It’s Already Happening, Mr. Wray

FBI director’s acquiescence just strengthens Trump’s hand

Five weeks after the election, we are well past the point where we can see alarming developments for democratic rule on the horizon. Trump is mowing down guardrails daily before our eyes.

The latest is Christopher Wray’s acquiescence in Trump’s norm-busting plan to squeeze him out in favor of lackey and FBI hater Kash Patel, who is raring to replace Wray and wreak havoc at the agency, and who already has drawn up his own hit list of political targets to harass from day one.

Wray, a Republican appointed by Trump himself, is now in the seventh year of his 10-year term. Before Trump came on the scene, the unquestioned expectation—rooted in post-Watergate reforms—is that absent misconduct he would serve the full 10 years. President Biden upheld this norm by not replacing Wray upon taking office.

Before Trump took office in 2017, there was also an unquestioned norm of FBI independence and presidential non-interference. This 10-year term set by Congress was an integral part of that norm. Thus, Wray remained in office when Biden became President.

The 10-year fixed term is neither arbitrary nor insignificant. Confronting the crisis of Watergate, Congress wanted to protect against two extremes. One was an imperial FBI director as exemplified by Hoover, who served for decades and tried to control Presidents with a list of kompromat materials he assembled on each. The other—exemplified by Nixon, who ordered the DOJ to tell the FBI to shut down the Watergate investigation—was Presidential influence on the FBI mission of investigation without fear or favor.

Thus, the law provides for a term length that means an FBI director will outlast a President, and thus not have to worry about a corrupt chief executive trying to strongarm them; but still leave before they could set up a permanent fiefdom that could compromise the liberties of all citizens.

The first instance of an FBI Director's removal was when President Clinton fired William Sessions for serious ethical misconduct. The second instance was when Trump fired James Comey in 2017. It marked a degradation of this norm. Trump tried to gin up cause but the real basis for the termination was his objection to Comey’s oversight of the investigation into Russia interference in the 2016 election. In fact, Trump ordered Rod Rosenstein, the then-Deputy Attorney General, to draft a misleading letter justifying the firing and declaring, falsely, that Comey had lost the confidence of the men and women in the Bureau.

This episode in fact was for many in the country their introduction to the ruthless and mendacity of Trump as President. It rattled both the Bureau and the DOJ, which reportedly considered invoking the 25^thamendment or wearing a wire to tape a surreptitious conversation with Trump. But Trump at least was paying lip service to the well-established norm and the vital principles that underlie it.

Today of course, Trump’s conduct goes much more against the grain of the Constitution and government norms, and people take the continual abuses for granted. Witness the current reaction we are witnessing to the designation of Patel, which would necessarily involve sacking Wray, norms to the contrary notwithstanding. Patel is a singularly horrendous choice to lead the Bureau, but Republican Senators are lining up to support him on the obsequious theory that Trump has earned the right to install anyone he likes at that position of ultimate sensitivity. And there is not a peep in the Senate about Trump’s flouting of the 10-year term.

Trump’s two-part plan—oust Wray, install Patel—represents a direct challenge to the 10-year term and all it represents as an institutional check on an overambitious or petty President. For that reason, in a recent article in the Atlantic, the ever-trenchant conservative commentator David Frum labelled Wray’s ouster—not Patel’s prospective installation—as a constitutional crisis greater than Watergate.

Given these stakes, how should Wray have reacted to the pistol pointed at his head?

We know how he did react. Wray told his employees Wednesday that he would resign to protect the Bureau from the political storm that would come from resisting the inevitable campaign by Trump to dump him.

Wray believes that his gracious departure is the lesser harm to the mission and traditions of the FBI. As he soberly put it, his motivation was to ensure that “[o]ur adherence to our core values, our dedication to independence and objectivity, and our defense of the rule of law—those fundamental aspects of who we are must never change.”

Certainly, resisting Trump’s constitutional bulldozer would not have been fun. When Wray did announce he would step down, Trump’s response was characteristically boorish. He proclaimed it “a great day for America as it will end the Weaponization of what has become known as the United States Department of Injustice." In an apparent reference to his being the President who had hired Wray, Trump added this low blow: "I just don't know what happened to him. We will now restore the Rule of Law for all Americans."

With his growing indifference to laws and norms, Trump made no bones about why he wanted to castigate Wray. The reasons are both ludicrous and corrupt. The indictment against Wray begins with his doing his job of overseeing the investigations of Trump. At one point, Trump railed against him for leaving the question open during Congressional testimony pertaining to whether the ear injury in the attempted assassination came from deflected shrapnelor a bullet. In other words, he lacked the personal loyalty to Trump to violate his constitutional oath by overseeing lawful investigations and truthfully answer a question from a member of Congress.

That is now the governing standard of the sort of petty and self-centered considerations that can justify the firing of the director of the FBI. The idea that factual testimony before Congress—essential to the Bureau’s mission—could incite presidential fury underscores the dangerous incentives Trump is imposing on federal law enforcement.

It's likely of course that had Wray opted to stay and resist Trump’s norm-destroying move that he would have had to endure further attacks and Trump’s MAGA allies would have made his defamatory pillorying of Comey look like patty cake. And in the end, Wray would have had to go.

But Wray did have cards to play. This isn’t the Substack entry for the labyrinthine exposition of the Vacancies Reform Act and related law, but suffice it to say under any interpretation Wray could have made it tougher on Trump and Patel, essentially forcing their hand.

By going with a whimper and not a bang, Wray permitted Trump to demolish a critical norm with barely any public notice or protest.

If by contrast Wray had stayed, Trump would likely have fired him, forcing a public showdown. Such a fight could have highlighted the consequences of Trump's norm-busting actions and the degradation of democratic rule. It would at least have fed the hope that the public could come to appreciate the danger of Trump’s autocratic agenda. By resigning, Wray avoids conflict but also allows the stark erosion of norms to proceed quietly.

As a result, future FBI directors may feel compelled to prioritize presidential loyalty over their duty to uphold the law. It pulls the rug out from under the post-Watergate reforms designed to insulate federal law enforcement from political pressures.

I recognize the very tight spot Wray was in. But to my mind, the consequences of prospectively avoiding a fight—or even resisting until the day he was forced out at metaphoric knifepoint—will be a greater blow to the traditions of integrity and political neutrality that have helped make the FBI into the most powerful and important law enforcement agency in the country, in fact the world.

If, one grim day, historians and a stunned American people construct a timeline for how we came to decline from a democracy to an authoritarian or quasi-authoritarian state, they will include Trump’s being able to flout this very norm and put the FBI director firmly in his pocket.

Trump is today, in real time and plain sight, removing guardrail after guardrail that generations of American lawmakers put in place to protect us from an autocratic president. This shift may feel abstract to many of us as daily life carries on relatively undisturbed. However, at the level of democratic structure, the damage is profound. The first mission of the Substack is to call it out by bringing to bear my experience in federal government and law. But it doesn’t take substantial experience in the ways of Washington to see the danger of a Trump-controlled FBI. To quote (again) Justice Scalia, this wolf comes as a wolf.

The five weeks since the election have already taken a clear toll on a series of bedrock constitutional principles. And in many of these instances, Trump has wreaked havoc with no challenge. We are all wondering what can be done to resist the trend towards autocracy. At a minimum, we can strive to raise an alarm and impose a political cost and some measure of friction, because it is clear to me that acquiescing can only strengthen Trump’s hand.

Talk to you later.