Executive Branch

Power and Integrity at the FBI: Chris Wray Stands Up to the President and the Attorney General

Jack Goldsmith, Benjamin Wittes
Monday, January 22, 2018, 11:28 PM

Jonathan Swan of Axios reported Monday night, based on “three sources with direct knowledge,” that FBI Director Chris Wray “threatened to resign” if FBI Deputy Director Andrew McCabe “was removed” from office. The threat apparently came in response to pressure on Wray by “Attorney General Jeff Sessions—at the public urging of President Donald Trump” to fire McCabe.

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Jonathan Swan of Axios reported Monday night, based on “three sources with direct knowledge,” that FBI Director Chris Wray “threatened to resign” if FBI Deputy Director Andrew McCabe “was removed” from office. The threat apparently came in response to pressure on Wray by “Attorney General Jeff Sessions—at the public urging of President Donald Trump” to fire McCabe. Swan also reported, based on one source “familiar with the situation,” that “Sessions told White House Counsel Don McGahn about how upset Wray was about the pressure on him to fire McCabe, and McGahn told Sessions this issue wasn’t worth losing the FBI Director over.” It isn’t entirely clear from the story when these events took place—that is, whether the controversy that led to Wray’s threat of resignation is ongoing or if it occurred sometime earlier and has since subsided.

Either way, this reveals a great deal about power and integrity in Washington.

First, we should underscore what a difficult situation Wray is in. As Jack wrote in a related context, Wray is in the extraordinary position of “dealing with a president who is attacking the integrity of the Justice Department and the FBI in a truly unprecedented fashion at a time when many of the president’s associates, and probably the president himself, are under investigation by the Justice Department and FBI.”

As the leader of the FBI, Wray must maintain his credibility with both the White House and, more importantly, the FBI workforce. He is also supervised in an immediate sense by an attorney general who is evidently trying to placate the president’s anger at him for having recused himself from the Russia investigation—and who is doing so by facilitating the president’s demands for a house-cleaning at the bureau. In other words, Wray is wedged, on the one side, between a president who is demanding McCabe’s scalp and an attorney general who is pushing the knife into Wray’s hand, and on the other side by an FBI workforce that is demanding he defend the institution.

This is precisely the situation Ben and Nora Ellingsen anticipated within a few days of Wray’s confirmation as FBI director:

Now that the president has a new FBI director, how long will it be until he expects Wray to get rid of this corrupt fifth columnist [McCabe] whose firing he has publicly called for?

. . .

[But] McCabe today is a figure of wide admiration [within the FBI] for standing up for the bureau when it was under political attack. . . . It’s also safe to say that removing McCabe, at least if Wray does it quickly or in a fashion that appears responsive to political pressure, would . . . undo a great deal of the goodwill with which he walked in the door yesterday among people he has to lead for the next 10 years.

The Axios article—whenever the events it describes took place—reflects precisely this pincer action against Wray. The only honorable solution for Wray here is to be willing to defy the president and the attorney general and to be willing to be fired, or to resign, rather than let the FBI be politicized.

Second, it is clear from this episode that Wray has chosen this path—that is, that his ultimate commitment lies with the FBI and the preservation of its institutional integrity. This is exceptionally good news. It is also unsurprising. Wray, after all, is an old-time Justice Department hand who was prepared to resign under President George W. Bush during the warrantless wiretapping controversy. (Wray and Jack worked together in the Justice Department during this episode, in which Jack was involved.)

One of the underappreciated benefits of Senate confirmation and a 10-year term for the FBI director is that it gives him an outlook and perspective that favor the rule of law and the integrity of law enforcement over high-profile presidential pressure. An FBI director can afford to fight with the president. Louis Freeh had a famously bad relationship with Bill Clinton. Yes, the president can fire the FBI director. But he almost certainly won’t—unless he’s Trump—and the firing would martyr the FBI director, not disgrace him. Conversely, no FBI director can afford to be pushed around publicly by the president and attorney general at the expense of a popular FBI career official the president is bullying, especially when that bullying is related, at least in the president’s mind, to an FBI investigation that involves the president, his campaign advisers and others close to him. To maintain his internal credibility, Wray’s loyalties simply must be with the forces he is charged with leading for a decade, long after Trump has departed from the scene. That’s all before one considers the mainstream attitudes Wray almost certainly holds—and that he professed at his confirmation hearing—about the proper relationship between the political echelon and law enforcement professionals.

So, yes, it is in Wray’s interest to stand up to the president and the attorney general in this context. But third, we should nonetheless recognize the fortitude and grit he showed in reportedly telling the attorney general—and through him the president of the United States—to lay off. Some questions were raised when Wray reassigned FBI General Counsel James Baker; it was unclear whether Wray had caved to pressure from Trump (who attacked Baker) and Sessions, or whether Wray simply wanted his own choice for general counsel, as is the norm. Wray standing up for McCabe puts that episode in a better light. It would have been a difficult thing to do, even though principle was entirely on Wray's side. It is always hard to stand up to your immediate bosses. It is far harder when your immediate bosses happen to be the president and the attorney general, the men who in effect hired you—just a few months ago—and supervise you. But Wray apparently did just this, and he is still the FBI director. As McGahn’s comment to Sessions acknowledges, this episode reveals that Trump has much more to lose than Wray does from Wray resigning—at least for now. And it underscores one more time—again, for now—the FBI’s independence in the face of truly unprecedented attacks on its integrity.

Fourth, while the situation is fluid and Trump’s temperament makes the future impossible to predict, the reality in which Wray holds a lot of cards may be a stable one. Trump has already fired one FBI director for standing up to him and defending the institutional integrity of the bureau. He did not materially improve his position by doing so. Indeed, since it resulted in the appointment of Robert Mueller and Wray himself, doing so almost certainly worsened his position. McGahn seems to be acknowledging in the Axios story that Trump cannot afford to do this again. The power to fire is the power to direct. The unwillingness to fire, however, makes direction impossible. If Wray is not willing to facilitate the politicization of the FBI and the White House doesn’t have the stomach to remove him, then a lot of its leverage to effectuate the politicization it so apparently desires disappears. Ironically, President Trump has handed Wray this leverage by firing his predecessor and by acting so inappropriately toward the FBI since Wray became its director.

Finally, a word about Attorney General Sessions. It says a lot about the man that he was willing to pressure Wray to remove McCabe—and that he was willing to put sufficient pressure on him to provoke a conflict. Of course, in theory, the attorney general—who supervises the FBI director—should be able to discuss with the FBI director who the deputy director should be. But in context, when the president is attacking McCabe and explicitly tying the attacks to the Russia investigation, and when Sessions is recused from that investigation, the proper role for Sessions is actually the one that Wray played here. The job of the attorney general here was to try to uphold and defend the FBI’s independence. Not only did Sessions not do that, at least according to Axios, but Wray had to do it, to protect the FBI from the attorney general himself.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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