Federal judge temporarily blocks release of FBI Jan. 6 agent list

WASHINGTON (CN) — A federal judge on Thursday issued a temporary stay to prevent the Justice Department from publicizing or sharing with other government agencies the results of an internal survey listing the FBI employees who worked on the Jan. 6, 2021, and classified documents case.

U.S. District Judge Jia Cobb issued the administrative stay until she could hear further arguments at an 11 a.m. Friday hearing and determine whether the Justice Department would agree to a consent order and provide the agents prior notice before taking any steps to share the list outside the department.

The Joe Biden appointee scheduled Thursday’s hearing, which required several hourslong breaks for the parties to confer in an effort to hash out a consent order, to determine whether she had the authority to issue a temporary restraining order against the Justice Department.

On Tuesday, 16 anonymous FBI employees and the FBI Agents Association filed dual lawsuits to block the release of the internal survey conducted on Monday.

According to the agents, the survey detailed each agent’s involvement in the prosecutions of the Jan. 6 prosecution and former special counsel Jack Smith’s two cases against President Donald Trump for subverting the 2020 election and retaining classified documents at his Mar-a-Lago estate.

They warned that if the list were publicized, they would become targets for retribution by the “now pardoned and at-large Jan. 6 convicted felons,” referencing the nearly 1,600 Jan. 6 defendants whom Trump issued sweeping pardons and commutations for on Jan. 20.

Mark Zaid, attorney for the agents, argued on Thursday that some form of temporary relief was vital, considering the recent pattern of unauthorized access at other federal agencies by billionaire Elon Musk and the non-governmental agents of his so-called Department of Government Efficiency, like at the Treasury Department, the Department of Labor and the Office of Personnel Management, among others.

Even without its publication, the agents expressed concern that the list could be used to wrongfully terminate them from their positions or inflict some other adverse employment action, in violation of their First Amendment and Fifth Amendment rights.

Justice Department attorney Jeremy Simon reassured Cobb that there had been no “official disclosure” of the survey outside the Justice Department, a distinction that did little to reassure Cobb or the agents’ attorneys, although Cobb said she would have no power to halt any unofficial disclosures, such as leaks, and could only address those afterward.

Simon said that he could only make limited representations considering the speed of the case but argued that newly confirmed Attorney General Pam Bondi had every right to include the results of the survey in her report to Trump per his executive order “Ending the Weaponization of the Federal Government.”

Cobb agreed but said she nonetheless saw nothing wrong with requiring the government to at least provide two days’ notice to the agents once any plans to release the list or transfer it are put in motion. Such prior notice seemed clearly required by the Privacy Act in the first place, Cobb said.

Margaret Donovan, attorney for the Agents Association, said that acting FBI Director Brian Driscoll — currently holding the seat while the Senate weighs Kash Patel’s nomination — pushed back on the effort by only collecting agents’ employee IDs rather than full names.

Acting Deputy Attorney General Emil Bove, one of Trump’s defense attorneys in his Jan. 6 case, called the move in a memo on Wednesday “insubordination.”

Norman Eisen, attorney of the State Democracy Defenders Action, represented the agents and suggested a similar course of action as U.S. District Judge Colleen Kollar-Kotelly allowed in a related suit challenging the disclosure of Treasury Department data to Musk and DOGE.

Following a temporary restraining order hearing Wednesday, Kollar-Kotelly allowed the parties to confer and hash out a consent order to maintain the status quo.

Justice Department attorney Bradley Humphreys said Wednesday that there were only two individuals who had recently gained access to the information: Musk allies Tom Krause and Marko Elez, who were made Treasury employees this week.

Kollar-Kotelly granted the consent order to temporarily require no additional individuals can gain access to the information and set a briefing schedule for a preliminary injunction.

Both cases are the latest in a series of temporary stays that federal judges in Washington have granted against the Trump administration this week, both in cases challenging Trump’s extensive and broad executive orders and the conduct of “special government employee” Musk.

Trump and Musk’s swift and broad actions, taken with seemingly little regard for the legality of their moves, have provided plaintiffs in courthouses across the country with extensive evidence to support their arguments that the conduct is unconstitutional.

Federal judges, including Cobb, have been receptive to those arguments. Cobb agreed with the agents’ attorneys on Thursday that the sheer speed of the two-week-old administration — and that the time between Thursday afternoon and Friday morning was an “eternity” — supported the temporary stay in the case.

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