FBI Director James Comey is scheduled to testify before lawmakers on Thursday about the bureau’s investigation into Russian tampering with the presidential election. Comey has said that investigation will also look at whether Russia colluded with President Donald Trump’s campaign. Meanwhile, the president said as recently as Tuesday that the “Trump/Russia” issue is “phony,” and he hinted he could decide to dismiss the FBI director.
When he took office, Trump decided to keep Comey, who was appointed by President Barack Obama but had also been a registered Republican and worked under President George W. Bush. Even so, Trump in April told Fox Business Network that “it’s not too late” to ask Comey to step down, adding, “I have confidence in him. We’ll see what happens. It’s going to be interesting.” He has also said Comey “saved” his election opponent, Hillary Clinton.
It’s not unusual for a United States president to spar with his FBI director. Since 1968, toward the end of J. Edgar Hoover’s nearly 50-year tenure leading the bureau, FBI directors have had 10-year term limits and cannot be reappointed. While that is meant to curb their power, it also means they can outlast even two-term presidents. (Congress and Obama granted Comey’s predecessor, Robert Mueller III, special permission to serve an extra two years.) The president nominates the FBI director, and the Senate confirms the nomination. The director serves within the Department of Justice, under the attorney general. He or she also reports to the director of national intelligence.
The president can also fire the FBI director, even without a stated reason for doing so. “There are no statutory conditions on the president’s authority to remove the FBI director,” the Congressional Research Service wrote in a 2014 report. The director is “an at-will employee,” says Scott Bomboy of the National Constitution Center, meaning “he or she will serve at the will of the president.” Bomboy points to the Constitution’s “Advice and Consent” clause, which grants the president power to hire people to work for the executive branch, with congressional approval. “Once that person’s approved, it’s really up to the president as the head of the executive branch to determine their employment status,” he says.
That doesn’t mean dismissing an FBI director would be without controversy. In the history of the bureau, only one president has done so. In 1993, President Bill Clinton let go of William Sessions after the Justice Department’s Office of Professional Responsibility said the FBI director had engaged in unethical practices, and after Sessions refused to resign. “The White House has made it clear for months that Sessions—with his disturbing history of ethics problems—was no longer welcome,” Newsweek reported just before Clinton announced the dismissal. “Sessions has been damaged goods for months.”
Congress also has the power to get rid of an FBI director, under the impeachment clauses of the Constitution. Those clauses state that the government can remove “civil officers of the United States” if the House of Representatives charges them with “high crimes and misdemeanors” and the Senate casts a two-thirds vote to do so, Bomboy has written. “There’s a really high bar for Congress actually to impeach somebody,” he says, counting just 19 occasions when federal officials faced impeachment proceedings.
The Department of Justice’s Office of the Inspector General is investigating Comey’s handling of the Hillary Clinton emails matter. If that probe finds evidence of misconduct, Trump could have a reason to call for the director’s resignation. “This is a very significant investigation,” Michael Bromwich, who served as the Justice Department’s inspector general under Bill Clinton, has told Newsweek, though he noted it is not without precedent, as he once investigated former FBI Director Louis Freeh. Bromwich said he expects the probe to take a year or more and to include interviewing the people involved and reviewing electronic communications. Then, the inspector general will issue findings and could recommend sanctions, at the Justice Department’s request. Those could include suspension or termination. “I absolutely think it’s justified,” Bromwich said of the inquiry, “and I don’t think there are very many people who take the opposite view.”
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If Trump were to dismiss Comey before the investigation into Russia’s election tampering is completed, the move would be similar to President Richard Nixon’s firing of Watergate Special Prosecutor Archibald Cox in 1973. In what became known as the Saturday Night Massacre, Nixon’s attorney general, Elliot Richardson, and deputy attorney general, William Ruckelshaus, both resigned when Nixon asked them to fire Cox. Solicitor General Robert Bork ultimately handled the dismissal. The ordeal “set loose a series of fresh convulsions that shook his scandal-ridden government to its foundations,” Newsweek reported in a cover story at the time.
Comey’s associates have told Newsweek it is unlikely that the director is afraid of Trump. “He’s very comfortable,” Michael Steinbach, who retired in February as the FBI’s executive assistant director overseeing national security, said in April. “He’s grounded in his family. He’s got a strong sense of beliefs. He’s going to do what he believes is the right thing to do for the country, for the FBI.”
The director said at an event in March, “We really don’t care whose political ox is gored by our work, and that is the passion at the heart of the FBI.”
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