The Tale of Cousin Wray-Wray and Aileen Cannon
One of them obeyed in
advance. The other one knew what time it was.
Dec 12, 2024
1. The Resistance Will Not Be Televised
Yesterday FBI director Christopher
Wray announced that he will resign his position rather than force the next
president to fire him.
His decision is weak, misguided, and
self-defeating. In order to be clear-eyed about what is happening we need to
talk through a fairly long logic chain. And we’re going to do it rundown style.
But let me start you with the TL;DR:
When the chips are down, you can
either be Christopher Wray . . . or Aileen Cannon.
(1) 2025 is the period
of maximum danger. Donald Trump’s powers will be at their zenith this
year. Republicans will control the White House, the Senate, the House, and the
Supreme Court. The forces of Trumpism will be at their most cohesive.
Therefore “resistance” to Trump is
best understood in practice as a series of delaying tactics. Every extra 24
hours that Trumpists must spend accomplishing this or that objective is a small
victory.
(2) Democrats are
spectators at the federal level. There is little
that elected Democrats can do. In the House they might decline to bail out the
majority, should Republicans prove unable to govern. In the Senate they might
threaten filibusters, and gamble that Republicans will not go nuclear.
But there isn’t much they can do
proactively.1
(3) The resistance will
not be televised. The people with the most power to fight delaying
actions will be those inside the government. And the available delaying actions
will mostly be bureaucratic and invisible.
(4) The Deep State has
power. Here and there throughout the government will be
individuals with the power to delay. Some of these people will be legacy
political appointees from one or the other party. Some will be career civil
servants.
The country needs them to take the
maximum amount of time allowable by law for everything.
File every appeal. Make every motion.
If the statute governing the revision
of Regulation 30-17 allows 12 weeks for the process, do not file it
until 4:49 p.m. on the Friday of Week 12.
(5) Aileen Cannon knows
what time it is.
The model for everyone trying to
resist Trumpism should be Aileen Cannon.
Sure, she was vilified for her
handling of the government’s classified documents case against Donald Trump.
But you know what? Judge Cannon didn’t break any laws. She merely took full
advantage of the discretion legally afforded her by the existing system. Why?
Two reasons.
(a) She knew what was at stake. But
more importantly,
(b) She knew which side she was on.
Here is a conversation I bet Judge
Cannon never had with herself:
Certainly, I want to
make sure the case against Trump doesn’t proceed before the election. But I
must be wary of outside perceptions and people’s faith in the judiciary!
And what if the best way
to protect Trump is actually to make his case move speedily so he can prove his
innocence!
It’s all so confusing!
No. Cannon knew what she wanted and
what the law entitled her to do. Every person in the federal government should
look to Judge Cannon as an inspiration for what is possible.
(6) You must choose to
fight. One of our asymmetries is that Trumpists view Aileen
Cannon as a model while institutionalists create tortured rationales for why
the real guardrails require them to participate in the
deconstruction of democracy.
So Judge Cannon can delay and dawdle
in an effort to prevent Trump’s trial from starting before the election while
Christopher Wray thinks he has to give Trump what he wants in order to . . .
preserve continuity? Prevent a public fight? Stop the “politicization” of the
Bureau, even though only one side has politicized it, relentlessly, for years?2
(7) Institutionalists
need clear eyes and hard heads. It is not inevitable
that liberal democracy will survive this crisis.
And even if “liberalism” writ large
does survive, not every institution and norm will be saved along the way.
Just look at the FBI:
- A convicted
felon with outstanding criminal indictments was elected president.
- This felon has
spent the better part of a decade attacking the integrity of the FBI.
- This criminal
has nominated a man to run the FBI who claims that the sitting FBI
director should be jailed.
- And the sitting
FBI director decides that he should meekly step aside so as to prevent
further acrimony while protecting the reputation and integrity of the
Bureau?
I am sorry but that ship has sailed.
Donald Trump broke the reputation of the FBI and he is now assaulting its
integrity.
Forcing Trump’s assault to be
acrimonious is actually the best thing Wray could have done
for the institution of the FBI.
(8) Fight everything. Some
17th-tier Trump appointee wants to change the menu in the DOJ cafeteria? Fight
it.
Make them fill out every form; wait
for every deadline. File an appeal.
The default stance should be to force
the administration to spend political and chronological capital for everything.
Do not surrender an inch of ground for free.
(9) The game might be
deeper than it looks. Because this phase of the war will be bureaucratic
and process-oriented, things might not always be what they seem.
For instance: Maybe Jack Smith
resigned because he was surrendering. Or maybe he resigned so that he’ll be
able to publish a full report on his investigations before Trump is sworn in.
We won’t know until we get there.
As for Director Wray, David French posits that his resignation
might be designed to hamstring Trump through the Vacancies Reform Act.
I am skeptical of this view; but open
to the possibility. So it is important to recognize that in some cases we might
not know whether an act is capitulation or resistance until after the fact.
