New FBI director must help restore faith in institutions
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Events of the last few days have driven home the serious challenges facing our investigative and national security agencies, most prominently the FBI. Faith in these institutions was already at alarmingly low levels, but it is sinking even further: Interjecting politics into matters of national security and criminal investigations has increasingly become acceptable behavior. 

The problems of former FBI Director James Comey demonstrate the crisis of confidence some of our key government agencies now face. This diminishing confidence did not occur overnight, and it will not reverse itself overnight. If confidence in, and the credibility of, the FBI and its sister investigative and intelligence agencies are to be restored, immediate and unequivocal public actions must be taken, starting with the appointment of an impeccably qualified and apolitical new director of the FBI. 

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It is important to keep in mind that this is not a Supreme Court appointment, wherein the politics-as-usual crowd triumphs or laments the fact that “the conservatives get to have their guy (and maybe for the next appointee, gal).” The appointment of the new director should be different. Many have observed that the appointees of the current president all appear to share the key traits of loyalty and dependability. 

 

If President Trump desires to make a meaningful and lasting impact on the business of government, the current FBI vacancy gives the president a golden opportunity to rise above partisan politics. Trump can demonstrate true leadership by consulting with the opposition and trying to find a consensus pick.

For their part, the Democratic leadership needs to signal to the president that they will not react reflexively against any suggested appointment simply because the president suggested that person. Let’s think boldly. With this single appointment, both the president and his Democratic opponents could take enormous steps to restore credibility — not just for the director of the FBI, but to the broader government establishment. 

To the Democratic leadership: Challenge the president by offering a short-list of names so highly qualified and nonpartisan that even Trump would have to think twice about ignoring it completely.

Or, to avoid the stigma of being suggested by one’s political opponent, agree to a process that has worked well for decades in the area of arbitration: Both the president and the Democratic leadership could submit a confidential list for the new director, with the blind trust in each other that if some of the same names appear on those lists, they should by default advance to the proverbial "short list.”

Putting aside the political self-interest of both the president and his Democratic opponents in actually getting something this significant accomplished by consensus, there is the overriding issue of the nation’s confidence in its institutions. Imagine for a moment how refreshing it would be if not just the Beltway insiders, but those that would mock them, joined to support a commonly-endorsed slate of candidates for director. 

That does not mean the Democrats — or, for that matter, the Republicans — should give any potential nominee on such a list a free pass, but the advanced vetting on both sides of the aisle should produce a presumption of qualification. That does not mean that no questions are asked, but it does mean that the ones that are asked are fair ones. 

Is this a naive notion? Perhaps so; but even assuming such a quixotic suggestion would be dead on arrival, there are also significant procedural measures that could restore confidence in the FBI, as well as its sister agencies in law enforcement and national security, regardless of who the nominee might be. 

Start with a self-imposed moratorium on news conferences by the director for the first 18 months. Couple that with focused executive sessions for congressional briefings, where senators and congressmen can avoid the temptation to grandstand for the media and, instead, engage in a substantive process that provides the candid information necessary for Congress to do its job. 

In the same vein — and even, perhaps, more importantly — leadership at the FBI needs to have a zero-tolerance policy for public discussion of ongoing investigations. Playing to the news cycle did not start with Director Comey, although he went a long way toward perfecting it.

The FBI needs to return to the time-honored tradition of refusing to comment on investigations and, even when those investigations are over, minimize at all costs the fanfare with which the results are announced.

If these simple, but long overdue, process protections can be restored, perhaps Director Comey’s peripatetic media and Congressional escapades may actually produce some good after all.

Robert Cattanach is a partner at the international law firm Dorsey & Whitney where he specializes in cybersecurity. Previously, Cattanach was special counsel to the secretary of the Navy and a former trial counsel in the Civil Division of the Department of Justice. 


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