President Trump’s decisive removal of FBI director James Comey predictably triggered an avalanche of Democratic-party criticism. Dropping their own bitter attacks of Comey without missing a beat, Democrats rallied to Comey’s defense. They compared Trump’s decision to Richard Nixon’s discharge of special prosecutor Archibald Cox during the Watergate investigation and claimed that, in Jeffrey Toobin’s words, the U.S. was undergoing “the kind of thing that goes on in non-democracies.” “They will put in a stooge who will shut down this investigation,” Toobin sagely opined.
Trump’s critics are the captives of their overwrought imaginations. The Watergate analogy is hackneyed. Trump made the right call. Comey had to go for the nation’s best interests. Indeed, Trump’s biggest mistake was one of timing – he should have told Comey to pack his bags on January 21, 2017, rather than waiting until the White House had become embroiled in controversy over the ties between the Trump campaign and Russia.
Several months ago, we urged Comey to do the nation the service of resigning. We argued that his repeated and clumsy interventions in last year’s presidential election had lost him the confidence of the public at large — left, right, and center. No FBI director – certainly none who professed to be concerned with the Bureau’s integrity and good standing – should have remained in office under those circumstances. By resigning, Comey would not have had to admit any fault on his part. Instead, he chose to stay on, apparently considering himself to be at once politically unassailable and also indispensable to the investigation of Trump’s campaign. He was dead wrong on both counts. His arrogance has cost him dear. Captain Ahab, meet Moby Dick.
Critics claim that, by firing Comey, Trump has attempted to abort the FBI’s investigation into alleged Russian hacking into the Democratic National Committee’s files and efforts to influence the presidential election. Color us skeptical about the alleged political collusion between the Trump campaign and Russia, and that any of Vladimir Putin’s schemes actually affected the outcome of the election. We are also unsure what federal law President Trump allegedly violated. Even if some of his campaign aides might have failed to register as foreign agents, or, in a worst-case scenario, even might have colluded with foreign powers, there appears to be no evidence that these alleged ties influenced the Trump campaign or the White House. Hillary Clinton lost because she was a terrible candidate and Trump won because he appealed to parts of the electorate that have suffered from economic globalization.
Trump’s critics err in believing that Comey’s departure will politicize, if not shut down, the FBI investigation of the “Russian connection.” They assume, as Comey himself did, that his continuance in office is indispensable to a full and fair investigation. But that assumption is mistaken. A new director of the FBI – if Trump picks the right person – will be in a far better position than Comey to persuade the public of the thoroughness and impartiality of the FBI’s scrutiny of last year’s presidential campaign.
Nevertheless, Trump has indeed arrived at a crucial moment in his administration. He will ultimately be judged, not for removing Comey, but for replacing him. It is critically important that Trump and Attorney General Jeff Sessions select a director in whom the American public can place its utmost confidence.
There is an echo of Watergate here, but it is not the one that Trump’s critics have in mind. After President Nixon’s resignation, his successor, Gerald Ford, had the task of picking a new attorney general. Nixon had thrown the Department of Justice into upheaval on October 20, 1973, when he fired Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus for refusing to fire Watergate special prosecutor Archibald Cox. The department began its recovery under a former senator, William Saxbe, and Deputy Attorney General Laurence Silberman. Ford’s choice to replace Saxbe, just a few months into his administration, was superb: He turned to Edward Levi, an eminent legal scholar who was serving at the time as president of the University of Chicago. In his two years as attorney general, Levi solidified the recovery of the Justice Department’s reputation and integrity.
Trump now has the similar task of finding a new Justice Department official to succeed Comey. Trump can put to rest the allegations that Comey’s removal obstructs the investigation into the Russian connection by nominating a figure of impeccable credentials and personal integrity who will pledge to continue the investigation no matter where it leads. For that reason, we think that nominating a former elected politician would be a mistake, because that nominee’s every move would raise doubts about partisan motivation – fairly or not. Instead, Trump should pick a former prosecutor or Justice Department official with a reputation for independence and long experience in law enforcement, with few if any ties to the Trump campaign or the administration. We have a few suggestions to offer:
First, Laurence Silberman. Silberman served as deputy attorney general in the wake of Nixon’s firing of Cox, and steered the Justice Department with distinction through the rest of Watergate. President Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit, where he has served ever since. George W. Bush asked him to co-head the bipartisan commission into the Iraq WMD controversy, which led to the overhaul of the intelligence community. (One of the authors served as a law clerk to Judge Silberman.) If anyone can help restore the Justice Department’s reputation a second time, it should be someone who did it the first time.
Larry Thompson. Thompson served as deputy attorney general in George W. Bush’s first term and previously held office as the U.S. attorney for Georgia under President Ronald Reagan. He was most recently general counsel of Pepsi and has taught law at the University of Georgia. Thompson joined Clinton-era deputy attorney general Jamie Gorelick in criticizing Comey’s public discussion of the Clinton e-mail investigation. While undeniably a conservative, he has a reputation for independence and integrity, and has long received support from both sides of the aisle as a prosecutor’s prosecutor. He would be the first African-American FBI director.
Trump should nominate a figure of personal integrity who will pledge to continue the investigation.
Michael Chertoff. Chertoff served in the George W. Bush administration as secretary of homeland security and assistant attorney general for the criminal division. He also held a judgeship in the U.S. Court of Appeals for the Third Circuit. Chertoff has a reputation as a fearsome courtroom prosecutor, and his long years of experience in both national security and law enforcement would be well suited for the Russia investigation. Chertoff also was one of the Republican national-security officials to sign a high-profile “Never Trump” letter, which might help deflect worries about his independence as FBI director.
Merrick Garland. Garland, of course, was the judge on the U.S. Court of Appeals for the D.C. Circuit whom President Obama nominated for the Supreme Court. While Garland is a liberal, he is a moderate one and his nomination received praise from Democrats and Republicans alike. After failing to receive a hearing or vote from the Republican-dominated Senate, Garland returned to the bench. Before joining the D.C. Circuit, Garland had served as a Justice Department official in the Clinton administration, where he won a reputation as a tough-on-crime prosecutor. Democrats might find their suspicions soothed by the appointment of a high-profile Democrat to head the Russian investigation, and their hurt pride salved by the appointment of someone whom they believed unjustly treated.
Trump made a good call in firing Comey, but even more important is whether he gets the next call right.