In his short presidency, Donald Trump has taken many abrupt actions – but perhaps none more controversial than the sudden firing of FBI director James Comey.
President Trump had the legal right to oust Mr. Comey. Still, Tuesday’s unusual move throws a question mark over the future of the agency’s investigation into whether Trump associates collaborated with the Russian government in the 2016 presidential election.
Comey’s departure, coming just days after he reportedly requested more funds, has raised concerns that the investigation could be slowed or otherwise thwarted. The FBI’s image as an independent law enforcement agency also hangs in the balance.
But if Trump thinks Comey's dismissal will squelch the Russia investigation, he’s wrong, says an informed source speaking on condition of anonymity.
“He just wants Russia to go away, but it’s not going to,” says the source. “Agents are going to keep working on this.”
Indeed, the FBI’s Russia investigation is likely to proceed as normal – at least for the time being – according to Justin Levitt, a former lawyer at the Department of Justice (DOJ).
The Russia investigation “depends on an awful lot of career FBI investigators who are professional and do their jobs, and they do that whoever the director of the FBI is, and they will continue to do that with whoever the director of the FBI is, unless they’re told to stop,” he says.
Moreover, a former FBI official confirms that if a new chief tried to derail the Russia probe, he or she would have a hard time doing so without triggering alarms within the agency.
“The FBI director can authorize or deny resources, so he can take his foot on or off the gas for an investigation, but it’s highly unlikely that he would have the ability to stop an investigation,” says Leo Taddeo, former special agent in charge of special operations in the FBI’s New York office, and current chief information security officer at the Florida-based Cyxtera Technologies. “That would be difficult for a director to do and maintain credibility with his own team.”
The White House maintains that it remains committed to seeing the investigation through. “We encourage them to complete this investigation so we can put it behind us,” Deputy White House Press Secretary Sarah Sanders told reporters Wednesday. “Nobody wants this to be finished and completed more than us.”
Continuity in the agency
As the head of the agency, the FBI director is aware of all the investigations the agency is conducting, but the depth of their personal engagement varies widely depending on the nature of the investigation. For the most part, the director at most receives occasional briefings on how an investigation is proceeding, experts and former FBI employees say, but when it comes to large, high-profile investigations, the director is much more involved.
“He’s more likely to be involved directly because of demands on him for information from Congress and others,” says Jonathan Smith, who was chief of special litigation in the Justice Department’s Civil Rights Division during the Obama administration. “He would be briefed frequently and involved in key decisions about how to proceed.”
Joseph J. Pelcher, a private investigator in New York state who worked at the FBI for 26 years, points to Comey deputy Andrew McCabe’s new role as the FBI’s acting director as evidence that there would be continuity with the investigation, at least in the short term.
“I’m sure he’s fully versed on the investigation, so there doesn’t have to be interruption,” he adds. The investigators “are just going to be briefing somebody different.”
Mr. McCabe's future at the FBI is also uncertain, however, with the Justice Department's Office of the Inspector General investigating whether he should have recused himself from the investigation into Hillary Clinton's emails. On Wednesday, Attorney General Jeff Sessions – who has recused himself from the Trump-Russia investigation – and his deputy, Rod Rosenstein, had already begun interviewing candidates to serve as interim FBI director."
Comparisons to Nixon era
Comey was named FBI chief by former President Barack Obama in 2013 for a term of 10 years. Comey was not universally loved within the agency, and over time partisans on both sides have had reason to be unhappy with him.
“Going into last year, Comey was generally considered to be a distinguished public servant with impeccable credentials, but his public discussion of ongoing investigations was unusual and troubling for many current and former federal prosecutors,” says James M. Koukios, former special counsel to former FBI Director Robert S. Mueller, III, and partner at Morrison & Foerster. “While there may have arguably been good reasons for Comey’s firing, the circumstances and timing of the move create the perception that it was politically motivated.”
Comey’s firing was not sparked by personal misdeeds, as in the case of the only other director to have been dismissed – William Sessions, whom former President Bill Clinton fired in 1993 amid ethics charges. The publicly stated reason for Comey’s dismissal – his handling of the Clinton email controversy – was laid out in a memo Tuesday by the new deputy attorney general, Rod Rosenstein.
White House sources suggest a different narrative – that Trump himself had been wanting to fire Comey for some time, but was waiting for the right moment. In his letter to Comey, the president said, “It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission.”
Some liken Comey’s firing to the “Saturday Night Massacre” of 1973, when President Richard Nixon fired Archibald Cox, the special prosecutor investigating Watergate. Nixon’s attorney general and deputy attorney general resigned in protest. But FBI chief isn’t the same as special prosecutor, whose job is to investigate a specific legal case.
There are several other notable differences, experts say, differences that perhaps illustrate how partisan American politics – and the Justice Department – has become.
For example, the fact that in Nixon’s day both Attorney General Elliot Richardson and William Ruckelhaus, his deputy, refused the president’s order to fire Mr. Cox and resigned instead is another sign of how the DOJ has changed, says Mr. Smith, who is now executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
“As horrible as [Watergate] was for us as a nation, it strengthened the Department of Justice and strengthened its integrity,” he adds. “I’m worried that that integrity is being eroded by this president and this attorney general.”
Others take a more optimistic view. Firing Cox “did not stop the investigation or the pursuit of justice," says Mr. Levitt, the former DOJ lawyer. "It slowed it down and caused a delay, but it didn’t actually stop the investigation from proceeding,” he says, “and that I think is likely to be similar.”
Much will depend now on Trump’s choice as Comey’s replacement, how that person fares during Senate confirmation, and whether he or she can command the confidence of FBI staff, members of Congress on both sides of the aisle, and the American people.
Names being floated to replace Comey include John Pistole, former head of the Transportation Security Administration; Kenneth Wainstein, a former general counsel at the FBI; and former Rep. Mike Rogers (R) of Michigan, an ex-FBI agent and former chair of the House Intelligence Committee.
While it is rare for a director to substantially impede, or shut down, an investigation, former agents say, it is well within a director’s power to do so.
“Employees of FBI are not independent of the FBI director. They work for him and follow his orders. It’s that simple,” says Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York.
“The [new] director could have total control over the investigation if he or she chose to exercise that control,” she adds. Furthermore, she says, with Comey’s dismissal, the incoming director “has now received a pretty strong message that his or her role is to either shut down the investigation or keep it from going too far.”
If they did, however, it may provoke a response from the Bureau’s rank-and-file.
“If someone comes in who may want to try to stop or impede the investigation from going forward, information will come out, there will be all types of leaks,” says Joseph R. Lewis, who spent 27 years at the FBI and is now a part-time private investigator in North Carolina.
“They won’t stand for anyone obstructing an ongoing investigation,” he adds, “particularly if it’s leading in a manner that supports what they thought it was going to be.”
Since Comey was fired, there have been reports that the FBI had issued subpoenas in its investigation of Michael Flynn, Trump’s former national security adviser, and that Comey had requested more resources for the Russia investigation just days ago.
“I think the Comey operation was breathing down the neck of the Trump campaign and their operatives, and this was an effort to slow down the investigation,” said Sen. Richard Durbin (D) of Illinois on Wednesday.
Based on reports of the subpoenas and Comey's request for more resources, Mr. Lewis believes that the investigation is heading somewhere.
“The director asking for additional resources, subpoenas being issued – they’re getting to brass tacks. They wouldn’t issue subpoenas unless they needed to get information and there’s a likelihood that information could be obtained through those records,” he says.
The Russia investigation “won’t die hard, it won’t die easy,” says Lewis. “There are too many professionals in that organization to allow that to happen.”
Staff writer Jack Detsch contributed reporting from Washington.