On Wednesday, Christopher Wray told his F.B.I. colleagues that he would step down as director by the end of President Biden’s term. His statement was a perfect example of bureaucratic deference. “I’ve decided the right thing for the bureau is for me to serve until the end of the current administration in January and then step down,” Wray said. He wants to “avoid dragging the bureau deeper into the fray, while reinforcing the values and principles that are so important to how we do our work.”
But is something else going on?
By stepping down, as the conservative writer Erick Erickson observed, Wray has created a “legal obstacle to Trump trying to bypass the Senate confirmation process.”
Here’s why. According to the Vacancies Reform Act, if a vacancy occurs in a Senate-confirmed position, the president can temporarily replace that appointee (such as the F.B.I. director) only with a person who has already received Senate confirmation or with a person who’s served in a senior capacity in the agency (at the GS-15 pay scale) for at least 90 days in the year before the resignation.
Kash Patel, Donald Trump’s chosen successor at the F.B.I., meets neither of these criteria. He’s not in a Senate-confirmed position, and he’s not been a senior federal employee in the Department of Justice in the last year. That means he can’t walk into the job on Day 1. Trump will have to select someone else to lead the F.B.I. immediately, or the position will default to the “first assistant to the office.”
In this case, that means the position would default to Paul Abbate, who has been the deputy director of the F.B.I. since 2021, unless Trump chooses someone else, and that “someone else” cannot be Patel, at least not right away.
The bottom line is that the Senate has to do its job. Wray is foreclosing a presidential appointment under the Vacancies Reform Act, and — as I wrote in a column last month — the Supreme Court has most likely foreclosed the use of a recess appointment to bypass the Senate.
So a resignation that at first blush looks like a capitulation (why didn’t he wait to be fired?) is actually an act of defiance. It narrows Trump’s options, and it places the Senate at center stage. In Federalist No. 76, Alexander Hamilton wrote that the advice and consent power was designed to be “an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters.”
Patel is just such an “unfit character,” and now it’s senators’ responsibility to protect the American republic from his malign influence — if, that is, they have the courage to do their jobs.
But is something else going on?
By stepping down, as the conservative writer Erick Erickson observed, Wray has created a “legal obstacle to Trump trying to bypass the Senate confirmation process.”
Here’s why. According to the Vacancies Reform Act, if a vacancy occurs in a Senate-confirmed position, the president can temporarily replace that appointee (such as the F.B.I. director) only with a person who has already received Senate confirmation or with a person who’s served in a senior capacity in the agency (at the GS-15 pay scale) for at least 90 days in the year before the resignation.
Kash Patel, Donald Trump’s chosen successor at the F.B.I., meets neither of these criteria. He’s not in a Senate-confirmed position, and he’s not been a senior federal employee in the Department of Justice in the last year. That means he can’t walk into the job on Day 1. Trump will have to select someone else to lead the F.B.I. immediately, or the position will default to the “first assistant to the office.”
In this case, that means the position would default to Paul Abbate, who has been the deputy director of the F.B.I. since 2021, unless Trump chooses someone else, and that “someone else” cannot be Patel, at least not right away.
The bottom line is that the Senate has to do its job. Wray is foreclosing a presidential appointment under the Vacancies Reform Act, and — as I wrote in a column last month — the Supreme Court has most likely foreclosed the use of a recess appointment to bypass the Senate.
So a resignation that at first blush looks like a capitulation (why didn’t he wait to be fired?) is actually an act of defiance. It narrows Trump’s options, and it places the Senate at center stage. In Federalist No. 76, Alexander Hamilton wrote that the advice and consent power was designed to be “an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters.”
Patel is just such an “unfit character,” and now it’s senators’ responsibility to protect the American republic from his malign influence — if, that is, they have the courage to do their jobs.
