The director’s defiance of Congress’s subpoena is contemptuous. If he persists in it, Congress should hold him accountable.
The director’s defiance of Congress’s subpoena is contemptuous. If he persists in it, Congress should hold him accountable.
T he era of FBI prestige is over. The FBI killed it, and director Chris Wray seems to be the last one to know. As a result, he’s about to be held in contempt of Congress for defying a subpoena that he has no lawful basis to defy. That is a contemptuous act, regardless of whether Wray is engaged in a cover-up or earnestly concerned that House Oversight Committee chairman James Comer (R., Ky.) is eroding the bureau’s capacity to safeguard intelligence sources and methods.
The director has been watching Efrem Zimbalist Jr. reruns while much of the country reads the Durham Report, and the series of reports on FBI abuses compiled over several years by the Justice Department’s inspector general, and revelations of similar, serial FBI lawlessness generated by the Foreign Intelligence Surveillance Court. Wray seems to think it’s still 1995, or 2005, or even 2015, when an FBI director could, with a measure of credibility, assure Congress that the bureau conducts politically fraught probes with competence and non-partisan rectitude, and lawmakers could then be expected to back down from making disclosure demands, fearing the public might decide they were obstructing the FBI’s good work.
Those days are done. In the last decade, the FBI has become thoroughly partisan.
This was not exactly a new development. The bureau still casts itself in the image of J. Edgar Hoover, the formative director for whom its Washington, D.C., headquarters is named. Hoover climbed the greasy pole by doing the bidding of presidents of both parties. He maintained his position for over four decades by petrifying the Beltway political class, squirreling its humiliating secrets away in his infamous files.
There is something different about today’s bureau, though. Hoover’s machinations were more about power than partisanship. His bureau self-consciously appealed to an unreservedly patriotic America that revered the rule of law. The country has changed, and so has the Federal Bureau of Investigation. Today’s FBI, with the ethos more of a spy agency than a police force, is a contented cog of the progressive administrative state. In the Obama years, it was put in the service of the Democratic Party. It marched to President Obama’s beat, whitewashed and abetted Hillary Clinton’s malevolence, undertook to destroy Donald Trump’s presidency, spent years covering its tracks, and insulated his 2020 opponent from scrutiny. It has spent the Biden years helping Democrats craft a political narrative of a nation besieged by white-supremacist domestic terrorism — all the while slow-walking the investigation of the Biden family’s influence-peddling business.
That record notwithstanding, Wray seems to believe Comer should retreat from his demand for information allegedly implicating President Biden in a $5 million bribery scheme because, the director admonishes the committee, revealing the information — and what, if anything, the FBI has done to investigate it — could compromise the bureau’s cultivation of confidential human sources (CHSs).
There was a time, not long ago, when such a claim by an FBI director would hold a lot of sway on Capitol Hill. In its arrogance, the bureau seems to have forgotten why. No, it is not because the FBI has excellent points, which Wray has made, about CHSs: To wit, that the bureau’s ability to enforce the law and protect national security hinges on persuading CHSs that, if they provide inculpatory information about dangerous, powerful people, the bureau will do its utmost to ensure their confidentiality and security.
Don’t get me wrong. That is all true. But in bygone days, such arguments did not prevail on Capitol Hill because they were true. They prevailed because the FBI had strong allies on both sides of the aisle in each chamber of Congress. The bureau had convinced those allies — a critical mass of Congress — that it was evenhandedly enforcing the law. Lawmakers understood that the public was confident in the FBI; ergo, Congress had much to lose in skirmishes where it might appear that lawmakers were thwarting the bureau. The FBI won these jousts because Congress stayed its whip hand. But that doesn’t mean Congress lacked the whip hand.
Wray ran the Criminal Division in the Bush-43 Justice Department under then-deputy attorney general James Comey. He is a good lawyer. Yet, some basic constitutional law eludes him these days. Just to recap: The nation got by for well over a century of constitutional governance without an FBI. In fact, for most of America’s first century, the Justice Department (of which the bureau is a component) didn’t exist, either. There is no FBI in the Constitution. The bureau was created by statute. It is an agency assigned to the executive branch, but it owes its existence and its authorities to Congress, which also funds its operations with taxpayer money. Congress is obliged to examine how those authorities are exercised and how that funding is spent. It could dispense with the FBI entirely if it chose to do so — if it concluded that the bureau, having forfeited its credibility by playing politics and performing incompetently, had become more trouble than it is worth.
One of the reasons we’ve had one FBI disaster after another in recent years is that Congress has failed to fulfill its duty to conduct thoroughgoing oversight of FBI operations, especially with respect to the bureau’s foreign-counterintelligence mission. Many FBI debacles take place in that context, yet Congress has delegated much of its oversight responsibility to an ill-conceived judicial panel, the Foreign Intelligence Surveillance Court, which should not be involved in spying (a national-security duty of the political branches) and which is institutionally incapable of investigating the bureau.
There are circumstances in which the executive branch can legitimately defy congressional subpoenas. These deal with legislative efforts to usurp or undermine the constitutional authority of the president, a tendency about which the Framers were deeply concerned. That is why the Supreme Court recognizes executive privilege. It is why presidents refuse to accept the validity of the War Powers Resolution even as they comply with it — grudgingly and incompletely. But Comer’s subpoena to Wray does not present a constitutional-separation-of-powers conflict; it is, instead, the separation of powers as it was intended to operate.
Congress is not permitted to execute. It may not exercise the powers it creates by statute and vests in the executive, such as the FBI’s law-enforcement authorities. But it has undeniable authority to scrutinize the manner in which the FBI is exercising those powers. Wray has no proper basis to refuse compliance with a subpoena demanding to know (a) whether the FBI has gotten a colorable report that the sitting president participated in a criminal scheme said to involve leveraging his federal power for personal gain; and (b) if so, what the FBI has done with that information. Wray can cite “law-enforcement privilege” from now until the end of time. That’s not a constitutional privilege. Whatever law-enforcement authority the FBI has was given to it by Congress; the director has no “privilege” to withhold from Congress information on how that authority has been executed.
Unlike some on the right, I am not a persistent Wray critic. He inherited a mess when he took over, and I’ve tried to cut him slack. It has not been easy to be FBI director in the administrations of Donald Trump and progressive Democrats — the former crassly demanding investigations of his political opponents, the latter requiring nothing less than that their opponents be investigated while the Bidens are insulated.
Still, it was on Wray’s watch that he colluded with his fellow Trump appointee, then-deputy attorney general Rod Rosenstein, to stonewall the Republican-controlled House from uncovering what we now know was the FBI’s shocking Russiagate malfeasance. I understand why Rosenstein did it: He, after all, approved the FBI’s last Carter Page FISA-warrant application and appointed as special counsel Robert Mueller, the former FBI director who somehow managed to probe a political smear — Trump–Russia collusion — while remaining blissfully blind to the FBI’s role in helping the Clinton campaign promote the smear. But since Wray had nothing to do with the Russiagate debacle, his resistance to exposing it has been mystifying.
In the ensuing years, analogous abuses have proceeded under Wray’s stewardship — the FBI’s (a) illegal surveillance under FISA; (b) general participation in the suppression of political speech on social media; (c) specific complicity in the Democrats’ and the intelligence community’s suppression of the Biden influence-peddling scandal; (d) collaboration in the Democrats’ crafting of a political narrative that the country is overrun by white-supremacist domestic terrorists; and (e) retaliation against whistleblower agents who’ve reported to Congress about some of these issues (at least according to three of those agents, who testified under oath at a recent House hearing).
Now, the mere fact that a CHS may have alleged that Biden took part in a bribery scheme doesn’t mean it happened. It can’t be dismissed out of hand — there’s too much indication of Biden’s sleazy self-dealing and outright lying for that. But people in positions of authority get falsely accused of wrongdoing all the time. The FBI rightly keeps such allegations under wraps because those people are presumed innocent and the bureau can’t investigate without being discrete. Congress has traditionally given the FBI a wide berth because lawmakers know secrecy is a necessity for competent investigations — and it has assumed that the FBI is competent and non-partisan.
On the record of the last eight years, however, Wray can no longer bank on that assumption. To be sure, Comer could end up with egg on his face. If it turned out that he was wrong about the information, or that the FBI was actually doing a bona fide corruption probe that got undermined by his quest to obtain and expose the information, then Comer would be humiliated. The death knell for the House GOP’s Biden investigations would sound.
That, however, is a risk Comer is entitled to run. He knows he should tread carefully. That, undoubtedly is why House Speaker Kevin McCarthy has assured Wray that, as long as he communicates the core of the information, the FBI may redact details that could imperil sources and methods of intelligence-collection. But the House is entitled to the Biden information. Wray has no legal basis to keep it under wraps.
The director’s defiance of Congress’s subpoena is contemptuous. As Chris Wray would say about any American citizen who dared defy a subpoena in an FBI investigation, people who persist in such contemptuous conduct should be held in contempt. Hopefully it doesn’t come to that. But if it does, contempt is just the next step, not the last one.