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The Coming Comey Succession Crisis

It seems to me that there isn’t much more to be gained from exploring why President Trump fired FBI Director James Comey (Russia), whether he had the legal authority to do so (yes), or whether the move is nevertheless a monstrous violation of longstanding norms designed to insulate federal criminal investigations from White House political interference (yes). Instead, as Bobby Chesney and I discussed on today’s (bonus) episode of the National Security Law Podcast (to which you should subscribe, if you haven’t yet), the real line of inquiry should turn to what happens next at and with the Bureau–and, specifically, who the President nominates to succeed Comey.

For the political crisis to blow over, the nominee has to be someone with professional gravitas and a portfolio that suggests he or she isn’t just a partisan–someone who very well might stand up to a President intent on pressuring them to abandon an investigation that could implicate senior White House officials and/or inflict political damage on the incumbent administration. (Indeed, these were some of the very points made by Deputy Attorney General Rosenstein in the memorandum the White House has sought to invoke as cover for the firing.) That is to say, the real crisis would be if Comey’s successor as FBI Director is someone who is perceived as partisan, rather than principled–as the President’s “yes man,” exactly what, for all of his many flaws, Comey wasn’t and never would have been. The Rosenstein memo, in short, should become the yardstick against which anyone nominated to succeed Comey should be measured.

That’s why this tweet from Reuters’ Dustin Volz is so alarming:

And Fox is reporting that the “catastrophic” short list includes former Mayor Rudy Giuliani, former New Jersey Governor Chris Christie, and South Carolina Congressman Trey Gowdy.

Let’s just cut to the chase: Dustin chose the right adjective; each of these would be a catastrophic nominee to be FBI Director–especially in this moment, and especially as Comey’s successor. After all, do even those who support President Trump honestly believe that, as between acting on evidence of criminal activity by Trump campaign officials vis-a-vis Russia and a directive from the White House to direct their efforts elsewhere, any of these three would actually choose the former? (As opposed to not believing that the former exists?) More to the point, nominating someone like Christie, Giuliani, or Gowdy wouldn’t just be a f*** you to critics of the Trump administration; it would be a body blow to the perception that the FBI is above politics–a perception on which so much of our federal criminal justice system depends, especially in the cases that don’t generate headlines. Finally, such a nomination would also be self-defeating for the President’s own interests, since it would undercut whatever remaining force there was to the narrative that Comey was fired to preserve the integrity of the office (and the Bureau), rather than because it seemed, however myopically, to be in the President’s political interests at that moment.

Of course, there’s a veto-gate that such a nomination must get through–the Senate Judiciary Committee. That’s why, for all of the chatter about Republican members of Congress who expressed concerns over Comey’s firing, the statement that may matter the most came from that Committee’s Chairman, Iowa Senator Chuck Grassley. His response to critics of the move? “Suck it up and move on.” Will the other 10 Republican Senators on the Judiciary Committee (three of whom are up for re-election next November) take a similar view, or will they actually object to–and potentially block–a nominee who will not have widespread public trust to act independently of the White House? With all due respect to all of the ink that’s been spilled over the past day and a half, I’m increasingly convinced that that‘s the million-dollar question–and the real source of a potential constitutional crisis.

Image Credit: Chip Somodevilla / Getty


About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).