FBI Director James Comey

Backgrounder: The Power to Appoint & Remove the FBI Director

By Robert Chesney
Wednesday, May 10, 2017, 11:55 AM

I thought a brief backgrounder on the power of the President to appoint and to remove the FBI Director might be in order this morning...

The Power to Appoint

It is widely—and accurately—assumed that the President has the authority to appoint the FBI Director, yet a quick glance at the relevant statute (28 USC 532) might leave some confusion since it appears to refer instead to the Attorney General:

The Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director of the Federal Bureau of Investigation is the head of the Federal Bureau of Investigation.

So what’s going on? The answer is that this is one of those situations where you have to read the official “Historical and Revision Notes” accompanying the statute. And why is that? Because Congress, for better or worse, sometimes chooses to put important changes into the official notes instetad of just altering the original, codified language. It’s silly, I know, but sometimes they do it this way and one just has to dig through the notes to get to the current law.

So here is what you find when you dig into those notes, along with some historical context that I thought might also be helpful (or at least interesting).

1908: Attorney General Bonaparte Creates the Bureau of Investigation, and Picks Its First “Chief”

The AG at that time was Charles Bonaparte (grandson of Jerome Bonaparte, who was the Napoleon’s brother and had been, for a time, the “King of Westphalia”). President Teddy Roosevelt (himself formerly a police commissioner in NYC) was interested in increasing the investigative capabilities at the Justice Department, and after a few false starts AG Bonaparte went ahead and created a “Bureau of Investigation” within DOJ for this purpose. There was no statutory charter for it, and Bonaparte was the one who picked its first chief.

1924: Attorney General Stone Picks J. Edgar Hoover as Director

Attorney General Harlan Fiske Stone selected young J. Edgar Hoover to be the Bureau’s Director in 1924, and Hoover would hold that position for more than four decades.

1966: Codifying the AG’s Authority to Pick the Director

In 1966, Congress passed the text of 28 USC 532, quoted above, codifying the early practice through which the Attorney General picks the FBI Director.

1968: Congress Moves the Appointment Power to the President

Congress reconsidered this approach just two years later, perhaps mindful that Hoover would not in fact live forever and in any event appreciative that the FBI of the 1960s was a far more significant and independent organization than it had been when it started out as a small part of DOJ in the early 20th century. At any rate, the Omnibus Crime Control and Safe Streets Act of 1968 included section 1101, which states:

Effective as of the day following the date on which the present incumbent in the office of Director ceases to serve as such, the Director of the Federal Bureau of Investigation shall be appointed by the President, by and with the advice and consent of the Senate….

1976: Congress Specifies a Single, Fixed Term

Hoover died in 1972, and of course the early and mid 1970s saw all sorts of turmoil relating to the FBI and other investigative and intelligence agencies, but also the presidential misdeeds of Richard Nixon—and attempts by Nixon to squelch the investigation of those misdeeds. Against this backdrop, Congress in 1976 enacted section 203 of the Crime Control Act (Pub. Law 94-503), which specified a ten-year term for the FBI Director (but also a one-term limit):

Section 1101 of the Omnibus Crime Control and Safe Streets Act of 1968 is amended by inserting "(a) " immediately after 28USC532note. "SEC. 1101." and by adding at the end thereof the following new subsection: " (b) Effective with respect to any individual appointment by the Effective date. President, by and with the advice and consent of the Senate, after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. …

So, there you have it: the power to appoint resides with the President, subject to Senate confirmation of the appointment.

The Power to Remove the Director

Now, what about the power to remove the Director? This part is actually quite straightforward as a legal matter, given that Congress at no point has attempted to constrain the president's removal power. [Update: For an excellent summary of the relevant law, see this 2011 Office of Legal Counsel memorandum]. The only thing to say here is that there is one prior instance of a president firing an FBI Director mid-term.

1993: President Clinton Fires William Sessions

The only prior instance in which a Director was fired mid-term came in 1993, when Bill Clinton fired William Sessions in the aftermath of an internal DOJ investigation finding that Sessions had misused the authority of his office in certain ways involving such things as use of official transportation for personal ends, tax avoidance, and the like.

The firing of Jim Comey thus presents not a legal question so much as it a set of profoundly-important political and policy questions. No doubt we'll be reading and hearing more on those points from many quarters, for some time to come.