The Situation: Chris Wray Rolls Out the Red Carpet for Kash Patel

The Situation on Monday saw me acknowledging faint optimism about the Senate’s advice and consent function. 

Today, FBI Director Chris Wray announced he was stepping down. 

In November of 2016, I sat in Wray’s office at FBI Headquarters and asked the director whether he would step down in favor of a Donald Trump appointee. The director at the time was, of course, not Wray but his predecessor, James Comey. 

The problem that Comey confronted was admittedly slightly different, less acute, from the problem Wray today resolved through capitulation. Trump did not hate Comey—yet. He had not announced plans to replace Comey with someone like Kash Patel, a man who makes J. Edgar Hoover seem like ideal leadership material for the Bureau. 

But Comey and I both knew that the situation was precarious and dangerous. We knew that there were so many ways his relationship with Trump could end badly, given that Comey—whatever other faults he might have—is completely incorruptible and given that Trump’s only means of dealing with officials is by corrupting them. By that point, I had already written publicly that “this country has elected as President a dangerous man, one with authoritarian tendencies,” that “having a principled FBI Director willing to stand up to those in power and speak his mind irrespective of political costs is critical,” and that “Comey’s fate is [thus] one potential canary in the coal mine. 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.” And Comey, for his part, knew (and I suspected, though I did not know for sure) that the FBI was investigating links between the Trump campaign and Russia—which is to say that he was on a potential collision course with the incoming president.

So it was a freighted question when I asked him point blank whether he would stay on. I recounted his answer back in 2018, and in retrospect, I’m glad I put it on the record before Wray’s action today:

I asked if he intended to stay on under Trump, and Comey said that he did. He wasn’t going to offer his resignation, and if Trump asked for it, he said, he would not oblige. “If he wants to get rid of me, he’s going to have to fire me,” I recall him saying. This was before the Trump Tower meeting, before the loyalty-oath dinner. But Comey was steeling himself. There were investigations to supervise, to conduct and to protect. And there were all those people in the [FBI’s] cafeteria, in the halls, in the file rooms and in the field offices who would need a firm layer of insulation from what was coming.

Comey didn’t say any of that. He didn’t need to.

What a contrast with what Wray said today: 

After weeks of careful thought, I’ve decided the right thing for the Bureau is for me to serve until the end of the current Administration in January and then step down. My goal is to keep the focus on our mission—the indispensable work you’re doing on behalf of the American people every day. In my view, this is the best way to avoid dragging the Bureau deeper into the fray, while reinforcing the values and principles that are so important to how we do our work. 

It should go without saying but I’ll say it anyway—this is not easy for me. I love this place, I love our mission and I love our people—but my focus is, and always has been, on us doing what’s right for the FBI.

When you look at where the threats are headed, it’s clear that the importance of our work—keeping Americans safe and upholding the Constitution—will not change. And what absolutely cannot, must not change is our commitment to doing the right thing, the right way, every time. Our 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. That’s the real strength of the FBI—the importance of our mission, the quality of our people, and their dedication to service over self. It’s an unshakeable foundation that’s stood the test of time, and cannot easily be moved. And it—you the men and women of the FBI—are why the Bureau will endure and be successful long into the future. 

Comey’s private comments to me were brief and simple, and they were unselfconsciously courageous. Wray’s public statement is muddled and lengthy. It is also cowardly. He will remove himself quietly rather than protecting his people—and taking all the incoming flack—as long as he can. . 

To be fair, Wray faced no good option here. He could stay and be fired—and humiliated—by way of making the point that as long as there are “investigations to supervise, to conduct and to protect” and as long as there “are all those people in the [FBI’s] cafeteria, in the halls, in the file rooms and in the field offices who . . . need [that] firm layer of insulation from what was coming,” he would be that layer of insulation until kicked out of the building. 

Or he could preemptively obey, spare himself the embarrassment, roll out the red carpet for Kash Patel, and make what Trump is doing look orderly and not quite so much like a purge of professionals from the chief federal government outfit entitled to bear arms against American citizens.

This is not, I want to emphasize, a situation like the one facing Special Counsel Jack Smith, who has genuine considerations on both sides of the ledger in winding down his investigation; for example, in Smith’s case, staying on and waiting to be fired could mean losing the chance to file a final report, whose value might be considerable. He also does need to honor a longstanding Justice Department view that a president cannot be prosecuted, which means that his cases cannot continue. 

By contrast, Wray’s case is not complicated at all. He was appointed by Trump. He was confirmed by the Senate. He has a statutory ten-year term in office. And he is throwing in the towel because Trump wants him to.

For all its verbiage, one thing Wray’s statement does not address is why “the right thing for the Bureau is for me . . . step down” before Trump fires him. How exactly will this “avoid dragging the Bureau deeper into the fray, while reinforcing the values and principles that are so important to how we do our work”? 

Either way, after all, Wray will leave office—either on Jan. 20, or whenever Trump gets around to forcing him out. Either way, Trump will nominate Patel to replace him. Either way, there will be a Senate battle over Patel that may—if the public is very lucky indeed—lead to a marginally more appropriate nominee in his stead, a Pam Bondi to Patel’s Matt Gaetz. Indeed, Trump may actually have an easier time confirming Patel if he hasn’t just engaged in a norm-violating firing of another FBI director for purely self-interested reasons. Either way, that battle will drag the FBI even deeper into the fray than it already is—which is very deep indeed. And either way, Wray will be able to lead the FBI with his “commitment to doing the right thing, the right way, every time”—which in his case has often meant keeping his head down and trying to prevent the Bureau from attracting controversy—until he leaves and not a moment longer. 

In fact, by ducking out preemptively, Wray may even expand Trump’s maneuvering room under the Federal Vacancies Reform Act in installing a temporary replacement. Writing in Lawfare on Dec. 10, Jack Goldsmith noted: “if Wray stays on and forces Trump to fire him, Trump’s authority under FVRA to replace him [with an acting director] could narrow. The reason is that it is unsettled whether a vacancy created by presidential firing triggers the FVRA authority due to the officeholder being ‘unable to perform the functions and duties of the office’ under 5 U.S.C. § 3345.”

The only other difference between the two—and, alas, this is a huge difference—is the message that it sends the workforce, and the American people, about a leader’s willingness to throw himself in front of a wrecking ball to protect core institutions of democracy. 

The simple fact is that Wray’s resignation is not the right thing for the Bureau, and it absolutely will not prevent the agency from being dragged deeper into the fray. But it probably is the right thing for Chris Wray, and it probably will mitigate the degree to which he personally gets dragged deeper into the fray. 

A quiet exit mumbling platitudes while the wrecking ball roars by. 

The Situation continues tomorrow.