Chris Wray’s DodgeBall and Trump’s Latest Threats

Though I lived-tweeted it, I never wrote up Christopher Wray’s confirmation hearing to become FBI Director. Given the implicit and explicit threats against prosecutorial independence Trump made in this interview, the Senate should hold off on Wray’s confirmation until it gets far more explicit answers to some key questions.

Trump assails judicial independence

The NYT interview is full of Trump’s attacks on prosecutorial independence.

It started when Trump suggested (perhaps at the prompting of Michael Schmidt) that Comey only briefed Trump on the Christopher Steele dossier so he could gain leverage over the President.

Later, Trump called Sessions’ recusal “unfair” to the President.

He then attacked Rod Rosenstein by suggesting the Deputy Attorney General (who, Ryan Reilly pointed out, is from Bethesda) must be a Democrat because he’s from Baltimore.

Note NYT goes off the record (note the dashed line) with Trump in his discussions about Rosenstein at least twice (including for his response to whether it was Sessions’ fault or Rosenstein’s that Mueller got appointed), and NYT’s reporters seemingly don’t think to point out to the President that he appeared to suggest he had no involvement in picking DOJ’s #2, which would seem to be crazy news if true.

Finally, Trump suggested (as he has elsewhere) Acting FBI Director Andrew McCabe is pro-Clinton.

Having attacked all the people who are currently or who have led the investigation into him (elsewhere in the interview, though, Trump claims he’s not under investigation), Trump then suggested that FBI Directors report directly to the President. In that context, he mentioned there’ll soon be a new FBI Director.

In other words, this mostly softball interview (though Peter Baker made repeated efforts to get Trump to explain the emails setting up the June 9, 2016 meeting) served as a largely unfettered opportunity for Trump to take aim at every major DOJ official and at the concept of all prosecutorial independence. And in that same interview, he intimated that the reporting requirements with Christopher Wray — who got nominated, ostensibly, because Comey usurped the chain of command requiring him to report to Loretta Lynch — would amount to Wray reporting directly to Trump.

Rosenstein does what he says Comey should be fired for

Close to the same time this interview was being released, Fox News released an “exclusive” interview with Rod Rosenstein, one of two guys who acceded to the firing of Jim Comey ostensibly because the FBI Director made inappropriate comments about an investigation. In it, the guy overseeing Mueller’s investigation into (in part) whether Trump’s firing of Comey amounted to obstruction of justice, Rosenstein suggested Comey acted improperly in releasing the memos that led to Mueller’s appointment.

And he had tough words when asked about Comey’s recent admission that he used a friend at Columbia University to get a memo he penned on a discussion with Trump leaked to The New York Times.

“As a general proposition, you have to understand the Department of Justice. We take confidentiality seriously, so when we have memoranda about our ongoing matters, we have an obligation to keep that confidential,” Rosenstein said.

Asked if he would prohibit releasing memos on a discussion with the president, he said, “As a general position, I think it is quite clear. It’s what we were taught, all of us as prosecutors and agents.”

While Rosenstein went on to defend his appointment of Mueller (and DOJ’s reinstatement of asset forfeitures), he appears to have no clue that he undermined his act even as he defended it.

Christopher Wray’s dodge ball

Which brings me to Wray’s confirmation hearing.

In fact, there were some bright spots in Christopher Wray’s confirmation hearing, mostly in its last dregs. For example, Dick Durbin noted that DOJ used to investigate white collar crime, but then stopped. Wray suggested DOJ had lost its stomach for such things, hinting that he might “rectify” that.

Similarly, with the last questions of the hearing Mazie Hirono got the most important question about the process of Wray’s hiring answered, getting Wray to explain that only appropriate people (Trump, Don McGahn, Reince Priebus, Mike Pence) were in his two White House interviews.

But much of the rest of the hearing alternated between Wray’s obviously well-rehearsed promises he would never be pressured to shut down an investigation, alternating with a series of dodged questions. Those dodges included:

  • What he did with the 2003 torture memo (dodge 1)
  • Whether 702 should have more protections (dodge 2)
  • Why did Trump fire Comey (dodge 3)
  • To what extent the Fourth Amendment applies to undocumented people in the US (dodge 4)
  • What we should do about junk science (dodge 5)
  • Whether Don Jr should have taken a meeting with someone promising Russian government help to get Trump elected (dodge 6)
  • Whether Lindsey Graham had fairly summarized the lies Don Jr told about his June 9, 2016 meeting (dodge 7)
  • Can the President fire Robert Mueller (dodge 8)
  • Whether it was a good idea to form a joint cyber group with Russia (dodge 9)
  • The role of tech in terrorist recruitment (dodge 9 the second)
  • Whether FBI Agents had lost faith in Comey (dodge 10)
  • Who was in his White House interview — though this was nailed down in a Hirono follow up (dodge 11)

Now, don’t get me wrong, this kind of dodge ball is par for the course for executive branch nominees in this era of partisan bickering — it’s the safest way for someone who wants a job to avoid pissing anyone off.

But at this time of crisis, we can’t afford the same old dodge ball confirmation hearing.

Moreover, two of the these dodges are inexcusable, in my opinion. First, his non-responses on 702. That’s true, first of all, because if and when he is confirmed, he will have to jump into the reauthorization process right away, and those who want basic reforms let Wray off the hook on an issue they could have gotten commitments on. I also find it inexcusable because Wray plead ignorance about 702 even though he played a key role in (not) giving defendants discovery on Stellar Wind, and otherwise was read into Stellar Wind after 2004, meaning he knows generally how PRISM works. He’s not ignorant of PRISM, and given how much I know about 702, he shouldn’t be ignorant of that, either.

But the big one — the absolutely inexcusable non answer that would lead me to vote against him — is his claim not to know the law about whether the President can fire Robert Mueller himself.

Oh, sure, as FBI Director, Wray won’t be in the loop in any firing. But by not answering a question the answer to which most people watching the hearing had at least looked up, Wray avoided going on the record on an issue that could immediately put him at odds with Trump, the guy who thinks Wray should report directly to him.

Add to that the Committee’s failure to ask Wray two other questions I find pertinent (and his answers on David Passaro’s prosecution either revealed cynical deceit about his opposition to torture or lack of awareness of what really happened with that prosecution).

The first question Wray should have been asked (and I thought would have been by Al Franken, who instead asked no questions) is the circumstances surrounding Wray’s briefing of John Ashcroft about the CIA Leak investigation in 2003, including details on Ashcroft’s close associate Karl Rove’s role in exposing Valerie Plame’s identity.

Sure, at some level, Wray was just briefing his boss back in 2003 when he gave Ashcroft details he probably shouldn’t have. The fault was Ashcroft’s, not Wray’s. But being willing to give an inappropriate briefing in 2003 is a near parallel to where Comey found himself, being questioned directly by Trump on a matter which Trump shouldn’t have had access to. And asking Wray to explain his past actions is a far, far better indication of how he would act in the (near) future than his rehearsed assurances he can’t be pressured.

The other question I’d have loved Wray to get asked (though this is more obscure) is how, as Assistant Attorney General for the Criminal Division under Bush, he implemented the July 22, 2002 Jay Bybee memo permitting the sharing of grand jury information directly with the President and his top advisors without notifying the district court of that sharing. I’d have asked Wray this question because it was something he would have several years of direct involvement with (potentially even with the Plame investigation!), and it would serve as a very good stand-in for his willingness to give the White House an inappropriate glimpse into investigations implicating the White House.

There are plenty more questions (about torture and the Chiquita settlement, especially) I’d have liked Wray to answer.

But in spite of Wray’s many rehearsed assurances he won’t spike any investigation at the command of Donald Trump, he dodged (and was not asked) key questions that would have made him prove that with both explanations of his past actions and commitments about future actions.

Given Trump’s direct assault on prosecutorial independence, an assault he launched while clearly looking forward to having Wray in place instead of McCabe, the Senate should go back and get answers. Trump has suggested he thinks Wray will be different than Sessions, Rosenstein, Comey, and McCabe. And before confirming Wray, the Senate should find out whether Trump has a reason to believe that.

Update: I did not realize that between the time I started this while you were all asleep and the time I woke up in middle of the night Oz time SJC voted Wray out unanimously, which is a testament to the absolute dearth of oversight in the Senate.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

22 replies
  1. Ed Walker says:

    As I recall, Wray was asked if Trumpy requested his loyalty. Wray said no. In light of Trumpy’s latest statement I think it’s necessary to ask Wray to state every person to whom he reports directly as well as whether he reports to the President.

  2. SpaceLifeForm says:

    20-0 by SJC

    Well, there should be no attacks from potus if things do not work out for potus. (ha)

    Potus picked Wray after all.

    Guess he did not realize Wray used to work for Comey.

  3. Rugger9 says:

    It could very well be that Wray will not be directly signing off on Mueller’s firing, but I’m sure he will be tasked to pull up dirt like Rosenstein was for Comey’s defenestration as an “independent” assessment. There are several roles available to play here, and what I see from the hearing was a guy who is a go-along sort that heretofore did not have the political capital to resign knowing that a good job awaited afterwards. While Plame was and is important for many reasons, I get the sense that her story is not nearly as important as what Tweeto Julius is up to right now, and the Senators felt that was a topic better left for another day such as the annual reporting from the agency.

    My bet is that Wray will do as asked and then join everyone else under the bus. Mueller for his part is not taking the hint to lay off the money laundering and other connected criminality, so we might as well have a pool on what event triggers his firing. I think it will involve Ivanka (who I still think was there on 6/9/16) or less likely, the quid-pro-quo smoking gun from Putin to the RNC PACs / Pence / Trump campaign that makes the GOP fear for their own political lives. Since Trump is making them “walk the plank” as one NV GOP House member put it to the point of demanding they stay up until AHCA/BCRA is done,it is clear POTUS doesn’t care about the GOP as a political ally.

  4. greengiant says:

    RE SJC voting Wray out, murder by suicide? The Trump’s narrative regarding appointing Rod Rosenstein with stellar anti-Clinton credentials being from Baltimore is interesting. Rod was the DOJ attorney for Maryland for almost 12 years, so not to get confused about residence, better to get confused why Trump would call him out as a Democrat.

  5. Cold N. Holefield says:

    Wray is Trump’s way of taking care of Christie. Because Christie put Kushner’s father in jail as a Federal Prosecutor, Trump couldn’t bring him on board, but this is Trump’s way of repaying Christie’s support considering Wray is largely responsible for keeping Christie out of jail over The BridgeGate Scandal.

    Drain The Swamp, my ass. The Incestuous Swamp is teeming to overflowing with Swamp Creatures and most of them are Lawyers.

      • Evangelista says:

        I agree.

        But it is “American Government” after all…

        “Deep State” hell, it’s a Schizophrenic State.

        Every day in every way looking less and less like a swamp and more and more like an asylum for criminally insane maniacs that’s being run by the maniac criminal inmates, for their even more criminally maniacal corporate and commercial sponsors.

      • Cold N. Holefield says:

        If you mean the Incestuous Swamp that is D.C. is insane, then yes, I agree. That’s obvious.

        If you mean my Take on Wray is insane, whatever. Christie has come out this week as still solidly in Trump’s Corner. Christie still has Trump’s Ear. Christie most likely suggested Wray to Trump for this position because Wray did such an excellent job keeping him out of Hot Water over The BridgeGate Scandal. Not to mention, the Law Firm Wray works for represents Rosneft. I always wondered why Trump didn’t make Christie part of his Official Team and now I know it’s because Christie would clash with Kushner. Bad Blood, especially when you consider The Kushners were Democrats (more Bipartisan Incest).

        At this level, The Ninth Level of Hell, The Machiavellians use Political Parties as Tools. They can go either way and do. Christie could easily be a Democrat just as The Kushners can easily be Republicans. Same goes for Trump. He can do either depending on The Zeitgeist.

        Wray was selected because of what he did for Christie. He’s a Reliable Company Man and his Loyalty is guaranteed. I bet he’s Skull & Bones.

        The fact the Democrats like him & approve of him is telling. It tells me what I’ve known all along. They’re really not all that serious about Trump. It’s all for Show. Their indignation is feigned for Political Expediency. They don’t want to punish Trump, they want to put him in his place. If Trump was OJ, he’d be serving Time already. Considering the Batshit Insane Daily Vicissitudes of this Shit Parade, I think Simpson would make a great FBI Director when he’s released in October. He’s certainly a better candidate than Wray. Afterall, OJ and Trump are Birds of a Feather, the only difference is, one’s Brown and the other’s Orange. Together, they’re a Burnt Orange Offering.

        • bmaz says:

          Dear Cold ‘n On Tenuous Ground: I will speak for myself, as will all principals here. We do not need, nor want, you assigning views and/or values to us and/or for us. Much less multiple scenarios of bullshit as you just did.

  6. Charles says:

    One thing to consider is that Trump chose the New York Times, which he has repeatedly derided, because he is narrowcasting to a specific audience. Tweets are directed to his activists. FOX represents the broader “conservative” (anarcho-Bolshevik) base.  The New York Times represents the old Establishment. He seems to be threatening the Establishment, not necessarily his apparent targets, with chaos. Sessions shook off the attack, and neither Rosenstein nor McCabe responded in any way. But anyone in the financial world would now have to take into account the possibility of political chaos if Trump carried out his threat against Mueller.

     

    Benjamin Wittes of Lawfare was very positive toward Wray:

     

    President Trump’s nominee to head the FBI, Christoper Wray acquitted himself well this morning before the Senate Judiciary Committee. He came off as sincere, serious, and well-intentioned. He said all the right things about protecting the Bureau’s independence. And if he didn’t address many of the key questions on which the Senate should have required answers, that’s not really his fault [because SJC failed to push him]

    So yes, confirm Wray. Under current circumstances, there’s nothing else to do. 

    I certainly don’t agree with that assessment. I thought Wray was deceptive and disingenuous.  At a time when the Congress has been lied to so constantly by the Executive, a failure to be forthcoming by a nominee bodes ill for the future. But the fact that Wittes supports Wray probably explains why Dems caved.  Maybe they want one more layer of insulation between Trump and law enforcement, no matter how hard they have to hold their noses.

    Trump’s attack on Rosenstein was the biggest interest of the interview to me. Since Sessions has recused, for Trump to get to Mueller would seem to require ordering Rosenstein to fire Mueller. It would seem logical to me, if I were Rosenstein (and not in on the con) to seek to set up an arrangement to transfer the line of authority to Mueller’s investigation over to the courts (as with Starr) or to the Congress, thereby making it impossible for Trump to meddle. I don’t know what the logistics of that would be, but if I were Rosenstein (and not in on the con), that would be uppermost in my mind.

    • emptywheel says:

      As I said, I don’t think Wray’s dodge ball was anything outside the norm for executive branch nominees. I just wish we had asked for more this time around.

  7. Avatoir says:

    Hoo henry, is this thread ever attracting a lot of screwballs.

    Some fun facts:

    a. Valerie Plame Wilson (Class of 1981) then Rod Rosenstein (Class of 1982) graduated from Lower Moreland High in the Philly sphere. VPW is in [on?] LM High’s “Hall [?] of Fame”.

    b. Each of Rosenstein (Class of 1989) and Obama (Class of 1991) graduated from Harvard Law cum laude & served on Law Review (as we know, Obama as president; Rosenstein before that as an editor … kinda like a deputy/associate president? Fun!).

    I’m generally sympathetic to emptywheel’s take on Rosenstein’s interview on Fox News, but consider:

    1. His comments were not entirely unqualified.

    2. He seemed to refer to a DoJ practice, one with which I am not familiar, and that kind of imprecision is uncharacteristic.

    3. I recall things in the manual & policy memos that might be, uh, twisted into something like take he offered on Fox News – except the scenarios under which such a thing might conceivably occur tend not to arise for anyone outside a very few DoJ offices, mostly the office of the AG & the FBI directors office. And at those levels, what matters more is not what’s in the manual or agency policy memos as the senior office-holder’s own policy.

    3. He’s referring to a DoJ practice, not an FBI practice. In the context under consideration, I think that matters.

    4. He can be prick-ly (We’ve seen.), but he games out things like this interview. He’d be highly conscious of factors such as 1-3 above.

    We’ve seen a lot crediting Trump with ‘playing’ the numbskull. By that, Trump characterizing the Lower Moreland native beanhead-by-nature registered Republican Rosenstein as some lefty ‘Baltimore Dem’ would be a feint to disguise some other move (like an implied threat: great disguise, Donald!). Any rational person who’s read over that entire NYT interview would conclude, Nutz to that: he’s the brazen greedy vain self-centered illiterate knuckleheaded bullying lying clownish grifter he comes across as.

    There’s a lot I don’t like or trust about Wray, but there’s no way he was picked BY Trump. Rather, he was picked FOR Trump (IMO at least in part by Federalist Society vetters). Any Trump judgment on how Wray might behave is limited by the tiny size of the pool of confirm-able candidates (a much tougher office to fill than AG) & who all were involved in getting Wray’s ass handy to Trump.

      • Avattoir says:

        Yes.

        I raised this in an earlier thread closer to the confirmation hearing, but in that context there was reference to Wray having delivered a speech to a Federalist Society conflab on originalism – and how his POV is something like, I’m no Scalia but the way I see it is we have no choice other than to rely on originalism in interpreting the Constitution because … what else?

        IOW shallow as fuck or craven, probably both.

  8. harpie says:

    [Third time’s the charm? No links]

    Marcy,

    emptywheel‏ @emptywheel  32m32 minutes ago
    emptywheel Retweeted emptywheel
    Sounds like attacking Mueller may have been a bridge too far for Corallo. So I guess he has standards.

     
    From one source to Politico “Spokesman for Trump’s legal team resigns just two months after starting”:

     Corallo was also concerned if he was being told the truth about various matters, one of these people said.

    edit: heh…there IS a link?!?!

  9. orionATL says:

    grump is clearly freightened by any investigation into his “finances” which he well understands lean further toward criminal than ordinary finances.

    the whole attack on mueller, rosenstein, sessions is an action by an extremely anxious president, a president whose particular anxious nature repeatedly turns his personality highly aggressive.

    this makes anything and everything trump and any member of his team engage in regarding mueller, rosenstein, sessions, wray not just political activity but potential criminal activity in the nature of an carefully engineered cover-up (if a cover-up led by a impulsive, motor-mouthed idiot can be said to be covert :)) .

    corallo is smart (or slick enough) to get out now.

    could not financial crimes investigations especially involving russians (non-americans) be continued under cover at treasury (or in england) ?

  10. orionATL says:

    this comment does not belong here. it belongs with the much-commented-on post about akmetishin.

    but comment there is closed and this post appears to be a dead letter, so i’ll post it here.

    a fascinating story from huffington post (former nytimes editor polgren now in charge there) :

    http://www.huffingtonpost.com/entry/chuck-grassley-trump-russia-dossier_us_596e6ce8e4b0000eb19694fa?ncid=inblnkushpmg00000009

    the general point is how tangled up all these characters are in this drama – grassley, browder, veselnitskaya, fusion, chiaka the russian prosecutor, the company prevezon, and akmeteshin, steele, katsyv, magnitsky.

    the two special points are –

    – grassley seems to be after fusion for some reason, political is entirely concievable given his slippery, slime coating

    – veselnitsya and akmetshin both worked for prevezon at the ssme time, akmetshin as a lobbyist for a “human rights” organization set up by prevezon owner katsyv.

    – (i think that) the justice departmment just settled the prevezon case under peculiar circumstances highly favorable to prevezon. (p. baraha and all other usa’s having been disposed of by trump).

    – i’m betting russian help to trump in the election came thru this conduit and is quid pro quo disguised either as adoption facilitating or else the work of the katsyv/prevezon “human rights” foundation, but in fact is all about getting rid of u. s. sanctions against russia.

Comments are closed.