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August 5, 2015

Is Comey FBI Pick a Slam Dunk? (Updated)

Updated 6:45 p.m. | President Barack Obama’s expected choice of former Bush-era Deputy Attorney General James B. Comey to lead the FBI would seem to be a slam dunk for confirmation, at first blush.

Still, Comey will face questions from the GOP about his work for a hedge fund, as well how he will deal with the administration’s swirling controversies from the investigation into the IRS to the subpoenas of reporters’ communications and plumbing of national security leaks.

The reality, one GOP aide said, is that Comey is about the best pick the Republicans are likely to get out of the Obama White House, and he will face an easier time than if the administration had gone with an Obama insider. Comey also is likely to be asked about various Bush-era controversies by senators deciding whether to approve his selection to a 10-year FBI term.

The former deputy attorney general is best known for resisting Bush White House pressure to reauthorize a warrant-less wiretapping program in a bedside confrontation alongside then-Attorney General John Ashcroft. Democrats have admired Comey as someone willing to stand up to Bush’s White House on a matter of principle, while for Republicans his history of independence suggests he won’t be a lackey for the Obama White House either.

Makan Delrahim, former Republican staff director and chief counsel of the Senate Judiciary Committee when Orrin G. Hatch, R-Utah, was chairman, called the pick “a brilliant move” that would help tamp down partisan attacks against Obama.

Comey “provides the president with political cover with regard to highly sensitive national security issues, which are critical in today’s world,” he said.

Delrahim said the pick is reminiscent of Obama’s decision to keep former Defense Secretary Robert Gates, who served under President George W. Bush, and Stuart Levey, who served as under secretary for terrorism and financial intelligence in the Treasury Department under both Bush and Obama.

“In addition to [Comey’s] incredible law enforcement accomplishments … if we have a national security problem that occurs … it only helps [Obama] having a Republican in place so he doesn’t get Republican criticism on a partisan level,” he added.

Delrahim, who was also deputy assistant attorney general for the Justice Department’s Antitrust Division and appointed by Bush in 2003, said he doesn’t see the pick helping the White House get past recent scandals, including GOP criticism of the deaths of four State Department officials in Benghazi, Libya; the targeting of conservative groups by the IRS; and the Justice Department’s move to secretly obtain telephone records of Associated Press reporters.

Still, the nomination “will take up some of the press oxygen, so that people will pay attention to that as an issue,” Delrahim said. “But once that confirmation comes in and is over the issues of the IRS, AP and Benghazi will” remain.

Initial statements from Republican senators were relatively warm.

Sen. Charles E. Grassley, R-Iowa, said he had not yet heard from the White House about the pick but praised Comey’s experience. However, he also promised to question Comey’s ties to hedge funds. After leaving the Justice Department, Comey spent time as the general counsel of Bridgewater Associates, a Connecticut-based hedge fund.

“Mr. Comey has a lot of experience on national security issues, which is one of the most important focuses for the FBI in the aftermath of 9/11, and has shown integrity in dealing with these matters,” said Grassley, the ranking member of the Judiciary Committee.

“But, if he’s nominated, he would have to answer questions about his recent work in the hedge fund industry,” he said. “The administration’s efforts to criminally prosecute Wall Street for its part in the economic downturn have been abysmal, and his agency would have to help build the case against some of his colleagues in this lucrative industry.”

Hatch sounded even more positive. “Mr. Comey’s experience in national security as a prosecutor and as Deputy Attorney General are important qualifications,” he said.  “The FBI Director also needs to be fiercely independent from the political pressures that, as we have seen, can affect even the Justice Department. I look forward to reviewing Mr. Comey’s qualifications during the confirmation process.”

One group that isn’t impressed is the American Civil Liberties Union.

“As the second-highest ranked Justice Department official under John Ashcroft, Comey approved some of the worst abuses committed by the Bush administration,” said executive director Anthony D. Romero. “Specifically, the publicly available evidence indicates Comey signed off on enhanced interrogation techniques that constitute torture, including waterboarding. He also oversaw the indefinite detention without charge or trial of an American citizen picked up in the United States and then held for years in a military brig.”

While Romero gave Comey credit for standing up to the White House on one secret program, “he reportedly approved programs that struck at the very core of who we all are as Americans.”

But that scene in the hospital room with Ashcroft will help insulate him. “That only endeared him to people who respect the Justice Department and respect the rule of law over any kind of political influence,” Delrahim said.

Delrahim also said that incident could appeal to the likes of Republican Sens. Mike Lee of Utah, Ted Cruz of Texas and Rand Paul of Kentucky, all of whom have a libertarian bent.

“My guess would be that Comey’s position would be similar to the positions those senators would hold,” said Delrahim, an attorney at the Washington office of Brownstein Hyatt Farber Scheck.

Installing someone at the FBI with a history of independence could also be just what the doctor ordered for an administration hoping to move beyond the IRS and leaks controversies without having to name a special prosecutor.

White House spokesman Josh Earnest Thursday declined to comment on the Comey pick or potential timing in a gaggle with reporters, while separately reiterating the White House’s opposition to a special prosecutor to probe the IRS despite a new Quinnipiac poll showing 76 percent support for one among the public.

“We’re confident those who need to be held accountable will be,” Earnest said.

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