Professor Andrew Kent co-wrote a piece for the blog Lawfare regarding term limits for the FBI director, in the wake of James Comey’s termination.
President Trump’s request that James Comey kill the investigation into former National Security Advisor Michael Flynn, which Comey reportedly refused, raises significant questions about Trump’s decision to fire the FBI Director.
The revelation only adds more to existing reasons for suspicion in the wake of Comey’s dismissal: the brazenly pretextual DOJ rationale for the firing; Trump’s stunning admission that he had the Russia investigation in mind when he acted; and reports Trump demanded Comey pledge loyalty to him personally. Now the public learns that Trump’s conduct with regards to Flynn might well constitute criminal obstruction of justice.
In gauging the severity of Trump’s breach and deciding how to respond and whether to support Trump’s nominee, Congress should look to its own history. Why did Congress set the FBI director’s ten-year term in the first place?
As Bobby described last week, Section 203 of the Crime Control Act of 1976 restricts the FBI director to a single ten-year term and prohibits the reappointment of an incumbent. Below is an examination of what the legislative history and political context reveal about Congress’ motives in passing that law. It is clear that Congress viewed the operation of the statute as both a ceiling and a floor: a limit on the president and a limit on the director. It’s also clear that Congress viewed political influence on specific FBI investigations as violative of important norms developed to prevent the recurrence of dangerous abuses.
Congress first considered a law to require Senate confirmation and term limits for an FBI director in the closing years of J. Edgar Hoover’s directorship. Hoover was the FBI’s first director and was appointed by the Attorney General and not the president. He served 48 years until his death in 1972. Congress approached the issue in the context of Hoover’s extraordinarily long tenure, during which he consolidated control of the FBI and carried out substantial abuses of power.
In one sense, limiting an FBI director’s tenure to a single ten-year term should be understood as a check on the director’s power. Congress’ was concerned with the rise of another unscrupulous and excessively powerful director, and term limits were one way to prevent that. There is simply less one can do in ten years than in forty-eight, be it amassing influence or violating civil liberties.
In another sense, the term limit acts as a check on presidential power. Congress passed the ten-year term limit in the shadow of the abuses of President Richard Nixon and White House aides. The Senate Judiciary Committee held hearing on FBI oversight and a bill to establish a ten-year term in March 1974, the same month a federal grand jury indicted the “Watergate Seven” and named Nixon an unindicted co-conspirator. Nixon’s acting FBI Director and nominee for the permanent post, L. Patrick Gray, had resigned in 1973 after it was revealed that he was giving the White House daily briefings on the FBI’s Watergate investigation and that he destroyed documents relevant to the inquiry.
Congress wanted to address the Scylla and Charybdis of Nixon and Hoover: the risk of political interference in FBI investigations, and use of the Bureau for political purposes, on the one hand, and on the other, the danger of an imperial FBI director whose long tenure–and the secrets and political chits accumulated during that tenure–allows him to act without accountability.
The Senate Judiciary Committee was clear that “the Director’s responsibilities” are and must be “non-political.” According to the Committee, “[t]he position is not an ordinary Cabinet appointment which is usually considered a politically oriented member of the President’s ‘team.’“ If the director served as an ordinary political appointee, there is too much risk of “infringing individual rights and serving partisan or personal ambitions.” A ten-year term allows the director to serve longer than a two-term president, and takes the directorship vote off of the four-year presidential election cycle.
Even in independent agencies, which by design are given some protection from political control by the White House, agency heads can be fired by the president for good cause. For instance, a commissioner of the Federal Trade Commission “may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” The one instance prior to Comey when an FBI director was fired involved this kind of good cause. During Bill Clinton’s first year in office, Director William Sessions was fired after he refused the president’s request that he tender his resignation. This came after a Justice Department investigation begun during the administration of George H.W. Bush which found that Sessions abused FBI resources and funds for personal gain. It seems plainly appropriate to remove an FBI director for malfeasance that would satisfy a for-cause statute protecting an independent agency head. Notably, then the idea of the ten-year term as a ceiling has been largely uncontroversial, even when tested. In 2011, the Senate agreed to President Obama’s request that Congress extend Robert Mueller’s term for an additional two years, citing the need for continuity in addressing a changing threat landscape.
The legislative and political history leading to the ten-year term for the FBI director does in fact provide important context for assessing the propriety of President Trump’s actions, and gauging how Congress–if it puts principle above party–should respond. There are good reasons to be critical of how Comey handled the Clinton email investigation. But Comey as director was very, very far from being a Hoover, Pat Gray, or William Sessions. This is not to say that a president could never have been justified in removing Comey for missteps during the presidential campaign. But given all of the surrounding context, and the stench of corrupt intent emanating from this President, the mid-term removal of Comey seems to flagrantly violate Congress’ expectations about the proper relationships between the president and the FBI director. As the Senate Judiciary Committee warned in the wake of Watergate, the FBI director can never again be allowed to be a partisan member of a president’s team. That is especially true with this president.
No White House since Nixon’s has needed to be overseen by a truly independent FBI the way the current one does.