FBI

Wray Does Well; the Senate Judiciary Committee Does Not

By Benjamin Wittes
Wednesday, July 12, 2017, 4:58 PM

President Trump's nominee to head the FBI, Christoper Wray acquitted himself well this morning before the Senate Judiciary Committee. He came off as sincere, serious, and well-intentioned. He said all the right things about protecting the Bureau's independence. And if he didn't address many of the key questions on which the Senate should have required answers, that's not really his fault. While some Democrats pushed Wray on whether he was asked to pledge loyalty (he wasn't) and how he would handle political interference from the White House (he wouldn't tolerate it), the senators didn't ask—and they certainly didn't push—Wray on points like why on God's green earth he would want this job and how he imagines he might do it effectively under, uh, present constraints.

Let's deal with the easy question first: Should Wray be confirmed? Yes, he should. He's qualified for the job in every formal sense. He's not an obviously inappropriate choice—as many of the options the Trump team floated clearly were. The FBI does need a director. And while I would personally prefer a few dozen other possible nominees over him, I'm not sure many of them would take the job—and the set of those who would take it whom Trump might plausibly nominate for it is almost certainly a null one. Wray is a professional. And if a leadership vision does not drip off of him, I also have no evidence that he lacks honor or dignity or wouldn't take his oath of office seriously. So if I were a senator, I would vote to confirm him.

But I would do so with a big caveat—which is that I see no reason for the next President to respect Wray's statutory ten-year term in office. 

If I were a presidential candidate running against Trump—in either party—I would make very clear that I reserved the right to remove Wray from office as part of the initial transition. Indeed, I might promise to do so. And if I were a senator, I would be carving that space out now. As Susan Hennessey and I wrote yesterday on our Foreign Policy feed, "To give Wray his ten 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?" The next president, in my view, should "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. [But] 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 ten-year term without respecting its discipline."

If Wray acquitted himself well today, the same cannot be said for the body before which he appeared: the Senate Judiciary Committee. Neither Democrats nor Republicans, in the main, approached the situation with the gravity it deserved; nor did they push the nominee aggressively about how and why he thinks he can be effective under current circumstances and given what happened to Comey. Some senators, like Orrin Hatch and Amy Klobuchar, treated Wray as though he were any other nominee—focusing their questions on their individual legislative or local concerns. It was as though a perfectly normal president under perfectly normal circumstances had picked a nominee whose appointment raised no extraordinary questions. The committee today had an opportunity to put down a marker about acceptable behavior in an FBI director—and acceptable presidential behavior towards the FBI. On the latter point, at least, many senators passed up the chance.

Some senators did worse than that. Chairman Charles Grassley, in his opening statement, launched a lengthy attack on Acting Director Andrew McCabe for the political activities of his wife—as though the problem facing the FBI these days lies in politicking by its senior leadership, rather than the political pressure brought against the FBI's senior leadership by the White House. A great many public officials in this city serve with enormous distinction while having politically active spouses. Grassley's focus here speaks volumes, and stands in remarkable contrast to the manner in which Chairman Richard Burr has conducted the Senate Intelligence Committee's investigation. It is no wonder the Judiciary Committee has been a non-player over the past few months, despite both Grassley's and Ranking Member Dianne Feinstein's protestations, in the current investigations. There is simply nothing serious about the tone Grassley took today. 

In a field of poor performances, however, Senator John Cornyn earned a certain pride of place—devoting his time to defending the removal of Comey on grounds that the former director had violated Justice Department traditions and policies by both usurping prosecutorial functions and issuing disparaging information about uncharged individuals in the Hillary Clinton email investigation. Cornyn and others—including Democrat Sheldon Whitehouse—earnestly explored with Wray whether he would ever make a press statement like the one Comey made last July and how he would handle a situation in which the attorney general was not credible but also not recused. Wray did his best to say little about Comey's behavior but also make clear that he wouldn't do anything similar.

These is the same John Cornyn who had no criticism of Comey's action when he actually took that action. Indeed, Cornyn cited Comey's statement on the Clinton email matter repeatedly and gleefully by way of bashing her; he discovered the impropriety of Comey's action only when it became the President's farcical basis for Comey's removal. Even Whitehouse is being hypocritical here. Whitehouse didn't begin criticize Comey's actions, at least that I can tell, until Comey's October notification to Congress of new investigative activity in the case.

Don't get me wrong. I'm not arguing that Comey's decision here was above reproach. Indeed, unlike both Cornyn and Whitehouse and the other clucking senators today, I actually did raise questions about it at the time. It was a lonely position then, and I don't recall a lot of senators being with me on it. But never mind that. The present point is that the last message the Senate Judiciary Committee should be sending to Wray right now is that the ultimately unforgivable sin of James Comey was his handling of the Clinton email matter. Because let's face it, that's just not true. Whether you agree with Comey's decisions or disagree with them or, like me, have intensely mixed feelings about them, the email decisions have nothing whatsoever to do with why Comey was removed and why Wray was before that committee today.

So yes, confirm Wray. Under current circumstances, there's nothing else to do. 

And also, wish Wray well. He's got a very hard job ahead of him. As Comey's experience shows, managing up will be tough. For Wray, however, managing down will also be tough. The FBI workforce is going to take convincing. Wray made a start of that today. But talk, even under oath, is cheap—at least when it's purely aspirational talk. When the Senate votes to confirm him, as it surely will, he's going to have to walk into the FBI building and show people that he's more than a guy who lifted the commander's sword from a dead body on the field.