Any discussion of President Donald Trump’s appointment of a new FBI director should start with an acknowledgement that he shouldn’t be allowed to do this. Yes, Trump has the statutory authority, but he reportedly tried to secure a loyalty oath from then-Director James Comey and directly asked him to stop investigating former national-security adviser Michael Flynn. Then Trump fired Comey and admitted that “when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story.’”
In a rational political system, Trump would have forfeited his standing to choose a new director. Congress should have demanded that Trump, at most, be allowed to pick from a list of names generated by members of the House and Senate judiciary committees, or by Deputy Attorney General Rod Rosenstein.
Instead, Trump will reportedly tap former senator Joe Lieberman for the position. It’s an awful choice from any angle. Lieberman works at a law firm that has represented Trump since 2001, which should be an immediate disqualifier, since the FBI will continue to investigate Trump’s campaign and potentially obstruction of justice by the president himself.
A politician has never served as FBI director, and breaking that precedent under these circumstances would be particularly egregious. Not only is Lieberman a politician, but he’s openly loyal to Trump and the GOP: Lieberman endorsed John McCain in 2008 and introduced Sarah Palin at the Republican National Convention. He showed up at Trump Tower after the 2016 election and has been touting some of Trump’s cabinet picks, testifying on behalf of now–Education Secretary Betsy DeVos at her Senate confirmation hearing.
But Lieberman’s record on civil liberties is the single most alarming thing about his selection. Throughout his career in the Senate, Lieberman consistently showed a disregard for basic Constitutional protections and ambitiously pursued expansions of the government’s ability to surveil and detain Americans without judicial review. He has also advocated investigating news outlets for reporting on classified information, and once defended waterboarding by saying “it’s not like putting burning coals on people’s bodies.” Combined with his near-demagogic focus on Islam as a radicalizing force, Lieberman is a wildly bad pick for the nation’s top law enforcement officer.
In 2010, Lieberman and McCain introduced the “Enemy Belligerent Interrogation, Detention and Prosecution Act.” Conservatives were up in arms at the time that the Obama administration chose to prosecute Umar Farouk Abdulmutallab in civilian courts for planning a Christmas Day terror attack. The Lieberman/McCain bill would have granted the government power to indefinitely detain terrorism suspects without a trial or even a charge. If the government determined, in an unreviewable process, that someone was an “unprivileged enemy belligerent,” then the legislation required the suspect be placed in a military tribunal.
At the time, Glenn Greenwald dubbed it “probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades.” The ACLU said the legislation “flies in the face of American values and violates this country’s commitment to the rule of law.”
Lieberman brushed off any such concerns. In a press conference to introduce the bill, he acknowledged that suspects might be held for years and years without a charge, but said “I know that will be—that may be—a long time, but that’s the nature of this war.” Fortunately, the bill never became law.
One year later, Lieberman joined Representative Peter King to hold a grotesque joint hearing purporting to investigate how homegrown Islamic extremists were targeting and even infiltrating the US military. It was part of King’s series of 2011 hearings on domestic terrorism, which Muslim groups and civil libertarians blasted as prejudicial for an excessive and near-exclusive focus on Islam as a radicalizing force. Despite this ongoing criticism, Lieberman agreed to co-chair one such hearing, and in his opening statement declared that “our government and especially the Defense Department must recognize who the enemy is—not a vague notion of violent extremism, but violent Islamist extremism specifically.”
Earlier this year, Lieberman defended Trump’s Muslim ban and said he was “glad” Trump kept his campaign promise.
Lieberman also worked assiduously to expand the government’s surveillance powers. The Lieberman-Collins Cyber Security Act would have eliminated many barriers preventing companies from sharing data on web users with federal law enforcement. The bill’s vague language permitted companies to share user information with the government without judicial review, and any sort of information could be shared, even if it wasn’t related to cybersecurity. The bill’s language said that as long as information “appears to relate to a crime” even in the future, companies could give it to the government.
“They would allow law enforcement to look for evidence of future crimes, opening the door to a dystopian world where law enforcement evaluates your Internet activity for the potential that you might commit a crime,” Senator Ron Wyden warned of substantially similar provisions in a House version of the bill. The Electronic Frontier Foundation said Lieberman-Collins “compromises core American civil liberties in the name of detecting and thwarting network attacks.” It never became law.
In 2008, Lieberman voted in favor of Section 702 of the FISA Amendment Act, and for a five-year extension in 2012. This is the provision that the National Security Agency used to justify collection of mass phone calls and e-mails made by American citizens. When the full extent of NSA collection was exposed after Lieberman left the Senate, he defended the program and said, “If you weigh the risks of compromising phone records against the enormous benefits, I think you’ll find it justified.”
A Lieberman appointment should also alarm journalists. In 2010, when Wikileaks released a tranche of State Department cables, Lieberman suggested that news outlets that covered the leak should be prosecuted. “I certainly believe that WikiLeaks has violated the Espionage Act, but then what about the news organizations—including the Times—that accepted it and distributed it?” he said. “To me, The New York Times has committed at least an act of bad citizenship, and whether they have committed a crime, I think that bears a very intensive inquiry by the Justice Department.”
Trump reportedly quizzed James Comey about the possibility of arresting journalists for reporting on classified material, and based on these 2010 comments, it would appear Lieberman is at least open to the idea.
Throughout his career, Lieberman has demonstrated disrespect for constitutional safeguards and a wide, almost authoritarian deference to the federal government’s law-enforcement and military powers. In 2005, Lieberman declared that “in matters of war we undermine presidential credibility at our nation’s peril.” What little credibility Trump has left would be badly damaged by selecting Lieberman to head the FBI, though it’s not terribly surprising Trump likes him so much.