When a new President comes into office, there is quite properly a changing of the guard. The people have voted for new policies. The norm is that all the Cabinet Secretaries, and all other Cabinet-level officials (like the heads of EPA, NSA and NASA, and the UN Ambassador) leave office, to be replaced by appointees of the new guy.
But there are exceptions. The two most notable are the Chairman of the Federal Reserve and the Director of the FBI. (See also, the Commissioners of the so-called “independent” agencies, like the FTC, SEC, CFTC, etc., etc., a more complex situation that I will not cover in this post.). In the case of the Fed Chair and the FBI Director, they have fixed terms that are not in sync with the terms of Presidents; and the norm, if you want to call it that, has been that Presidents don’t fire them. The Fed Chair’s fixed term is only four years, expiring two years into a President’s term. Thus, although the Fed Chair does not normally leave office when a new President comes in, a President can always replace him or her a couple of years later.
And then there is the FBI Director. The FBI Director’s fixed term is 10 years. That implies an expectation that an FBI Director will serve through the terms of at least two, and potentially three, Presidents. The underlying idea — not unreasonable at first blush — is to avoid having the FBI in a position to be used as the political tool of the current President to go after political enemies.
But, as with everything else important in life, there are trade-offs. How about when the FBI arrogates to itself a mission to support one political party, here the Democrats, and persecute the other, here the Republicans?
The Constitution does not recognize such a thing as executive agencies “independent” from the President. Article II, Section 1 provides that “The executive Power shall be vested in a President of the United States of America.” There is no grant of executive power to any other person, office or agency. Under the Constitution, the protection against abuse of power by a President, such as by using law enforcement to go after political adversaries, lies at the ballot box, not in having one or more law enforcement agencies answerable only to themselves and unaccountable to anyone.
Indeed the “independence” of the FBI has a history much more notable for abuse of power by the FBI itself than for any high-minded incorruptibility. J. Edgar Hoover was first appointed head of the then Bureau of Investigations in 1924 by President Calvin Coolidge, and subsequently became the first Director of the FBI when that agency was created under President Franklin Roosevelt in 1935. Hoover then served in that role all the way until his death in 1972, five Presidents later.
According to a Wikipedia biography here, both Presidents Truman and Kennedy considered firing Hoover, but feared political blow-back. Hoover notoriously collected files of potentially compromising information on Presidents and other high-ranking politicians in order to protect his own power. In 1991 the New York Times conducted a review of President Nixon’s White House tapes, and found Nixon expressing the view that he could not fire Hoover because of fear of information that Hoover might release. (“Tape Shows Nixon Feared Hoover,” New York Times, June 5, 1991.)
But nothing can top the corruption of the FBI by the end of the Obama administration under Director James Comey. During the 2016 campaign, and then after Trump was elected that year, the FBI went all in to try to prevent Trump’s election, and then, after he was elected, to undermine his presidency. Readers will undoubtedly vividly remember the “Russia! Russia! Russia!” hysteria, substantially ginned up by the FBI, that gripped the country from about September/October 2016 all the way through 2018.
As just one data point, consider this New York Times piece from March 20, 2017, reporting on Comey testimony to Congress at that time early in Trump’s first term, headline “F.B.I. Is Investigating Trump’s Russia Ties, Comey Confirms.” They were investigating the sitting President for what they had to know by that time was a hoax initially promulgated by the Hillary Clinton campaign. Meanwhile, Trump was foolishly following the “norm” of keeping the sitting FBI Director in place. And then, when he finally fired Comey in May 2017, the press was filled with articles insinuating that firing an FBI Director should be viewed as “obstruction of justice.” From the New York Times, May 11, 2017:
Some critics of President Trump have accused him of obstruction of justice in his firing of the F.B.I. director, James B. Comey, amid the bureau’s investigation into the Trump campaign’s contacts with Russia. . . . Several federal statutes criminalize actions that impede official investigations.
And how about Christopher Wray? Yes, he was initially appointed by Trump. But under his leadership the FBI has continued its practices of being a partisan tool of the Democrats. To list just a few examples:
- (1) the SWAT raid on Roger Stone in January 2019 (conveniently leaked to CNN so that it could be filmed);
- (2) the raid by some 30 FBI agents on Mar-a-Lago in August 2022; and
- (3) the hundreds of investigations of J6 participants.
If Wray has not already resigned, Trump should fire him promptly on January 20. His right to do so is not a close constitutional question.
