Comey’s gone, now how do we replace him at the FBI?
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President Donald Trump precipitously dismissed FBI Director James Comey on Tuesday because “it is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission.”

Regardless of whether the president appropriately fired Comey, Trump must expeditiously nominate and the Senate should promptly confirm an exceptional replacement. The institution and smooth execution of expert, open, fair and swift nomination and confirmation processes are essential to “public trust and confidence” in the FBI and the president.

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The statute which creates the office of FBI director and the term of service provides guidance on filling that office. Congress grants the director extraordinary powers to investigate potential federal law violations and a ten-year term, which accord the director insulation from political pressures and independence from the president and lawmakers, who nominate and confirm the director.

 

The president can most effectively discharge his solemn nomination responsibility by seeking broad input and assiduously consulting Congress, especially the Senate which must provide advice and consent. 

The president should promptly seek recommendations on the nomination process and specific candidates from Congress’ members. For example, Trump might convene a meeting with Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe shifting impeachment positions of Jonathan Turley Rosenstein, Sessions discussed firing Comey in late 2016 or early 2017: FBI notes Justice Dept releases another round of summaries from Mueller probe MORE, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill Overnight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills GOP senators request interview with former DNC contractor to probe possible Ukraine ties MORE (R-Ky.) and Minority Leader Chuck SchumerCharles (Chuck) Ellis SchumerOvernight Health Care — Presented by Johnson & Johnson — Democrats call on Supreme Court to block Louisiana abortion law | Michigan governor seeks to pause Medicaid work requirements | New front in fight over Medicaid block grants House, Senate Democrats call on Supreme Court to block Louisiana abortion law Why a second Trump term and a Democratic Congress could be a nightmare scenario for the GOP MORE (D-N.Y.), Intelligence Committee Chair Robert Burr (R-N.C.) and Vice Chair Mark WarnerMark Robert WarnerHillicon Valley: FTC rules Cambridge Analytica engaged in 'deceptive practices' | NATO researchers warn social media failing to remove fake accounts | Sanders calls for breaking up Comcast, Verizon Bipartisan senators call on FERC to protect against Huawei threats Hillicon Valley: House passes anti-robocall bill | Senators inch forward on privacy legislation | Trump escalates fight over tech tax | Illinois families sue TikTok | Senators get classified briefing on ransomware MORE (D-Va.), Judiciary Committee Chair Chuck GrassleyCharles (Chuck) Ernest GrassleyOvernight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills GOP senators request interview with former DNC contractor to probe possible Ukraine ties Congressional leaders unite to fight for better future for America's children and families MORE (R-Iowa) and Ranking Member Dianne FeinsteinDianne Emiel FeinsteinGiffords, Demand Justice to pressure GOP senators to reject Trump judicial pick Senate confirms Trump pick labeled 'not qualified' by American Bar Association Feinstein endorses Christy Smith for Katie Hill's former House seat MORE (D-Calif.), House Speaker Paul RyanPaul Davis RyanHouse Ethics Committee informs Duncan Hunter he can no longer vote after guilty plea Duncan Hunter pleads guilty after changing plea Trump campaign steps up attacks on Biden MORE (R-Wis.) and Minority Leader Nancy Pelosi (Calif.).

The attendees should comprehensively, candidly and confidentially ventilate all issues relevant to the nomination and discuss candidates qualified to direct the FBI.

The president should quickly narrow the field of candidates and perhaps selectively broach these prospects with some attendees. The criteria for selection must be excellence, experience in law enforcement and independence. 

Examples of the type of people Trump should nominate include former directors Louis Freeh and Robert Mueller. Once the president secures comprehensive input on candidates, he must carefully review those ideas and astutely nominate the best individual who satisfies the criteria. 

When Trump announces the nominee, he should thoroughly explain the reasons for selection.

Upon receipt of the nomination, the Senate must assertively fulfill its advice and consent role. Complete, swift and fair assessment is critical, particularly because President TrumpDonald John TrumpTrump says he will 'temporarily hold off' on declaring Mexican drug cartels as terror organization House Judiciary Committee formally receives impeachment report Artist behind gold toilet offered to Trump sells banana duct-taped to a wall for 0,000 MORE may have conflicts of interest, especially regarding the FBI investigation of Russia’s interference in the U.S. elections and its possible collusion with the Trump campaign.

Judiciary Chairman Grassley must rapidly, fully and equitably investigate the nominee by helping the FBI conduct a background check. The chairman then should expeditiously convene a hearing. Members must thoroughly, rigorously and fairly question the nominee. 

Senators ought to guarantee that the nominee possesses superior qualifications, including complete independence, to discharge the Director’s critical responsibilities, especially leading the Russia probe, unless a special prosecutor or select committee is appointed. Soon after the hearing, Grassley must schedule a full, robust and fair discussion of the nominee and a vote.

If the committee approves the nominee, Majority Leader McConnell must rapidly arrange a comprehensive and fair Senate debate, which rigorously ventilates all relevant issues. McConnell next should conduct a ballot.

President Trump and the Senate must aggressively cooperate to ensure that the individual appointed FBI Director has the finest qualifications to discharge the office’s crucial responsibilities and the maximum independence. 

The president and senators can best guarantee public confidence in the new director and the FBI by following efficacious selection procedures. 

Carl Tobias is the Williams Chair in Law at the University of Richmond. His work has appeared in U.S. News and World Reports and The Guardian.


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