Democracy & Elections

We Need Comey At the FBI Now More Than Ever

Susan Hennessey, Benjamin Wittes
Thursday, November 10, 2016, 2:31 PM

Donald Trump is the President Elect of the United States. And over the next few weeks, personnel questions will move to the forefront of transition coverage. Who will Trump select or retain in key Cabinet and federal positions? Who should be willing to serve and under what terms? There are many unknowns.

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Donald Trump is the President Elect of the United States. And over the next few weeks, personnel questions will move to the forefront of transition coverage. Who will Trump select or retain in key Cabinet and federal positions? Who should be willing to serve and under what terms? There are many unknowns. Yesterday, the Daily Beast reported that “Team Trump is struggling to fill numerous key slots or even attract many candidates because hundreds have either sworn they’d never work in a Trump administration or have directly turned down requests to join.” A lot of personnel decisions will involve tough calls.

Here’s one key personnel decision, however, that is absolutely clear: FBI Director James Comey must remain in place.

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Comey is not a popular man these days, with either the Right or Left. Many on the Right, including Trump and members of Congress, sharply criticized Comey’s decision to recommend Hillary Clinton not be charged over the handling of classified information on a private email server. And their cheering of his 11th hour letter informing Congress that the FBI was reviewing new emails related to the investigation did not last for long either. When Comey announced two days prior to the election that those emails had yielded no new evidence, Trump’s own campaign accused the FBI of outright fraud, claiming that it was impossible to review 650,000 emails (an unconfirmed number) in 8 days (it is possible, thanks to computer programs).

Many on the Left, meanwhile, blame Comey, at least to some degree, for Trump’s victory. They point, fairly or not, to his decision to inform Congress of the discovery of new emails before they were reviewed as at least a—if not the—reason for Trump’s razor thin victory. Even among those who do not blame Comey for Trump’s win, there is still a palpable sense among many in both parties that his letter was inappropriate, and among some that his highly-unusual July press conference was as well.

Moreover, reasonable people across the political spectrum were shocked and troubled by the torrent of politically-motivated, and likely false leaks from the FBI New York field office in the finals days before the election. What happened there was not just the malevolent freelancing of a group of individuals; it was also a failure of management, one that damaged the basic integrity of the FBI as an institution. Comey has much work to do to restore faith in federal law enforcement and hold accountable those elements within his own organization that appear to have violated the trust of their offices.

And all that said, now more than ever, we need Comey to lead the FBI.

Whatever you think of Comey’s judgment or conduct during the campaign, his actions have unequivocally demonstrated political independence from his political bosses, as he has in the past. And that is exactly what we will need from the FBI in the coming years.

Throughout his career, Comey has stood up to the political leadership of both parties. During the Bush administration, he offered to resign over questions of law and principle. If the last few weeks demonstrate anything, it is that we can trust him to speak his mind irrespective of the political consequences; in fact, the harshest charge against him is that he cannot be trusted to not speak his mind, even when it might behoove him and when doing so might undermine the fondest wishes of those in power.

If you believe, as we do, that this country has elected as President a dangerous man, one with authoritarian tendencies, having a principled FBI Director willing to stand up to those in power and speak his mind irrespective of political costs is critical.

Trump has the authority to fire the FBI Director, even without cause, though it goes against custom. But if Trump is a serious leader, interested in maintaining the credibility of his presidency, he won’t. Since J. Edgar Hoover left office, only a single FBI Director has ever been fired. A few months after taking office, Bill Clinton fired Reagan-appointee William Sessions over alleged ethical violations. Those allegations were laid out in a report endorsed by the Republican Attorney General before Clinton took office, but Sessions refused to cede to pressures to resign. Notably, Clinton went on to appoint Louis Freeh as FBI Director, who had a notoriously oppositional relationship with the White House. In short, while it is technically within the presidential power to fire an FBI Director, it is not something anyone should perceive as normal. Were Trump to fire Comey it would be a serious aberration; if he were to do so for mere political preference, in retaliation for Comey’s professional judgment that Clinton should not be prosecuted, or out of fear of Comey’s independence it would strike a blow against an important check on the modern presidency. And nobody who believes in the rule of law, even those most angry at Comey, should be hoping for it right now.

In fact, for those concerned that President Trump will trample the rule of law—liberals and conservatives alike—Comey’s fate is one potential canary in the coal mine. If Trump chooses replace Comey with a sycophantic yes-man, or if he permits Comey to resign over law or principle, that will be a clear bellwether to both the national security and civil libertarian communities that things are going terribly wrong.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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