The current search to replace former Federal Bureau of Investigation Director James Comey may not last long, if recent historical trends hold true. But any Comey replacement will need the constitutionally mandated consent of the Senate to win the job.
President Donald J. Trump fired Comey on Tuesday, leaving the current Deputy Director, Andrew G. McCabe, in charge of the bureau’s operation. There were also multiple reports that Trump and Attorney General Jeff Sessions were interviewing four candidates to serve as Acting Director until the President can officially nominate Comey’s replacement.
Under the Constitution’s Appointments clause, the President has a general power as head of the Executive branch to appoint “Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” A 1968 law made it clear that the President directly nominated the FBI Director to the Senate for approval. (In prior years, the Attorney General appointed the FBI Director.)
Since J. Edgar Hoover’s death in 1972, the replacement process for the FBI Director has usually happened quickly, with the exception of the failed Watergate-era nomination of L. Patrick Gray, the first choice to replace Hoover.
Hoover died on May 2, 1972 and Gray was appointed Acting Director the next day. Six weeks later, the Watergate break-in occurred. Gray served in that role for nearly a year, and for his last two months at the FBI, he was President Nixon’s official nominee to replace Hoover. Gray’s nomination was considered during 10 days of Senate hearings, but it was withdrawn by President Nixon as part of the bigger Watergate controversy.
Since then, six FBI Director nominees have appeared for Senate hearings, with the average time between a presidential nomination and a Senate confirmation lasting about 21 days. (Robert Mueller was re-confirmed under a consent agreement in 2011 and didn’t have a second set of hearings.)
In fact, the periods served by Acting Directors in between the departure of the Director and the nomination of a new Director have been longer – about 70 days on average for the five most-recent Acting Directors (not counting Gray.) John Otto, a career FBI official, served for 160 days as the Acting Director during the Ronald Reagan administration in between the terms of William Webster and William Sessions.
Like Supreme Court nominees, FBI Director nominees appear before the Senate’s Judiciary committee. But their testimony is far briefer. Clarence Kelley, who eventually succeeded Hoover, had four days of hearings in 1973. The last four nominees, Comey, Mueller, Louis Freeh and Sessions, each appeared for one day of hearings.
And of the nine nominations sent by the President to the Senate since Hoover’s death, seven were confirmed. Gray’s nomination was withdrawn by President Nixon, and Frank Johnson, a Jimmy Carter nominee, withdrew from consideration due to health issues.
The Senate confirms FBI Director nominees and the vote is not subject to the Senate’s filibuster rules. Job experience at the FBI isn’t required to serve as its director. Kelley was a long-time FBI agent but had retired before his nomination to replace Hoover. Freeh also served for six years as a field agent before moving to the U.S. Attorney’s office. Other FBI directors served as federal judges and U.S. attorneys before they were chosen to run the FBI.
The salary is an estimated $185,000 a year, including benefits.
Scott Bomboy is the editor in chief of the National Constitution Center.