The Trump administration noted Comey’s handling of the FBI investigation into Hillary Clinton’s use of a private email server as a reason for the dismissal. And the firing comes amid an investigation by the FBI into possible ties between President Trump’s campaign and Russian officials during the 2016 presidential election.
With many questions still unanswered, we spoke with faculty member Dan Urman, director of the undergraduate minor in law and public policy, about the timing of the administration’s decision and what may come next for the FBI and the congressional investigations into Trump’s possible Kremlin connection.
From a legal standpoint, does Comey’s dismissal affect his testimonies in both the House and Senate investigations?
As we saw Thursday, Comey will probably not testify in front of House or Senate committees unless he is subpoenaed. He is currently a private citizen and under no obligation to report on the FBI’s previous investigations.
Who does the FBI director report to, and what role, legally speaking, does the position play in federal law enforcement?
The FBI is technically part of the Justice Department, meaning the director reports up through the attorney general and to the White House itself. Before 1968, the attorney general unofficially nominated the FBI director, but it hardly mattered, since Director J. Edgar Hoover served from 1924 to 1972. In 1968, as Hoover approached retirement, Congress made the position a presidentially appointed one. Since then, the president can dismiss the director for any reason. Before Comey, this had only happened once. In 1993, Bill Clinton fired William Sessions (no relation to current Attorney General Jeff Sessions) after four attorneys general complained about Sessions’ management style and the Department of Justice produced a harsh internal ethics report about Sessions’ conduct. Clinton tried to convince Sessions to resign, but Sessions refused.
Directors are not required to be lawyers, but most have been. They serve single 10-year terms, in order to ensure independence. Non-renewal means they will avoid “politically expedient” decisions with the hope of job security.
The FBI’s official mission is to “Protect the American people and uphold the Constitution of the United States.” The position is mostly managerial; the director oversees a vast agency with more than 35,000 employees and a budget of nearly $9 billion. Congressional committees oversee the FBI’s budget and programs. The director of National Intelligence, another presidentially appointed position, oversees the FBI’s intelligence activities.
J. Edgar Hoover is remembered as a director with great autonomy over the bureau. Given Comey’s firing, is it fair to say that the position has evolved over time, or is this week’s dismissal an outlier?
It is impossible to overstate J. Edgar Hoover’s power. He led the FBI for almost 50 years; that’s unthinkable nowadays. As I mentioned earlier, congressional reforms have made the role a fixed and non-renewable 10-year term. The role has shifted greatly, especially after 9/11, when Director Robert Mueller formally shifted the FBI’s priorities from law enforcement to protecting the United States from a terrorist attack. Comey’s firing is, in my view, the exception rather than the rule. This could change, of course, if his successor gets fired short of a 10-year term.
There has been some speculation that a new FBI director, once confirmed by the Senate, could re-open the investigation into Hillary Clinton’s private email server. Is this allowed to happen under the law? What implications might this have on the FBI and the Russia investigation?
FBI agents have broad authority to investigate anyone, and during their second presidential debate, then candidate Donald Trump suggested that he would appoint a special prosecutor. Anything is possible, especially if Trump wants to keep his campaign promise. Trump said, “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception…There has never been anything like it, and we’re going to have a special prosecutor.” Still, I would be quite surprised if the new FBI director reopened the investigation, because it would it would represent unprecedented politicization of the Justice Department. Comey, in his July 2016 news conference, specifically noted that Clinton’s conduct with her emails was extremely careless, but not criminal.
Regarding Russia, reports indicate that the FBI is actively investigating ties between the Trump campaign and Russian officials. I doubt those will end upon Comey’s departure, especially because agents are reportedly upset about Comey’s firing. In fact, on Thursday, acting FBI Director Andrew McCabe pledged that he will not update the White House on the Russia investigation. This suggests that the probe will continue.
In both cases, it really depends on who succeeds Comey and whether that person wants to reopen that case. A director who functions as a lackey for the president has tremendous resources at his or her disposal.
Comey was in Los Angeles at the time of his firing. What happens to his files, such as those about the Russia investigation? Does he still have access to them? Under the law, who now controls those files and the information they hold?
Those files are the property of his previous employer—the FBI and federal government. A massive team working on the investigation still works at the FBI; this was far from a solo operation. The agents and FBI employees control the files and information and report up to the acting director.