President Donald Trump’s unexpected decision to fire FBI Director James Comey on Tuesday has put us in uncharted territory and prompted a flurry of questions. What does this mean for the FBI’s ongoing investigation that could implicate the administration? If Trump is determined to make the investigation disappear, could he? And, more simply, what happens next? Based on my experience as a former FBI agent who worked on counterintelligence matters, here’s some insight into the most common queries that have been raised in the wake of Tuesday’s surprise. Don’t worry; it’s mostly comforting.
What happens to Comey’s documents and to investigative files that have already been gathered? Can they be destroyed?
Remember that the FBI is a law enforcement agency. Not that Comey’s office is exactly a crime scene (yet), but the culture is one that places a high value on preserving information, not destroying it. Particularly in light of a letter from Democrats on the House Judiciary Committee requesting that all documents pertaining either to Comey’s firing or to the investigation into Russia’s election interference be preserved and off limits to White House officials and associates (as well as Attorney General Jeff Sessions specifically), the FBI is under an affirmative duty to comply, and a failure to do so could be considered obstruction of justice. In general, any official documents that were in Comey’s office relating to the Russia investigation, such as memos regarding investigative steps or conclusions, approvals for decisions taken and communications with field offices would become part of the case file itself. Personal notes, emails and informal communications would likely be compartmentalized, classified if necessary, and remain in the custody of the Acting FBI Director Andrew McCabe.
FBI investigative files are official Department of Justice documents and as a legal matter, cannot be destroyed. (One of J. Edgar Hoover’s legacies is that he never got rid of anything: The National Archives contains FBI files going back to 1908, including up to 17,000 pages of documents maintained by Hoover himself in his personal vault.) This would be especially true for a case that has two active congressional intelligence committee investigations underway.
As a practical matter, it would not be possible to destroy FBI documents anyway, since case files are electronic and not paper-based—so no “accidental” fires in the file room. Files are also kept in a secure system which tracks all access and is designed to prevent unauthorized tampering such as alterations or removal, so you can step down from the ledge: Everything will remain intact.
What happens with the Russia investigation until a new director is confirmed?
FBI agents will continue doing their job. As a matter of procedure, investigations are governed by something called the Attorney General Guidelines. The AG Guidelines lay out the rules and regulations including predicates for opening an investigation, the sequence an investigation should follow, and investigative techniques that can and should be used at various stages and the approvals needed for them. The AG Guidelines also specify the procedures for closing an investigation; and this cannot be done until all of the open questions in an investigation are satisfactorily resolved. Based on Comey’s most recent testimony, this is not happening anytime soon, so even in the absence of a director, the Russia investigation will proceed apace.
Furthermore, FBI agents feel a sense of ownership over their cases and have a vested interest in seeing them through to their conclusion. Russian counterintelligence, in particular, is one of the Bureau’s oldest programs, and its agents often spend years, and sometimes their entire careers, on this target. The damage wrought by former FBI agent Robert Hanssen, who spied on behalf of the Russians for 15 years, also lives in the FBI’s institutional memory and makes this adversary a personal one. In short, there’s no love lost between the FBI and Russian intelligence, and the agents working on the investigation wouldn’t be inclined to abandon it anytime soon.
Can a new director “kill” the Russia investigation?
No. Even a director with the most nefarious motives would not be able to put the brakes on an ongoing investigation, particularly one of this scale and under such public and congressional scrutiny. At this stage, the Russia investigation will have expanded beyond FBI Headquarters, and the director’s immediate control. The FBI is a quasi-decentralized system with 56 field offices in addition to FBIHQ, and several field offices can be involved in a single case: If someone in Ohio might have information about a case being worked out of New York City, for example, a “lead” is sent from the case agent in NYC to the Cleveland field office. An agent there would conduct the interview and send the report back to the case agent. A case like the Russia investigation would generate hundreds of leads dispersed around the country and can’t officially be closed out until all such leads are covered.
This case also likely has open electronic surveillance orders which would require regular paperwork and updates, as required by statute and the Foreign Intelligence Surveillance Court approving such orders. Any attempt to immediately shut one down would involve lawyers from the the DOJ and essentially contradict submissions made under oath justifying the order in the first place to the FISC. And given that the Russian threat has also affected our allies, such as France, intelligence generated from the investigation would been shared not only within the U.S. intelligence community but also with intelligence agencies from other countries. With so much already in motion, no single person, even the director, would be able to make it “disappear.”
Can a new director do anything to stall the investigation?
Possibly, but only indirectly and over a long timeline. A director can change the priorities of the Bureau and reallocate its resources, including its budget, accordingly. This could put pressure on the field offices working the investigation to reassign personnel and potentially reduce the available bandwidth for the Russia investigation. A director could also phase out sources of information for the investigation, like FISA orders for electronic surveillance by refusing renewal requests, which would be required anywhere from every 90 days to every year. Lastly, a director could reduce the scope of information sharing, either within the U.S. intelligence community or with allied countries.
Still, this course of action would be very perilous for a new director to follow. Some moves, like suddenly changing priorities or budget allocations, would be very visible and would raise questions—and, potentially, calls for the new director’s removal—given the magnitude of the threat as described by Comey in his recent testimony (and the acting director’s testimony on Thursday). In addition, Congress can review and compare statistics concerning personnel, investigative techniques and the level of information sharing on a case at different points in time and, if it’s clear that the investigation is not as robust as it was previously, ask the director to explain the reasons why. Many of the FBI’s powers come from statutes authorized by Congress, which can take them away and affect the Bureau’s investigative authority if it feels the agency is acting improperly. Finally, the quasi-independence of individual field offices, which would resist efforts to “starve” resources on open cases, would create internal pressure and possible backlash against these efforts.
What is the morale of the agency, and how will that affect what happens going forward?
Reports suggest that the Bureau has not taken Comey’s firing well: One agent told me that people have been “gobsmacked” by the news. This isn’t surprising, considering that Comey made it a point to foster a good relationship with his agency, personally visiting all 56 field offices—twice—after being appointed director. To be sure, Comey’s public commentary regarding the Clinton investigation had also led to some loss of morale, but that had less to do with lack of faith in Comey’s leadership and more to do with the public criticism that the FBI was acting with partisan motives. The FBI has traditionally been able to steer clear of political minefields even while investigating charged issues—think the Kenneth Starr investigation under President Bill Clinton or the Valerie Plame leak under President George W. Bush (both cases, incidentally, in which neither president interfered)—so being caught in partisan crosshairs is not a space the Bureau is accustomed to occupying.
On this front, Comey realized that the FBI needed a public relations makeover. Prior to his firing, he had approved a new documentary TV series on the day-to-day work of the FBI, in order to assure the public that the Bureau is “not on anyone’s side.” Interestingly, the series focuses on the FBI’s traditional investigations into violent crime, harkening back to the J. Edgar Hoover days when popular depictions of “G-men” in comics and movies—often promoted by Hoover himself—glorified FBI agents as the ultimate good guys and bastions of justice. At this point, however, the FBI may not need the PR. It’s possible that the doubt cast on the FBI’s ability to conduct its Russia inquiry at all will in fact spur agents to double down on the investigation, restoring the public’s trust—but maybe not in the way Trump intended.