020 election.
They also highlighted threatening commentary on social media from people convicted and later pardoned of Jan. 6 crimes, including the onetime leader of the extremist group the Proud Boys. After being pardoned for seditious conspiracy and other charges, the former leader of the group, Henry “Enrique” Tarrio, mentioned one FBI agent by name in a post and demanded she be “brought to justice and made to answer for her crimes.”
Lawyers for the agents alleged that the threat was imminent, pointing to what they say is still a close connection between the White House and members of extremist groups. Tarrio, for example, visited Mar-a-Lago, Trump’s Florida resort, in early May and days later posted a picture of himself with Trump.
Inflammatory rhetoric from certain DOJ officials didn’t inspire confidence either, the agents said.
In particular, they highlighted how Ed Martin, Trump’s initial pick for the interim U.S. attorney role for Washington, D.C., had spoken about Jan. 6 investigations. A week after Trump dropped the nomination for Martin — a MAGA supporter with no prosecutorial experience — and named Fox News host Jeanine Pirro to replace him, Martin was elevated to the new role of “captain” of the DOJ’s “weaponization working group.” Attorney General Pam Bondi created the working group in February and specifically identified Jan. 6 investigators as a target. (Martin was also named pardon attorney for the Justice Department.)
At a press conference introducing himself as a lead on the group, Martin said the DOJ should be able to charge certain individuals for illegal or unethical behavior around the prosecution of Jan. 6 crimes. If the department could not do that, he said, he would “name them and, in a culture that respects shame, they should be people that are shamed.”
“That’s a fact,” Martin said. “That’s the way things work, and so that’s how I believe this job operates.”
In the subsequent days, Martin also went on a series of political talk shows and lamented the limits federal courts have placed on the Trump administration broadly. In one appearance with a conservative podcaster in mid-May, Martin railed over Jan. 6 investigations and reiterated his pursuit to “name and shame” people.
“When there is something that does not make sense, we have an obligation to name it, and if it’s bad we should shame it, and if it’s illegal we should prosecute it,” he said. “But we shouldn’t shy away from any of those two things, and I think that’s what the president has taught us, that’s what he asked me to do in this new role that I have, and we’re gonna do it and we’re not gonna be afraid of it, and let the chips fall where they may.”
Agents told Cobb shortly after Martin’s media appearances that if the list were not destroyed, there was little to no reason to believe that the DOJ wouldn’t share their names with Trump or officials like Martin — people who would almost certainly use the list as a cudgel, ultimately increasing threats the agents already face like doxxing, harassment and stalking.
From the start of litigation, the Justice Department has said the list would never be made public and defended its creation only by referring back to the directives of Trump’s anti-weaponization executive order.
But prosecutors were tight-lipped when answering the judge’s questions in April about what the government intended to do with the list. DOJ lawyers would only say there was a “process,” but details of that “process” were never presented to the judge. Instead, when urged to explain its process, the Justice Department continued to push to dismiss the case outright, saying the FBI agents lacked standing to sue and had no proof that the creation of the list had or could cause them harm.
In her ruling, Cobb rehashed their concerns, writing that “plaintiffs filed these cases in a whirlwind of chaos and fear.”
“Department of Justice (DOJ) leadership demanded the names of FBI agents who worked on January 6 cases. The FBI refused. Things escalated quickly. The DOJ fired eight FBI officials for purported ‘weaponization.’ Agents were required to complete a survey identifying whether and in what capacity they worked on January 6 investigations. And some former January 6 defendants, now pardoned and at large, called for FBI agents to be doxed (or worse). Agents raced to court, terrified that they would be at real risk of physical harm if their identities were somehow made public,” she wrote Thursday. “The parties submitted a consent order under which Defendants confirmed that they would not publicly disclose the list of agents who worked on January 6 cases while the parties briefed motions.”
Since then, Cobb claimed the “dust has settled some” and there was “no evidence” that the names would be disclosed.
“Plaintiffs lack standing to challenge such hypothetical, contingent actions. And Plaintiffs cannot amend their complaint via their briefs. The Court must therefore dismiss their First Amendment claims too,” she wrote.
A spokesperson for the FBI Agents Association said they were “disappointed in today’s court decision.”
“Agent safety has and will always be our paramount concern. We filed this case to support and protect the dedicated FBI agents and employees who were assigned to investigations related to activities on January 6, 2021. The court agreed with FBIAA’s assertion that public disclosure of agents’ and employees’ names would pose a direct threat to their safety,” the spokesperson said.
“Throughout the case, the government told the court it does not intend to publicly release the list of agents’ and employees’ names — and the court took them at their word. We are going to do the same.”
For now, the agents will continue with their legal options.
“FBIAA will not hesitate to support and defend our members and their families,” the spokesperson said.
This is a developing story. Please check back for updates.