No, presidents should not ask FBI directors if they’re under investigation

From The Washington Post and written by Kathleen Clark — image courtesy of Saul Loeb/Agence France-Presse

Just seven days after taking office, President Trump says, he had a private dinner in the White House with FBI Director James B. Comey. Trump asked whether Comey would “let me know, am I under investigation?” According to Trump, Comey answered, “You are not under investigation.”

Comey’s allies dispute that the conversation happened that way; instead, they say, Comey refused to pledge his personal loyalty to Trump, a contention the White House, in turn, disputes.

But as a matter of ethics, if Trump is telling the truth, is there a problem with a president asking the head of the FBI about the status of an investigation into the president’s campaign?

Trump’s aides may not see it this way, but the short answer is yes.

The Justice Department has a broad policy strictly limiting its communications with the White House about pending criminal investigations. These limitations come in two forms: when such communications are permitted, and who can do the communicating.

First, when: The Justice Department may communicate with the White House about a pending criminal investigation only when that communication “is important for the performance of the President’s duties and appropriate from a law enforcement perspective.”

Second, who: Only two Justice Department officials are authorized to initiate such communications with the White House: the attorney general and deputy attorney general. By restricting so severely the number of officials who can have White House contacts, the Justice Department limits the number of those communications and can better control of them.

Congress, the courts and the people responded forcefully when we learned that Nixon had covertly attempted to exercise his political power to control a criminal investigation. We have yet to see whether Congress, the courts and the people will respond just as forcefully now that it appears as though Trump is overtly attempting to do the same.

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