Jan. 6 investigators worry about being outed by Justice Dept. review

FBI agents suing the Justice Department to keep their names private amid a review of the Jan. 6, 2021, Capitol attack prosecutions raised concerns Thursday that Elon Musk or others outside the department may have access to the information and could make it public, putting law enforcement officers at risk.

Lawyers for the agents pressed that case as they urged U.S. District Judge Jia M. Cobb to bar the government from any disclosure of the agents’ identities.

They pointed to the fact that Musk, a tech billionaire who oversees President Donald Trump’s newly created U.S. DOGE Service, has already gained access to other agencies and publicly named other government employees in social media posts, exposing them to a barrage of unwanted attention and online harassment.

“We don’t have assurances that the DOGE does not have access to DOJ computer systems,” said Margaret Donovan, a lawyer for the FBI Agents Association, a nonprofit advocacy group that represents bureau employees. “We don’t have assurances that there aren’t any other nongovernment persons that might be operating within DOJ that would immediately release those names.”

Fear among the FBI’s 38,000-member workforce has grown acute in the days since interim Justice Department leaders appointed by Trump ordered the FBI to hand over a list of the thousands of agents and employees across the country who worked on Jan. 6 cases.

The bureau complied with that demand Tuesday but withheld the names of its personnel, identifying them only by employee ID number. Two groups of agents who worked either on the Jan. 6 probes or special counsel Jack Smith’s investigations of Trump anonymously sued the department, saying that if their names became public it could expose them and their families to retribution.

But government lawyers said in court Thursday that the Justice Department has no immediate plans to publicly identify the agents, signaling they were open to a binding agreement that would prevent the department from doing so while the case moves forward. The parties were unable to reach such a deal by the end of the hearing because lawyers for the agents wanted a similar assurance to apply governmentwide, including to the White House.

Cobb ordered them back Friday to continue their discussions.

“If this information were released,” the judge said, “I think there’s no question that it would put a number of FBI agents in immediate, significant danger.”

Earlier in the day, lawyers for both sides had expressed optimism they could reach an agreement similar to one struck overnight in an unrelated lawsuit seeking to block third-party access to the Treasury Department’s trillion-dollar payment system.

That suit was prompted by reports that DOGE, which stands for Department of Government Efficiency, had gained entry to the system. The government agreed to limit further access to two DOGE representatives who have been made special employees of the department, certain Treasury Department employees whose duties require it, and those permitted by the Internal Revenue Code or a separate statute.

In the FBI case, government lawyers and the attorneys for the agents found themselves at odds over whether any deal they could strike would bind just the Justice Department or the entire Trump administration, including parties such as Musk.

Mark S. Zaid, a lawyer for the agents, said he wasn’t willing to accept Justice Department assurances that names of Jan. 6 investigators hadn’t already been unofficially disclosed to third parties.

“Everything we are concerned about happened – has happened – at other agencies,” Zaid said. “So why should anyone expect it won’t happen with the FBI and DOJ?”

The Justice Department’s review of the Jan. 6 investigation was prompted by an executive order Trump signed within hours of his Jan. 20 inauguration, government lawyers told the court.

The order, titled “ending the weaponization of the federal government,” began with a list of accusations against the Biden administration for what Trump asserted was “unprecedented, third-world weaponization of prosecutorial power.”

It singled out Capitol riot cases, asserting that the Justice Department “ruthlessly prosecuted more than 1,500 individuals.”

In his pardon proclamation for nearly all of those defendants, including those convicted of assaulting police, Trump called the investigation “a grave national injustice against the American people.” That language was cited by acting deputy attorney general Emil Bove last week when he ordered subordinates to fire recently hired Jan. 6 prosecutors still in their probationary periods.

Justice Department officials have told the FBI that bureau employees on the list of Jan. 6 investigators could also be subject to personnel actions, although Bove appeared to temper that possibility in a memo Wednesday.

“No FBI employee who simply followed orders and carried out their duties in an ethical manner with respect to January 6 investigations is at risk of termination or other penalties,” Bove wrote to acting FBI director Brian Driscoll. “The only individuals who should be concerned about the process … are those who acted with corrupt or partisan intent, who blatantly defied orders from Department leadership, or who exercised discretion in weaponizing the FBI.”

In their lawsuits, though, the agents said they’re not just worried about being fired. They have maintained that pardoned Jan. 6 rioters could seek revenge on those who helped secure their charges or convictions.

“This was an effort to target agents for retribution,” said Pamela M. Keith, an attorney at the Center for Employment Justice, which is representing one group of agents.

Even if the government says it was not, she added, “the executive order from Mr. Trump and his own words that he intends to exact vengeance and revenge from these agents for their investigations has to be taken into consideration for what happens here.”

Cobb – an appointee of President Joe Biden who has presided over several cases against Capitol riot defendants involving testimony from FBI agents – said she, too, had questions about the purpose of the Justice Department’s review.

“What’s this being used for?” she asked. “I want to know what the government plans to do with this information and what the government is investigating.”