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- Chris Wray sends DC a message: Cave to Trump or just get out of the way
Chris Wray sends DC a message: Cave to Trump or just get out of the way
His resignation does little to prevent Kash Patel taking over the FBI—and instead, most likely, merely accelerates it.
Chris Wray’s announcement Wednesday that he would resign, preemptively, as FBI director ahead of Trump’s inauguration was, to me, one of the most dramatic post-election moments we’ve seen in Washington. As I wrote in a POLITICO oped yesterday:
Wray’s surprise decision is, simply put, a damning decision, an abdication of leadership, and a terrifying indication of how unready Washington remains for a second Trump term. Wray’s decision undermined decades of hard work — by Congress, presidents, the Justice Department and the FBI itself — to move it out of a partisan, political framework. …
For anyone who cares about the bureau, it’s a heartbreaking development. Wray’s anticipatory surrender moves the FBI closer to being any other political institution and appointment in Washington — an institution where it’s even appropriate for an incoming president, not yet in office, to signal his desire for the FBI director to resign.
Today, I want to expand a bit on the mechanics of Wray’s decision and its likely implications for the leadership of the bureau in the months ahead.
There was some speculation in the hours following Wray’s announcement to leave before January 20th that it was some advanced bureaucratic maneuver to forestall Kash Patel being installed as FBI director under a recess appointment or under what’s known as the Federal Vacancies Reform Act, which governs who and how someone can be appointed an “acting” leader in the government.
And, indeed, in various ways Wray's resignation would preclude Patel from being installed via an FRVA appointment if Trump’s plan had been to wait until day 91 of the administration to fire Wray — Patel (or anyone else named acting) needs to have been in government for 90 days in the year period *preceding* the vacancy, for instance, among other FVRA provisions — but there’s also an open legal debate about whether FVRA can even be used if a firing happens, because the president is then creating the vacancy he's trying to fill, so legally and procedurally it feels sort of a wash in that sense. (An overall note: I'm not a lawyer and not a particular scholar of FRVA, and mostly base this on the commentary of Anne Joseph O'Connell, who is the nation’s premier super amazing expert on FVRA.)
But I think, practically, Wray’s decision not only doesn’t hinder Patel taking over the bureau, it accelerates it.
Overall, I'm a firm believer that Trump is never playing nine-dimensional chess nor orchestrating some subtle and brilliant bureaucratic maneuver. (As I wrote earlier last month about Trump’s nominees: “Donald Trump is as close to a walking, breathing political ID as any human ever created.”)
Instead, I think this is a case where Wray's resignation activates Occam's Razor: The most obvious path for Patel to head the FBI isn't being installed as a recess appointee under some little-utilized constitutional maneuver or taking over as an indefinite "acting" under FVRA, but simply for him to be confirmed outright by a majority of the the GOP-controlled Senate. There's no evidence we've seen that the GOP Senate has any strong backbone to oppose Patel and in fact the opposite seems true, we've seen strong support from people like Senate judiciary chair Chuck Grassley to get rid of Wray. As the New York Times wrote yesterday:
[Patel] appears — at least for now — to be on a glide path for confirmation, with Republican senators lining up enthusiastically behind him. As Mr. Patel made the rounds on Capitol Hill this week ahead of his confirmation hearing, he received almost universal praise from G.O.P. members, even those who had raised concerns about some of Mr. Trump’s other picks. “Kash Patel is the real deal,” said Senator Thom Tillis of North Carolina, one of the conference’s more moderate members. “President Trump campaigned on the promise to enforce our laws equally and fairly and restore the integrity of the F.B.I.”
Wray just out and out resigning and being gone on day 1 of the Trump II administration merely jumpstarts that Senate confirmation process sooner and faster than in other scenarios and, for any wavering GOP senator who was on the fence, it removes what to me was always the easiest out — saying, “Hey man, we have a million people to confirm right now and Wray's legally got two more years, so let's just take up the FBI question at some later point.” Instead, now Patel can start wandering Capitol Hill right now having serious confirmation meetings without any objections to the legal niceties of “there is no vacancy.” If anything, Chris Wray has now created active momentum to fill the FBI director's role sooner rather than later.
To me, a big part of the challenge of opposing, stopping, or preventing the incredibly dangerous Patel nomination is that Kash Patel exists in this weird D.C. netherworld, where as unqualified a choice as he is and as dangerous as he is to the foundation of our nation’s rule of law, everyone in Washington is overlooking him because he’s only like the fourth most objectionable Trump hire and not technically even a Cabinet-level position.
He’s not a main character in the confirmation drama given the attention to more high-profile controversial nominees like Pete Hegseth, RFK Jr., Tulsi Gabbard, and others. Moreover, he’s not — at least as is known now — objectionable as a human being, as we’ve seen with the sexual abuse or substance abuse allegations against Matt Gaetz and Hegseth; Patel is just a run-of-the-mill unqualified Trump grifter slash loyalist, one coming to a job that requires towering independence, judgment, and strength with a track record that demonstrates only mediocrity, obsequiousness, conspiracism, and a burning desire for retribution and score-settling.
Absent a turn as the “main character” in the news cycle, Patel may very well skate through confirmation and start at the bureau as director before that day 90 mark of the administration. The same dynamic is at play with Patel’s would-be boss, attorney general nominee Pam Bondi, who would normally be seen as a controversial and nutty nominee, but instead seems to be skating toward confirmation simply by not being Matt Gaetz.
In the end, Trump's ability to move the Overton Window on dangerous appointments is one of his great political superpowers, and it’s clear that the GOP is only going to be willing to fight on so many Trump nominees. Given the renewed momentum and stabilization around Hegseth’s nomination over the past week, that list may very well have begun and ended with Matt Gaetz.
Chris Wray has started, sooner than he had to, a series of dominoes falling that may well have been inevitable anyway, but could have at least been delayed for a bit longer and have come at some political cost to Donald Trump.
Wray hand-waved in his announcement that by stepping down he somehow was going to help the bureau avoid controversy. “My goal [in resigning] is to keep the focus on our mission — the indispensable work you’re doing on behalf of the American people every day,” he told the bureau. “And 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.” According to people around Wray in recent days, he thinks it would be bad for internal morale for the FBI to endure another FBI director being fired — to have two consecutive directors fired out of pique by Trump. It’s hard to see the logic in that argument.
The reality is that Wray’s action repudiates all of the bureau’s core values and principles and the hard work of scores of FBI leaders across a half-century. It is a decision that seems to help only one person: Wray, easing his way back into polite legal society and a top-shelf corporate or legal role with a minimum of awkward fuss and Trump vitriol. It certainly sends a terrible message to the workforce, public servants who we as a nation will desperately want to stand up for the rule of law in the years to come: Cave to Trump or just get out of the way.
In that sense, it echoes the ego-driven actions of Wray’s predecessor, Comey, in 2016, when the then-Director Comey inserted himself — twice — loudly and personally into the Hillary Clinton email investigation, overstepping the bureau’s traditional role in some misguided and egotistic exercise meant to demonstrate his own independence from the president who appointed him.
Now, though, after two directors who have put their own careers above the interests of the bureau, we appear to be entering an even more dangerous moment: The only thing more destructive than an FBI director that puts loyalty to himself above the bureau’s interests is one that puts loyalty to the president above the bureau.
Thanks for reading — I hope you continue to find these thoughts useful as we navigate this strange time together.
GMG