Who Is Being Considered To Succeed James Comey As Director Of The FBI?
Candidates include current and former judges, prosecutors, Biglaw partners, and other impressive individuals.
J. Edgar Hoover — not the best FBI director.
Or maybe the question should be, “Who is not being considered to serve as the next director of the FBI?” There might be some truth to this headline from The Onion: Trump Announces 40-Month-Long Search To Fill FBI Director Post.
At the current time, Andrew McCabe, top deputy to the recently dismissed James Comey, is serving as acting FBI director. It’s not clear how long he’ll stay in that post (especially after congressional testimony that probably didn’t endear him to the White House). He might be replaced as interim FBI director by one of the following individuals, according to the Washington Post:
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[Candidates interviewed on Wednesday by attorney general Jeff Sessions and deputy attorney general Rod J. Rosenstein] were Michael Anderson, the special agent in charge of the FBI’s Chicago division; Adam Lee, the special agent in charge of the FBI’s Richmond division; Paul Abbate, the executive assistant director of the FBI’s Criminal, Cyber, Response and Services Branch; and William “Bill” Evanina, the national counterintelligence executive in the Office of the Director of National Intelligence.
Far more interesting and important, however, is who will be nominated by President Donald Trump to serve as FBI director on a permanent — or maybe, in light of Jim Comey’s fate, not-so-permanent — basis. Guessing the identity of the future nominee has become Washington’s latest parlor game, and the list of possibilities is long.
What is the White House looking for in the next head of the FBI? According to the New York Times, administration officials seek someone with “a lack of deep ties to Mr. Trump, to avoid the appearance that he wants to install a crony at the top of an agency that is investigating the activities of his presidential campaign.” Per Politico, “Senators are calling on Trump to find the kind of consensus pick that has often proved elusive for the embattled president.”
President Trump’s firing of James Comey can be criticized or defended, but I think we can all agree that one downside was the optics: it could be seen, and has been seen by some, as an attempt to shut down or weaken the Trump/Russia investigation. So if Trump wants the strongest exoneration possible in the Russia probe, that exoneration should come from someone of unimpeachable integrity and independence. (The notion of nominating Judge Merrick Garland for the post is intriguing, but don’t hold your breath waiting for that to happen.)
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Here are 18 names floated for FBI director by the New York Times, the Washington Post, and Politico — in alphabetical order, with the publication(s) mentioning them indicated parenthetically, followed by brief blurbs:
1. Kelly Ayotte (NYT, P): former U.S. senator and former attorney general of New Hampshire. She’s popular among her former colleagues, but she has a history with Trump, whom she criticized during the presidential campaign. If nominated and confirmed, she’d be the first woman to lead the FBI.
2. Dana Boente (WP): U.S. Attorney for the Eastern District Virginia, interim head of the Justice Department’s national security division, and former acting deputy attorney general (in the wake of the firing of Sally Yates). Some Democrats might give him a hard time over Yatesgate, but I’m not sure that would get much traction (especially since he was appointed by President Obama to serve as U.S. attorney). An eminently sensible choice, even if not as “sexy” a pick as some of the others.
3. Chris Christie (P): New Jersey governor, former U.S. attorney (as anyone who watched a Republican primary debate knows; “when I was a federal prosecutor…”). Christie was an early and prominent Trump supporter, but that could raise questions about his independence. Also, his unceremonious removal as head of the Trump transition effort suggests he still might have foes in the administration (e.g., Jared Kushner, whose father Christie sent to prison when he was U.S. attorney).
4. Senator John Cornyn (NYT): senior U.S. senator from Texas, former Texas attorney general and associate justice of the Texas Supreme Court. Cornyn certainly has the credentials, but he might be too important in the Senate right now, as current Majority Whip. It might not make sense to remove him from that post, and he might not want to give it up to head the FBI anyway.
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5. Mark Filip (WP, P): senior litigation partner at Kirkland & Ellis, where he also serves on the management committee, and former federal judge, deputy attorney general, and assistant U.S. attorney. Filip has a great record and résumé (he also clerked for the late Justice Scalia), and judicial service is a big plus. As noted by the Times, “Judges were long selected to run the F.B.I. because they were seen as likely to keep agents within constitutional boundaries and were steeped in criminal law.” A perfectly plausible pick.
6. Alice Fisher (NYT): Latham & Watkins partner (and executive committee member); former head of the Justice Department’s criminal division, during the George W. Bush administration. A respected and experienced lawyer, who’d be the first female FBI director (but it’s not clear she has the “juice” to secure this high-profile position).
7. Rudy Giuliani (P): the former New York City mayor and Manhattan U.S. attorney has an extensive law enforcement background, but he also has… extensive baggage. For starters, he’d be criticized as too close to President Trump, whom he vocally supported during the 2016 election. He’s also about to turn 73 (May 28), so his time may have passed — as even he seems to realize, saying earlier this week, “I’m not a candidate for FBI director. The president’s not gonna ask me, and I’m not gonna be FBI director.”
8. Representative Trey Gowdy (NYT, P): Republican congressman from South Carolina, former state and federal prosecutor. He has lots of law enforcement experience, but his tenure as chair of the House Benghazi Committee makes him radioactive to Democrats — and not the right pick if the White House wants someone above the partisan fray.
9. Raymond W. Kelly (NYT, P): former New York City police commissioner. Highly regarded in law enforcement circles, Ray Kelly was previously considered to serve as FBI director (and supported for the post by Democratic Senator Chuck Schumer). But he has some enemies at the bureau, as a result of “turf wars” between the NYPD and the FBI, and at age 75, he might be too old (he’d be 85 at the end of his ten-year term).
10. Judge J. Michael Luttig (NYT, WP): general counsel at Boeing, former Fourth Circuit judge (1991-2006) and Department of Justice lawyer. Judge Luttig, one of the most highly regarded federal judges in the country during his 15 years on the bench, would be a superb pick, given his (well-deserved) reputation for brilliance, integrity, and commitment to the rule of law. He has not only judicial experience but also national security experience, thanks to his decade as GC of Boeing, a major defense contractor.
11. President John Pistole: president of Anderson University, a private Christian liberal arts university in Indiana; former FBI deputy director (under George W. Bush) and head of the Transportation Security Administration (nominated by President Obama). With his significant experience at both the FBI and in national security (through his TSA leadership), Pistole is a compelling candidate.
12. Mike Rogers (NYT, P): former Republican congressman from Michigan (2001-2015), former chairman of the House Intelligence Committee, and a former FBI agent himself. He might be just what the doctor ordered; per the Times, Rogers is regarded as a “straight shooter” at the bureau and “probably has the credibility to steer the F.B.I. out of a hurricane of bad publicity.” (Perhaps his only significant liability is brief service on the Trump transition team, which could raise the issue of his independence.)
13. Chuck Rosenberg (P): acting head of the Drug Enforcement, former federal prosecutor and chief of staff to Jim Comey. His extensive law enforcement background is a big asset, but Politico raises the possibility that his service as Comey’s right-hand man “might be too close for comfort for Trump.”
14. Judge Amy St. Eve (WP): current federal judge, former federal prosecutor and associate independent counsel in the Whitewater investigation. She has an excellent reputation, the advantage of judicial service (like Filip and Luttig), and the potential to make history as the first woman to head the FBI (like Ayotte and Fisher) — but query whether the Chicago-based judge has enough “mojo” inside the Beltway.
15. George Terwilliger (NYT, P): partner at McGuireWoods, where he leads the white-collar and crisis-management practices; former deputy attorney general under George H.W. Bush and U.S. attorney under Ronald Reagan. A very well-connected and well-respected lawyer, and certainly a viable choice.
16. Larry Thompson (WP, P): former deputy attorney general under George W. Bush, as well as a former U.S. attorney, King & Spalding partner, and Pepsico general counsel. As Politico points out, Thompson would make history as the first African-American head of the FBI, and he “enjoys a strong reputation among former Justice officials”; the main issue is his age (71).
17. Fran Townsend (P): former homeland security adviser to George W. Bush, former federal prosecutor (under then-U.S. Attorney Rudy Giuliani), former Main Justice lawyer (in the Clinton Administration). Townsend would be the first woman to lead the FBI, has served under both Republican and Democratic administrations, and was considered by the Trump administration to serve as Homeland Security Secretary. A strong contender, despite concerns about her DOJ service in the Clinton administration and her criticism of candidate Trump’s “Muslim ban” (if anything, these facts might help win her Democratic support).
18. Ken Wainstein (P): co-chair of the global litigation and white-collar practices at Cadwalader, former (and first) head of the Justice Department’s national security division, former U.S. attorney for D.C., and former general counsel and chief of staff to FBI director Robert Mueller. According to Politico, Wainstein “is widely respected by prosecutors and law enforcement officials, [and] was reportedly considered by President Barack Obama as a replacement for Mueller in 2011 before Obama asked Mueller to extend his term by two years.”
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Whew! That’s a lot of names, a lot of talent, and a lot of experience in law enforcement and national security. If I had to put them into tiers:
Top tier: Mark Filip, Michael Luttig, John Pistole, Mike Rogers, Ken Wainstein, Fran Townsend.
Middle tier: Kelly Ayotte, Dana Boente, Alice Fisher, Chuck Rosenberg, George Terwilliger, Larry Thompson.
Bottom tier: Chris Christie, John Cornyn, Rudy Giuliani, Trey Gowdy, Ray Kelly, Amy St. Eve.
President Trump and his advisors should easily be able to pick a strong nominee, capable of winning confirmation with bipartisan support, from this slate of distinguished public servants. And let’s hope they do just that, so we can move on from political controversy and focus on keeping our nation safe.
UPDATE (10:54 p.m.): Interviews are starting this weekend, per the Wall Street Journal:
Attorney General Jeff Sessions is scheduled to interview candidates to be the next FBI director on Saturday, including Sen. John Cornyn (R., Texas), according to people familiar with the interviews.
Other candidates expected to be interviewed that day include Michael Garcia, who was the U.S. Attorney in Manhattan in the George W. Bush administration and is now a state appellate court judge in New York, and Alice Fisher, who also served in a senior Justice Department role in the Bush administration, the people said.
FBI Acting Director Andrew McCabe will also be interviewed Saturday for the job, the people said.
Michael Garcia would be an excellent pick; he has judicial, Department of Justice, and Department of Homeland Security service. I’m pleasantly surprised to see Andrew McCabe on the list; he’s a well-regarded wunderkind of the FBI, but I thought the Trump administration wouldn’t have appreciated his recent congressional testimony. I’m still uncertain as to why Senator Cornyn would want the job.
UPDATE (5/13/2017, 7:45 p.m.): According to the AP, eight candidates have now been interviewed, including Mike Rogers, Fran Townsend, Judge Henry Hudson (E.D. Va.), and Adam Lee (head of the FBI’s Richmond office, and a candidate for interim director as well). All are solid candidates, in my view.
A Look at the Candidates Trump Is Considering to Head the F.B.I. [New York Times]
Justice Department interviewing candidates for Comey’s interim replacement [Washington Post]
11 possible contenders to replace Comey [Politico]
Former Sen. Kelly Ayotte among Trump’s candidates for FBI job [Politico]
Trump Announces 40-Month-Long Search To Fill FBI Director Post [The Onion]
Earlier: Judge Merrick Garland To Replace James Comey As FBI Director?
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
