Christopher Wray gave Sen. Kamala Harris (D-Calif.) a lesson in constitutionality during a Senate hearing Tuesday when the Californian tried to get the FBI director to say President Donald Trump shouldn’t be allowed to declassify information on the Russian collusion investigation.
During a Senate Select Committee on Intelligence hearing with top U.S. intelligence officials Tuesday, Harris grilled Wray about Trump’s decision to go against the recommendations of the FBI and Department of Justice by declassifying a four-page GOP summary memo earlier in February.
The memo described classified information detailing how the FBI used the unverified anti-Trump dossier written by former British spy Christopher Steele to obtain surveillance warrants to surveil Trump campaign officials in 2016.
Trump, like all presidents before him, exercised his constitutional authority to declassify sensitive information.
“According to the White House statement, the president was the one that authorized the memo’s declassification,” Harris said to Wray. “Do you believe there’s an actual, or at least appearance, of a conflict of interest when the president is put in charge of declassifying information that could complicate an ongoing investigation into his own campaign?”
Wray noted the FBI has “been very clear” about its opposition to the memo’s declassification. In fact, prior to Trump’s decision to release the memo, the FBI released a statement saying it “was provided a limited opportunity to review this memo” and harbored “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
“But I do think it’s the president’s role as commander-in-chief under the rule that was invoked to object or not to the declassification,” Wray told Harris. “So I think that is the president’s responsibility.”
Harris pressed on, asking Wray whether he believed Trump had the right to declassify information “regardless of whether there is an appearance or actual conflict of interest.”
“I’ll leave it to others to characterize whether there’s appearance or actual conflict of interest. But I think the president was fulfilling his responsibility in that situation,” Wray replied.
The president does, indeed, have the constitutional authority to declassify information. According to the Supreme Court’s Navy v. Egan ruling in 1988, the president’s “authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant.”
After Wray declined to question Trump’s authority to declassify information, Harris tried another tack.
“If the president asked you tomorrow to hand over to him additional sensitive FBI information on the investigations into his campaign, would you give it to him?” Harris asked.
Wray replied, “I’m not going to discuss the investigation in question with the president, much less provide information from that investigation to him.”
Harris asked Wray if Trump could declassify information about the investigation into his campaign and Russia “if he received that information and wanted to declassify it,” even if he received it “from members of the United States Congress.”
“I think legally he would have that ability,” Wray replied.
After the FBI director refused to negate Trump’s declassification authority once again, Harris asked if he believed “the president should recuse himself from reviewing and declassifying sensitive FBI material related to this investigation?”
“I think recusal questions are something I would encourage the president to talk to the White House counsel about,” Wray replied.
When Harris asked Wray if the FBI had “done any kind of legal analysis on these questions,” Wray noted that he “happily” was “no longer in the business of doing legal analysis.”
“I now get to be a client and blame lawyers for things instead of being the lawyer who gets blamed,” Wray said, spurring Harris to ask him if he had “blamed any lawyers for their analysis of this” yet.
“I have not yet, no,” Wray replied.