Bob Mueller, the current head of the FBI, will be stepping down in September after having led the agency in its transition from primarily a criminal investigation agency to primarily a counterterrorism agency. There are a number of individuals with excellent resumes who have been named as possible successor. Only one fits all of the ideal requirements to run a federal law enforcement agency dedicated to continuing this transformation: Michael Garcia.
Garcia is the former U.S. Attorney in Manhattan (which is widely viewed as the most important prosecutorial office in the nation) as well as the former head of U.S. Immigration and Customs Enforcement (which is the primary criminal investigation agency within the Department of Homeland Security and the second largest only to the FBI itself). Of the candidates floated so far, only Garcia, who would be the first Latino Director of the FBI, has prosecuted high-profile terrorism cases as well as run a major federal criminal investigation agency. Moreover, he brings hands-on experience in transforming and building a new law enforcement agency (with ICE) – something critical for the next FBI Director who must continue the transformation of the FBI from a criminal investigations organization to one primarily focused on counterterrorism.
The ideal candidate to run the nation’s largest criminal investigations agency dedicated to counterterrorism should have experience managing a major law enforcement agency comprised of 1811s (special agents); he or she should have experience as a federal prosecutor; and that prosecution work should include cases against international terrorism. I’ll explain the logic of these ideal qualifications below, but first let’s review some of the other top candidates.
Federal prosecutor James Comey is the most distinguished, having served as the Deputy Attorney General under the Bush Administration. When Attorney General John Ashcroft was incapacitated due to illness, Comey stepped up and led the department ably. Indeed, he is famous for having sped, in a midnight run, to the hospital where Ashcroft lay ill in an effort to block then-White House Chief of Staff Andy Card and Legal Counsel Alberto Gonzalez from attempting to overrule Ashcroft and Comey’s refusal to certify a classified warrantless wiretapping operation that the White House wanted to continue. Mueller joined Comey and, in a dramatic showdown in Aschcroft’s hospital room, Ashcroft sided with his deputy. Clearly, Comey is a man willing to stand up for his principles, despite potentially grave consequences to himself. Comey is also recommended because of having held a senior executive position, as the second-highest ranking official in the Department of Justice. Comey, however, has never run a federal law enforcement agency, and there are some unique cultural characteristics in such an organization so dominated by 1811s.
A second candidate frequently mentioned is Kenneth Wainstein, who also brings a sterling resume and experience in both federal law enforcement and the prosecutorial realm. Wainstein has served as General Counsel in the FBI, an assistant U.S. Attorney in the District of Columbia and Assistant Attorney General for National Security. There’s no question he’d be an able candidate, but Wainstein as general counsel did not directly manage 1811s, and though he helped establish DOJ’s National Security Division, as Deputy Chief of the Homicide Section in the U.S. Attorney’s office, he did not prosecute terrorism cases.
The FBI Agents Association is understandably promoting one of their own: Michael Mason, a man who brings more than two decades of hands-on experience managing 1811s, having served as the Special Agent in Charge of the Washington Field Office and then appointed to run the bureau’s criminal investigation division. He would also be the first African American to lead the FBI.
In my experience at two different federal law enforcement agencies – the U.S. Drug Enforcement Administration and ICE – I came to the conclusion, from personal observation, that any leader of such an agency must have experience as a federal prosecutor – one that has hands-on courtroom experience (as opposed to managing the affairs of the office only). I did not feel this way initially; in fact, I bought into the idea of promoting the savvy, successful agent to the top spot. There are an untold number of agents who bring excellent qualifications – as successful field agents, leaders of field offices, and managers of units and divisions with headquarters. That said, 1811s are trained from the day they go into training to view things from a certain perspective – tracking evidence, building the case. Packaging such cases for public consumption, playing the necessary politics, bowing to members of Congress, framing issues for the media, engaging in diplomacy with other agencies, and generally serving as a public figurehead do not come naturally to an agent.
A prosecutor with trial experience, on the other hand, is a natural. A prosecutor brings a deep understanding of the law and law enforcement culture, one that transcends merely building an evidence trail. To many 1811s, the evidence speaks for itself. There is no need to “package” it. A trial lawyer knows better. Juries – and judges – are human and therefore unpredictable. Consider the O.J. Simpson case. Packaging, narrative, framing – that is, selling – is a critical aspect of any successful prosecution. The prosecutor must also be a shrewd negotiator and diplomat – finding an opportunity to settle a case out of the courtroom when the evidence is not as solid as it should be, and engaging prickly judges. This courtroom training makes a candidate to lead a law enforcement agency quick on his or her feet, capable of adjusting to unexpected public crises; maneuvering with unpredictable media; engaging members of Congress; engaging in shuttle diplomacy between rival agencies or with officials in the bureaucracy; and serving as a public spokesperson. In other words: Serving as the public face of the agency and advancing the mission and objectives of the agency among the various audiences that have influence over the agency’s capability to achieve its mission.
I first saw these skill sets in action with Asa Hutchinson, a former U.S. Attorney who prosecuted domestic terrorism cases and was appointed, first, to lead the DEA and then to serve at DHS as Undersecretary of the Border and Transportation Directorate – overseeing the Transportation Security Administration, Customs and Border Protection, ICE, and a variety of mission-specific programs, such as U.S. Visit. Hutchinson provided strategic guidance and management to the DEA (and later DHS) without getting bogged down in the investigative work. As a prosecutor, he understood the needs of the 1811s but didn’t feel the compulsion to micromanage. He let his senior agents manage the investigative and intelligence divisions while he focused on strategic leadership, managerial reform and, perhaps most importantly, selling the needs and mission of the DEA to the public and Congress to gain support for the agency.
While Michael Garcia, a frenetic and hard-charging New Yorker, and Asa Hutchinson, a Southern lawyer reminiscent of Atticus Finch, are opposites in terms of personality traits, they brought the same particular, ideal skill sets to the agencies they led. Hutchinson, a former member of Congress, entered the DEA already seasoned with political experience; Garcia, who came in fresh from his tenure as an assistant U.S. Attorney in Manhattan, and a brief stint leading the export enforcement office at the Department of Commerce, applied his courtroom skills and quickly adapted to the political necessities of leading a federal agency.
Raymond Kelly is another heavy hitter who has been mentioned as a possible candidate. He brings federal experience, having led U.S. Customs as well as serving in a senior position in the Department of Treasury as Undersecretary of Enforcement. Moreover, as Commissioner of the New York Police Department, Kelly manages a law enforcement that dwarfs, in terms of sheer numbers, the FBI, although its jurisdiction is local and much more limited. Kelly’s position has provided ample experience in the counterterrorism domain. All that said, Kelly lacks the experience of a federal trial prosecutor, let alone one who has prosecuted terrorists, which, for the reasons cited above, I maintain is a critical component for a candidate to take over the FBI. Even more than the NYPD (which is saying a lot), the FBI is today buffeted by national political winds and the territorial infighting of Washington D.C. more than ever as the agency continues its evolution from a criminal investigations to counterterrorism agency. Besides, rumor has it Kelly is interested in local politics and would not be interested in a return to Washington.
The final candidate whose name has been floated is Jamie Gorelick. Like Comey, Gorelick is a former Deputy Attorney General, and she would be the first woman to lead the FBI. She also served on the 9/11 Commission. All of which are sterling credentials. Gorelick, however, has never served in a U.S. attorney’s office, never prosecuted anybody. And while the role of the head of the FBI obviously does not involve prosecution, as stated above, a prosecutor brings first-hand experience working directly with 1811s, providing an important education and experience in navigating what can be an at times inscrutable and difficult culture for “outsiders.” The biggest challenge for Gorelick, however, is the controversy around her 1995 memo fortifying the so-called “wall” segregating criminal investigators and intelligence agents – and the information they could share. Some (including former Attorney General John Ashcroft) have alleged that Gorelick’s memo codified a structural barrier that was in part to blame for the failure to prevent the 9/11 attacks. Fair or not, such a controversy surrounding an issue that touches so closely on the FBI itself would likely create unnecessary new political controversy all over again that President Obama would just as soon avoid.
Which leaves us with Mike Garcia.
Garcia launched his career in the early 1990s, prosecuting two of the most high-profile terrorism cases in U.S. history prior to 9/11 – the 1993 World Trade Center bombing and the 1998 bombings of U.S. embassies in Africa. His success in these cases would lead to his appointments as Assistant Secretary for Export Enforcement in the Department of Commerce and, more importantly, the first chief of the newly established Immigration and Customs Enforcement in the Department of Homeland Security. This role not only provided Garcia with hands-on experience managing a federal criminal investigations agency focused on national security issues, it also created a trial-by-fire experience of change management, something critical to anybody looking to continue the transformation of the FBI from its historic role to the premier counterterrosim agency.
When ICE was first stood up, Garcia was faced with the difficult task of creating a truly new law enforcement agency from several formerly autonomous agencies with independent missions, including: special agents from the former U.S. Customs; criminal investigators and alien removal officers from the former Immigration and Naturalization Service; investigators and law enforcement personnel from the Federal Protective Service; and, at one point, federal air marshals transferred from the Transportation Security Administration. Garcia laid the foundation for creating a new agency, with a new mission and culture, molded from agents and personnel who were often resistant to change. Such a transition doesn’t occur overnight, of course, and subsequent leaders at ICE have ably continued the effort – including Julie Myers Wood and John Morton.
Garcia’s work at ICE did not go unnoticed, as he was recruited to return to Manhattan – this time to lead the U.S. Attorney’s office. During his tenure in New York, he also chaired the Attorney General’s Advisory Committee on Terrorism and National Security.
There is no other candidate among those who have been floated that bring to bear all of the unique qualifications Garcia does: lead prosecutor in high-profile terrorism cases; head of a federal law enforcement agency; and critical experience in leading a major transformation of such an agency.
For these reasons, President Obama would be wise to seriously consider Garcia. Indeed, he would be wise to offer Garcia the job.