Benjamin Wittes and Nora Ellingsen on Lawfare discuss former Acting FBI Director Andrew McCabe, now Assistant Director, who Trump doesn’t like because of political contributions to McCabe’s wife from prominent Democrats, and how newly confirmed FBI Director Christopher Wray can and cannot handle the situation:
Removing McCabe would face certain legal complications. McCabe is a career FBI special agent, not a political appointee, and he’s a member of the Senior Executive Service. Civil service rules prevent a simple firing, and while McCabe can be reassigned or encouraged to retire, he cannot be reassigned for four months after installation of a new agency head without his consent. More broadly, to reassign a 21-year veteran of the FBI for political reasons would send a strong message that the FBI is no longer an apolitical organization, an identity of which FBI employees are fiercely proud, even if it doesn’t run afoul of civil service protections—at least if it were done without McCabe’s cooperation.
The problem for Wray is that Trump might not care about any of these niceties: not about whether he’s making his FBI director look like a political toady, not about how the workforce understands the director and certainly not about compliance with civil service protections.
So what happens the next time Trump tweets about the deputy director, suggesting he be replaced? Does Wray replace McCabe? Does he rope-a-dope and not comply but also not say anything? Does he quietly over time install his own team and ease McCabe out in a graceful fashion? Or does he speak up in response to political pressure and become the next law enforcement leader at whose hands Trump feels unprotected and betrayed?
I vote for the latter. I think it’s necessary to publicly and loudly correct Trump every time he tries to run roughshod over political norms. Political norms exist for a simple reason – they ameliorate some sort of problem that cannot be regulated away. I won’t say they fix them, because some of these are extraordinarily difficult problems, such as who should have hiring / firing control over the Director of an Agency responsible for investigating the activities of government.
But these norms exist for a reason, and they are not bad reasons. They are not norms for covering up corruption, for example. So Trump doesn’t understand them – he has no training, no intellectual curiosity. So smack him in the nose like a bad puppy every time he transgresses, remind him that President is not King, and try to get him to grow up. A little.
