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 SessionsTrump vows to get rid of 'stench' at DOJ, FBI NY Times, McCabe give Trump perfect cover to fire Rosenstein, Sessions House Judiciary on NY Times article: I intend to subpoena 'McCabe Memos' MORE, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP, Kavanaugh accuser struggle to reach deal GOP making counteroffer to Kavanaugh accuser The Hill's 12:30 Report — Trump questions Kavanaugh accuser's account | Accuser may testify Thursday | Midterm blame game begins MORE (R-Ky.) and Minority Leader Chuck SchumerCharles (Chuck) Ellis SchumerTrump, GOP regain edge in Kavanaugh battle READ: President Trump’s exclusive interview with Hill.TV The Hill's 12:30 Report — Trump slams Sessions in exclusive Hill.TV interview | Kavanaugh accuser wants FBI investigation MORE (D-N.Y.), Intelligence Committee Chair Robert Burr (R-N.C.) and Vice Chair Mark WarnerMark Robert WarnerRussia docs order sets Trump on collision with intel community Hillicon Valley: North Korean IT firm hit with sanctions | Zuckerberg says Facebook better prepared for midterms | Big win for privacy advocates in Europe | Bezos launches B fund to help children, homeless Bipartisan trio asks US intelligence to investigate ‘deepfakes’ MORE (D-Va.), Judiciary Committee Chair Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley extends deadline for Kavanaugh accuser to decide on testifying Ben Carson appears to tie allegation against Kavanaugh to socialist plot Kavanaugh accuser seeks additional day to decide on testimony MORE (R-Iowa) and Ranking Member Dianne FeinsteinDianne Emiel FeinsteinGOP, Kavanaugh accuser struggle to reach deal GOP Senate candidate: Allegations against Kavanaugh 'absurd' Grassley panel scraps Kavanaugh hearing, warns committee will vote without deal MORE (D-Calif.), House Speaker Paul RyanPaul Davis RyanHow does the 25th Amendment work? Sinema, Fitzpatrick call for long-term extension of Violence Against Women Act GOP super PAC drops .5 million on Nevada ad campaign 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 TrumpHannity urges Trump not to fire 'anybody' after Rosenstein report Ben Carson appears to tie allegation against Kavanaugh to socialist plot Five takeaways from Cruz, O'Rourke's fiery first debate 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.


The views expressed by contributors are their own and are not the views of The Hill.