The No. 1 demand senators must make of Trump’s FBI chief nominee

Today, the Senate Judiciary Committee will hold a hearing to consider the nomination of Christopher Wray to succeed James Comey as director of the FBI.  

President Trump has admitted that he fired Comey because of his handling of the investigation into collusion between the Trump campaign and Russia. He has repeatedly disparaged the investigation on social media, calling it a witch hunt. The Senate is now faced with the decision whether to approve his nominee, who will be in charge of the FBI’s portion of the investigation.  

By any basic measure of justice, Trump should not be permitted to appoint the next leader of the FBI’s investigation. Regardless of the nominee’s personal merits, the appointment is inconsistent with the appearance of independence and integrity that is essential if the American public is to have faith in the outcome of the investigation.

JUST IN: Trump names Christie’s Bridgegate lawyer as FBI director nominee https://t.co/G7WXeDoLpD pic.twitter.com/RH8bncIqOF

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The FBI, however needs a Senate confirmed leader to manage its immensely important portfolio. The FBI is the country’s principal domestic security agency with jurisdiction over counterintelligence, as well as investigation of federal crimes, including espionage, civil rights violations, white collar misdeeds, bank robberies, and some murders. The Constitution gives the power to appoint to the president with the advice and consent of the Senate. The Senate, therefore, must consider the nominee fairly, but it must extract commitments from the nominee that will ensure he has no ability to curtail or impede the Russia investigation.

{mosads}One way to do that is to demand that he recuse himself from all matters related to the investigation, including the assignment of resources and personnel, and decisions regarding the substance of the investigation. Wray, who would assume the job after 12 years of private practice focused on white collar criminal defense work, would, if confirmed, have to recuse himself from participation in any number of matters involving his firm’s clients. Members of the Senate Judiciary Committee could ask him to add the Russia investigation to that list.

Recusal would be aided by the service of Robert Mueller as the independent counsel overseeing the investigation. Mueller, of course, served twelve years as FBI Director and remains familiar with the processes, norms, and personnel in the FBI. He could assume much of the decision making that might normally occur in the FBI, including the assignment of resources and supervision of major investigative decisions. A senior FBI official who was not appointed by Trump could serve as his point of contact within the FBI.

More than half of Comey’s private Trump memos contain classified information https://t.co/ckEeRZT44b pic.twitter.com/lChdzOPQDs

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Alternatively, Senators may seek to protect the investigation from Trump’s influence by extracting a series of public promises from the nominee. The first should be that the nominee will report to the Senate Judiciary Committee any breach of traditional limitations on contacts between the White House and the FBI regarding investigative and prosecutorial matters that relates to Russia. The Department of Justice has regulations limiting such conducts to top officials and the White House Counsel’s office has traditionally controlled such communications from the White House. Senators should ask that Wray notify them of any attempt by the president or his immediate staff to influence the course of the investigation.

Senators should also ask how Wray views his future relationship with Mueller and ask him to commit to full support for Mueller’s investigative needs.

In addition, Comey’s experience provides a blueprint for other areas the Senate should explore. Comey showed a dismaying disregard for norms that have governed the behavior of FBI directors. His July 2016 press conference at which he announced that no reasonable prosecutor would pursue charges against Hillary Clinton for her use of a private email server before chastising her at length for her careless handling of classified material was a jaw-dropping tour de force of norm busting.

“Why does the media still portray James Comey as a hero?” https://t.co/zWjilobT08 pic.twitter.com/deOtaz5qoe

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It is the job of the FBI in such instances to determine whether evidence exists that might warrant criminal charges. It violates Justice Department policy to editorialize on conduct once it has determined that charges will not be pursued. Moreover, it is not the role of the FBI or its director to make the call on whether charges are appropriate. The FBI gathers evidence, which it forwards to Department of Justice attorneys who determine whether to prosecute.  

Perhaps most disturbingly, Comey consciously preempted the roles of Department attorneys and their supervisors, reportedly because he had seen a fraudulent memo suggesting that Attorney General Loretta Lynch had assured Democratic officials that the investigation into Clinton’s email would not lead to indictments. According to reports, even though he knew the memo was fraudulent, he was concerned that it would be leaked to undermine any announcement from Lynch.  He, therefore, decided to usurp the roles of the attorney general, the deputy attorney general, the associate attorney general and career prosecutors to make and announce the final decision for them.  The nominee should be questioned in detail on his views of the propriety of Comey’s conduct.

Top Dem: Trump’s new FBI director clearly an attempt to “distract” from Comey hearing https://t.co/OSxzAso7vZ pic.twitter.com/OnYYTNRxiI

— The Hill (@thehill) June 7, 2017

He should also be asked to reassure the Senate that he supports the guidelines of the Department of Justice that limit public investigatory and prosecutorial steps shortly before an election.  Again, he should be asked to comment on Comey’s decision to send a letter to Congress eleven days before the election announcing the reopening of the Clinton email investigation.

Wray brings strong paper credentials to his confirmation, both in terms of education and relevant experience.  Beyond the Russia investigation, however, he will have important questions to answer regarding his post-9/11 role, his service as head of the Justice Department’s Criminal Division while the Bush administration conducted programs of torture and expanded surveillance, and his private practice.

The nomination, however, will be conducted in the midst of daily revelations relevant to the Russia investigation.  Trump’s extraordinary efforts to impede the investigation — including his confessions to Lester Holt and Russian officials that he fired Comey because of it — and his media campaign to marshal public opinion against it, undermine the nominee’s essential appearance of independence. The Senate Judiciary Committee must not confirm a nominee who will not commit to putting essential safeguards in place to reestablish that appearance of independence.

William Yeomans is a Fellow in Law and Government at American University Law School. He previously spent 26 years at the Department of Justice.

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