What’s scarier than a politicized FBI?
An FBI that is totally insulated from politics.
While President-elect Donald Trump drives out FBI Director Christopher Wray, Trump’s critics have taken to the airwaves, suggesting that the federal law enforcement agency should be beyond the reach of politicians.
They posit a fourth branch of government outside of the executive branch and lean on the idea of a 10-year term for the director to suggest the bureau has always and should be run immune to the demands of elected officials.
This is both constitutionally improper and historically ignorant.
Of course, the United States does not want an FBI director to be a henchman for the president. However, an FBI director immune from politics would be something worse — as former Director J. Edgar Hoover showed.
In fact, the 10-year term for the director, which Trump is cutting short for Wray, is a 10-year maximum term, which Congress created in response to Hoover’s 37 years in the role — a reign that saw him rise
“above politics” and thus outside of democratic accountability.
The question of FBI independence, then, is a complicated one. What’s more, the calls for independence don’t carry much credibility when they come in defense of Wray, whose FBI spent four years pursuing the political aims of the Biden administration.
The myth of a 10-year norm
“We, the Biden administration, adhered to the long-standing norm that FBI directors serve out their full terms,” Biden senior aide Jake Sullivan said on Meet the Press.
“The FBI director is a unique player in the American government system. They are appointed for 10-year terms, not terms just for the duration of a given president. … We would like to ensure that the FBI remains an independent institution insulated from politics,” Sullivan continued.
This is the standard argument from the Democratic Party establishment these days.
“I believe very strongly that the principle of FBI independence is worth defending,” former FBI Deputy Director Andrew McCabe said, lamenting Trump’s driving Wray from the director job to replace him with ally Kash Patel.
McCabe called the 10-year term limit for a director “this post-Watergate reform that has been the core of the FBI for the last 50 years.”
The problems with this argument are numerous. For starters, this “core of the FBI for the last 50 years” has hardly been a central value for Democrats.
The notion of a 10-year term for the FBI director was born in 1976. Not one of the Democratic presidents over the next 40 years honored that norm.
Jimmy Carter, the first president to inherit an FBI director after the term limit was passed, railed against that director, Clarence Kelley, as part of the 1976 presidential campaign and promised to push him out. Kelley announced his resignation after Carter won, much like Wray did after Trump won.
Bill Clinton was the next Democratic president, and he fired the FBI director he inherited, William Sessions, who faced charges of abusing FBI resources.
Former President Barack Obama, rather than honor the 10-year term limit, proposed and signed a law explicitly extending Robert Mueller’s term by two years.
So, from 1976 until 2017, the pattern was this: FBI directors served 10-year terms unless a Democrat was president.
The truth about the 10-year limit
Here’s the more important historical point: The 10-year term for the FBI director is really a 10-year maximum, and it was primarily created to prevent a director from staying too long. The fear was a director becoming a law unto himself and, to use Sullivan’s word, being “insulated” from democratic control.
After decades of being terrified of Hoover, when congressional critics finally felt emboldened to critique the man in the 1970s, former Rep. Hale Boggs called Hoover a “feudal baron.”
After Hoover’s death, the New York Times critiqued his bureau as “protected … against the prying eyes of congressional and executive branch critics alike.”
“When he became director in 1924,” it reported, “Mr. Hoover insisted on exclusive control over personnel and on tight insulation from outside politics.”
That “tight insulation from outside politics” is exactly what Biden administration officials and media personalities demand today. A truly “independent” FBI would be free from democratic accountability.
“For 48 years under J. Edgar Hoover, the Federal Bureau of Investigation was ‘above politics’ — not unpolitical,” the outlet reported. The bureau was “so nearly sovereign that it dominated relations with Attorneys General, Congress and sometimes Presidents.”
This was the threat against which Congress wanted to guard when it passed its FBI reforms in 1976.
One key reform was a term limit for the director. When the Senate first voted on this matter in 1974, Reuters reported, “The Senate voted today to limit the term of the director of the Federal Bureau of Investigation to one 10‐year period.”
In 1975, former President Gerald Ford’s attorney general, Edward Levi, endorsed the idea. He called it a “limit,” and the New York Times reported it as “a statutory limit on how many years an FBI director could serve.”
A secondary reason for a 10-year term was to provide continuity across administrations and limit the odds that a president would insert a crony into the role. However, Congress never believed it could or should force a president to accept the previous president’s appointment.
“This bill’s primary goal is not to guarantee a 10-year job for the Director of the FBI,” former Sen. Harry Byrd said when he introduced the 10-year limit in 1976. “The FBI Director is a highly placed figure in the executive branch, and he can be removed by the President at any time and for any reason that the President sees fit. This bill does not change that.”
Clarence Kelley, the FBI director at the time, the one Carter would drive out, said the real reform in the 1976 law was that “the bureau will never again be able to conduct itself free from external scrutiny, guidance and criticism and that it must learn to function under the ever-present eyes of Congress, the Justice Department and the press.”
As Kelley put it, “The sanctuary which we had” under Hoover “is no longer there.”
If you believe in democracy, you need to accept that no federal agency can live in a sanctuary protected from politics.
What’s ‘too political’?
On the other hand, an FBI that sees itself as the president’s private henchman would be dangerous and tyrannical. It’s not absurd to worry that Trump, who often fails to see the difference between his official duties and his personal desires, would govern over an FBI that punishes his enemies and helps his friends.
What’s absurd is when President Joe Biden and Wray’s defenders claim credibility on this matter.
Biden’s Justice Department under Attorney General Merrick Garland and the FBI under Wray abused their power to persecute conservative Christians.
The FBI has guidelines about how to handle politically sensitive investigations. Under Wray and Biden, the bureau violated those guidelines 747 times.
Garland’s DOJ created a special task force to target pro-life activists, and in turn, Wray’s FBI launched a crusade to lock up as many abortion opponents as possible. Wray’s agents made a dawn arrest of suburban father Mark Houck on the flimsiest of charges stemming from a brief altercation instigated by a pro-abortion activist.
The city of Philadelphia had already dismissed the abortion activist’s case, yet Wray and Garland pressed it — and lost in court. Wray dismissed the suggestion that his bureau had done anything wrong.
Meanwhile, the rash of attacks on churches and pro-life pregnancy centers was almost entirely ignored by the FBI.
Wray, like Hoover, thumbed his nose at congressional oversight, as Sen. Chuck Grassley (R-IA) laid out in a recent 11-page letter.
Wray’s agency went after traditional Catholics for being traditional Catholics, even asking a choir director to inform on parishioners.
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Wray’s greatest hits show why we should worry about a too-political FBI. When the federal police see their job as persecuting those out of political power, it’s dangerous.
However, federal law enforcement that is so above politics that it doesn’t answer to the people is just as dangerous.