The news Thursday that Kelly Ayotte, the former New Hampshire senator, was being considered by Donald Trump to be FBI director met with nods across official Washington, where people tend to like former bold-face names for bold-face jobs. By day’s end, Representative Trey Gowdy and Senator John Cornyn’s names were being mentioned too.
At first blush, these names seem like exactly the type of Washington appointment trial balloons you’d see for any ambassadorship, commission or Cabinet appointment —widely respected and serious-seeming elected officials who have some expertise in the subject. Ayotte was a former state prosecutor and the attorney general in New Hampshire; Coryn was attorney general in Texas and an elected associate justice of the that state’s supreme court.
Lost, though, amid this week’s spiraling controversies is the fact that appointing any of them to lead the FBI would mark a radical departure from the entire history of the century-old law enforcement agency. From its founding over a century ago until Tuesday afternoon, when Jim Comey was summarily fired as director, the FBI has been led exclusively by nonpartisan career law enforcement professionals with no background in elected politics.
The bureau, in fact, has been perhaps the last bastion of nonpolitical leadership in Washington—an agency whose powers are so extensive and potentially damaging to American citizens that it has been kept clear of direct political influence. Whereas even sensitive jobs like CIA director and the director of national intelligence are seen clearly as political positions that change with from administration to administration, the FBI director’s term has been expressly designed by Congress to avoid any taint of political influence: A 10-year nonrenewable term is meant to ensure that an FBI director can seek justice without fear or favor, straddling multiple presidential administrations and never currying favor for a future reappointment. At least since the days of J. Edgar Hoover, presidents likewise have carefully steered clear of treating the directorship as a political tool.
This unique background and historical legacy is especially important to consider given the circumstances in which President Trump will name his new nominee for the post: The FBI was plunged Tuesday into what is almost inarguably the most politically fraught and weighted moment in its history, a situation that has only been heightened in the past 24 hours, after the White House admitted that the president fired this nonpolitical appointee in the interest of slowing or stymying the FBI’s investigation into Trump’s campaign and its possible ties to Russian agents.
With a $9 billion annual budget and 35,000—including the core of some 13,000 special agents—the FBI investigates the nation’s most sensitive cases, including both political corruption and espionage cases, as well as a wide-ranging set of criminal violations that span from tribal reservations to counterterrorism cases. It operates in every state in the country and more than 60 countries overseas. The FBI’s power over the life, freedom and liberty of the American people is unparalleled in U.S. government, and at key points in the bureau’s history—from Hoover’s attempts to blackmail Martin Luther King., Jr., to its pursuit of political activists in the 1960s, ’70s and ’80s —we have seen the cost of the FBI’s abuse of Americans’ civil liberties. That unique power was actually something that Comey and previous directors have sought to underscore to their ranks: FBI agents, as part of their training, tour both the King Memorial in Washington, D.C., as well as the Holocaust Museum, to learn and witness the damage that can come from the abuse of civil liberties and the corruption of legal systems.
Until now, that’s a lesson that’s been carefully applied to the selection of the nation’s top cop, too.
The FBI director’s 10-year nonrenewable term was legislated by Congress in the wake of Hoover’s death in 1972, recognizing that the man who had invented the modern bureau and led it for nearly 50 years had grown too powerful and untouchable. The post of FBI director is uniquely situated to learn and deploy all manner of compromising political and person information—which Hoover uniquely exploited. After Hoover, Congress agreed that all future directors should be prevented from accumulating such power, yet doing the job well also required a certain freedom from day-to-day politics and short-term thinking, hence the decade-long term.
Ever since, there has always been a clear dividing line between the FBI and the normal and routine “politicization” of the Justice Department by presidential appointees—including the attorney general, deputy attorney general and the half-dozen assistant attorneys general who head the department’s various divisions. “The FBI is in the executive branch,” Jim Comey often said as director, “but not of the executive branch.”
In the FBI’s entire century-long history, it has never had an expressly political director. Hoover, for all his machinations as director, had actually spent his career at the Justice Department. James Comey was just the seventh confirmed director in the bureau’s history (another half-dozen officials have been acting directors during transition periods), and even the fact that Comey during his confirmation hearings acknowledged political donations to Mitt Romney and John McCain marked a departure from past nominees.
During the Obama administration’s search for an FBI director, there was not a single former or current elected official seriously considered. By and large, Comey’s background—as well as the backgrounds of others who were floated in 2013 as Barack Obama considered that appointment, like Ken Wainstein, Patrick Fitzgerald and Lisa Monaco—was typical of bureau leaders past: Comey was a career federal prosecutor, former U.S. attorney and one-time No. 2 in the Justice Department.
The man he replaced, Robert Mueller, had precisely the same résumé—a career federal prosecutor, former U.S. attorney and one-time No. 2 in the Justice Department. Mueller was so driven by the Justice Department’s mission that, after a stint heading the its criminal division under George H.W. Bush, he only stayed a brief period in private practice before starting over again at the bottom of the department’s hierarchy as a line criminal prosecutor in the U.S. attorney’s office in Washington, D.C. During that 2001 search by George W. Bush, perhaps the closest any candidate came to having political ties was George Terwilliger, a former U.S. attorney and former deputy attorney general who, while in private practice, had helped with Bush’s legal strategy during the Florida recount. (It’s worth noting that Terwilliger, though, didn’t ultimately get the job.)
The three men who headed the FBI before Mueller were all long-time federal prosecutors-turned-federal judges: Louis Freeh, William Sessions and William Webster. Meanwhile, the first director of the FBI post-Hoover, Clarence Kelly, was a respected police chief and former FBI agent.
These leaders have by no means been without their own faults. Sessions was fired by President Bill Clinton in 1993 after a George H.W. Bush administration investigation found that Sessions had abused expenses and travel privileges. And Clinton’s relationship with Sessions’ successor, Freeh, grew so poisonous amid the scandals of the 1990s that the two men stopped speaking. Freeh also gave up his White House visitor badge, even as the threat of Al Qaeda rose across the globe—a sign that FBI directors can actually become too independent.
Even so, that independence is a fundamental bulwark of our impartial justice system, the idea that no individual in the country is above the law. The Trump administration appears to be considering undoing that long-standing tradition for no apparent reason—and without any real protest from official Washington. Anyone like Cornyn, Ayotte or Gowdy would be historically unprecedented.
While they have served as state attorneys general, neither Cornyn nor Ayotte has any experience in federal law enforcement, as either an investigator or a prosecutor. And Gowdy, who did a brief stint as a federal prosecutor, is most publicly known for leading the uniquely political House investigation into the Benghazi attacks. “You know, people often ask Trey Gowdy and myself, what did our investigations do?” Representative Darrell Issa told a Boston radio station last year. “What they did is that they opened up an opportunity for the American people to sort of smell what’s in the garbage can.” That approach, the deployment of investigations as a way to settle or expose political scores, is precisely what the FBI has tried to avoid for a half-century.
Moreover, an elected official would potentially come to the job with compromising baggage and conflicts of interest, past financial ties or donation histories that overlap with potential investigatory targets—precisely the kind of overlaps that led to the mess of Comey’s press conference last summer, in which he felt that Attorney General Loretta Lynch wouldn’t be trusted by the American people as the ultimate arbiter of charges against the former secretary of state, Hillary Clinton.
Similarly, political elected officials have a track record of policy advocacy and their own agendas that might clash with the bureau’s law enforcement and intelligence traditions. During her time in the Senate, Ayotte, for instance, was an outspoken proponent for mandatory military custody of terrorism suspects—the exact opposite position than what the FBI has strenuously argued ever since September 12, 2001. Such positions wouldn’t endear her to the FBI’s rank-and-file—and indeed didn’t during that debate in 2011 and 2012, when she was arguing against the FBI’s approach to counterterrorism cases.
The consideration of such political figures seems particularly odd given the circumstances of the vacancy in the FBI director’s suite: The controversy around Comey’s steps into the 2016 campaign only underscores how and why the FBI director is supposed to remain fiercely apolitical. It seems hard to imagine that, had President Hillary Clinton fired Comey this spring, Republicans would cheer his replacement with a Democratic senator like Amy Klobuchar or congressman like John Conyers or Jerry Nadler.
Today, in the midst of perhaps the most sensitive and widest-ranging political investigation in its history—an investigation that centers on whether and how America’s top global adversary, which the FBI has battled continuously for seven decades, interfered with the most precious traditions of American democracy—the idea that the Trump administration would consider undoing long-standing tradition by promoting an elected official into the most powerful law enforcement role in the country appears to be another assault on the bureau’s cornerstone tenets and its much-heralded independence.
If anything, in fact, what the FBI needs right now is a leader above reproach—a leader in the mold of all those who have come before him or her, a long-standing, respected Justice Department official without any ties to a political party or elected office. Such an appointment would underscore that the bureau belongs not to a president or a party but to the American people.