The FBI director is standing up for the unwritten constitutional norm that says the FBI and Department of Justice should act apolitically when it comes to crime — and that the president should stand back and let them do their jobs without partisan political intervention.
It’s highly unusual for the FBI director to confront the president publicly — because technically, the director works for the president. That’s why Christopher Wray generated immediate attention and controversy Wednesday for the bureau’s open statement urging Donald Trump not to release the classified Republican House committee memo that reportedly criticizes efforts by the Federal Bureau of Investigation to obtain a surveillance warrant on a former Trump campaign adviser.
Wray is no doubt trying to protect the bureau he runs. But his statement is significant far beyond that parochial interest. Wray is also resisting Trump’s efforts to politicize criminal investigation and prosecution, efforts that are being imitated and abetted by Representative Devin Nunes of California and other Republican members of the House Intelligence Committee. The FBI director is standing up for the unwritten constitutional norm that says the FBI and Department of Justice should act apolitically when it comes to crime — and that the president should stand back and let them do their jobs without partisan political intervention.
The circumstances of the FBI’s statement matter for understanding its purpose. Early on Wednesday, Bloomberg News reported that Wray had privately told the White House that the memo should not be released. The Bloomberg report paraphrased an anonymous source as saying that Wray objected to the House committee memo “because it contains inaccurate information and paints a false narrative.”
There’s nothing especially unusual about the FBI director giving the president private advice about a decision affecting both the bureau and issues of national security. Trump has several more days to decide whether to invoke national-security concerns and block release of the memo. It makes sense for Wray to have given Trump his opinion.
That someone leaked Wray’s opinion to the news media is slightly more unusual, but not unheard of in hardball political circles. The leaker was presumably someone who wanted to pressure to Trump to listen to Wray and block the memo’s release. The leak might or might not have come with Wray’s tacit approval.
What was highly unusual was the FBI statement released to reporters Wednesday afternoon. In it, the bureau said it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
The statement presented itself as speaking on behalf of “the FBI,” whose interests were expressed in the first person plural. That’s serious business. The statement presents the FBI as a whole as telling Trump what to do.
So remarkable was this that some reporters who brought the statements to the public were immediately attacked on Twitter for purveying “fake news.”
The FBI as an institution has a self-protecting reason to oppose the memo, of course. As the classified memo has been described, it alleges that the FBI misled the secret Foreign Intelligence Surveillance Court when seeking permission to spy on Carter Page, a Trump campaign adviser with close business ties to Russia. The apparent basis for the memo’s charge of obfuscation is the claim that the FBI request relied on information from the Trump-Russia dossier compiled by former British spy Christopher Steele without saying that Steele’s firm had been paid for opposition research partially by Democratic sources.
No agency likes to be criticized, of course. But mere self-protection wouldn’t ordinarily justify taking the radical step of the FBI’s public statement. Something much more important is at stake.
Wray’s objection is specifically aimed at trying to maintain the norm of depoliticized criminal investigation and prosecution.
There’s a mismatch between the written Constitution, which puts the Department of Justice and the FBI under the president’s direction, and our unwritten constitutional norms about investigation and prosecution. Those norms emerged to modernize and update the rule of law. They demand that partisan politics be kept out of the operation of the FBI and the criminal operations of the Justice Department.
Trump has been trying to break the unwritten norms, for example by firing the previous FBI director, James Comey, and urging the resignation of Deputy FBI Director Andrew McCabe.
Now Wray is fighting back on behalf of the unwritten norm against injecting politics into investigations. He understands that the whole point of the House Republican committee memo is to taint the whole Russia investigation by making it look partisan.
Attacking the FBI for misleading the special surveillance court is intended to make the public believe that the FBI, not Trump, is making this investigation political.
That’s why Wray’s statement matters. At stake isn’t the reputation of the FBI but the whole principle of depoliticized criminal investigation. If Trump releases the House memo, that principle will suffer yet another blow at his hands. That result wouldn’t just be bad for the FBI. It would be bad for the country.