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The Defense of the FBI Against Donald Trump Has to Start Now

The president’s nomination of Christopher Wray as FBI director threatens permanent damage to the institution. It’s up to the Senate to stop him.

Nominee for FBI Director Christopher Wray meets with US Senator Chuck Grassley, Republican of Iowa, on Capitol Hill in Washington, DC, June 29, 2017. / AFP PHOTO / SAUL LOEB        (Photo credit should read SAUL LOEB/AFP/Getty Images)
Nominee for FBI Director Christopher Wray meets with US Senator Chuck Grassley, Republican of Iowa, on Capitol Hill in Washington, DC, June 29, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

On Wednesday morning, Christopher Wray will face the Senate Judiciary Committee in a confirmation hearing to become the nation’s next FBI director. Wray is well qualified in every formal sense; he ran the Justice Department’s Criminal Division, and he’s been a federal prosecutor in high-profile cases. But his nomination will face skepticism — and rightly so.

That’s because of the bizarre circumstances surrounding his appointment: namely, President Donald Trump’s campaign of pressure against, and abrupt dismissal of, Wray’s predecessor, James Comey, and the president’s particularly active interest in the Russia investigation, a matter in which he has multiple personal interests. Over at Lawfare, one of us has posted 20 questions the Judiciary Committee should pose to Wray, all aimed at exploring one broader issue: Will Wray be able to function independently on investigative matters from both the incumbent administration and Trump personally?

But Wray’s nomination raises other questions as well that senators will want to ponder and discuss with the nominee — questions both inherent in the nature of the position he seeks to fill and specific to the age of Trump. It will be up to the Senate, as much as Wray himself, to determine whether Trump will be permitted to change the very meaning of the job of FBI director.

First and foremost, what are Wray’s priorities and vision for the bureau? Wray has had a very respectable career both in private practice and public service, but it’s not a career that — at least on its face, anyway — bespeaks any particular public mission. As is true for plenty of public servants, it’s not really possible to deduce from Wray’s career what he views as the most important priorities for federal agencies like the Department of Justice and the FBI. The FBI, however, is a mission-driven entity. So when you contemplate putting someone like Wray in charge of it, you have to ask the question: What does Wray want to do at the helm?

At one level, the answer to this question is obvious: Wray will want to maintain the bureau’s status as the nation’s premier investigative agency on criminal and national security matters.

But at a deeper level, the answer is not obvious at all. Different leaders take on different missions even within the same general institutional mandates and functions. Robert Mueller, for example, spent his time in office reorienting the bureau toward international counterterrorism; Comey built on that but also focused on developing capacity in cybersecurity and on changing the FBI’s culture, such as providing a direct line of communication between the FBI rank and file and their director. In his last months in office, he also spent an enormous amount of energy trying to protect the bureau from Trump. How does Wray see his mission as director?

A second important consideration is how these priorities dovetail with those of the president. Trump’s security priorities are, after all, eccentric. He cares a huge amount about “radical Islamic terrorism,” not so much about hate crimes against Muslims and others in the United States; the FBI, however, is responsible for both. Trump does not appear to care much about cybersecurity to the extent that cybersecurity investigations raise questions about matters inconvenient to him. By contrast, he cares a great deal about factually unsupported allegations of widespread voter fraud and crimes committed by immigrants, particularly those who are not in the country legally. He also seems to care a great deal — and in a fashion that is potentially very dangerous — about misconduct, real and imagined, by people with the temerity to oppose him politically.

All of this raises an interesting question for any FBI director: Given the president’s exceedingly strange priorities, how much latitude will you have to pursue on your own? Comey’s solution was simply to ignore the president’s agenda. The FBI’s investigative priorities didn’t change much — if at all — when Trump took office. But Comey also didn’t last long. And the question now is whether Wray, a new director selected by this president, is more aligned with Trump on substantive matters than Comey was or, if not, whether he is more pliable and willing to allow the White House’s political agenda to dictate the bureau’s priorities.

Wray’s nomination raises another important question related to the director’s 10-year term of service. By law, the FBI director has a 10-year term; he does not lose his job when a presidential administration ends. At the same time, the president always has the right to fire him — something that had occurred only once before Comey, in a situation in which there was bipartisan agreement regarding allegations of serious misconduct. The 10-year term serves two purposes: to prevent the emergence of another J. Edgar Hoover, who served for life and grossly abused the office, and to create a norm of independence of the bureau from politics and presidential administration. This norm has been reinforced by the willingness of some presidents to name FBI directors from the opposite political party.

Trump has done exceptional — perhaps catastrophic — violence to this norm. He not only removed Comey years prematurely, but he did so for reasons not involving any misconduct and that by his own account are overtly self-interested, if not outright corrupt. What’s more, he then turned around and replaced Comey with a member of his political party. Although Wray is not a bad selection — and certainly more worrisome names were floated — there is nothing about this nomination that seeks to repair the immense damage that Trump has inflicted.

Under these circumstances, the Senate in considering Wray — not to mention any successor to Trump — is going to have to think hard about how to restore the integrity of the 10-year term. To give Wray his 10 years would send a message to all future presidents that there is no cost for removing the FBI director and replacing him or her with your own person. If Trump gets away with this, in other words, why would any president not come into office and replace the FBI director, along with the attorney general? On the other hand, for the next president to enter office and do exactly what Trump did — that is, fire the FBI director without cause and replace him with a member of his or her own party — would reinforce the acceptability of Trump’s course.

The Senate here might have a valuable role in emphasizing during Wray’s confirmation that members consider him temporary and will expect the next president to remove him and name an FBI director who is both untainted by Trump’s conduct and who hails from the party opposite the new president. If the next president is a Democrat and Wray has performed admirably between now and then, it may well be that he should be retained. However, the point for present purposes — and it’s a point that senators should make now — is that Wray should have no expectation of retention one day past Trump’s service. Neither Trump nor he should expect to reap the benefits of the 10-year term without respecting its discipline.

The independence of law enforcement on investigative matters is going to require some care and feeding over the next few years. Christopher Wray has a big role to play in that. The Senate’s job this week is to make sure he recognizes the substance and importance of that role — and to get him to commit to playing it.

Photo credit: SAUL LOEB/AFP/Getty Images

Susan Hennessey is managing editor of Lawfare. Twitter: @susan_hennessey
Benjamin Wittes is editor in chief of Lawfare. Twitter: @benjaminwittes

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