The country is obviously better off if James Comey is replaced as FBI director by someone who is good at running the FBI — it’s a large and important government agency that carries out many crucial functions.
But in terms of the immediate obstruction of justice crisis kicked off by President Donald Trump’s decision to fire Comey, it’s important to be clear. Choosing a new FBI director, no matter how well-qualified or how sterling his reputation for independence and integrity, doesn’t fix the problem. The problem is that the president can, legally speaking, fire the FBI director if he wants to. And he just fired the FBI director for pursuing investigations into the president’s ties to Russia with excessive rigor.
For Senate Republicans, the idea of the Good Comey Replacement serves a critical psychological and political role. It allows them to acknowledge that there was something alarming and suspicious about Comey’s dismissal without committing them to a fight with the Trump administration. They simply need to convince the White House to nominate someone well-qualified and then move on to cutting taxes.
But the Comey firing bell can’t be unrung. The independence of the FBI is now inherently compromised. And faced with a White House that’s willing to violate the norms governing presidential involvement in the investigative process, either there will be the forceful pushback from the legislative branch that most Republicans want to avoid or else oversight of the Trump administration will be woefully lacking. There’s no middle path.
Trump has fatally compromised FBI independence
The FBI has operated, since its inception, with a greater degree of independence from the White House than your average federal agency. The director is a presidential appointee, but in practice the FBI as an institution has worked more like the uniformed military than like other parts of the administration. The president is statutorily permitted to fire the FBI director, but the statute also states that the director will serve a 10-year term, indicating a presumption that he will not be fired at the president’s whim.
This is in part a question of law, but it’s largely a question of norms.
Nobody says that Trump “fired” former Treasury Secretary Jack Lew because the new president always brings in a new Treasury secretary. The FBI isn’t like that. Jimmy Carter appointed William H. Webster to the job in 1978, and he ended up serving almost through to the end of Ronald Reagan’s administration. George H.W. Bush only served one term in office and ended up not appointing a new FBI director at all. The only previous firing of an FBI director, by Bill Clinton in 1993, happened in response to specific allegations of financial wrongdoing that were made by the Bush administration’s attorney general, not as a post hoc pretext ginned up at the behest of the West Wing.
The upshot of these norms is that the president is not supposed to be in a position to tell the FBI what it can and can’t investigate. Trump has changed that norm by firing Comey on a thin pretext out of anger over the Russia investigation. The fact that the cover story isn’t remotely plausible — and that the White House immediately began leaking to the effect that it was false — is crucial here. Whoever is chosen as Comey’s successor, and all of that person’s subordinates, will know the truth about what happened and will have to behave accordingly.
Republicans have to choose
It would be convenient for Republicans for Trump to pick a reasonable nominee for FBI director, thus allowing GOP members of Congress to draw a line under the Comey matter and move on to focus on the confirmation of Comey’s replacement. An ideal scenario would be a nominee who, though well-qualified, some Democrats object to, which would let Republicans have a normal partisan food fight. They might be able to tell themselves that having induced Trump to pick a solid candidate, they have solved the problem and discharged their moral and constitutional responsibilities, all without a big fight with the White House.
But that’s a delusion.
Whoever succeeds Comey will know that he will either follow Trump’s directive to downplay the Russia investigation or himself be fired.
With the FBI’s independence compromised, the only option is for Congress to do its job: launch a thorough, credible investigation of the Russia situation and, in parallel, launch a thorough, credible investigation of media reports that the White House has been lying about why Comey was fired. Congressional investigations on their own are not a full substitute for a functioning FBI — congressional committees typically rely on FBI resources to do their job — but they are a partial substitute.
And more importantly, in some ways, launching serious investigations would show that Trump is paying a price for violating norms around FBI independence. That, in turn, would give the new director some chance of successfully standing up to Trump. Otherwise, he’ll have fired Comey without paying a price — leaving Comey’s successor fatally compromised no matter how individually well-qualified.