You know you've got troubles when the leftest Politico is calling for the head of FBI Director C
With hard, hooded eyes and a pugilistic bearing, J. Edgar Hoover’s official portrait glowers—face fixed in a bulldog scowl—down the hallways of the FBI’s Washington headquarters. Even the building itself—a crumbling brutalist cathedral, windowless at street level and wreathed in security cameras—seems to evoke something of the man, its namesake, who bent the bureau to his will during the terms of eight presidents, from Coolidge to Nixon.
Hoover never so much as crossed the threshold of the office where his latest successor, James Comey, now works. Yet the edifice and the institution remain haunted by Hoover’s legacy of unchecked power, which rendered him judge, jury and executioner of anyone who came into his sights.
The FBI’s history is divided into two distinct epochs: Hoover and post-Hoover. After Hoover’s death in office in 1972, Congress enacted laws designed to curtail the abuses—from illegal wiretaps and “black bag” jobs to campaigns of intimidation and blackmail—that defined his 48-year reign. Of the six directors who have followed, all but one have projected far lower profiles, eschewing the dramatic assertions of power that made Hoover so dangerous. Only James Comey, the seventh and current FBI director, has strayed from this well-worn path.
On the surface, there are few direct parallels between Comey, a widely respected former prosecutor, and his most infamous predecessor. Where Hoover was pugnacious and inscrutable—lurching, hunched and furtive, between power and paranoia—the 55-year-old Comey is affable and open, with a reputation for honesty and a well-known aversion to politics. Yet there is a growing consensus that Comey has wielded the powers of the directorship more aggressively than anyone since Hoover—to the consternation, and even anger, of some of his colleagues.
Since taking office, Comey has repeatedly injected his views into executive branch deliberations on issues such as sentencing reform and the roots of violence against police officers. He has undermined key presidential priorities such as crafting a coherent federal policy on cybersecurity and encryption. Most recently, he shattered longstanding precedent by publicly offering his own conclusions about the FBI’s investigation into Hillary Clinton’s email. (The FBI did not respond to a request for comment.)
It would be difficult to argue—in terms of temperament, manner, or motivation—that he is, or ever will be, the next J. Edgar Hoover. But increasing numbers of critics believe he has displayed a worrying disregard for the rules and norms that have constrained all but one of his predecessors, straying with blithe confidence—and with increasing regularity—across the fine line that separates independence from unaccountability.
These concerns were only whispered about until July, when the FBI director’s public disposition of the Hillary Clinton email investigation stoked national controversy. Since then, even some of Comey’s supporters have been forced to concede that his exercise of power has been without precedent in the post-Hoover era. Among dozens of current and former Justice Department officials, this realization has given way to a rising sense of alarm: that our next president will find Comey just as untouchable as Hoover once was—and perhaps nearly as troublesome.
“[Comey] is totally acting inappropriately,” says criminal defense attorney Nick Akerman, a former U.S. attorney and special assistant Watergate prosecutor. “There’s no question about it.”
***
There is no evidence John F. Kennedy ever admitted, even to his closest aides, that he came to regret reappointing J. Edgar Hoover as FBI director. Yet one detects wry resignation in Kennedy’s rejoinder to friends and political allies who greeted the decision with dismay:
“You don’t fire God.”
This was hyperbole—but only just. Hoover had served the Department of Justice in one capacity or another as long as Kennedy had been alive. By the time of the FBI director’s death, his power ranged almost to the omniscient. Through its unscrupulous exercise, he had made himself untouchable—a profoundly dangerous thing for a law enforcement official to be.
It was in 1936—the year after the Bureau of Investigation adopted the word “Federal,” and became the FBI—that Supreme Court Justice Harlan Fiske Stone wrote, of himself and his colleagues on the bench, that “the only check upon our own exercise of power is our own sense of self-restraint.”
The same is true of the modern FBI director.
Although commonly misconceived as a kind of national police force, the FBI is actually, in the words of author Tim Weiner, “a secret intelligence service.” With a broad mandate “[t]o protect the American people and uphold the Constitution,” expansive authority to investigate individuals and organizations across the United States, and no clearly defined legislative charter—in fact, no charter at all—the FBI wields more power over the lives of ordinary Americans than any other agency of government. Much of this power is vested in the bureau’s director: an unelected officeholder who breathes the rarefied air near the summit of American executive authority; who is entrusted, almost without oversight, to exercise broad discretion in the use of invasive investigative tools; and whose behavior is constrained—not unlike that of a Supreme Court justice—more by precedent and institutional norm than by immutable rules of conduct.
According to Daniel Richman—a Columbia University law professor, former federal prosecutor, and longtime friend of James Comey—even these norms are surprisingly ill-defined. “The idea that there is a set, stable institutional dynamic is one that everyone pretends is possible to determine,” he says. “But when you look at the past, let’s say, four decades, you realize that norms are very hard to figure out.”
Over the course of those decades, the FBI has attempted, in fits and starts, to ensure that the abuses of the Hoover half-century can never happen again. Lawmakers have instituted a suite of reforms, including checks on the bureau’s ability to tap phones, conduct searches, and otherwise deploy its investigative resources. Many of these reforms were shaped by the hard lessons of Watergate (the burglary of the iconic hotel occurred just six weeks after Hoover’s funeral), when President Richard Nixon’s attempts to interfere with, obstruct, or shut down any federal investigation reinforced the need to insulate the FBI director from the vagaries of politics—and the agency as a whole from presidential temptation.
Among the most significant changes was a new requirement that FBI directors be appointed to fixed terms of 10 years, subject to congressional extension, rather than serve at the pleasure of the president. This was intended to create separation between law enforcement and other functions of government, holding the FBI at a deliberate remove from politics—and ensuring that its directors outlast the attorneys general, and even the presidents, to whom they nominally report.
The byproduct of such separation, though, is broad discretion: with feeble oversight from Capitol Hill, weak chain-of-command authority from the White House, and no outside agency with a clear mandate to monitor the bureau’s day-to-day activities, there are precious few opportunities to rein in, or even fire, an obstreperous FBI director. Indeed, an FBI chief has been dismissed only once—in 1993, when President Bill Clinton terminated Director William Sessions after he misappropriated FBI aircraft and money for personal use. Says Richman: “Our entire federal enforcement bureaucracy, like it or not, is based on a reliance—in part a matter of institutional design, in part a bet—that adults won’t abuse the incredible amount of power that’s been entrusted to them.”
The result is an uneasy stalemate between autonomy, which is eminently desirable, and unchecked power—which, of course, is not. Sustaining this fragile balance depends a great deal, in Justice Stone’s words, on the self-restraint of whomever holds the job.
***
Prior to 2013, James Comey was best known as the chief protagonist in a dramatic 2004 confrontation—between the Justice Department and the George W. Bush White House—that unfolded at the hospital bedside of then-Attorney General John Ashcroft. It is the stuff of Washington legend and has become a kind of founding myth for Comey’s public persona.
The trouble began in the early spring of 2004, when Justice Department officials informed the White House that they had serious reservations about a domestic surveillance program known as Stellar Wind. According to an evocative account in Washingtonian, Comey—who at the time served as deputy attorney general (the department’s second-in-command and a kind of chief operating officer)—took a hard line against the initiative during a meeting with White House officials:
“The analysis is flawed—in fact, fatally flawed. No lawyer reading that could reasonably rely on it,” Comey said, his hand sweeping across the table dismissively.
[Vice Presidential aide David] Addington, standing in the back of the room, spoke up. “Well, I’m a lawyer,” he snapped, “and I did.”
Responded Comey, “No good lawyer.”
The room went silent.
The notion that the deputy attorney general would assert, categorically, that “no lawyer” could rely on the White House’s reasoning—rather than confine himself to a critique of the analysis in question—is stunning. Disagreements about contentious legal and policy questions are to be expected among national security professionals who operate at such a high altitude, where choices are invariably difficult and shrouded in shades of gray.
Substantively, as virtually all observers now agree, Comey had a strong case to make. Yet with an imperious declaration that his was the only judgment that mattered, based on the Washingtonian account, he foreclosed the possibility of an amicable resolution—and set the stage for the showdown that followed.
Senior White House officials descended upon the intensive care unit where Ashcroft was convalescing after emergency surgery, hoping to bully the ailing attorney general into approving the surveillance program. Comey raced to the hospital to head them off, enlisting then-FBI Director Robert Mueller III to accompany him. With backup from Comey and Mueller, the bedridden Ashcroft held firm, the White House was forced to retreat, and the courageous deputy attorney general was hailed—almost universally—as a hero.
This is where the story customarily ends: with Comey, who would sooner have resigned (and taken Mueller with him) than violate his principles, riding into the sunset. But like so much of the mythmaking that goes on in Washington, this heroic picture—like Comey’s victory—is incomplete.
The truth is that Stellar Wind did not meet an ignominious end in Ashcroft’s hospital room in 2004. It continued through late 2011; some elements remain in place even today. And the program was reauthorized, with slight modifications, not in defiance of Comey’s categorical denunciations, but on his signature—less than a month after this high drama took place.
***
It has been a defining feature of America’s justice system, and even our method of self-government, that the process by which outcomes are reached is just (or nearly) as important as the outcomes themselves.
That is why judges dismiss criminal convictions, and vacate sentences, as a result of procedural violations at trial. It is why bribery and ballot-stuffing are antithetical to democratic ideals. And it is why some of James Comey’s Bush administration colleagues argued, according to a 2013 Daily Beast article, that his handling of the Stellar Wind dispute betrayed “a streak of self-righteousness and a flair for melodrama that has at times clouded his judgment.”
They contend that the same outcome—a modified but reauthorized version of the surveillance program—should have been achievable through the normal process of interagency review and consensus building (which, after all, is how executive branch policy is routinely decided). Neither the merits of Comey’s position, nor the purity of his motives, they say, can excuse his disregard for institutional comity.
This points to the most distressing aspect of the hospital-room episode: not its direct impact, but its consistency with a larger pattern of conduct. A pattern that—as one colleague predicted to The Daily Beast after Comey’s nomination as FBI director—was bound to repeat itself:
“If past is prologue,” says one former Justice Department official who worked with Comey and knows him well, “something will happen in the context of a legal, policy, or operational disagreement where Jim may get on the high horse and threaten to resign or take some other action unless things go the way he believes they should.”
***
Comey has yet to resort to resignation threats. But over the past three years, current and former Justice Department officials have watched with growing discomfort as his “streak of self-righteousness,” now essentially unchecked, has made him the most isolated, outspoken and openly defiant FBI director since Hoover.
When the Obama administration implemented major criminal justice reforms—including a policy that cut down on the use of mandatory minimum sentences—Comey responded by publicly defending the old system. “I know from my experience… that the mandatory minimums are an important tool in developing cooperators,” he said, referring to the practice of coercing defendants to work with investigators under threat of excessively long prison terms. Statistics show that this is not, in fact, the case—and that charging fewer mandatory minimums has had no effect on cooperation. Still, the damage was done, and Comey’s testimonial has been held up as gospel truth by political opponents of sentencing reform.
Later, when issues of race and policing surged in the headlines, the director again infuriated the president by asserting that violence against law enforcement is exacerbated by a so-called Ferguson effect: the notion that scrutiny of police officers somehow encourages their murder.
“I don’t know whether that explains it entirely,” he said in an October 2015 speech, “but I do have a strong sense that some part of the explanation is a chill wind that has blown through American law enforcement over the last year.” This concept has been thoroughly debunked by academics, discredited by groups like The Sentencing Project, and rejected by Obama and Attorney General Loretta Lynch. Yet, inexplicably, Comey has continued to advance this specious claim, reaffirming his belief in a “viral video effect” as recently as May—even after an Oval Office meeting intended to brush him back.
And early this year, when FBI agents were unable to access an iPhone belonging to the alleged perpetrator of the 2015 San Bernardino terrorist attack, Comey steamrolled his White House and Pentagon colleagues—even scuttling an administration-wide encryption policy that was under development—by insisting that Apple be forced to unlock the phone for the government.
To be sure, not all of Comey’s colleagues believe this pattern amounts to serious trouble. “There are administration agendas, and appropriately so, that [Comey] doesn’t always adhere to,” argues Richman, who served with Comey as a federal prosecutor in New York City. “And he takes his criticisms for that and, very quietly—and sometimes loudly—he takes his congratulations for that.”
Whatever criticisms or congratulations might be in order, the merits of Comey’s positions are largely beside the point. It is his apparent eagerness to interfere with policymaking functions of the executive branch—functions that normally fall outside the purview of law enforcement—that sets him apart from his predecessors. In contravention of interagency process and in open defiance of the White House, Comey has increasingly strayed from the FBI’s traditional “lane”—even as he has widened that lane by asserting unprecedented law enforcement authority.
***
In July, the FBI concluded its investigation into Hillary Clinton’s email practices—and Comey decided, with political and public curiosity at a fever pitch, to cast aside Justice Department policies that reserve for prosecutors the sole discretion to file or decline criminal charges.
Instead of consulting with his colleagues, he called a news conference that caught even the attorney general by surprise. Before banks of television cameras, he delivered a show-stopping performance that at once legally exonerated and publicly excoriated the Democratic nominee for president.
What Comey should have done, by many accounts, was handle the Clinton probe like any other routine inquiry: provide confidential recommendations to prosecutors, release a strictly factual statement noting that the investigation would be closed, and resist external pressures to inappropriately air the FBI’s findings outside a court of law. According to Akerman: “This is probably one of those [rare] cases where you would want there to be an announcement that no charges would be brought, based on the investigation. But to say anything beyond that is completely improper. And… what he's done has raised all kinds of innuendo.”
Rules and norms exist precisely because of extraordinary cases like Clinton’s, after all—not despite them. Respecting these constraints would therefore have been the right—and, by virtue of the political outcry it would have provoked, even the courageous—thing to do.
Instead, the FBI director did what would be perceived as courageous. In thus attempting to account for political realities, he bowed to them—an unfortunate lapse for a law enforcement leader and itself a nakedly political act. Comey then compounded this mistake by providing investigative documents to Congress and to the general public—extraordinary disclosures he defended last week in an equally extraordinary memo to FBI employees, first reported by CNN, in which he fired back at critics and again asserted the primacy of his judgment:
“I’m OK if folks have a different view of the investigation (although I struggle to see how they actually could, especially when they didn’t do the investigation), or about the wisdom of announcing it as we did (although even with hindsight I think that was the best course),” Comey said. “[B]ut I have no patience for suggestions that we conducted ourselves as anything but what we are—honest, competent and independent. Those suggesting that we are ‘political’ or part of some ‘fix’ either don't know us, or they are full of baloney [and maybe some of both].”
The memo is classic Comey: unapologetic and obdurately self-assured. But each subsequent disclosure has inflamed, rather than calmed, partisan furor. And together, these revelations have set a dangerous precedent: inviting political actors to second-guess the decisions and otherwise meddle in the inner workings, of the ostensibly apolitical FBI.
***
Since the announcement, Comey’s unorthodox handling of the Clinton case has made countless prosecutors profoundly uneasy. Many have been conspicuously unwilling to stand in his defense. Indeed, during a contentious hearing on Capitol Hill, Lynch—Comey’s nominal supervisor—repeatedly distanced herself from the FBI director’s news conference, tersely referring congressional inquisitors to his prepared statement and declining comment whenever specific questions were put to her.
Behind the scenes, others in the executive branch have been considerably less circumspect. “It’s really tough for all the attorneys [to speak out], because they all have to practice before DOJ,” says Matt Miller, who led the Justice Department’s Office of Public Affairs from 2009 to 2011. “But I’ve heard from dozens of officials, both current and former, and not one of them agreed with [Comey’s] decision to hold the press conference.”
By and large, Justice Department lawyers have declined to criticize Comey in public, for fear of angering the FBI director. But in personal conversations and expletive-laden email threads, many were apoplectic at his handling of the Clinton case. One aide described senior officials who should have been involved in the announcement scrambling to watch it on television. Some were particularly incensed by the editorial commentary sprinkled throughout Comey’s statement. As Benjamin Wittes, a senior fellow at the Brookings Institution, wrote on the blog Lawfare: “There is something horrible about watching a senior government official, who has used the coercive investigative capacities of the federal government, make public judgments about a subject's conduct which the Justice Department is not prepared to indict.”
In fact, according to Miller, this public recounting of evidence—which the FBI was unwilling to submit to adversarial testing in a courtroom—may have run afoul of Justice Department rules. Over the past several decades, strict guidelines have been adopted to prevent investigative findings (which are not introduced in court) from becoming fodder for extrajudicial smear campaigns—like the ones Hoover carried out against public figures such as Dr. Martin Luther King, Jr.
“To get up there and start moralizing about your opinion on what you think happened—and what should have been done and shouldn’t have been done—is not the job of the FBI director,” says Akerman. “It is not [even] the job of a prosecutor with the Department of Justice, and it's totally out of school. He has no business doing that.” Indeed, this transgression alone, committed by a government lawyer—or by any of Comey’s agents—would have invited official reprimand. But there is virtually no one who can reprimand an FBI director.
In the final analysis, what is most troubling about Comey’s handling of the Clinton email case is not the fact that it represents an escalation of an established pattern—or even that there is no mechanism for preventing a repeat performance. What is most troubling is that, at its core, the whole affair had relatively little to do with Hillary Clinton. It was, in Comey’s own words, a “way to maximize” his agency’s reputation: a bid to advance not the interests of justice, but the interests of James Comey.
***
In a government, as John Adams wrote, “of laws and not of men,” it is no small irony that the future of America’s premier law enforcement agency is bound, inextricably, to the actions of a single man.
Unlike his most infamous predecessor, James Comey is no tyrant. He harbors none of the naked ambition, petty insecurity, or thirst for power that made J. Edgar Hoover so insidious. On the contrary: Those who know Comey describe him as a good and decent man, a brilliant attorney, and a dedicated public servant without any whiff of politics about him.
“This is somebody who grew up in a variety of administrations, and was able to, I think, do a remarkable job of … always trying to do the right thing,” says Richman. “Hewing to that as your only goal is a really good start. Even if you don’t have divine wisdom to know what the right thing is, at least trying to get there is the beginning of a very promising relationship with power.”
Comey’s conception of right and wrong, and his career-defining passion for law enforcement, were undoubtedly shaped by a terrifying 1977 incident that—at the age of 17—first brought him into contact with the criminal justice system. As he recalled in 2014, during an interview for CBS’s 60 Minutes: “I was a high school senior and home alone one night with my younger brother, and a guy—a gunman—kicked in our front door at our home in New Jersey and held the two of us captive.”
After the brothers escaped from their assailant, they were recaptured, escaped a second time, and finally managed to contact police, at which point the intruder—a notorious local robber and rapist—vanished into the night. Although neither Comey nor his brother suffered physical injuries, he was haunted for years by the horrific episode. Decades later, he credited it with having made him “a better prosecutor and investigator” who was better able to relate to other victims of crime.
This is the James Comey that so many have come to admire over the course of his long and distinguished career: a man of depth and compassion. There is every reason to believe that he comes by his convictions honestly. But there, perhaps, is the rub: In his zeal to deliver results that reflect his own deeply-held conception of justice, Comey has significantly eroded the self-restraint that constitutes our last check upon his exercise of power.
Whatever Comey’s motivations, this “ends-justify-the-means” approach to law enforcement carries profound risks—and troubling implications not only for the remainder of his tenure, but for the future of the agency he leads.
“I think there is a danger here,” says Akerman. “This is not something that can be countenanced. ... What [Comey] did goes totally contrary to our system of justice.”
***
This month, as Comey begins the fourth of his 10 years as FBI director, he does so having already eclipsed each of his predecessors—save one—in autonomy and influence. And when, just four months from now, Obama leaves the White House—and takes with him every political appointee in the executive branch—the FBI director, with job security through 2023, will be one of the few senior officials left standing.
Come January, whoever steps into the Oval Office will find, in Comey, a formidable antagonist: not the wrathful demigod Kennedy encountered in Hoover, but every bit as untouchable.
Under a Hillary Clinton presidency, with wounds from the email investigation still fresh—and decades of bad blood between the two principals (a young James Comey served as deputy special counsel to the U.S. Senate Whitewater Committee])—the six city blocks between the White House and the J. Edgar Hoover Building would become an impassible divide. This would make even routine cooperation—for instance, on national security matters that necessarily involve the White House—fraught and difficult. Any attempt on Clinton’s part to rein in her wayward FBI director would surely smack of retaliation and provoke accusations of politicization. This would surely lead the president to give Comey an unusually wide berth—which would translate to a great deal of room to run.
A Donald Trump presidency, on the other hand, would pit the headstrong FBI director against a know-nothing strongman—a “law and order” president with little regard for the law. Dramatic and likely escalating, clashes would be virtually inevitable. And the potential for lasting damage would be immense.
In either scenario, over the next seven years, James Comey’s power will only continue to grow. There is no ready means to slow or stay a figure who has—for better or for worse—repeatedly defied presidents, shrugged off institutional constraints, and wielded the instruments of his office to mold outcomes to his will. We can only hope that
Comey will rediscover his sense of self-restraint. Otherwise, with more than two-thirds of his tenure still before him, the only question will be just how far our untouchable FBI director is willing to go.