MAYBE FBI Director Christopher Wray DIDN'T Acquiesce
When I read that Christopher Wray decided to step down as FBI Director I immediately assumed he Obeyed in Advance, abetting Trump's dream of becoming a tyrant. My initial reaction could be wrong
Yesterday afternoon’s “Breaking News” from several news sources reported that FBI Director Christopher Wray was stepping down at the end of Biden’s term of office, presumably to pave the way for Trump to replace him with his sycophantic and completely unqualified nominee Kash Patel. It immediately struck me that Wray’s action was a classic case of obeying in advance, the first lesson in Timothy Snyder’s oft-referenced book On Tyranny. I was certain that my reaction would serve as the basis for a blog post this morning.
Journalist and blogger James Fallows drew the same conclusion, as indicated in the title of his post “Obeying in Advance: The Christopher Wray Story.” When I read Fallows’ Substack post I decided that my observation was not unique and that readers would probably be familiar with this notion by the time I finished writing and want to read Fallows’ insights, which were far more scornful than anything I would have posted:
Comes now Christopher Wray. In principle—that is, according to the law—he has several years left in his term as FBI director. In the tumultuous aftermath of J. Edgar Hoover’s long reign at the FBI, the Congress of the post-Watergate era established ten-year fixed terms for the FBI director. The explicit idea behind this change was that FBI terms would span changes in administrations, and would not be part of normal partisan turnover.1
Despite these rules, eventually Trump would have found a way to fire Wray. OK. Wray should have made him do so, rather than removing himself.
Wray has done great damage with this decision and deserves to be scorned.
But now it seems both James Fallows and I might be wrong about Wray’s intention. NYTimes op ed writer David French posits that Wray might be far more cunning than Fallows or I in making his decision to step down BEFORE Trump takes office. Here’s French’s analysis in full:
On Wednesday, Christopher Wray told his F.B.I. colleagues that he would step down as director by the end of President Biden’s term. His statement was a perfect example of bureaucratic deference. “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,” Wray said. He wants 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.”
But is something else going on?
By stepping down now, as the conservative writer Erick Erickson observed, Wray has created a “legal obstacle to Trump trying to bypass the Senate confirmation process.”
Here’s why. According to the Vacancies Reform Act, if a vacancy occurs in a Senate-confirmed position, the president can temporarily replace that appointee (such as the F.B.I. director) only with a person who has already received Senate confirmation or with a person who’s served in a senior capacity in the agency (at the GS-15 pay scale) for at least 90 days in the year before the resignation.
Kash Patel, Donald Trump’s chosen successor at the F.B.I., meets neither of these criteria. He’s not in a Senate-confirmed position, and he’s not been a senior federal employee in the Department of Justice in the last year. That means he can’t walk into the job on Day 1. Trump will have to select someone else to lead the F.B.I. immediately, or the position will default to the “first assistant to the office.”
In this case, that means the position would default to Paul Abbate, who has been the deputy director of the F.B.I. since 2021, unless Trump chooses someone else, and that “someone else” cannot be Patel, at least not right away.
The bottom line is that the Senate has to do its job. Wray is foreclosing a presidential appointment under the Vacancies Reform Act, and — as I wrote in a column last month — the Supreme Court has most likely foreclosed the use of a recess appointment to bypass the Senate.
So a resignation that at first blush looks like a capitulation (why didn’t he wait to be fired?) is actually an act of defiance. It narrows Trump’s options, and it places the Senate at center stage. In Federalist No. 76, Alexander Hamilton wrote that the advice and consent power was designed to be “an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters.”
Patel is just such an “unfit character,” and now it’s senators’ responsibility to protect the American republic from his malign influence — if, that is, they have the courage to do their jobs.
That is a big IF given the number of under-qualified nominees the President-elect is proposing and his belief that the American public fully supports his desire to appoint nominees who will do what HE want to key positions. Are there four GOP Senators who will reject the likes of Pete Hegseth, Kash Patel, RFK Jr., the bevy of Fox News talking heads, election-denying sycophants, and the billionaire campaign donors seeking ambassadorships? Are they willing to apply the Zoe Baird standard to Trump’s nominees the list of rejected proposed appointees should be VERY long… but that will only happen IF the GOP Senators have the courage to do their jobs.