•• Congressional iiiiii§ • llo Research Service-------------------- FBI Directorship History and Congressional Action Vivian S Chu Legislative Attorney Henry B Hogue Analyst in American National Government July 25 2011 Congressional Research Service 7-5700 www crs gov R41850 CRS Report for Congress Prepared for Members and Committees of Congress FBI Directorship History and Congressional Action Summary The Director of the Federal Bureau of Investigation FBI is appointed by the President by and with the advice and consent of the Senate The statutory basis for the present nomination and confirmation process was developed in 1968 and 1976 and has been used since the death of J Edgar Hoover in 1972 Over this time five nominations have been confirmed and two have been withdrawn by the President before confirmation The position of FBI Director has a fixed 10-year term and the officeholder may not be reappointed There are no statutory conditions on the President’s authority to remove the FBI Director One Director has been removed by the President since 1972 The current FBI Director Robert S Mueller III was confirmed by the Senate on August 2 2001 and his term of office is set to expire in September 2011 In May 2011 President Barack Obama announced his intention to seek legislation that would extend Mr Mueller’s term of office for two years On May 26 2011 Senator Patrick Leahy introduced S 1103 a bill that would extend the term of the incumbent Director of the Federal Bureau of Investigation This bill was amended and passed by the Senate with unanimous consent on July 21 2011 This report first provides some legislative history surrounding the enactment of the 1968 and 1976 amendments to the appointment of the FBI Director as well as information on the nominees to the FBI Directorship since 1972 The report then discusses precedent for lengthening the tenure of an office and the constitutionality of extending the tenure of the Directorship for the current incumbent and addresses whether it would be necessary for Mr Mueller to be appointed a second time Congressional Research Service FBI Directorship History and Congressional Action Contents Overview 1 FBI Nominations and Confirmations 1973–Present 3 Congressional Action 5 Appointment and Precedent for Extending a Term of Office 7 Constitutionality of Extending the FBI Director’s Term of Office 8 Hearings 13 Reports 14 Tables Table 1 FBI Director Nominations and Confirmations 1973–Present 2 Contacts Author Contact Information 14 Congressional Research Service FBI Directorship History and Congressional Action Overview Federal statute provides that the Director of the Federal Bureau of Investigation FBI is to be appointed by the President by and with the advice and consent of the Senate 1 When there is a vacancy or an anticipated vacancy the President begins the appointment process by selecting and vetting his preferred candidate for the position The vetting process for presidential appointments includes an FBI background check and financial disclosure The President then submits the nomination to the Senate where it is referred to the Committee on the Judiciary The Committee on the Judiciary usually holds hearings on a nomination for the FBI Director The committee may then vote to report the nomination back to the Senate favorably unfavorably or without recommendation Once reported the nomination is available for Senate consideration If the Senate confirms the nomination the individual is formally appointed to the position by the President 2 Prior to the implementation of the current nomination and confirmation process J Edgar Hoover was Director of the FBI for nearly 48 years 3 He held the position from May 10 1924 until his death on May 2 1972 4 The current process dates from 1968 when the FBI Director was first established as a presidentially appointed position requiring Senate confirmation in an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 5 The proposal for a presidentially appointed Director had been introduced and passed in the Senate twice previously 6 but had never made it through the House Floor debate in the Senate focused on the inevitable end of Hoover’s tenure due to his advanced age the vast expansion of the FBI’s size and role under his direction and the need for Congress to strengthen its oversight role in the wake of his departure 7 In 1976 the 10-year limit for any one incumbent was added as part of the Crime Control Act of 1976 8 As with the previous measure the Senate had introduced and passed this provision twice previously 9 but it had failed to pass the House Since 1972 five nominees have been confirmed by the Senate for FBI Director including the most recent Robert S Mueller III and two other nominations have been withdrawn Each of these nominations is shown in Table 1 and discussed below 10 1 28 U S C § 532 note See also CRS Report RL31980 Senate Consideration of Presidential Nominations Committee and Floor Procedure by Elizabeth Rybicki 3 Since its beginning in 1908 the FBI was headed by a single individual known as the “Chief ” During the term of William Flynn in the 1920s the title to the position was changed to the “Director ” The Director of the FBI had been appointed by the Attorney General This was codified in statute in 1966 See 28 U S C § 532 P L 89-554 § 4 c 1966 “The Attorney General may appoint a Director of the Federal Bureau of Investigation The Director … is the head of the Federal Bureau of Investigation ” 4 For further information on the history and development on the FBI see the FBI history web page available at http www fbi gov gbihistory htm 5 P L 90-351 § 101 82 Stat 197 236 1968 The statute did not apply to Hoover the incumbent at that time but was worded to apply to future Directors beginning with his successor 6 S 603 88th Cong 1st sess 1963 and S 313 89th Cong 1st sess 1965 7 See Congressional Record vol 114 May 14 1968 at 13181-13184 8 P L 94-503 § 203 90 Stat 2407 2427 1976 9 S 2106 93rd Cong 1st sess 1974 and S 1172 94th Cong 1st sess 1975 10 This information does not include acting Directors The FBI’s list of its Directors and acting Directors can be found on the Internet at http www fbi gov libref directors directmain htm 2 Congressional Research Service 1 FBI Directorship History and Congressional Action Table 1 FBI Director Nominations and Confirmations 1973–Present Nominating President Nominee Date of Nominationa Committee Actionb L Patrick Gray III Richard Nixon Feb 21 1973 Hearings Feb 28 1973 Mar 1 6 7 9 12 20 21 22 1973 Nomination withdrawn by the President Message received Apr 17 1973 Clarence M Kelley Richard Nixon June 8 1973 Hearings June 19 20 25 1973 Approval and favorable report to the Senate on June 26 1973 Confirmed 96-0 June 27 1973 Frank M Johnson Jimmy Carter Sept 30 1977 William H Webster Jimmy Carter Jan 20 1978 William S Sessions Louis J Freeh Ronald Reagan William Clinton Robert S Mueller III George W Bush Sept 9 1987 July 20 1993 July 18 2001 Elapsed Timed Final Dispositionc 19 days Sworn-in July 9 1973 Nomination withdrawn by the President Message received Dec 15 1977 Hearings Jan 30 31 1978 Approval and favorable report to the Senate on Feb 7 1978 Confirmed without objection Feb 9 1978 Hearing Sept 9 1987 Approval and favorable report to the Senate Sept 15 1987 Confirmed 90-0 Sept 25 1987 Hearing July 29 1993 Approval and favorable report to the Senate on Aug 3 1993 Confirmed unanimous consent Aug 6 1993 Hearing July 30 2001 Unanimous approval and favorable report to the Senate on Aug 2 2001 Confirmed 98-0 Aug 2 2001 20 days Sworn-in Feb 23 1978 16 days Sworn-in Nov 2 1987 17 days Sworn-in Sept 1 1993 15 days Sources a Date of nomination was received by the Senate as indicated in the Journal of Executive Proceedings of the Senate or the Congressional Record b Some hearings information provided in this column was obtained from the respective hearings documents listed in this report Additional committee action information is taken from committee reports the Journal of Executive Proceedings of the Senate and the Congressional Record c Information provided in this column was obtained from the Journal of Executive Proceedings of the Senate and the Congressional Record and the Weekly Compilation of Presidential Documents d Includes all days from nomination to confirmation Congressional Research Service 2 FBI Directorship History and Congressional Action FBI Nominations and Confirmations 1973–Present L Patrick Gray III On the day after the death of long-time Director J Edgar Hoover L Patrick Gray was appointed acting Director 11 President Richard M Nixon nominated Gray to be Director on February 21 1973 Over the course of nine days the Senate Committee on the Judiciary held hearings on the nomination Although Gray’s nomination was supported by some in the Senate 12 his nomination ran into trouble during the hearings as others Senators expressed concern about partisanship lack of independence from the White House and poor handling of the Watergate investigation 13 The President withdrew the nomination on April 17 and Gray resigned as acting Director on April 27 1973 Clarence M Kelley Clarence M Kelley was the first individual to become FBI Director through the nomination and confirmation process A native of Missouri Kelley was a 21-year veteran of the FBI becoming chief of the Memphis field office He was serving as Kansas City police chief when President Nixon nominated him on June 8 1973 During the three days of confirmation hearings Senators appeared satisfied that Kelley would maintain nonpartisan independence from the White House and be responsible to their concerns 14 The Senate Committee on the Judiciary approved the nomination unanimously vote the following day He was sworn in by the President on July 9 1973 15 Kelly remained FBI Director until his retirement on February 23 1978 Frank M Johnson Jr With the anticipated retirement of Clarence Kelley President Jimmy Carter nominated U S District Court Judge Frank M Johnson Jr of Alabama on September 30 1977 Johnson faced serious health problems around the time of his nomination however and the President withdrew the nomination on December 15 1977 16 William H Webster In the aftermath of the withdrawn Johnson nomination President Carter nominated U S Court of Appeals Judge William H Webster to be Director on January 20 1978 Prior to his service on the U S Court of Appeals for the Eighth Circuit Webster had been U S Attorney and then U S District Court Judge for the Eastern District of Missouri After two days of hearings the Committee on the Judiciary unanimously approved the nomination and reported it to the Senate The Senate confirmed the nomination on February 9 1978 and Webster was sworn in on February 23 1978 17 He served as Director of the FBI until he was appointed as Director of the Central Intelligence Agency CIA in May 1987 11 U S President Nixon “Acting Director of the Federal Bureau of Investigation ” Weekly Compilation of Presidential Documents vol 8 May 8 1972 at 819-820 12 See e g Sen Roman L Hruska “The Nomination of L Patrick Gray to be Director of the FBI ” remarks in the Senate Congressional Record vol 119 February 21 1973 at 4863 Sen Lowell P Weicker Jr “The Nomination of L Patrick Gray III ” remarks in the Senate Congressional Record vol 119 March 20 1973 at 8685 13 See e g Sen Robert C Byrd “Political Partisanship Should Have No Place in the FBI ” remarks in the Senate Congressional Record vol 119 February 19 1973 at 4349 Sen Robert C Byrd “Executive Privilege and Mr Gray ” remarks in the Senate Congressional Record vol 119 March 19 1973 at 8352 14 See Mary Wilson Cohn ed Cong Quarterly Almanac 95th Cong 1st sess 1977 Washington Congressional Quarterly 1977 at 376-77 15 U S President Nixon “Director of the Federal Bureau of Investigation ” Weekly Compilation of Presidential Documents vol 9 July 16 1973 at 893-894 16 Carolyn Mathiasen ed Cong Quarterly Almanac 95th Cong 1st sess 1977 Washington Congressional Quarterly 1977 at 568 17 U S President Carter “Director of the Federal Bureau of Investigation ” Weekly Compilation of Presidential continued Congressional Research Service 3 FBI Directorship History and Congressional Action William S Sessions On September 9 1987 President Ronald W Reagan nominated William S Sessions Chief Judge of the U S District Court of Western Texas to replace Webster Prior to his service on the bench Sessions had worked as chief of the Government Operations Section of the Criminal Division of the Department of Justice and as U S Attorney for the Western District of Texas Following a one-day hearing the Committee on the Judiciary unanimously recommended confirmation The Senate confirmed the nomination without opposition on September 25 and Sessions was sworn in on November 2 1987 18 Sessions has been the only FBI Director removed from office to date President William J Clinton removed Sessions from office on July 19 1993 citing “serious questions about the conduct and the leadership of the Director ” and a report on “certain conduct” issued by the Office of Professional Responsibility at the Department of Justice 19 Some Members of Congress questioned the dismissal 20 but they did not prevent the immediate confirmation of Sessions’s successor Louis J Freeh President Clinton nominated former FBI agent federal prosecutor and U S District Court Judge Louis J Freeh of New York as FBI Director on July 20 1993 the day following Sessions’s removal The Committee on the Judiciary held one day of hearings and approved the nomination The nomination was reported to the full Senate on August 3 and Freeh was confirmed on August 6 1993 He was sworn in on September 1 1993 21 and served until his voluntary resignation which became effective June 25 2001 Robert S Mueller III On July 18 2001 President George W Bush nominated Robert S Mueller III to succeed Freeh and he was confirmed by the Senate on August 2 2001 by a vote of 98-0 22 Mueller served as the U S Attorney for the Northern District of California in San Francisco and as the Acting Deputy U S Attorney General from January through May 2001 The former marine had also been U S Attorney for Massachusetts and served as a homicide prosecutor for the District of Columbia 23 Under President George Bush Mueller was in charge of the Department of Justice’s criminal division during the investigation of the bombing of Pam Am Flight 103 and the prosecution of Panamanian leader Manuel Noriega 24 continued Documents vol 14 February 27 1978 at 396-97 18 U S President Reagan “Federal Bureau of Investigation ” Weekly Compilation of Presidential Documents vol 23 November 9 1987 at 1261-1263 19 U S President Clinton “Remarks on the Dismissal of FBI Director William Sessions and an Exchange With Reporters ” Weekly Compilation of Presidential Documents vol 29 July 26 1993 at 1373-1374 20 On the floor of the Senate Senator Orrin G Hatch praised Sessions’s service and characterized the Administration’s reasons for removing the Director as “vague ” Sen Orrin G Hatch remarks in the Senate Congressional Record Quarterly Almanac 103rd Cong 1st sess 1993 Washington Congressional Quarterly 1994 at 309 21 U S President Clinton “Remarks on the Swearing-In of Federal Bureau of Investigation Director Louis Freeh ” Weekly Compilation of Presidential Documents vol 29 September 6 1993 at 1680-1862 22 “Robert S Mueller III to be Director of the Federal Bureau of Investigation ” Congressional Record daily edition vol 147 August 2 2001 at S8680-S8691 23 U S President G W Bush “Remarks on the Nomination of Robert S Mueller to be Director of the Federal Bureau of Investigation ” Weekly Compilation of Presidential Documents vol 37 July 9 2001 at 1012-1013 24 Peter Slevin “Nominee Vows to Restore Faith in FBI ” Washington Post July 31 2001 at A4 Congressional Research Service 4 FBI Directorship History and Congressional Action Congressional Action Robert S Mueller III who was appointed in 2001 is expected to finish his 10-year term as director in August or September 2011 25 In early May 2011 the White House announced that President Barack Obama would seek legislation to permit Mueller to stay for an extra two years citing the need for continuity in national security at the FBI while leadership transitions take place at other intelligence agencies 26 On May 26 2011 Senator Patrick J Leahy chairman of the Senate Committee on the Judiciary introduced S 1103 a bill that would extend the term of the incumbent director of the FBI for an additional two years The bill was cosponsored by the ranking Member of the committee Senator Chuck Grassley as well as the leadership of the Senate Select Committee on Intelligence Chairman Dianne Feinstein and Vice Chairman Chuck Grassley On June 8 2011 the Senate Committee on the Judiciary held a hearing on the proposed extension of Mueller’s tenure 27 Mueller was the first witness and responded to Members’ questions about both the proposal to extend the his term in office and substantive issues related to the policies and operations of the FBI During the second and final panel of the hearing the questions and statements of committee Members as well as the testimony of witnesses was primarily directed toward constitutional considerations related to S 1103 On June 16 2011 the Senate Committee on the Judiciary considered S 1103 and adopted by unanimous consent a substitute amendment offered by chairman Leahy that added a section on findings to the original text The committee tabled an amendment offered by Senator Tom Coburn that would have authorized an additional two-year term to which the current incumbent could be nominated and confirmed with the consent of the Senate 28 The committee voted to report favorably the bill as amended with the findings and issued an accompanying report on June 21 2011 29 A few days later at the request of Senator Coburn minority views on S 1103 were printed in the Congressional Record by unanimous consent 30 25 According to the FBI website Mueller “became the sixth Director of the Federal Bureau of Investigation on September 4 2001” http www fbi gov about-us executives director A White House statement released on May 12 2011 indicated that Mueller’s term would expire on September 4 2011 http www whitehouse gov the-pressoffice 2011 05 12 president-obama-proposes-extending-term-fbi-director-robert-mueller More recently however the Obama Administration reportedly has determined that “Mueller’s last day is likely to be Aug 2 because President George W Bush signed his appointment on Aug 3 2001” Charlie Savage “Republicans Hold Up Vote on Extension of F B I Term ” New York Times July 16 2011 at A13 26 See White House Press Release President Obama Proposes Extending Term of FBI Director Robert Mueller May 12 2011 available at http www whitehouse gov the-press-office 2011 05 12 president-obama-proposes-extendingterm-fbi-director-robert-mueller 27 Information concerning this hearing which was entitled “The President's Request to Extend the Service of Director Robert Mueller of the FBI Until 2013 ” may be found on the committee’s website available at http judiciary senate gov hearings hearing cfm id e655f9e2809e5476862f735da16dc8fb The description presented here was drawn from a transcript of the hearing created by CQ com 28 The Coburn amendment was rejected by an 11-7 roll call vote 29 U S Congress Senate Committee on the Judiciary A Bill to Extend the Term of the Incumbent Director of the Federal Bureau of Investigation report to accompany S 1103 112th Cong 1st sess June 21 2011 S Rept 112-23 Washington GPO 2011 The committee voted in favor of the bill by an 11-7 roll call vote 30 “Minority Views---S 1103 ” remarks Sen Tom Coburn in the Senate Congressional Record vol 157 part 91 June 23 2011 at S4069-S4070 Congressional Research Service 5 FBI Directorship History and Congressional Action Subsequent news reports indicated that the Administration had agreed to the Coburn approach to re-nominate the Director for an extra two-year period 31 Chairman Leahy on July 18 2011 remarked that he “was willing to proceed along the lines of an alternative approach” proposed by Senator Coburn because he “was assured by the Senator from Oklahoma that he would get unanimous consent to do all the short time agreements to get the bill passed get his amendment passed get it through the House and back and get Director Mueller confirmed with a 2-hour time agreement ” 32 Even though he had indicated earlier that this could be “an additional unnecessary and possibly dangerous complication ” Chairman Leahy concluded that “if we did all of the aforementioned before August 2 2011 it would not be the best of solutions but it would be better than what we have now ” 33 Although reportedly subject of a hold that was eventually lifted 34 the Senate on July 21 2011 took up S 1103 and amended it with the Coburn language The bill as amended was then passed by unanimous consent The Senate also agreed that if the bill were passed by the House and signed into law a subsequent nomination would receive expedited consideration I f Robert S Mueller III is nominated to be Director of the Federal Bureau of Investigation the nomination be placed directly on the Executive Calendar that at a time to be determined by the majority leader in consultation with the Republican leader the Senate proceed to executive session to consider the nomination that there will be 2 hours for debate equally divided in the usual form that upon the use or yielding back of time the Senate proceed to vote without intervening action or debate on the nomination the motion to reconsider be considered made and laid upon the table with no intervening action or debate that no further motions be in order to the nomination that any statements related to the nomination be printed in the Record that the President be immediately notified of the Senate's action and the Senate resume legislative session 35 While the amended version of S 1103 would provide expedited nomination procedures for the incumbent director’s second term of two years the remainder of this section discusses precedent for lengthening the tenure of an office the constitutionality of extending the tenure of the directorship for the current incumbent and addresses whether it would be necessary for Mueller to be appointed a second time and be subject to Senate confirmation hearings under such circumstances 31 Charlie Savage “Republicans Hold Up Vote on Extension of F B I Term ” New York Times July 16 2011 at A13 32 “Extending Service of FBI Director Robert Mueller ” remarks Sen Patrick J Leahy in the Senate Congressional Record vol 157 part 107 July 18 2011 at S4632 33 Id 34 Seth Stern “Kentucky’s Paul Holds Up Effort to Extend FBI Director’s Term Askes for Meeting ” CQ Today Online News July 18 2011 available by subscription at http www cq com doc news3910161 wr bGFldXRDRDVoeG83OXVsblQ2eTB1dw See also Sen Patrick J Leahy “Extending Service of FBI Director Robert Mueller ” remarks in the Senate Congressional Record vol 157 part 107 July 18 2011 at S4631S4633 See also Seth Stern “Bill to Extend Mueller’s Term as FBI Chief Heads to House After Passing in Senate ” CQ Today Online News July 21 2011 available at http www cq com doc news-3913526 35 “FBI Director Extension Act 2011 ” remarks Sen Harry Reid in the Senate Congressional Record vol 157 part 110 July 21 2011 at S4780 Congressional Research Service 6 FBI Directorship History and Congressional Action Appointment and Precedent for Extending a Term of Office Congress has previously lengthened the term of office for incumbents For example Congress extended the terms of the members serving on the Displaced Persons Commission for purposes of permitting the commission to finish carrying out its duties The original act passed in 1948 established a commission consisting of three commissioners appointed by the President with the advice and consent of the Senate whose terms were to end June 30 1951 36 Prior to June 30 however Congress amended the act to extend the terms of the commissioners and that of the commission through August 31 1952 37 The Attorney General issued an opinion in response to the President’s inquiry as to whether two incumbent commissioners’ existing appointments were valid until August 31 1952 or if the commissioners would cease to hold office on June 30 1951 38 Citing prior incidences where Congress extended terms of offices for certain commissions 39 the Attorney General concluded there would be no need for the President to submit new nominations to the Senate and that the two commissioners would continue to hold office validly after June 30 Congress has also extended the life of the United States Parole Commission Parole Commission several times and the tenure of its commissioners twice Although its history dates back to the 1930s Congress in 1976 established the Parole Commission as an independent agency within the Department of Justice with nine commissioners to be appointed by the President with the advice and consent of the Senate for a term of six years Under the statute a commissioner can hold over until his successor is nominated and qualified but may not serve for longer than 12 years 40 Although Congress enacted a law to abolish the Parole Commission in 1984 it effectively extended on a temporary basis the life of the Parole Commission and the terms of offices for an additional five years from the time the sentencing guidelines became effective 41 This meant that beginning in 1987 the incumbent commissioners whose terms would have otherwise expired in six years could serve for an additional five years With the Parole Commission and the terms of office slated to expire in 1992 per the five-year extension Congress again lengthened the life of the commission and the tenure of the incumbent officers for another five years through 1997 42 Even though the existence of the commission was extended several times thereafter 43 Congress 36 P L 80-774 62 Stat 1012 1948 P L 81-555 64 Stat 225 1950 “Section 8 of the Displaced Persons Act of 1948 is amended by striking out the date ‘June 30 1951’ in the first sentence and inserting in lieu thereof the date ‘August 31 1952 ’” 38 41 Op Att’y Gen 88 1951 released for publication January 30 1958 39 Id at 90-91 The opinion noted the extension for incumbent Directors of the Reconstruction Finance Corporation from January 22 1950 to June 30 1950 See P L 72-2 47 Stat 5 1932 and P L 80-548 62 Stat 262 1948 It also cited the extension for commissioners of the Atomic Energy Commission from August 1 1948 to June 30 1950 See P L 79-585 60 Stat 756 1946 and P L 80-899 62 Stat 1259 1948 Notably the Atomic Energy Commission was formally abolished in 1974 by the Energy Reorganization Act of 1974 P L 93-438 88 Stat 1233 1974 The Attorney General’s opinion stated that in both of these extensions the incumbents continued to serve and that no new nominations were submitted to the Senate 40 P L 94-233 90 Stat 219 1976 codified at 18 U S C § 4202 repealed 41 P L 98-473 98 Stat 2032 1984 Section 235 b 2 “Notwithstanding the provisions of section 4204 of title 18 United States Code as in effect on the day before the effective date of this Act the term of office of a Commissioner who is in office on the effective date is extended to the end of the five-year period after the effective date of this Act ” 42 P L 101-650 104 Stat 5115 1990 Section 316 “For the purposes of section 235 b of P L 98-473 … each reference in such section to ‘five years’ or a ‘five-year period’ shall be deemed a reference to ‘ten years’ or a ‘ten-year period’ respectively ” 43 Congress passed the Parole Commission Phaseout Act of 1996 which extended the life of the Commission for another five years from 1997-2002 P L 104-232 110 Stat 3055 1996 In 2002 Congress passed the 21st century continued 37 Congressional Research Service 7 FBI Directorship History and Congressional Action in 1996 when it extended the life of the commission for another five years through 2002 repealed the provision that would have simultaneously extended the terms of the commissioners’ offices 44 This action “reinstituted” the 12-year time limit meaning that some of the long-standing incumbent officers would not be able to continue serving Because of the lengthened tenures a few of the commissioners who otherwise would have had to be reappointed after their sixth year assuming they were not staying pursuant to the holdover clause continued to hold office validly without reappointment or a second confirmation hearing 45 For example Commissioner Vincent J Fechtel Jr served for a total of 13 years from November 1983 to April 1996 46 It is also worth noting that when Congress considered the single 10-year term limit for the FBI Director other proposed term limitations raised during the Senate debate included a single 10year term with an additional five years subject to approval by Congress 47 and a four-year term with the right to reappoint for additional four-year terms 48 It also appears that the original bill S 2106 as introduced by Senator Robert C Byrd in the 93rd Congress would have permitted the FBI Director to serve no more than two 10-year terms 49 In the aftermath of J Edgar Hoover’s near 50 years as Director of the FBI and the inherent political sensitivities of the position 50 Senator Byrd stated that “after much reflection that 20 years is too long a time for any one man to be Director of the Federal Bureau of Investigation … s o S 2106 if it is amended I believe will erect a valuable check upon the possible abuse of executive power ”51 Constitutionality of Extending the FBI Director’s Term of Office Constitutional analysis of an extension of the Director’s term depends on how an extension reads and whether the President would retain the plenary authority to remove the Director 52 The continued Department of Justice Authorization Act of 2002 to extend the life of the commission for another three years P L 107273 116 Stat 182 195 2002 In 2005 Congress passed the U S Parole Commission Extension Authority Act to extend the life of the commission another three years from 2005 to 2008 P L 109-76 119 Stat 2035 2005 Most recently Congress passed the U S Parole Commission Extension Act of 2008 which extended the commission through 2011 P L 110-312 122 Stat 3013 2008 44 P L 104-232 110 Stat 3055 3056 1996 Section 4 “Section 235 b 2 of the Sentencing Reform Act of 1984 98 Stat 2032 is repealed ” 45 For example two longstanding commissioners were Victor M F Reyes who served from December 1982 through December 1992 and Jasper R Clay Jr who served from October 1984 through October 1996 Each commissioner was only nominated and appointed one time 46 USDOJ USPC Our History available at http www justice gov uspc history htm 47 “Ten Year Term for FBI Director ” remarks Sen Roman L Hruska vol 120 Congressional Record 34085 October 7 1974 48 “Ten Year Term for FBI Director ” remarks Senator William L Scott vol 120 Congressional Record 34086 October 7 1974 Senator Scott offered the four-year term proposal as an amendment which was voted on and not adopted by the Senate Senator William Brock also mentioned but did not offer as an amendment his proposal of a six-year term subject to the possibility of reappointment 49 “Ten Year Term for FBI Director ” remarks Senator Robert C Byrd vol 120 Congressional Record 34084 October 7 1974 50 “If there is one thing that must not happen again in this country it would be the transition of the FBI into a political police force or into a politicized organization in any fashion ” remarks Senator Robert C Byrd vol 120 Congressional Record 34084 October 7 1974 51 “Ten Year Term for FBI Director ” remarks Senator Robert C Byrd vol 120 Congressional Record 34084 October 7 1974 52 Though not discussed in detail here it should also be noted that as a civil officer of the United States the FBI continued Congressional Research Service 8 FBI Directorship History and Congressional Action Appointments Clause states that the President “shall nominate and by and with the Advice and Consent of the Senate shall appoint Ambassadors other public Ministers and Consuls Judges of the supreme Court and all other Officers of the United States whose Appointments are not herein otherwise provided for and which shall be established by Law ”53 It has long been recognized that “the power of removal is incident to the power of appointment ”54 This maxim was addressed more fully in Myers v United States where the Supreme Court addressed the President’s summary dismissal of a postmaster from office in contravention of a statute requiring that the President obtain the advice and consent of the Senate prior to removal 55 In Myers the Supreme Court ruled that the President possesses plenary authority to remove presidentially appointed executive officers who have been confirmed by the Senate 56 and other presidentially appointed executive officers so long as Congress does not expressly provide otherwise 57 Clarifying the scope of the appointment power the Court noted that while Congress can imbue Cabinet officers with the power to appoint inferior officers and place incidental regulations and restrictions on when such department heads can exercise their power of removal Congress may not involve itself directly in the removal process 58 Notwithstanding the seemingly clear limitations on the ability of Congress to interfere with the President’s appointment and removal power the Supreme Court in Humphrey’s Executor v United States unanimously upheld a law that restricted the President’s ability to remove an agency official 59 Specifically at issue was a provision of the Federal Trade Commission FTC Act which provided that the President could remove an FTC commissioner only on the basis of inefficiency neglect of duty or malfeasance in office 60 To distinguish the case at hand the Court held that Myers was limited to “purely executive officers ” as “such an officer i e the postmaster is merely one of the units in the executive department and hence inherently subject to the exclusive and illimitable power of removal by the Chief Executive whose subordinate and aid he is ”61 Thus the holding in Myers did not reach and could not include officers not in the executive department or those who exercised “no part of the executive power vested by the continued Director could be impeached by Congress for “Treason Bribery or other high Crimes and Misdemeanors ” U S Const art II § 4 53 U S Const art II § 2 cl 2 54 Ex Parte Hennen 38 U S 13 Pet 230 259 1839 55 Myers v United States 272 U S 52 106-107 1926 56 Id at 176 57 Id at 161 In at least one instance the court has applied “for cause” removal protection to a statute that did not otherwise provide for such protection The Securities and Exchanges Commission’s enabling legislation is silent as to the removal of commissioners however reviewing courts have held that commissioners may not be summarily removed from office See SEC v Blinder Robinson Co Inc 855 F 2d 677 681 10th Cir 1988 In Blinder while the court noted that the Chairman of the SEC served at pleasure of the President and therefore may be removed at will it determined that commissioners may be removed only for inefficiency neglect of duty or malfeasance in office Id Given that the conclusion in Blinder is generally seen to be applicable only to multi-member boards or commissions whose purpose is to be independent from the executive branch it is unlikely that any “for cause” removal protection could be read as applying to the statute establishing the time and term restriction on the FBI Director See also President Clinton dismissal of FBI Director William Session infra 58 Myers 272 U S at 161 59 Humphrey’s Executor v United States 295 U S 602 1935 60 Id at 619-620 61 Id at 627 Congressional Research Service 9 FBI Directorship History and Congressional Action Constitution in the President ”62 Explaining that the FTC was not an executive body but rather functioned as a “quasi-legislative or quasi-judicial” agency the Court ruled that Congress possessed the authority to control the terms of removal for such officers 63 This approach to removal shifted in Morrison v Olson where the Supreme Court clarified that the proper inquiry regarding removal power questions should focus not on an officer’s status as either “purely executive” or “quasi-legislative ” or “quasi-judicial ” but rather on whether a removal restriction interferes with the ability of the President to exercise executive power and to perform his constitutional duty 64 Applying this maxim to the statute at issue which provided that an independent counsel could only be removed for “good cause” by the Attorney General the Court found that the independent counsel lacked significant policymaking or administrative authority despite being imbued with the power to perform law enforcement functions As such the Court in Morrison determined that removal power over the independent counsel was not essential to the President’s successful completion of his constitutional duties 65 The Court’s decision in Morrison appeared to further weaken the standard delineated in Myers because Morrison essentially established that there are no formal categories of executive officials who may or may not be removed at will As a result any inquiry in a removal case where Congress places a restriction on the President’s power to remove such as a given “for cause” removal requirement will necessarily focus on whether the restriction impermissibly interferes with the President’s ability to perform his constitutionally assigned functions 66 Accordingly the principles discussed above establish that the President may remove the Director of the FBI at will given that the “power of removal is incident to the power to remove ”67 Indeed President Bill Clinton exercised this removal power on July 19 1993 by firing FBI Director William S Sessions In particular upon receiving a recommendation from Attorney General Janet Reno that Sessions be removed President Clinton informed Sessions “I am hereby terminating your service as Director of the Federal Bureau of Investigation effective immediately ”68 It should also be noted that during Senate consideration of the 1976 measure 62 Id at 627-628 Id at 628-629 The duties of the commission included conducting investigations and making pertinent reports to Congress as well as acting as “a master in chancery under rules prescribed by the court ” Id Accordingly the Supreme Court ruled that the legislative and judicial functions envisioned by the statute necessarily placed the FTC outside the scope of complete executive control Id 64 Morrison v Olson 487 U S 654 1988 65 Id at 693-696 66 Id at 693-96 Although the power to remove officers is generally vested in the Executive Branch Congress still retains the ability to remove a validly appointed executive officer if it invokes its impeachment power See U S Const art I § 2 cl 5 “The House of Representatives shall have the sole Power of Impeachment” U S Const art I § 3 cl 6 “The Senate shall have the sole Power to try all Impeachments” But cf Saikrishna Prakash Removal and Tenure in Office 92 Va L Rev 1779 1785-1814 2006 relying on textual and structural arguments Prakash argues that Congress has the power to remove because the Constitution’s Necessary and Proper Clause “makes Congress the creator provider and terminator of other offices Under this powerful authority Congress can enact removal statutes of various sorts ” 67 Ex Parte Hennen 38 U S 13 Pet at 259 68 See Michael Isikoff Ruth Marcus Clinton Fires Sessions as FBI Director Washington Post at A1 July 20 1993 Text of Letter From Clinton to Sessions Washington Post at A11 July 20 1993 See also “Constitutionality of Legislation Extending the Term of the FBI Director ” 35 Op Off Legal Counsel __ at 3 June 20 2011 citing Memorandum for Stuart M Gerson Acting Attorney General from Daniel L Koffsky Acting Assistant Attorney Gneeral Office of Legal Counsel Re Removal of the Director of the Federal Bureau of Investigation Jan 26 1993 63 Congressional Research Service 10 FBI Directorship History and Congressional Action Senators Byrd and Hruska emphasized several times that “there is no limitation on the constitutional power of the President to remove the FBI Director from office within the 10-year term The Director would be subject to dismissal by the President as are all purely executive officers ”69 Even though the Administration asked Congress to extend the FBI Director’s tenure such congressional action could give rise to constitutional concerns 70 A court would likely evaluate such a proposal under the principles discussed above specifically whether such an extension would be seen as a congressional intrusion on the appointments process and whether such action would “impede the President’s ability to perform his constitutional duty ”71 A court reviewing a proposed extension may find that such action does not violate the Appointments Clause or impermissibly interfere with the President’s ability to perform his constitutionally assigned functions because the President would still have the plenary authority to remove the Director during the extended two years Moreover a court could find that such a proposal would not be constitutionally questionable given the generally accepted principle that the legislature has the power to “create or abolish offices or modify their duties and to shorten or lengthen the term of service ”72 If however the Director’s term had an existing statutory “for cause” removal protection then it is possible that a proposed extension could be viewed as being equivalent to congressional reappointment and therefore in violation of Appointments Clause and separation of powers principles Opinions of the Attorneys’ General and the Department of Justice’s Office of Legal Counsel OLC espousing the views of the executive branch traditionally have concluded as much With the 1951 Attorney General opinion addressing the Displaced Persons Commission and the 1994 OLC opinion addressing the Parole Commission the Department of Justice has consistently concluded that the lengthening of an officer’s tenure “presents no constitutional difficulties ” because nothing in those statutes “requires the President to continue the incumbents in office ”73 In 1994 the OLC addressed the second five-year extension of the parole commissioners’ tenure and explicitly disavowed an earlier 1987 opinion which viewed the first extension of the Parole commissioners’ terms of office as unconstitutional finding it in contradiction with its 1951 opinion 74 It stated that its 1987 opinion made “no effort to explain how legislation extending the term of an officer who serves at will impinges on the power of appointment and we can conceive of no credible argument that an infringement rising to the level of a constitutional violation may result from such legislation ”75 A 1996 OLC opinion which summarized its view on the constitutionality of lengthening the tenure of an office stated 69 “Ten Year Term for FBI Director ” remarks Sen Robert C Byrd vol 120 Congressional Record 34083 October 7 1974 See also “ T he record should be made clear that the stability which we are attempting with this legislation will not interfere with the Presidential power of removal … Should the President seek to remove a Director of the FBI and executive officer prior to the expiration of the 10-year term he would be free to do so ” remarks Sen Roman L Hruska vol 120 Congressional Record 34086 October 7 1974 70 The Senate Committee on the Judiciary Report acknowledged that some constitutional concerns were raised by some Members and witnesses during the June 8 2011 hearing Concerns included that S 1103 is unconstitutional notwithstanding the President’s authority to independently remove the Director and the potential for protracted litigation challenging the constitutionality of the legislation See “Minority Views---S 1103 ” remarks Sen Tom Coburn in the Senate Congressional Record vol 157 part 91 June 23 2011 at S4069-S4070 71 Morrison 487 U S at 691 72 Crenshaw v United States 134 U S 99 106 citing Newton v Commissioners 100 U S 548 557-58 73 41 Op Att’y Gen 88 1951 released for publication January 30 1958 74 18 Op Off Legal Counsel 166 167 1994 citing 11 Op Off Legal Counsel 135 1987 75 18 Op Off Legal Counsel at 168 n 3 Congressional Research Service 11 FBI Directorship History and Congressional Action At the one end is constitutionally harmless legislation that extends the term of an officer who is subject to removal at will At the other end is legislation … that enacts a lengthy extension to a term of office from which the incumbent may be removed only for cause Legislation along this continuum must be addressed with a functional analysis Such legislation does not represent a formal appointment by Congress and absent a usurpation of the President’s appointing authority such legislation falls within Congress’s acknowledged authority— incidental to its power to create define and abolish offices—to extend the term of an office As indicated constitutional harm follows only from legislation that has the practical effect of frustrating the President’s appointing authority or amounts to a congressional appointment 76 Notably however the Bankruptcy Amendments and Federal Judgeship Act of 1984 77 which extended the tenure of bankruptcy judges who can be removed only for cause has been repeatedly upheld 78 Unlike the aforementioned Department of Justice opinions the U S Court of Appeals for the Ninth Circuit Ninth Circuit in In re Benny did not distinguish between “at will” versus “for cause” positions in deciding the constitutionality of the act Rather without detailed analysis it concluded that “Congress’ power to extend prospectively terms of office can be implied from its power to add to the duties of an office other duties that are germane to its original duties ”79 The Ninth Circuit found that the extension of a term of office “becomes similar to a congressional appointment … when it extends the office for a very long time ”80 Judge Norris concurring with the holding on other grounds expressed disagreement stating “I believe the Appointments Clause precludes Congress from extending the terms of the incumbent officeholders I am simply unable to see any principled distinction between congressional extensions of the terms of incumbents and more traditional forms of congressional appointments” emphasis in the original 81 He further disagreed with the majority’s distinction between a “short” and “long” extension as prompting a violation of separation of powers principles noting that “the Supreme Court has implicitly rejected the notion that the Constitution proscribes appointments only if they are ‘long’ rather than ‘short ’”82 While the holding in this case or the reasoning of Judge Norris could be applied in the future the 1996 OLC opinion stated that it found the reasoning in Benny unpersuasive and that the doctrine may be limited to its factual context given that “an enormous number of decisions within the bankruptcy system ” might have been put into question had the court reached the opposite conclusion 83 The OLC issued an opinion on June 20 2011 concluding that it would be constitutional for Congress to enact legislation extending the term of the Director of the FBI It reaffirmed that “ t he traditional position of the Executive Branch has been that Congress by extending an incumbent officer’s term does not displace and take over the President’s appointment authority as long as the President remains free to remove the officer at will and make another 76 20 Op Off Legal Counsel 156 1996 P L 98-353 98 Stat 333 1984 codified at 28 U S C § 152 78 In re Benny 812 F 2d 1133 9th Cir 1987 See also In re Investment Bankers 4 F 3d 1556 1562 10th Cir 1993 cert denied 510 U S 1114 1994 In re Koerner 800 F 2d 1358 1362-67 5th Cir 1986 79 In re Benny 812 F 2d at 1141 citing Shoemaker v United States 147 U S 282 300-01 1893 80 Id 81 Id at 1142-43 Norris concurring 82 Id at 1145-46 “In Buckley v Valeo 424 U S 1 1976 the Court considered the constitutionality of legislative appointments for terms ranging between six months to six years and without making any distinction between ‘short’ and ‘long’ appointments the Court declared unconstitutional all legislative appointments of officers of the United States ” 83 20 Op Off Legal Counsel at 155 n 90 77 Congressional Research Service 12 FBI Directorship History and Congressional Action appointment ”84 The OLC opinion emphasized that “legislation extending a term does not represent a formal appointment by Congress ” quotation omitted nor is it “functionally the equivalent of a congressional appointment” emphasis in the original 85 The opinion also dismissed as speculative any notion that a term-extension legislation violates the Appointments Clause because it may impose some political cost on the President Lastly given the precedent of not formally reappointing an individual whose term of office is to be extended it is likely that the incumbent Director would not need to be nominated or appointed a second time 86 While there would be no need for a second confirmation hearing the Senate at its discretion could invite Mr Mueller to answer questions as it has periodically done with various agency officials Hearings U S Congress Senate Committee on the Judiciary Nomination of Louis Patrick Gray III of Connecticut to be Director Federal Bureau of Investigation Hearings 93rd Cong 1st sess February 28 1973 March 1 6 7 8 9 12 20 21 and 22 1973 Washington GPO 1973 — Executive Session Nomination of L Patrick Gray III to be Director Federal Bureau of Investigation Hearing 93rd Cong 1st sess April 5 1973 Unpublished — Nomination of Clarence M Kelley to be Director of the Federal Bureau of Investigation Hearings 93rd Cong 1st sess June 19 20 and 25 1973 Washington GPO 1973 — Nomination of William H Webster of Missouri to be Director of the Federal Bureau of Investigation Hearings 95th Cong 2nd sess January 30 and 31 1978 February 7 1978 Washington GPO 1978 — Nomination of William S Sessions of Texas to be Director of the Federal Bureau of Investigation Hearings 100th Cong 1st sess September 9 1987 S Hrg 100-1080 Washington GPO 1990 — Nomination of Louis J Freeh of New York to be Director of the Federal Bureau of Investigation Hearings 103rd Cong 1st sess July 29 1993 S Hrg 103-1021 Washington GPO 1995 — Confirmation Hearing on the Nomination of Robert S Mueller III to be Director of the Federal Bureau of Investigation Hearings 107th Cong 1st sess July 30-31 2001 S Hrg 107-514 Washington GPO 2002 84 “Constitutionality of Legislation Extending the Term of the FBI Director ” 35 Op Off Legal Counsel __ at 2 June 20 2011 85 Id at 5 The OLC opinion further commented that “If the extension of a term were to preclude the President from making an appointment that he otherwise would have the power make Congress would in effect have displaced the President and itself exercised the appointment power We believe that such a displacement can take place when Congress extends the term of a tenure-protected officer ” Id 86 Consideration however should be given to the wording of any such measure to extend a term of office so as to avoid any construction that could give rise to the aforementioned constitutional issues Congressional Research Service 13 FBI Directorship History and Congressional Action — Subcommittee on FBI Oversight Ten-Year Term for FBI Director Hearing 93rd Cong 2nd sess March 18 1974 Washington GPO 1974 Reports U S Congress Senate Committee on the Judiciary Ten-Year Term for FBI Director Report to accompany S 2106 93rd Cong 2nd sess S Rpt 93-1213 Washington GPO 1974 — William H Webster to be Director of the Federal Bureau of Investigation Report to accompany the nomination of William H Webster to be Director of the Federal Bureau of Investigation 95th Cong 2nd sess February 7 1978 Exec Rept 95-14 Washington GPO 1978 — William S Sessions to be Director of the Federal Bureau of Investigation Report to accompany the nomination of William Sessions to be Director of the Federal Bureau of Investigation 100th Cong 1st sess September 15 1987 Exec Rept 100-6 Washington GPO 1987 — A Bill to Extend the Term of the Incumbent Director of the Federal Bureau of Investigation Report to accompany S 1103 112th Cong 1st sess June 21 2011 S Rept 112-23 Washington GPO 2011 Author Contact Information Vivian S Chu Legislative Attorney vchu@crs loc gov 7-4576 Congressional Research Service Henry B Hogue Analyst in American National Government hhogue@crs loc gov 7-0642 14