A constitutional crisis bigger than Watergate

Updated December 1, 2024 at 10:17 a.m. ET

Before Donald Trump assumed the presidency, the FBI director held a position above politics for more than four decades. A new president might choose a political ally as attorney general, but the FBI director was different. An FBI director appointed by Richard Nixon also served under Presidents Gerald Ford and Jimmy Carter. Carter’s choice remained until well into Reagan’s second term, when Reagan named him head of the CIA. Reagan’s FBI commissioner served during George HW Bush’s presidency and in the Bill Clinton administration. Clinton fired the inherited official – the first time a president had ever fired an FBI director – only because the outgoing Bush administration had left behind a Justice Department report accusing the director of ethical lapses. (Clinton tried to persuade the tainted director to resign of his own accord. Only when persuasion failed did Clinton act.)

And so it continued into the 21st century. With the exception of a single case of serious scandal, Senate-confirmed FBI directors remained in their positions until they left office or their 10-year terms expired. Never, ever, ever has a Senate-confirmed FBI director been fired so that the president could replace him with a loyalist. Republicans and Democrats alike agreed that there should be no return to the days when J. Edgar Hoover gave special favors to the presidents who perpetuated his power.

Even Donald Trump reluctantly followed this rule in his first term, as was later outlined in the Mueller report. Trump wanted to fire FBI Director James Comey to end the investigation into Trump’s ties to Russia. Trump’s advisers convinced Trump that admitting his true motive would cause a huge scandal. Instead, the new administration persuaded the deputy attorney general to write a letter with a more neutral-looking statement: Comey had mishandled the FBI’s investigation of Hillary Clinton. This fallacious rationalization—the Mueller report decisively refuted the cover story—failed to calm the uproar over Trump’s plan to install a stooge as FBI director. At that time, even Trump supporters claimed that the FBI director had to be more than just a yes man for the president. Things only calmed down when Trump chose a politically independent candidate to replace Comey: Christopher Wray, who still holds the office today and remained in office for all four years of the Biden administration.

Yesterday, Trump announced on Truth Social that he planned to fire Wray to replace him with Kash Patel, a person notorious for his obsequious subservience to Trump’s wishes. How bad is Patel’s choice? My colleague Elaina Plott Calabro reported that when President Trump “discussed the nomination of Patel as FBI deputy director, Attorney General Bill Barr confronted the White House chief of staff and said, ‘Over my dead body.'”

But before we get to Patel’s mistakes, let’s spend a minute longer considering the looming threat posed by Trump’s desire to fire Wray.

Read: The Kash Patel Principle

FBI directors wield enormous power over Americans’ freedoms. The unwritten rule that governed their appointment—no dismissal except for compelling cause—strengthened American law and freedom for half a century. Even Trump in his first term in office did not dare to openly oppose it. But Trump’s second term begins with an attempt to abandon everything entirely. Much of the coverage of Trump’s announcement reveals that society is already bending to Trump’s will: Something that was considered completely unacceptable in 2017 – treating an FBI director as just another Trump adviser – was already being done before President-elect Trump took office half normalized.

Wray’s firing is the real scandal. Patel’s despicable nomination suffuses outrage.

Perhaps Patel’s nomination will fail, just as Trump’s attempt to install Matt Gaetz as attorney general failed. If Patel fails, Trump may choose a slightly more respectable candidate. This second candidate might be greeted with relief. But the significant damage is done by firing Wray, not by hiring Patel (or whoever ultimately gets the job). Less than a month after the closest election in two generations, we are witnessing Trump destroying law enforcement and national security institutions and replacing them with whim. Trump declares his intention to reinvent the FBI as something unprecedented: an instrument of the president’s personal power, investigating (or refraining from investigating) and bringing charges (or refraining from doing so) as the president wishes.

As defense secretary, Trump chose an ideological crackpot whose own mother accused him in writing of repeatedly abusing women. (She subsequently denied the statements.) At the CIA, Trump wants a bipartisan man who, as Trump’s first director of national intelligence, has selectively released information to discredit Trump’s political opponents. For his second term as Director of National Intelligence, Trump wants a long-time apologist for Bashar al-Assad’s regime in Syria and Vladimir Putin’s war of aggression in Ukraine.

Merit, competence, integrity – none of it matters. Or rather, these good qualities seem to be active disqualifiers. Trump’s picks are chosen purely for reasons of obedience.

Read: The man who would do anything for Trump

Now comes the big test: Is the American constitutional system as fragile as Trump hopes? Will Wray humbly accept the termination or will he defend the office from Trump’s second and bolder attempt to pervert it? Will Senate Republicans ratify Trump’s attack on the separation of law enforcement from politics? Will federal courts issue warrants to an FBI that obtains warrants and makes arrests because the president orders it to do so? Will the tiny Republican majority in the House support or oppose Trump’s attempt to create a personal police force? Does enough independent press survive outside the control of pro-Trump oligarchs to explain what is happening and why it matters? Will public welfare be enough? Will enough public respond?

The American people voted for cheaper eggs. All you will experience is noise, conflict and chaos. What Trump is trying to do, if successful, will be a constitutional scandal far bigger than Watergate. If he succeeds, the power grab he unsuccessfully attempted in 2021 could begin in 2025.