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OpEdNews Op Eds    H4'ed 11/18/20

President Trump Cannot Legally Fire Christopher Wray

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President Trump has announced his intention to fire FBI Director Christopher Wray before he leaves the oval office. Trump got away with firing Jim Comey because Comey did not fight back. But he could have. Comey probably decided it was better for him to leave the office and then write a book about Trump, which he did (A Higher Loyalty: Truth, Lies, and Leadership).FBI director Christopher Wray could fight a Trump firing in court and win.

Trump is outraged that Christopher Wray did not call a press conference to inform the American people that Joe Biden, his son, or other Biden associates "are under investigation," like James Comey did eleven days before the 2016 election regrading Hillary Clinton's use of a private server while she was secretary of state.

The United States Supreme Court ruled that when Congress creates an executive branch position with a specific term of years, with Senate confirmation, the President cannot fire him or her unless there is neglect of duty or malfeasance in office. Humphrey's Executor v. United States, 295 U.S. 602 (1935). In the Humphrey'scase William Humphrey was a Federal Trade Commissioner, appointed by President Calvin Coolidge. FTC Commissioners are appointed by the President and confirmed by the Senate for seven-year terms. In the Humphrey'scase the Supreme Court unanimously ruled that President Roosevelt could not fire Humphries without good cause.

While James Comey may have committed malfeasance in office by his treatment of Hillary Clinton by conducting a press conference within eleven days of the 2016 Presidential election, a clear violation of Justice Department policy, there has been no allegation of malfeasance concerning Christopher Wray. Wray's refusal to make an announcement concerning any investigation of Joe or Hunter Biden is in strict compliance with DOJ's pre-election policies. The Department of Justice has always tried to stay out politics and has refused to announce an indictment or investigation of a candidate for office within sixty days of an election.

The Director of the Federal Bureau of Investigation is appointed by the President, and confirmed by the Senate for a ten-year term. In 1968, Congress set the term of future FBI directors at ten years, an unusually long tenure that Congress established primarily to insulate the director from political pressure.

Quite simply, the President can only remove Director Wray for good cause. If Trump makes good on his intent to fire Christopher Wray, the FBI director can either refuse to leave (like the President is considering), or go into federal court for an emergency order allowing him to stay in office. On the other hand, Gina Haspel, the CIA director that Trump would like to fire, does not have a fixed term and therefore may be fired by the President without any just cause.

Congress established the ten-year term for the FBI director for a specific reason: to keep the FBI director insulated from political considerations. The FBI director should be independent of the President of the United States.

Third-world dictators use the police power of their nations to exercise control over civilians. Keeping the FBI director independent helps the United States preserve the independence of the judicial system of the country. The FBI director is the lead investigator for all federal crimes and should not be used as a political pawn against the President's enemies.

 

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Chairman, Made in the USA Foundation, economist and lawyer, author of ten books and hundreds of articles.
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