FBI Director Resignation Gives Trump an Easy Out, 17 Dec

As a practical matter, Christopher Wray’s resignation is not a big deal. After all, President-elect Donald Trump has already said he will replace the FBI director and has even named his successor, Kash Patel. But symbolically, Wray’s voluntary departure has enormous significance.

Wray announced Wednesday that he will step down when Trump takes office in January. His departure will come just seven years into a 10-year term designed to protect the independence of our nation’s premier law enforcement agency.

This is not the first time Trump has caused the premature ouster of an FBI director. Wray got the job after Trump fired his predecessor, James Comey. Comey had served for only three years before Trump removed him in 2017. While Comey’s departure was itself norm-busting, leaving was not his idea. Among his imagined sins was his refusal to accept Trump’s request for a pledge of loyalty. Wray, on the other hand, is giving Trump an easy out.

At least Comey’s replacement was a respected figure in law enforcement circles. Experienced as a prosecutor, Wray served as assistant attorney general for the Justice Department’s Criminal Division during George W. Bush’s administration.

Even though Trump appointed Wray, the incoming president has since soured on him. Under Wray’s leadership, the FBI investigated the federal cases that resulted in indictments charging Trump with interfering with the 2020 election and unlawfully retaining classified documents. Wray’s FBI searched Trump’s Mar-a-Lago home under a court-authorized warrant. Trump has spun those cases into a self-serving and baseless narrative to cast himself as the victim of rogue bureaucrats out to get him. On Truth Social, Trump said Wray’s resignation marked “a great day for America as it will end the Weaponization of what has become known as the United States Department of Injustice.”

Patel is an attack dog who could not be more different from the apolitical Wray. Patel has vowed to “go out and find the conspirators not just in government, but in the media.” He has written a book called Government Gangsters, naming Wray, Comey and other government officials as part of the so-called “deep state.” Patel has also written a series of children’s books called The Plot Against the King, casting Trump as the betrayed sovereign and himself as the hero who saves him. Trump will not need to ask Patel to take a loyalty pledge. He wears it on his sleeve.

But of course, loyalty to the president is precisely what a 10-year term for the FBI director was intended to avoid. Congress set the term in the 1970s to serve two purposes. First, lawmakers wanted to prevent a director from amassing undue power like J. Edgar Hoover had in his 48 years at the helm. In addition, they wanted to ensure a director’s independence by insulating him from political pressure from the president who appointed him.

A 10-year term, the logic goes, would outlast even a two-term president. At the time, members of Congress explained that although the president had the constitutional authority to fire an FBI director, he should do so only for just cause and not to fill the post with his “own man.” That seems to be precisely what Trump is doing.

For his part, Wray has said that resigning “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.” No doubt, he is seeking to spare the agency more false accusations that it is part of a cabal hell-bent on disrupting Trump’s agenda.

Protecting the agency and its people is a laudable goal, but enduring some name-calling on social media seems a small price to stand up for norms created to protect the independence of law enforcement, lest it become just another political tool of a president. After seeing their leader back down, the FBI’s 38,000 employees will wonder whether doing their jobs with integrity, even if it means taking on Trump, is worth the fight.

Some have suggested that by resigning, Wray has made it more difficult for Trump to replace him. Columnist David French wrote in the New York Times that Wray’s resignation is “an act of defiance” that creates a “legal obstacle to Trump trying to bypass the Senate confirmation process,” citing the Federal Vacancies Reform Act.

I believe this is an incorrect reading of the FVRA, which permits the president to temporarily replace an officer who “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Under those circumstances, the president has three options for an acting replacement: the official’s first assistant, any other official who was presidentially appointed and Senate-confirmed, or any other government official at the GS-15 level and above who has been so employed for at least 90 days. French suggests that because Patel is none of these, his only path to the director’s job is through confirmation.

But that’s not true. As law professor Steve Vladeck has noted, one loophole to the FVRA’s first option is that some first assistant positions do not require Senate confirmation. The deputy FBI director is one of them. By regulation, Deputy FBI Director Paul Abbate will take over as acting director when Wray resigns. Trump could then install Patel as Abbate’s first assistant and then fire Abbate, making Patel the acting director without Senate confirmation. Trump did something similar in his first term to install Ken Cucinelli as acting director of the Bureau of Citizenship and Immigrant Services.

Just because the law says Trump can fire his FBI director does not mean he should. Adhering to norms is essential to democracy, and Trump’s destruction of them comes at a cost. An FBI free from partisan politics and its appearance is essential to its effectiveness. When the public doubts the integrity of the FBI, jurors become less likely to believe agents when they testify at trial, witnesses are less likely to come forward, and bystanders are less likely to answer the door when an agent comes asking for information.

Of course, our constitutional system government is not without recourse. The Senate still retains the power to reject Patel and demand an appointee who will exercise independence. In fact, as the drafting committee wrote at the time the 10-year term was enacted, the bill was “a cautionary message to the President” that “by virtue of its power to ratify the appointment of a successor, the Senate retains a large measure of influence over this removal power and will tolerate its exercise for good reason only.” In other words, a president who fired a director without cause should expect the Senate to withhold its consent by rejecting the president’s replacement nominee.

While the recent record of GOP senators in impeachment proceedings does not inspire optimism that they will stand up to Trump, Wray’s capitulation has just made it a little harder for them to do so.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Barbara McQuade is a professor at the University of Michigan Law school, a former US attorney and author of Attack from Within: How Disinformation Is Sabotaging America.

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