“I’m Not a Constitutional Scholar”—Jeff Merkley Confronts FBI Director Kash Patel on Due Process as Hearing Exposes Deep Divide Over Federal Power

A sharply worded exchange between Sen. Jeff Merkley (D-Ore.) and FBI Director Kash Patel cast a harsh spotlight on a question that rarely stays academic for long: what does due process require when the government is moving fast, claiming urgent threats, and asking the public to trust its judgment?

During a hearing before the Senate [Committee name], Merkley pressed Patel on the constitutional boundaries that govern federal law enforcement—probable cause, warrants, notice, the right to challenge government action, and the basic premise that power must be constrained even when officials believe they are acting for public safety. Patel, according to accounts of the exchange, responded with a line that quickly became the headline: “I’m not a constitutional scholar.”

Supporters interpreted the remark as humility—an acknowledgment that the FBI director relies on agency counsel and DOJ guidance rather than personal constitutional theorizing. Critics heard something else: a dodge that sidestepped the core of Merkley’s warning that due process is not a vibe, a slogan, or a policy preference, but a legal requirement.

What followed was a familiar Washington tableau—senators demanding bright-line commitments, an official emphasizing procedure and deference to lawyers, and a public left to decide whether caution is professionalism or whether it signals a lack of constitutional seriousness at the top of one of the nation’s most powerful agencies.

🧭 Why This Clash Mattered: Due Process Isn’t a Footnote

Due process is often treated like a phrase you recite to prove you’ve read the Constitution. In practice, it is the difference between:

a targeted, reviewable government action and one that is vague, discretionary, and hard to challenge;
a system where individuals can see and contest the basis for allegations, and one where decisions are made through secret or informal channels;
enforcement that is consistent and enforcement that is selective.

Merkley’s broader point was that the FBI does not merely enforce laws—it can reshape lives through investigations, surveillance tools, watchlisting, interagency data sharing, and referrals for prosecution. When those tools expand, due process becomes less like a courtroom concept and more like a daily governance test.

🔍 Merkley’s Line of Attack: “Name the Guardrails”

1) Due process as a practical promise, not a legal abstraction

Merkley framed due process as an operational commitment: if the government takes action that harms someone—restricting movement, freezing assets, pressuring employers, surveilling communications, or generating investigative files—there must be lawful steps, oversight, and the ability to contest the action.

While the exact phrasing of Merkley’s questions depends on the hearing record, the core structure of this kind of questioning typically focuses on:

When and how warrants are required
How the FBI ensures accuracy in investigative data
What internal approvals are needed for intrusive tools
What remedies exist when errors occur
How political neutrality is protected in investigative decisions

Merkley’s underlying demand was simple: If you are the director, you should be able to articulate the boundaries of your own agency’s power—even in plain English.

2) The fear of “process by memo”

Another recurring concern in oversight hearings is what some lawmakers call “process by memo”—where meaningful changes to enforcement posture are communicated through internal guidance, informal signals, or shifting priorities rather than transparent rulemaking or clearly stated policy.

If due process is to remain real, Merkley argued, the public cannot be expected to accept a world where major power decisions flow from:

ambiguous internal guidance,
undisclosed interpretations, or
discretionary practices that are difficult to audit.

🛡️ Patel’s Response: Humility, Deference, or Evasion?

“I’m not a constitutional scholar”

Patel’s remark became the focal point because it can be read in two opposing ways:

Charitable reading: A director should not freelance constitutional interpretations; he should rely on DOJ’s Office of Legal Counsel, FBI general counsel, and established case law. “Not a scholar” is a way of saying, I follow the lawyers and the courts.
Critical reading: A director of the FBI does not need to be a professor—but must possess a firm grasp of constitutional constraints and be able to defend them publicly. Saying “not a scholar” sounds like, Don’t ask me where the line is.

This tension is especially sharp because FBI directors routinely speak about constitutional values in speeches, internal messaging, and congressional testimony. The job implicitly demands fluency in constitutional guardrails, even if the director delegates legal drafting to counsel.

The standard confirmation/oversight posture

In similar exchanges, agency heads often respond by emphasizing:

training and compliance programs,
internal review and approvals,
adherence to DOJ policy,
inspector general oversight, and
judicial review where applicable.

Those are real mechanisms. But Merkley’s challenge was that mechanisms aren’t the same as commitments, particularly when questions involve edge cases where discretion is wide and external visibility is low.

⚖️ What “Due Process” Usually Means in the FBI Context

Even without getting lost in legal doctrine, you can translate due process into a set of operational expectations.

1) Lawful basis

The government must have a lawful rationale for actions—especially intrusive ones.

2) Neutral application

Rules must be applied consistently, not selectively based on politics, viewpoint, or identity.

3) Procedural checks

Approvals, documentation, and supervision must exist to prevent unilateral misuse.

4) Reviewability

There should be meaningful review—by courts, inspectors general, internal auditors, or Congress.

5) Correctability

Errors must be discoverable and fixable, with consequences for misconduct and remedies when feasible.

Merkley’s skepticism is that if leadership cannot clearly describe these boundaries, the agency can slide into “trust-based governance,” where legality is asserted rather than demonstrated.

🧩 The Real Public Concern: Power That Operates Quietly

The most consequential federal power often operates quietly—through databases, analytic flags, interagency referrals, and decisions about what gets prioritized.

That’s why a single exchange about “due process” can feel bigger than it sounds. Americans who distrust federal institutions worry about:

being placed under suspicion with little recourse,
reputational harm without adjudication,
“process” existing mostly on paper,
and the sense that rules apply differently depending on who you are.

Meanwhile, defenders of aggressive enforcement worry about the opposite failure mode:

that excessive caution paralyzes investigations,
that threats move faster than procedures,
and that criticism of “power” becomes a backdoor demand for inaction.

This is the permanent dilemma of a security state inside a constitutional republic: how to be effective without becoming arbitrary.

🗳️ Political Subtext: Two Competing Definitions of “Rights” and “Safety”

Merkley’s questioning reflects a civil-liberties-first view: government power must be constrained even when leaders believe the cause is righteous, because history shows righteous certainty can still violate rights.

Patel’s approach—at least as framed by his supporters—reflects an institution-first view: the FBI is bound by rules and lawyers, and leadership should not be pushed into speculative commitments that could interfere with operations.

Both sides invoke constitutional values. They disagree on what the hearing is for:

Merkley: establish bright lines and accountability at the top.
Patel: avoid prejudging cases and preserve operational flexibility.

📌 What Would Settle the Question Beyond the Viral Quote

To evaluate whether “I’m not a constitutional scholar” was harmless humility or a red flag, the most important evidence would be concrete:

What due-process safeguards Patel explicitly endorsed (or declined to endorse)
Whether he committed to specific oversight practices (audits, reporting, IG cooperation)
Whether he articulated red lines (e.g., no investigations based solely on protected speech)
Whether he supported transparency measures consistent with security needs
Whether the FBI’s existing policies were described clearly and consistently

In other words, the credibility test isn’t the quote—it’s the operational commitments behind it.

💡 Takeaway: The Hearing Was a Proxy Fight Over the Limits of Federal Authority

Merkley’s confrontation wasn’t merely about legal terminology. It was about whether the country can still demand constitutional clarity from powerful institutions—or whether leaders can retreat behind process, lawyers, and ambiguity when pressed on limits.

Patel’s remark may read as modesty, but in a moment of institutional mistrust, modesty can sound like evasion. For critics, the exchange reinforced fears that “due process” is treated as a talking point rather than a governing constraint. For defenders, it underscored the reality that law enforcement leadership should not improvise legal doctrine in public or pre-commit to hypotheticals.

The deeper story is that due process has become the frontline argument in America’s ongoing struggle to balance freedom and security—and Congress is increasingly using hearings not just to gather facts, but to force leaders to declare which side of that balance they will defend when it gets uncomfortable.