The single best way to maintain the essential credibility of federal law enforcement would be for President Donald Trump to name a Democrat to run the FBI.
There is a rich tradition of hiring someone from the opposition party. Democrat Jimmy Carter named Republican Judge William Webster to head the bureau in 1978. In the shadow of the Watergate scandal, Carter correctly concluded that naming a director from the other party would provide needed public confidence that the FBI was above politics. And so it would today.
Democrat Bill Clinton named Republican Louis Freeh as his FBI director. Vice President Al Gore would probably have continued that trend had he become president. (I know from working on transition planning that he was considering three Republican judges as possible heads of the FBI.) Gore’s judgment, like that of Carter and Clinton, was that having a Republican FBI director would prevent any suggestion of partisan favoritism and lend credibility to any investigation that rejected allegations against his administration. And, of course, President Barack Obama extended the term of one Republican FBI head, Robert Mueller, and replaced him with another Republican, James Comey, who had served as deputy attorney general in the preceding administration of George W. Bush.
This same logic would also be appropriate for any selection of a special counsel. Attorney General Janet Reno, for example, wisely chose a Republican attorney, Robert Fiske Jr., to lead the investigation into the Clintons’ Whitewater issues.
Of course, there are many nominees from both parties who could inspire confidence: President Gerald Ford, for example, restored confidence in the Justice Department in the aftermath of Watergate by naming as attorney general someone who, although a fellow Republican, was seen as far above politics, University of Chicago President Edward Levi. But if there was ever a time it would be useful to continue the tradition of naming an FBI director from outside the president’s party, it is now. A president who has admitted demanding to know from the FBI director whether he was under investigation has created an urgent need for someone to assure the country that he or she could not be a partisan for the president.
On this score, the list of names supposedly under consideration could give pause. Sen. John Cornyn, R-Texas, for instance, may well be an honorable and able legislator, but why pick someone who has been an active political supporter of the president, whose campaign is under FBI investigation? Why not a senior judge who is not of the president’s party, or a former solicitor general such as Seth Waxman or a former national security official such as Lisa Monaco? Why not former prosecutor and Republican-appointed Judge David Levi, dean of Duke Law School, a Republican most of his life and now a registered independent (who also happens to be the son of Edward Levi)?
It’s true that everything we know about Trump suggests that he is unlikely to appoint someone who doesn’t show loyalty to him. But if Americans don’t believe Trump can be trusted to make major decisions about an FBI director or other matters in a thoughtful and disinterested way, we’re lucky to live in a nation of checks and balances.
A half-dozen principled Republican senators can, to a significant degree, influence the direction of the executive branch. Some among them could choose to join with the Senate minority and preclude passage of legislation or confirmations. (They should have, for example, declined to confirm any attorney general nominee without first insisting upon the appointment of a special counsel for the Russia investigation.) And they can, even now, create a list of outstanding men and women from whom the president would be urged to nominate an FBI director. By being passive, these senators own what Trump is doing.
In ordinary times, deference to a president’s choice of executive branch officials is appropriate, and practices such as senatorial courtesy are understandable. But these are surely not ordinary times: Is there any thoughtful person - Democrat or Republican - who does not fear that our democratic republic may be veering toward a crisis?
The Senate, with its six-year terms, is expected to be a moderating influence that would keep the national government from spinning out of control. Attention Sens. Susan Collins, John McCain, Bob Corker, Jeff Flake, Mike Lee, Lisa Murkowski, Lindsey Graham, Richard Burr, Rob Portman, Ben Sasse, Tim Scott, Lamar Alexander, perhaps others: This is your moment. This is your legacy. This is why we have a Senate.
Walter Dellinger, a lawyer in Washington, is the Douglas B. Maggs professor emeritus of law at Duke University and a former assistant attorney general.