Much of the Judiciary Committee hearing was political theater, and the FBI director is no villain. But not all of his responses were convincing.
Much of the Judiciary Committee hearing was political theater, and the FBI director is no villain. But not all of his responses were convincing.
I f they were all Chris Wray, we’d have a pretty good government.
Not a perfect one; there can’t be a perfect one, because the challenges of governance in a free, first-world society — chief among them balancing liberty and security — are hard, and they have to be met by people, who are by nature flawed. But we’d have a good government if we had able but modest people who rolled up their sleeves, quietly went about their business (especially if their business was best done quietly), conceded error or worse when it happened (which it inevitably does), and tended to the work of trying to fix things that have gone wrong.
That’s hard. Some fixes are tough. They can’t be accomplished overnight, and they often require the cooperation of forces beyond one’s control — in the FBI’s case, the Justice Department. You need repairmen who are willing to take the heat. Washington is in the heat business: An official who takes on a sprawling mess and tries to cure abuses and dysfunctions that cannot be undone instantly is certain to be blamed for those abuses and dysfunctions. It’s simply a fact that if you have a problem such as years of massive surveillance malpractice under the Foreign Intelligence Surveillance Act (FISA), which Wray is working to repair, some malpractice is going to continue to happen even as it measurably abates. To my mind, the ill-conceived FISA system is the problem, but that’s a different conversation. In the near term, Wray’s burden is that reduced instances of error (and worse) following his reforms blur, in the public mind, into the original sins. Evidently, they do so in the congressional mind, too.
There are things to criticize about Wray’s tenure — though much worse could fairly be said about many others who have occupied his post. Still, his six grueling hours of testimony before the House Judiciary Committee on Wednesday illustrate that it is more the FBI as an institution in the congressional crosshairs than Wray at its helm.
To be sure, some of the director’s problems are of his own making. Inevitably, even the most competent people will make bad calls, particularly in jobs that require some excruciating judgments to be made on imperfect information. Add to that, in Wray’s case, his awareness that before he was appointed, the bureau egregiously abused its authorities in a politicized investigation against Donald Trump that was largely based on Democrat-generated disinformation; yet, on his watch, FBI officials collaborated in a manifestly partisan scheme during the 2020 campaign to discount corruption evidence against Democratic nominee Joe Biden — millions of dollars pouring into the family coffers from corrupt and anti-American regimes — on the pretext that it could be “Russian disinformation” (even though much of the evidence was in the form of financial records that are not difficult to verify, and even though the FBI had authenticated the Hunter Biden laptop, which was in its possession for over a year before the election).
There is no evidence that Wray was personally involved in that scheme. I’d be stunned if he had been: He is a Republican who was appointed by President George W. Bush to a top Justice Department job and by President Trump to be FBI director. He is also familiar to friends as personally conservative — though in the increasingly quaint manner of law-enforcement officials who check their politics at the office door. But all that said, the 2020 campaign shenanigans occurred when he’d been director for three years. He had to know it was crucial, after the 2016 fiasco, for the FBI to avoid any hint of partisanship.
On that score, the least convincing part of Wray’s House testimony involved a related, ongoing gambit in which he has been intimately involved: The FBI’s assiduous encouragement of social-media platforms to suppress what the government — in its monstrous new role as information czar — deems to be misinformation, or even true information that has been stolen.
I highlight that last part to underscore an irony: If the bureau itself receives evidence of a crime that has been stolen or hacked by a third-party, it does not turn the information away. To the contrary, the bureau exploits it, even though its acquisition would violate the Fourth Amendment if the bureau had pilfered it directly. Yet the FBI, which has no business at all monitoring political expression and media reporting relevant to elections, regardless of whether the incumbent government believes the information is false, has since 2016 browbeaten social-media platforms to censor information on the legally specious pretext that it may have been hacked or otherwise injected into the marketplace of ideas by malign foreign actors.
The bureau accomplishes this through the subtly aggressive admonitions of agents from its Cyber Branch in San Francisco, and more specifically through the Foreign Influence Task Force (FITF), a Wray creation through which agents have constant dialogue with officials at Facebook, Twitter, YouTube, and other social-media platforms. This enterprise is described in the scathing July 4 opinion by Judge Terry Doughty of the federal district court in Louisiana (see here, pp. 58-67), under which the FBI (along with numerous other agencies and Biden administration officials) is now enjoined from continuing it.
While Wray told the House Committee he “respects” the court’s opinion, he also said he takes issue with Judge Doughty’s factual findings. He declined to specify which ones (claiming he shouldn’t discuss ongoing litigation), but what he obviously means is that the FBI — unlike the more crass Biden White House officials whose asinine admonitions are also detailed in Doughty’s opinion — is clever enough not to directly order the tech giants to suppress content. Instead, we are to understand that the bureau merely “asks” the platforms what they are doing about this or that reporting (e.g., reporting on the Hunter Biden laptop) or political messaging (e.g., political posts published by American citizens in Kremlin-backed media outlets). Wray and the Justice Department would have us suspend disbelief, as if constant meetings and contacts arranged by the nation’s premier law-enforcement agency — which everyone knows could make life miserable for companies suspected of knowingly allowing their platforms to abet theft and espionage — do not create an extortionate atmosphere that pressures the tech companies to censor even if the FBI does not explicitly threaten them. Naturally, the platforms get the hint. In fact, agent Elvis Chan, the whiz kid Wray has running the operation, brags that, with the bureau’s encouragement, thousands of accounts and hundreds of thousands of tweets have been removed.
To be fair to Wray, he is being pushed by his Biden Justice Department masters to hold up law-enforcement’s end of what Doughty makes clear is an administration-wide effort — one the judge aptly describes as President Biden’s “Orwellian ‘Ministry of Truth.’” Moreover, Wray is relying on a great deal of law that undeniably allows the FBI to share information with, and rely on, “voluntary” cooperation from, private parties. That’s why the director indignantly claims that the FBI does not, and would not, get into “the business of moderating content or causing any social-media company to suppress or censor.” By his lights, as long as the FBI is not stupid enough to give direct orders, it is in the clear. But that’s not reasonable — especially when, contemporaneously with the bureau’s “voluntary” meetings with Big Tech, Facebook is getting emails from the Biden White House (on its failure to suppress “vaccine hesitant” posts) that say, “Are you f*****g serious? I want an answer on what happened here and I want it today.” (Doughty opinion, p. 23.) Totally voluntary, right?
The thundering condemnations of Republican lawmakers notwithstanding, this is not an uncomplicated thicket. When, for example, a terrorist attack occurs, Congress is among the first to encourage voluntary cooperation with law enforcement. If House Republicans think the FBI should be forbidden from communicating with social-media platforms in the absence of a subpoena or a warrant, why don’t they, oh, I don’t know . . . pass a law to that effect? That said, Wray has been around the block enough times to know that there is a certain point at which constant encouragement by officials acting under the color of law becomes de facto government direction. It is unconstitutional for the FBI to steer a private party into doing that which the First or Fourth Amendment would prohibit the FBI from doing directly.
Let’s put the social-media suppression aside, since the Biden Justice Department is appealing Judge Doughty’s ruling and the final chapter on Wray’s lawyerly defense of the bureau’s role has thus not yet been written. The aforementioned debacle in which the lucrative Biden family influence-peddling business was falsely portrayed as Russian disinformation was carried out by senior officials about whose doings Wray should have been informed — including Timothy Thibault, the hyper-political former head of the Washington Field Office. (Contrary to the ramblings of some House Republicans at Wednesday’s hearing, the WFO is one of 56 offices the FBI has throughout the country to conduct investigations; it is not the same thing as the FBI’s Washington headquarters, where Wray and his team oversee the bureau but should not be “operational.” The fact that the WFO is the main office on the Mar-a-Lago investigation does not mean it is being run out of FBI hedquarters, à la Russiagate.)
To date, Wray has failed to explain the FBI’s participation in the shoddy, slow-walked Biden investigation. It appears that the Hunter Biden sweetheart plea deal is a Justice Department venture — there is no evidence that the FBI took part in orchestrating it. Nevertheless, no one at the bureau has been held accountable for the Russian-disinformation smear — and no, Thibault’s being quietly pressured into early retirement is not accountability. When grilled by Representative Chip Roy (R., Texas) about how on earth senior intelligence analyst Brian Auten could have been tasked with assessing Biden investigation evidence when he was (and apparently is) still under internal investigation for his malfeasance in the Russiagate investigation, Wray had no answers.
I am convinced that Wray is trying to cure the bureau’s ills, but that is inexcusable. The FBI director cannot be expected to know the details of what the bureau’s 14,000 agents and 24,000 support personnel are up to day-to-day, but if senior FBI officials are briefing members of Congress about whether corruption evidence tying a presidential candidate to foreign powers is either real or a Russian influence operation, there is something very wrong if the director is not fully up to speed on that.
By and large, however, the problems the Republican-controlled House Judiciary Committee harangued Wray about during the hearing were either (a) the doing of his predecessors, (b) the doing of his Justice Department superiors, which he has not gotten enough credit for mitigating, (c) the doing of his subordinates, whom he is subjecting to discipline via an administrative process that takes too long, or (d) the fallout of difficult policy choices regarding the ceaseless tension between liberty and security on which Congress has been derelict.
That last one underscores the frustration of any fair-minded person who witnessed Wednesday’s proceeding. There are some very tough calls that have to be made about the investigative authorities of law-enforcement in an era of technological evolution so rapid that developments can barely be understood, much less sensibly regulated. There are also significant questions about whether the FBI should be restructured — i.e., about whether its woes over the past 30 years (since jihadist terrorism shifted its priorities from law-enforcement to national security) owe at least as much to being asked to do too many things, many of them contradictory, as to maladministration.
That’s what an oversight hearing ought to be about. Wednesday’s session, to the contrary, was (with some exceptions) political theater pitting Trump-allied Republicans against Trump-obsessed Democrats.
The former see their job as regurgitating claims that the Capitol riot was orchestrated by FBI undercover operatives, that Trump lost the election because the New York Post’s Hunter Biden laptop reporting was censored by social media (although that may actually have steered more attention to the story, which was available on the Post’s very popular website and otherwise widely discussed), and that the former president is being unjustly prosecuted over the retention of national-defense intelligence at Mar-a-Lago (a case that was plainly driven by the Biden Justice Department and as to which the FBI appears to have been reluctant). The Democrats countered by using Wray to peddle their claptrap that Russian influence operations are a profound threat to our elections (we have been dealing with Russian influence operations for decades, they have no material effect on our elections, and our own spy agencies direct more than their share of influence operations at public opinion in Russia) and that our democracy is hanging by a threat due to the existential threat of white-supremacist domestic terrorists (a.k.a. Trump supporters, conservatives who favor limited government, pro-lifers, parents protesting woke-progressive indoctrination, et al.).
Some of that partisan combat — not much, but some — was edifying. Wray vehemently denied that the FBI entrapped people into rioting at the Capitol, which is a self-evidently absurd allegation (people do not get entrapped into committing violent crimes). He said he does not believe there were undercover agents at the Capitol but intimated that there may have been informants — which one would expect at a gathering of tens of thousands of people that included quasi-militia groups and as to which there were warning signs of potential violence beforehand. Wray clearly did not want to discuss the Mar-a-Lago case (since defendants always seize on such statements as a government effort to influence the jury pool); he would say only that he believed the search warrant was supported by probable cause (there is no credible dispute about that), and declined to express an opinion on whether an indictment was warranted (which was DOJ’s call).
More tellingly, when Democrats talked about white supremacism, Wray stressed that the FBI’s specific interest is in racially motivated violence (i.e., that the threat is far from limited to white racists), and that its more general interest is ideologically motivated violence (i.e., that the chief concern for law enforcement is violence, regardless of the political or philosophical creeds may motivate it). When Democrats worried about threats to abortion providers, Wray allowed that such threats were a concern, but he countered that the FBI is also detecting an alarming uptick in threats against pro-life facilities since last year’s Dobbs ruling overturned Roe v. Wade. And when challenged about Attorney General Merrick Garland’s memo directing the FBI and federal prosecutors to partner with state law enforcement in targeting phantom threats to school administrators (i.e., complaints by activist parents), Wray emphasized that his main participation in that outrageous episode was to assert, in no uncertain terms, that “the FBI has never been in the business of investigating parents who speak out or policing speech at school board meetings, and we’re not going to start now.”
Chris Wray is a good guy in a tough spot. It is paradoxically fashionable in Trump-influenced GOP circles to bash him, a Trump-appointee, because this suits the former president’s anti-FBI riffs. In truth, Trump’s real problems are with Wray’s Obama-appointed predecessors, who collaborated with the Hillary Clinton campaign in Russiagate, and with the Biden Justice Department that is prosecuting him. Meantime, as Wray pushed back on Wednesday against Democratic political fictions, I couldn’t help but wonder whether Republicans would prefer an FBI in which Wray is ejected and replaced by a Biden appointee.