FBI Director James Comey

Partisan Political Figures Cannot Run the FBI

By Jack Goldsmith, Benjamin Wittes
Monday, May 15, 2017, 10:33 AM

Rumors are flying that Donald Trump will soon nominate a replacement for James Comey as FBI Director—perhaps even before he leaves on his foreign trip at the end of this week. It’s hard to imagine the universe of people who would both accept the nomination in the current environment and in whom the public could repose confidence in holding the job. But some of the names Trump is reportedly considering should be unacceptable per se.

In particular, administration officials have floated the names of Sen. John Cornyn—a member of the GOP leadership in the Senate—and Rep. Trey Gowdy, who headed the House Benghazi committee. The New York Times reports that Cornyn was interviewed yesterday alongside former Representative Mike Rogers (previously the Chairman of the House Intelligence Committee and a former FBI agent) and six other candidates. (The Times also provides a full list of the candidates being considered here; among them is former New York City Police Commissioner Raymond Kelly, the potential “loyalty” of whom Trump and his associates have reportedly been sounding out.)

The idea of appointing a partisan political figure of any kind to run the FBI under any circumstances should be unthinkable—as it always has been in the past. The idea of doing so in the current environment, after the President has publicly stated that he removed Comey because he wants the Russia investigation to go away must be understood as nothing less than a dangerous corruption of federal law enforcement. It needs to be stopped.

Let’s start by reviewing the bidding to date. The President has fired his FBI Director for reasons he now says are directly related to his irritation about an investigation that involves him and his campaign and its ties to an adversary foreign power. He had his administration concoct a farcically pretextual rationale for that act—a rationale he maintained until reversing course and admitting on national television that he had made liars of his Vice President and his senior White House staff. He capped the week by threatening Comey in a tweet.

It is in this context that the President’s aides are floating the names of partisan politicians instead of the names of people of a stature that puts them above politics.

The threat to the Russia investigation should be obvious. It is certainly true, as many Trump surrogates have fanned out on television to emphasize, that the FBI is not a single person and the investigation’s infrastructure remains in place. But it is also the case that an organization’s leadership matters—particularly when that organization is a vertically-integrated paramilitary one like the FBI. If you remove the FBI Director and replace him with a partisan figure in order to curtail a particular investigation or obtain some measure of control of it, that partisan figure will know exactly why he or she is there, and so will the public. The opportunities for being less than vigilant or attentive to an investigation like this—even well short of actively stymieing it—are constant. The need for credibility with the opposition party is overwhelming.

There is also a larger threat to the FBI itself. There’s a reason the FBI director has a ten-year term and does not come in and go out with the administrations it serves. That reason is that we expect it to be apolitical. We expect it to serve the public through service to the political system but never to be a part of that political system. We expect it to be independent. A partisan congressional figure, even apart from current environment, simply cannot be sufficiently separate from the political system—and be perceived to be separate from it—so as to garner that confidence. Can you imagine if President Obama, instead of nominating a Republican former senior Justice Department official—Comey—to replace another Republican luminary who ran the FBI under him, Robert Mueller, had appointed Chuck Schumer or Richard Durbin? Even if he hadn’t announced that the appointment was part of a corrupt pattern of interference in a specific investigation, it would have been completely unacceptable. It still is.

We should understand an appointment like this as part of Trump’s ongoing deconstruction of institutions and assault on the norms that protect them. It is an extreme version of the same instinct that has him not staffing the State Department, only with an added layer of overt and acknowledged corruption that senators simply cannot overlook if they are acting in good faith.

Republican senators simply have to step up on this one, even if it’s hard because the nominee is a Republican senator. They need to draw a very clear line that the President must follow the uniform tradition of Presidents since the FBI was reformed after J. Edgar Hoover’s death and appoint a non-partisan figure of stature within law enforcement. They need to insist that he appoint someone whom the other side will support. They need to insist that he appoint someone with a reputation for probity and seriousness such that people can believe that he or she—like Comey did—will be willing to stand up to Trump and get fired if need be. Short of that, they need to make clear, they should not support a nominee. Senators who fail on this point are unworthy of reelection.

Republican Senator Lindsey Graham, speaking yesterday on NBC’s Meet the Press, struck constructive notes on this score:

CHUCK TODD: While we're staying on the FBI director, eight people interviewed yesterday. One of them is a colleague of yours, Sen. John Cornyn. Two were women, could be the first woman to ever head the FBI. You've got a former FBI agent and then a former member of Congress. Let me ask you this—in this political environment, do you think it is the right time to have the first ever FBI director with an elected political background, which is what it would be if either Mike Rogers or John Cornyn were named.

SENATOR LINDSEY GRAHAM: No. I think it's now time to pick someone who comes from within the ranks or has such a reputation that has no political background at all that can go into the job on day one. You know who does the FBI director work for? To me, it's like appointing a judge. The president actually appoints the judge, but the judge is loyal to the law. The president appoints the FBI director, but the FBI director has to be loyal to the law. John Cornyn under normal circumstances would be a superb choice to be FBI director. But these are not normal circumstances. We got a chance to reset here as a nation. The president has a chance to clean up the mess that he mostly created. He really I think did his staff a disservice by changing the explanation. So I would encourage the president to pick somebody we can all rally around, including those who work in the FBI.

Graham is too polite here—the appointment of a figure like Cornyn would be a bad idea under any circumstances—but the sentiment is right. Senators are going to need to have a spine on this one. Voters are going to need to make sure they do.

And if Trump succeeds in blowing through this important norm and installing a political FBI Director, the president who succeeds him should fire that person immediately on taking office. The statutory ten year term associated with the directorship is there to help make sure the FBI is run apolitically. If Trump seeks with this appointment to politicize the Bureau, it should not impede the next president in depoliticizing it.