- James Henryeconomist, lawyer and senior adviser with the Tax Justice Network. He is former chief economist at McKinsey & Company.
- Marcy Wheeleran independent journalist who covers national security and civil liberties. She runs the website EmptyWheel.net.
The Senate on Tuesday confirmed Christopher Wray as the next director of the FBI, but in an unprecedented move, five senators voted against his nomination. Before yesterday, only one senator had ever voted against an FBI nominee. In addition, three senators abstained from the vote. Senator Ron Wyden, who voted against Wray’s confirmation, said he did so because of Wray’s position on government surveillance. “In his public and private statements, Chris Wray failed to oppose government backdoors into Americans’ personal devices, or to acknowledge the facts about encryption. That it isn’t about liberty versus security, it’s about more security versus less security.” The American Civil Liberties Union also criticized Wray for his involvement in the U.S. torture program under George W. Bush. We speak with independent journalist Marcy Wheeler and economist James Henry.
AMY GOODMAN: On Tuesday, the Senate has confirmed longtime corporate lawyer Christopher Wray, in a 92-to-5 vote, to become the next director of the FBI, replacing James Comey, who was fired by Donald Trump in May. In an unprecedented vote, five senators, all Democrats, voted against Wray. Before yesterday, only one senator had ever voted against an FBI nominee. The five Democrats were Kirsten Gillibrand of New York, Ed Markey and Elizabeth Warren, both of Massachusetts, and Jeff Merkley and Ron Wyden, both of Oregon. In addition, three senators didn’t vote: Richard Burr of North Carolina, Minnesota’s Al Franken and Arizona’s John McCain.
In a statement, Senator Wyden criticized Wray because of his stance on government surveillance. Wyden said, quote, “In his public and private statements, Chris Wray failed to oppose government backdoors into Americans’ personal devices, or to acknowledge the facts about encryption. That it isn’t about liberty versus security, it’s about more security versus less security,” he wrote.
The American Civil Liberties Union also criticized Wray in part for his work at the Justice Department under George W. Bush, when he worked with many of the key architects of the U.S. torture program.
For more on Christopher Wray, we’re joined by two guests. Marcy Wheeler is with us. She is an independent journalist who covers national security and civil liberties. She runs the website EmptyWheel.net, joining us from Michigan. And joining us via Democracy Now! video stream is economist and lawyer James Henry, global justice fellow at Yale University, senior adviser with the Tax Justice Network, former chief economist at McKinsey & Company. He recently wrote for The American Interest a piece that is headlined “No Wray.”
We welcome you both to Democracy Now!
JAMES HENRY: Good to be with you.
AMY GOODMAN: Marcy Wheeler, let’s begin with you. Talk about the confirmation of Christopher Wray as the next FBI director, its significance.
MARCY WHEELER: Well, I think he was overwhelmingly confirmed because he gave the assurances. He gave these very well-rehearsed assurances that he was not going to end any investigation into the—into Russia and collusion with the Trump administration. But at the same time, the confirmation process really didn’t get into a lot of the questions that he might have faced about his own tenure at DOJ in the Bush administration, and it didn’t get into some of his own actions in the past that would really answer whether or not he was going to be independent. And as you mentioned, Senator Wyden also had additional concerns about Wray’s response on encryption, on whether or not the FBI is going to continue to seek backdoors into secure communications.
AMY GOODMAN: Now, 92 to 5 sounds like a pretty overwhelming majority for confirmation as FBI director, of the senators, and I’m sure most people see it that way. It is quite something that it is the largest “no” vote in the history of confirmation of FBI directors. Only one senator, when Comey was confirmed, voted against him, and that was Rand Paul. He was opposed to Comey because he would not rule out drone domestic surveillance, Marcy.
MARCY WHEELER: Right. And frankly, the numbers shouldn’t be that overwhelming ever. The FBI director, it’s a tenure position. And there—you know, all of these people, including Jim Comey, had controversial things in their past. There’s this notion that we have to have unanimous approval for this top law enforcement officer. And yet, I think that that shows a lack of skepticism, which is really important.
And importantly here, I think there was the view among some people in the Democratic Party—and it should be more broadly—that Trump is getting rewarded for having fired Jim Comey. As you described at the top of the show, there are—we have two new pieces of evidence that Trump is obstructing justice into the Russian investigation, into Comey’s firing. And yet, he still gets to replace Comey with somebody. Absent Christopher Wray being confirmed, we would have Andrew McCabe, who was basically Comey’s deputy. It would be sort of a status quo. Yet now Trump gets to reward himself for having gotten rid of the guy who was investigating him and his family.
AMY GOODMAN: And, of course, he’s been attacking McCabe, along with Jeff Sessions, on Twitter. And explain, Marcy Wheeler, what this role, Christopher Wray as FBI director—exactly what that role is, since there is a special prosecutor because Jeff Sessions recused himself, to the tremendous ire of President Trump.
MARCY WHEELER: Well, and you mentioned Trump is attacking Sessions and McCabe. He also, curiously, in a New York Times interview, said that he believes the FBI director reports directly to him. And he mentioned Wray’s confirmation in that process. So he is arguing—even at the same time as he’s attacking everybody else who’s conducting this investigation, he’s arguing, for the first time, that the FBI director works for him. And that’s something that it seems the Senate Judiciary Committee should have gone back and gotten Wray to address, because it leaves this notion, again, of independence, this question of whether he’s going to be sufficiently independent.
But Wray is still going to be the boss of the FBI agents who are working with Robert Mueller conducting this investigation. And he will have some say over the resources that are given to Mueller for that investigative side of the investigation. So, he won’t be—you know, he won’t be in charge of Robert Mueller. He won’t be able to fire Robert Mueller, although he didn’t respond to a question about that in his confirmation process, which I found a little bit disturbing. But he does have a toe in the process, and he does have the ability to influence the process. And that’s assuming that Jeff Sessions remains in place and that Rod Rosenstein remains the acting attorney general and so on. So, I think it is fair to raise questions about whether or not he’ll be independent. As I said, he gave very well-rehearsed assurances that he would, that he would refuse to quash any investigation into the Russian allegations.
But, as I mentioned, there are things that Wray was involved with when he worked for George Bush. Most notably, he was briefing then-Attorney General John Ashcroft about the CIA leak investigation. Highly inappropriate, led to John Ashcroft’s recusal from that investigation. And he should have been asked, “Why did you do that then? And how would you avoid, very similarly, being asked to brief Donald Trump about this investigation into Russian tampering?” Again, a question he wasn’t asked. He’s given a lot of assurances, that the senators who did vote for him seemed to find compelling. But I think there were some questions that could have further been asked of him.
AMY GOODMAN: And, Marcy, the significance, that you just referred to, of the latest Washington Post exposé saying that Donald Trump was basically in charge of the response to the exposé about his son? Well, his son actually revealed his own emails about his meeting with—that meeting of eight people that included the Russian lawyer and others and Jared Kushner, as well.
MARCY WHEELER: Well, it’s a sign that Trump is inventing stories. In that case, he said that the meeting was exclusively about adoption, there was no follow-up. Interestingly, the line that Trump used, that it was about adoption, is one that he says he spoke to Vladimir Putin about the day before the statement. So, in other words, what appears to have happened is the White House got questions about that meeting, they started discussing about how to respond, they were going to respond honestly, and then Trump, A, asked Vladimir Putin specifically—was talking to Putin specifically about adoptions, about what ended up being the public statement about the meeting, and then wrote the statement for his son. Now, he’s excusing it as, well, it’s something all dads would do. But it is yet more evidence that he is telling stories about the Russian investigation, about his ties to Russia. And that is not itself a case for obstruction, but it adds to the case that he fired Comey to obstruct the investigation into him and his family and that he is inventing stories to obstruct the investigation into him and his family.
AMY GOODMAN: And as the ethics counsel under Bush, Painter, said, is this really what fathers would do for their sons, unless he is already planning to pardon him?
MARCY WHEELER: Right, pardon him, Kushner, everybody else. I mean, I—there was another article that described Trump believing that he has no criminal exposure here. That’s hard to believe. But I think Trump just honestly believes he’s going to beat the wrap of having at least let himself be elected by the Russians, if not colluded with them. And we keep finding more and more evidence of Trump’s personal involvement, as I think the statement actually is a testament to.
AMY GOODMAN: I want to go to James Henry, economist, lawyer with Tax Justice Network. You’ve also written about Christopher Wray and expressed sort of another area of concern. Talk about his record and the significance of him now becoming the director of the FBI.
JAMES HENRY: Well, yes, I compared Chris Wray’s background, in detail, in this American Interest article, with, you know, the seven previous FBI directors. And what really stands out in that comparison is not only that here we have a very nice guy, a kind of patrician lawyer whose father was a Wall Street lawyer, his uncle was a Wall Street lawyer, his grandfather and grandmother were Wall Street lawyers, but he has no law enforcement experience to speak of. He’s come from a kind of gold-plated existence. And, you know, if that’s what we really need now, I think the Senate vote is understandable.
What was otherwise striking about this comparison is that Chris Wray spent the last 12 years, about 70 percent of his entire legal career, basically defending white-collar corporations, mainly banks. He was chairman of the white-collar defense group at [King] & Spalding, this big Atlanta law firm. You know, when I first met him or ran across his representation, in the context of the 2014 plea bargain with Credit Suisse, in which he was representing this giant Swiss bank, which was pleading guilty to a corporate felony for having helped, you know, 22,000 Americans take their money abroad and evade taxes—and he did an able job there, but the point is that he was basically spending—you know, this is unprecedented for, basically, a white-color defense lawyer to be head of the FBI. I mean, it’s a good example of state capture by the banking lobby. But, you know, the other thing that strikes me is that—
AMY GOODMAN: Explain that further, James Henry.
JAMES HENRY: Well, I mean, you know, if you’re defending banks like HSBC and Deutsche Bank and Credit Suisse, all of which have been engaged in kind of serial crimes since the 2008 financial crisis—you know, a total of more than 655 felonies and settlements by the top 22 banks in the world—I mean, Chris Wray has basically been doing nothing but that for the last dozen years. And now he’s expected to come in and sort of not only be in charge of the investigations that the FBI is doing of Trump and his connections to Russia, but also, you know, all of the standard kind of financial crimes that these institutions have been engaged in over and over and again. I think that’s a direct conflict of interest. It was certainly an issue that wasn’t explored at all by the Senate confirmation committee.
So, you know, the other basic fact is, with respect to the Trump investigation, there’s a very important case involving a fellow named Felix Sater in New York, who was given a kind of immunity on the part of the Eastern District of New York at a time when people like Loretta Lynch and Andrew Weissman, who is now Mueller’s deputy, were involved. And this basically allowed Sater to go on and raise money fraudulently for investments in the Trump SoHo and quite a few other projects. Well, you know, Wray is going to be asked to—
AMY GOODMAN: But talk—talk more about Felix Sater, because this—
JAMES HENRY: Yeah.
AMY GOODMAN: —ties into—anytime you’re talking about Trump SoHo, that’s the investment of the Russian firm Bayrock, so many of the millions that were spent on Trump SoHo.
JAMES HENRY: That’s right. There was about a $400 million project, that was failed. But Felix Sater was a Russian-born—basically, a mobster, who came to the United States in the 1980s with his father, who was a member of the Mogilevich gang in Moscow. Sater went on to become a felon. He was convicted twice of felonies, the second time for a $40 million financial fraud. But he never did any jail time for that, because the Eastern District in New York decided to cut him a deal, in which he would cooperate against his fellow witnesses—against his fellow felons. And that secret deal basically survived until at least 2009.
And during that whole period, he was able to go out and raise lots of money from investors for the sake of these Trump projects. Whether Donald Trump knew about his felony status is an interesting question. There are indications that he may well have, in which we’re talking about securities fraud and maybe money laundering. But Sater has been a controversial figure throughout this period.
And the key point about Wray is that many of the colleagues from the Justice Department that Wray was closest to, you know, were deeply involved in this cover-up. So, there are some problems for both parties in the Sater case. It’s not just a Trump problem. And I think Wray is going to have his work cut out for him to toe the line here.
AMY GOODMAN: Can you talk about his record with Credit Suisse?
JAMES HENRY: Yeah, I mean, Credit Suisse was engaged in two different felony prosecutions. 2009, Wray represented them in a case involving sanctions busting, and he got them off with a deferred prosecution agreement. And then, in 2014, he managed to negotiate a settlement with the Holder Justice Department that basically got Credit Suisse no jail time for any executives, no withdrawal of corporate licenses, a tax-deductible $2.6 billion fine. And this was for a—basically, helping 22,000 Americans evade more than $20 billion of taxes over decades of misbehavior. So it was a nice deal for the bank. And Wray was deeply involved in obtaining that settlement. But it’s just one of the many settlements that he obtained during that period on the behalf of major banks. I mean, this is—
AMY GOODMAN: You also—you also write in your piece, James Henry, “No Wray,” “intimate connections to the incestuous professional network that operates at the very highest levels of the U.S. criminal justice system.” Explain.
JAMES HENRY: Well, if you look closely at the career paths of people like Wray and Loretta Lynch and Andrew Weissman, I found it astonishing—I had never done this before—but a sort of a network analysis of all the cross-reporting relationships since the 1990s show that, you know, they’re all—there’s a relatively small group of maybe a few hundred people who have been percolating around the Justice Department, in and out, and through the revolving-door system connecting them to major Wall Street and, you know, Washington law firms. And so they’re all—they’re all very intimate with each other. They work with each other directly. And so, I think that presents—well, it’s certainly a structural problem for the way the Justice Department operates in a world in which there is so much influence by Wall Street firms.
AMY GOODMAN: Finally, Wray says he wants the FBI to focus more on corporate crime. What would that look like?
JAMES HENRY: I mean, there’s a precedent for FDR appointing the elder Kennedy to run the SEC, because he knew what people were capable of. You know, if Wray does—does what he says he’s going to do, he can use the extensive knowledge he no doubt has about misbehavior, but—corporate misbehavior. But, you know, I’m skeptical that he’s going to be able to turn over a new leaf. There’s a certain kind of blind eye that one acquires through the—simply through the long periods of working with these people. HSBC, Credit Suisse, these are really troubled institutions that have engaged in misbehavior time and again. And we still don’t have a good way of punishing them for this kind of behavior.
AMY GOODMAN: Well, James Henry, I want to thank you for being with us, economist, lawyer with the Tax Justice Network. We’ll link to your piece in American Interest called “No Wray.” And Marcy Wheeler of EmptyWheel.net, we’d like to ask you to stay with us as we look at this remarkable federal lawsuit by a Fox former employee against the Fox network. Stay with us.