As an initial matter, the bill makes clear that the incumbent FBI Director may continue to serve only at the request of the President, and does nothing to diminish in any way the President’s removal authority under the Constitution. As Director Mueller himself testified at the June 8, 2011, hearing, his service as FBI Director continues only ‘‘at the pleasure of the President.’’ 34 That will remain true after enactment of this legislation. The CRS Report referenced above also concluded that ‘‘the President may remove the Director of the FBI at will,’’ and cited the firing of FBI Director William Sessions in July 1993 by President Clinton as an example. 35 The Office of Legal Counsel recently reaffirmed this conclusion unequivocally, noting that ‘‘the FBI Director is removable at the will of the President.’’ 36
Perhaps most instructive on this point is the legislative history of the statute establishing the 10-year term limit on the FBI Director. In a 1974 committee report on the FBI Director term limit bill pending at the time (S. 2106), the Senate Judiciary Committee concluded: ‘‘The bill does not place any limit on the formal power of the President to remove the FBI Director from office,’’ and that the ‘‘Director would be subject to dismissal by the President, as are all purely executive officers.’’ 37 Moreover, since enactment of the 10-year term limit on the FBI Director in 1976, there have been no laws enacted or cases decided imposing any type of removal restrictions on the President with regard to the FBI Director, such that the functional analysis described in Morrison v. Olson, would be required. Put simply, the President can decide to replace the FBI Director at any time, for any reason.
