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 SessionsDOJ should take action against China's Twitter propaganda Lewandowski says he's 'happy' to testify before House panel The Hill's Morning Report — Trump and the new Israel-'squad' controversy MORE, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP group calls on Republican senators to stand up to McConnell on election security in new ads The Hill's Morning Report - Trump hews to NRA on guns and eyes lower taxes Hobbled NRA shows strength with Trump MORE (R-Ky.) and Minority Leader Chuck SchumerCharles (Chuck) Ellis SchumerSaagar Enjeti: Biden's latest blunder; Krystal Ball: Did Schumer blow our chance to beat McConnell? Johnson eyes Irish border in Brexit negotiations Lewandowski on potential NH Senate run: If I run, 'I'm going to win' MORE (D-N.Y.), Intelligence Committee Chair Robert Burr (R-N.C.) and Vice Chair Mark WarnerMark Robert WarnerFacebook users in lawsuit say company failed to warn them of known risks before 2018 breach New intel chief inherits host of challenges Overnight Defense: US, Russia tensions grow over nuclear arms | Highlights from Esper's Asia trip | Trump strikes neutral tone on Hong Kong protests | General orders ethics review of special forces MORE (D-Va.), Judiciary Committee Chair Chuck GrassleyCharles (Chuck) Ernest GrassleyWhite House denies exploring payroll tax cut to offset worsening economy Schumer joins Pelosi in opposition to post-Brexit trade deal that risks Northern Ireland accord GOP senators call for Barr to release full results of Epstein investigation MORE (R-Iowa) and Ranking Member Dianne FeinsteinDianne Emiel FeinsteinTrump administration urges Congress to reauthorize NSA surveillance program The Hill's Morning Report - More talk on guns; many questions on Epstein's death Juan Williams: We need a backlash against Big Tech MORE (D-Calif.), House Speaker Paul RyanPaul Davis RyanPaul Ryan moving family to Washington Embattled Juul seeks allies in Washington Ex-Parkland students criticize Kellyanne Conway 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 Trump Former US ambassador: 'Denmark is not a big fan of Donald Trump and his politics' Senate Democrats push for arms control language in defense policy bill Detroit county sheriff endorses Booker for president 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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