Not including the incumbent, only twelve men have served as director of the Federal Bureau of Investigation since the job was created, in its present form, in 1935: six in an acting capacity and six who were confirmed by the U.S. Senate (by contrast, over the same period, we have had 29 Senate-confirmed U.S. attorneys general).
How this jury of his peers might evaluate the current director, James Comey, it is impossible to say, and far too soon; Comey is not yet three years into a ten-year term. As of this week, though, at least one thing is certain: not since the inimitable J. Edgar Hoover, who bent the Bureau to his will for four turbulent decades, have the credibility and reputation of the FBI been so bound up in a single person.
In his unprecedented decision to air the findings of the federal investigation into Hillary Clinton’s personal email system—before, as he took pains to emphasize, these findings had been shared with prosecutors—Comey departed from standard Justice Department procedure, dispensed with longstanding practice, and denied Department officials the discretion (to file or decline criminal charges) that is their sole prerogative.
Citing a “number of factors” that government attorneys “necessarily weigh” before making any charging determination, the director asserted that “no reasonable prosecutor” would levy an indictment in this case. The fact that this is almost certainly true makes it no less problematic; we have no alternative but to take Comey’s word for it, as not a single prosecutor—reasonable or otherwise—was consulted.
Sympathizing with the FBI director’s predicament, and acknowledging the long shadow that the Clinton investigation has cast on the presidential campaign trail, some—including Jack Goldsmith, a Harvard Law professor and former colleague of Comey’s—have argued that the director took unorthodox but necessary action to preserve the credibility of the institution he leads. Just as Chief Justice John Roberts engineered an improbable rescue of the Affordable Care Act in hopes of inoculating his Supreme Court against allegations of partisanship—the thinking goes—so did Comey (in Goldsmith’s words) execute the “least bad choice he could make.”
The crucial difference, of course, is that Roberts was well within his authority as Chief Justice to craft a sensible interpretation of the law that also served the institutional interests of the Court. By contrast, the FBI director erred not in the exercise of his authority, but in his decision to exceed it—acting, singlehandedly, as prosecutor, jury, and judge.
As Comey himself explained to the Senate Judiciary Committee three years ago this week, during his confirmation hearing: “the FBI is and must be about finding the facts—and only the facts—in a fair, thorough, and objective way.” As the Bureau’s own website makes clear, “the FBI does not give an opinion or decide if an individual will be prosecuted.”
By explicating the evidence against Hillary Clinton in the court of public opinion—rather than keeping these findings confidential or allowing them to be introduced, and subsequently challenged, in a court of law—Comey clearly operated beyond his brief. Worse yet, his precedent-setting announcement invited one to imagine—as my former Justice Department colleague Matt Miller did, in The Washington Post—the specter of unconstitutional campaigns of intimidation carried out under color of law: a politically-motivated investigation of a right-leaning activist group, for instance, or “[a] Republican attorney general declining to bring charges against union officials but publicly excoriating their behavior[.]”
Of course, Comey himself has taken no such action, and no one who knows the director—personally, professionally (I served at the Justice Department for four years, including the first year of Comey’s tenure), or by reputation—can reasonably impugn either his integrity or his intentions. As an act of political jiu-jitsu in defense of his institution, Comey’s press conference was nothing short of brilliant. But as a matter of law enforcement, the unfortunate truth is that Comey could—and should—have handled the matter very differently.
First and foremost, federal prosecutors—including the attorney general, who did not recuse herself from this case—should have been allowed to review the FBI’s recommendations in a classified, or at least nominally private, setting. Secondly, the Justice Department should have announced the resolution of the investigation with a straightforward and strictly factual public statement, as it would have done in any other matter that did not culminate in the filing of charges—something like: “We have conducted an extensive investigation. Over the past year, X federal agents have reviewed Y documents and interviewed Z witnesses. We have carefully considered all available evidence and at this time have closed the investigation.” Finally, the question of whether some or all of this evidence should be released to the public should have been brought—by a news organization or some other interested party—before a judge, with whom the authority to order such disclosures properly rests.
Such an unsatisfying denouement would surely have touched off a political firestorm greater than the one that has smoldered in the press—and on Capitol Hill—since Comey stepped in front of the cameras. This, though, is completely immaterial.
The “intense public interest” Comey cited in explaining his “unusual transparency” in this case is both real and profound, as are the political exigencies from which he sought to extricate his Bureau (an effort that died, if indeed it ever lived, upon contact with a visibly seething Representative Jason Chaffetz). But there are far deeper interests at play in this case—interests that would have been better served by an FBI director who abided by the well-worn rules his dozen predecessors have established.
