President-elect Donald Trump and his attorney-general designate Jeff Sessions come to office seeking to restore public confidence in the fairness and impartiality of federal law enforcement. After eight years of Attorneys General Eric Holder and Loretta Lynch, Americans have lost confidence in the Department of Justice. Recognizing this, Trump declared on November 21 that he had ordered his transition team to prepare executive orders to sign “on Day One to restore our laws and bring back our jobs.”
The most urgent matter that Attorney General Sessions will face is that of deciding the fate of FBI director James Comey. Comey was appointed in 2013 for a statutory term of ten years. In principle, however, he can be removed by the president at any time. President Bill Clinton removed FBI director William Sessions about halfway through his term on charges that Sessions had misused official resources. Although President Clinton discharged Sessions for cause, the statute creating the FBI director does not limit the grounds for termination, and we believe that the president’s constitutional authority of removal would allow him to fire Comey for any reason. Rather than firing the FBI director, however, it is more likely that the president would first request his resignation. We think that Director Comey should leave office for the good of the FBI and the nation.
Last July, on the basis of the information available at the time, we defended Comey’s decision to suspend the investigation of Hillary Clinton. Contrary to his apparent judgment that there was no probable case that crimes were committed, we argued that the country would be better served if the voters, rather than the criminal process, determined Clinton’s fitness to be president. But after Comey’s announcement, disturbing facts emerged that raised doubts about the integrity of his investigation into Clinton. Thereafter came Comey’s sudden changes of heart shortly before the election, first in re-opening, and then in closing, that investigation. Since the election, Clinton has squarely blamed Comey for her defeat.
In these circumstances, we think that Comey is too compromised to remain as FBI director. He may well have acted honestly, impartially, and conscientiously at every phase of the investigation. We do not question his integrity; his true motivations, whatever they may have been, will undoubtedly come to light in time. And he may have found himself in the position of chief prosecutor rather than chief investigator through no fault of his own, but because Bill Clinton’s meeting on the tarmac with Attorney General Loretta Lynch meant that she had to be disqualified from making the final judgment on whetheror not to prosecute Hillary Clinton.
Nonetheless, Comey’s three interventions in the election were, perhaps, key factors in the outcome. His initial choice to prematurely close the investigation — as well as reports that his aides have attempted to shut down inquiries into the Clinton Foundation — squarely thrust the FBI into partisan politics. His decisions have cost him the confidence of the half of the voters who supported Clinton. Many Trump voters have also come to mistrust him.