This morning, Senate Majority Leader Mitch McConnell said that he had spoken to President Trump regarding James Comey’s replacement for the FBI Director and recommended Merrick Garland. McConnell isn’t the first person to suggest the idea. Republican Senator Mike Lee previously floated Garland for FBI Director as well. Senate Democrats like Amy Klobuchar swiftly voiced support.
The spoiler in what is shaping up to be a bipartisan Garland lovefest: Garland doesn’t seem to be interested in the job. NPR’s Carrie Johnson notes that two friends of Garland’s told her he intends to remain on the bench. Ben tweeted the following in response to the speculation:
Before Comey was appointed, Eric Holder sounded out Merrick Garland for the job of FBI Director. Garland told him he loved his job ... 1/3
— Benjamin Wittes (@benjaminwittes) May 16, 2017
... as a judge and didn't want to give it up. That is why he is not FBI Director today. Those who know Garland well would be stunned ... 2/3— Benjamin Wittes (@benjaminwittes) May 16, 2017
...if the answer to the question of whether he wants to give up his job as a judge to run the FBI were different today. I sure would be. 3/3— Benjamin Wittes (@benjaminwittes) May 16, 2017
Garland might be out, but Senate Republicans are actually on the right track here. Ben and Jack wrote yesterday on the perils of appointing partisan political figures to run the FBI in response to the inclusion of election official of Trump’s reported short list. (Senator John Cornyn has withdrawn himself from consideration for the post.) And McConnell’s seems to echo that sentiment in his comment on Garland:
I think if he picks someone with a deep background in law enforcement, who has no history of political involvement, a genuine expert — and the reason I mention Garland is he's an example of that — it will serve him well, serve the country well and lead to a more bipartisan approach.
McConnell might get the individual name wrong—presuming Garland is disinterested—but he gets the category and type right. And there is actually some tradition of presidents selecting judges or Justice Department officials of the opposite party as FBI director.
Jimmy Carter nominated Frank Johnson, a Republican district judge from Alabama. During his nomination proceedings, Johnson’s doctors discovered an aortic aneurysm and he withdrew his nomination. As a replacement, Carter nominated Republican William Webster, who Nixon first appointed to the district court in Missouri and later to the Eighth Circuit. Reagan followed the custom of picking a judge, though not from across the aisle, with Republican William Sessions, a former judge in the Western District of Texas.
Notably, after President Clinton fired Sessions for egregious corruption issues, he sought to ameliorate the normative breach of firing an FBI director by again drawing on a judge from the other party. He appointed Republican Louis Freeh, a former judge on the SDNY. Freeh and Clinton went on to have a legendarily adversarial relationship but—in a testament to the importance of an independant FBI and the aberration of Session’s firing—Clinton kept him as Director throughout his presidency.
Obama extended the tenure of George W. Bush-appointee Republican Robert Mueller for two additional years and then selected James Comey, who was a registered Republican prior to his appointment. While neither Mueller or Comey had been judges, both served as Deputy Attorneys General and had long careers in the Justice Department.
It is worth noting that the tradition of reaching across the aisle for FBI directors appears to be limited to Democrats; Republican presidents have only nominated other Republicans to lead the FBI. If congressional Republicans are to begin the long journey back towards restoring the shattered public trust and reinstating the norm of politically-independent federal law enforcement, persuading Trump to select a director from outside their party is one start. And picking a former judge or career Justice Department official is another.
The list of individuals with the necessary experience, reputation, and stature to credibly lead an independent FBI in the age of Trump is not long; the list of those who’d be willing to take the job is even shorter. Merrick Garland may not want to be FBI Director, but the right candidate looks a whole lot like him.