The Situation: Chris Wray, Dead Man Walking

Yesterday, The Situation was all about cabinet appointments. Today, let’s consider firings—specifically those that trigger crises.

Eight years ago this month, my former colleague Susan Hennessey and I tried to imagine what would be a sure sign of danger for the rule of law in a forthcoming Trump administration. We gazed into our crystal ball and came up with a metric: firing the FBI director. 

“For those concerned that President Trump will trample the rule of law—liberals and conservatives alike—[FBI Director Jim] Comey’s fate is one potential canary in the coal mine,” we wrote a few days after the election that first brought Donald J. Trump to power the first time. “If Trump chooses to replace Comey with a sycophantic yes-man, or if he permits Comey to resign over law or principle, that will be a clear bellwether to both the national security and civil libertarian communities that things are going terribly wrong.”

Indeed, we wrote, 

Were Trump to fire Comey it would be a serious aberration; if he were to do so for mere political preference, in retaliation for Comey’s professional judgment that [Hillary] Clinton should not be prosecuted, or out of fear of Comey’s independence it would strike a blow against an important check on the modern presidency. And nobody who believes in the rule of law, even those most angry at Comey, should be hoping for it right now.

Comey’s successor, current FBI Director Chris Wray, is a dead man walking. I assume he knows this and is planning to be fired early in Trump’s second presidency. As with the firing of Comey, the firing of Wray will provoke a crisis, for overlapping but somewhat different reasons.

In Comey’s case, the firing provoked a crisis because Comey was genuinely independent of Trump, because the FBI had key investigations ongoing that involved the president, and because there was legitimate concern that Trump was attempting to stymie investigation of himself by firing the FBI Director. 

In Wray’s case, the concern is more about whom Trump would appoint to replace him—and the potential of that appointment to set the FBI on the president’s political enemies. 

Today, CNN reports that:

Donald Trump is weighing a push from right-wing allies to nominate Kash Patel to lead the FBI, one of the clearest indications the president-elect plans to stick by his vow to fire Director Christopher Wray before his 10-year term ends and replace him with a loyalist.

The interest in Patel—after selecting Rep. Matt Gaetz for attorney general and Tulsi Gabbard as director of national intelligence—speaks to Trump’s urge to fill top law enforcement and intelligence positions with supporters who may be open to carrying out his demands for specific investigations as well as inoculating the president against possible future investigations.

Wray has been, at least in my judgment, far from a model FBI director—though, in his defense, he was dealt a particularly rough hand. He has been, at times, timid, overly concerned with the bureau’s political reputation rather than with doing the right thing. And he has never taken enough blame for the grotesque intelligence failure that preceded Jan. 6, 2021—or his lack of candor in accounting for that failure.

That said, he is a discernibly rule-of-law actor, which is precisely why Trump has come to hate him—though Trump did once appoint him. And it is precisely why Wray is likely to be fired. And it is precisely why his firing will be so dangerous. 

I will deal with the specifics of a Kash Patel nomination if and when I have to. Suffice it to say for the present that Patel is a die-hard Trump loyalist who has said things like this, reported in The Hill less than a year ago: 

“We will go out and find the conspirators—not just in government, but in the media,” Patel told [Steve] Bannon [on Bannon’s podcast]. “Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections.” “We’re going to come after you. Whether it’s criminally or civilly, we’ll figure that out. But yeah, we’re putting you all on notice, and Steve, this is why they hate us. This is why we’re tyrannical. This is why we’re dictators,” Patel said, suggesting those were terms used sometimes to describe them. “Because we’re actually going to use the Constitution to prosecute them for crimes they said we have always been guilty of but never have.”

But the point for now is broader than Patel himself: Firing Wray because of some combination of his unwillingness to use the FBI for offensive operations against Trump’s enemies and for his role in legitimate investigations of Trump and his supporters would—perhaps I should say will—be a crisis because of the message it sends to the bureau and the message it sends to the public about the bureau. Wray’s replacement with someone—whether Patel or anyone else—who is willing to be the director Trump appears to want would be an even greater crisis because of what that director would deploy the FBI to do.

The first crisis is not one we can avert. Trump, come Jan. 20, will have the power to fire the FBI director and there are no checks on that power—notwithstanding the statutory ten year term of the director. If Trump wants Wray gone, he’s gone. 

The second crisis, however, is one that the political system can avert. As I described yesterday, the first step is for Republican members of Congress in both houses to insist that Trump fill vacancies using the regular advice and consent process. If senators, and House members for that matter, don’t step up on this point, Trump could simply fire Wray and install a crony as FBI director for the next two years—without input from the Senate or anyone outside his inner circle.

The second step is for a small group of Republican senators to make clear that the FBI is no president’s plaything. They need to emphasize that the Senate will not tolerate a nominee who is highly partisan, who is not a respected law enforcement figure, or whom they suspect might deploy the powers of the bureau for political purposes.

Do I have confidence that four or five Republican senators will make it impossible to replace Wray with someone who makes the FBI into a weapon—even as the supposed “weaponization” committee in the House investigates faux weaponization of law enforcement by the current administration? Not a bit. 

I sketch out this scenario not out of optimism that the Senate will stop the politicization of the FBI. I sketch it out to emphasize that the power to prevent this does, in fact, exist. The framers of the Constitution gave us all the tools we need to protect our republic from this particular threat. This aspect of the situation requires only a modicum of political courage to manage.

Alas, political courage is precisely what the framers cannot bequeath us. 

The Situation continues next week.