Chris Wray's FBI departure won't immediately clear path for Kash Patel: Experts

The political drama over the future of the FBI took another turn this week when Christopher Wray announced he will resign as the agency's director by the end of the Biden administration on Jan. 20.

The announcement came just weeks after President-elect Donald Trump said he wanted to replace Wray with Kash Patel, a controversial ally who has defended Jan. 6 rioters, threatened to fire FBI agents and vowed to investigate journalists.

Although it might seem as if Wray's resignation provides a clearer path for Patel to immediately become director on Trump's first day office on Jan. 20, experts say federal regulations bar him from doing so until he's confirmed by the Senate -- and even from becoming acting director.

Full Senate approval could take weeks -- or possible longer, they say.

In fact, under the guidelines of the Federal Vacancies Reform Act (FVRA), the FBI will be led by acting directors who are veterans of the agency in the early part of the new administration, Marty Lederman, a constitutional law professor at Georgetown Law School, told ABC News.

Those same regulations, however, also give small loopholes that could allow Trump some options to have his say about who those "stopgap" leaders are, according to Lederman, a former Justice Department attorney.

"I think the practical effects of Wray resigning versus him being removed by Trump [on Jan. 20] are uncertain at best," he told ABC News.

Lederman and others said FVRA provides rules for presidentially approved, Senate confirmed, roles.

Once Wray leaves his position, his direct deputy -- currently Paul Abbate, an agency veteran -- would be called on to serve as acting FBI director, according to the FVRA. This acting director would be limited to 210 days on the job before a permanent leader is required to be approved by the Senate, the law mandates.

The line succession for acting director would continue down to other senior FBI members if the deputy director leaves the job, according to the FVRA.

Abbate joined the FBI in 1996 was named deputy director by Wray in 2021.

Trump has not commented or made a statement about Abbate's role in his administration or his pending assumption to acting director once Wray leaves.

The FVRA doesn't include any direct language about filling roles vacated due to termination so it would have been unclear how it would have played out if Trump went forward with his plans to replace Wray when he returned to the White House.

However, the FVRA does give a sitting president options on choosing another person to be acting director from a larger pool of candidates -- outside the bureau -- albeit according to strict criteria.

The act allows the president to name any person currently serving in a federal position who was approved by the Senate to serve as the acting director for the same 210-day period.

Stephen Vladeck, a law professor at Georgetown University who has studied and written about the Federal Vacancies Reform Act, told ABC News that there are a only handful of Senate-approved Trump appointees still working in various federal offices, so he wouldn't be able to appoint a favored candidate to lead the bureau on Day 1.

However, the president-elect could appoint someone to lead the FBI after more of his administrative picks are confirmed even ones unrelated to the Justice Department, according to Vladeck.

The FVRA also provides a third option under which a president can appoint an agency employee who is paid at the "GS-15 rate or above", which is $123,041, and who has been an employee of the agency for at least three months of the past 365 days preceding the vacancy.

"The statute is a maze but it gives the president a lot of flexibility to nominate a wide range of folks," Vladeck said.

Patel, who served as chief of staff in the Defense Department in the final months of the first Trump administration and hasn't had a government job in the last four years, does not fit the criteria for the three options under the FVRA and could not immediately assume FBI leadership, according to experts who spoke to ABC News.

Patel, who has never worked for the FBI, nonetless has been meeting with senators in recent days to make the case for his approval and said he is ready "Day 1" to run the bureau.

Lederman and Vladeck said there is one extreme possibility for Patel to serve as FBI earlier and without immediate Senate confirmation: if Trump or the attorney general fires Deputy Director Abbate and installs Patel in that role.

Given the complications and pending leadership changes within the Justice Department and the time it will take for Trump's attorney general pick to assume office, this scenario seems unlikely, according to the experts.

Lederman added that if he were to install Patel as the deputy director, the FVRA would not only limit his tenure as acting director but also force him to step down if Trump follows through with his nomination.

Patel, who is already under extreme scrutiny and criticism for his extreme views, would also have to answer for actions and policies that he made during his time as acting director under this scenario, Lederman noted.

"It upsets the Senate because you already put that person in place without the confirmation process but it also makes everything they do in that position fodder for the nomination," he said, stressing it is very unlikely.

The Justice Department and government watchdog groups will be keeping their eye on the ongoing proceedings and Lederman said that at the end of the day, Trump will have to nominate a permanent FBI director and it will come down to if there is enough support in the Senate to back Patel or another pick.

He did note that Trump could use the FVRA for other positions throughout the federal government and noted that he and other presidents have used the loopholes to appoint acting directors that aligned with their administration's goals.

Trump in particular used the act to keep his picks in office without any approval, picks such as Chad Wolf, who was first appointed to non Senate-approved position in the Department of Homeland Security before a series of controversial resignations led to his becoming the agency's acting director in 2019.

A year later, a federal court found Wolf's appointment unlawful but he did not resign until a week before Trump left office.

"Lots of people including me have written about the ways Trump's behavior has turned this act into a pretzel," Lederman said.

Lederman said there have been constant calls for Congress to strengthen the act to prevent the executive branch from asserting its power over Senate-approved appointees and maintains that this is a bipartisan issue that needs to be addressed immediately.

"There is broad consensus that the act goes way too far and much of is too generous and that Congress should fix it," he said.