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Donald Trump, the FBI and pretext May 10, 2017

09-donald-trump-james-comey.w710.h473.2xPresident Donald Trump’s recent termination of FBI Director James Comey belongs in a textbook on employment discrimination. It shows the way employers can get into legal trouble when firing an employee. It is such a textbook example of a “bad termination,” in fact, that an employer seeking to minimize its exposure to a termination-related lawsuit would do well to look at the President’s handling of the Comey termination, and do exactly the opposite. The issue we examine today is whether the President’s stated reason for firing Director Comey – Comey’s alleged mishandling of the Clinton emails – is unworthy of credence and a pretext for some other motive.

Comey’s investigation of Secretary Clinton’s emails took place and was complete before Trump was elected President. To the extent Comey mishandled anything, Trump clearly knew about it on the first day he took office. Yet, he waited 108 days to fire him.┬áJust a few days before his termination, Comey asked the Deputy Attorney General for additional resources to investigate Trump’s Russia connections. Trump, it turns out, also asked the Deputy Attorney General to draft the memo that Trump cited in his termination letter to Comey, without telling the DAG the memo would be used for that purpose. Trump also publicly declared that Comey had lost the confidence of the men and women in the FBI and that FBI did not consider the Russia investigation a serious matter.┬áTrump now says that he was going to fire Comey irrespective of the DAG’s memo. The Acting FBI Director has just testified to a Senate Committee that rank-and-file FBI employees broadly and positively support Comey, and that the Bureau considers the Russia investigation to be a very serious matter, contradicting Trump’s assertions otherwise.

Let’s evaluate the evidence so far. We see that Trump terminated Comey almost immediately after Comey requested additional resources to investigate the President’s Russia connections (unusually suggestive temporal proximity, quick on the trigger). He then attempted to justify his termination decision with a reason that was previously known to the Administration for many months (slow on the trigger, if Comey had previously committed terminable offenses, why didn’t POTUS fire him on Day 1 of his Administration?). Trump then caused documents to be created purporting to justify his termination decision (document manipulation). He then tried to paint the DAG as the real decisionmaker, whose advice Trump was merely following (hiding the decisionmaker). Then Trump said the DAG’s memo was really not all that important and he would have fired Comey regardless (shifting reasons). Then he alleged that part of the reason he fired Comey was because Comey had allegedly lost the support of rank-and-file FBI employees, which turns out to be false (reason contradicted by objective facts). Undoubtedly we will learn more facts putting the lie to Trump’s articulated reason for firing Comey (e.g., new reports that when Trump twice asked Comey for personal loyalty, Comey pledged only honesty, saving his loyalty for the law and for the American people). But we can clearly see even with the few facts developed so far that Trump is not being honest about his reason for firing Comey. From that dishonesty, we can reasonably infer that Trump’s stated termination reason for firing Comey is pretextual, and is designed to conceal Trump’s true motive – most likely to interfere in the FBI’s continuing and escalating investigation of Trump’s possible collusion with a foreign adversary to subvert a U.S. election.

What are some of the other mistakes that Trump made that increased rather than decreased the likelihood of fallout? For starters, he ignored Comey’s popularity inside the Bureau and terminated Comey in a humiliating fashion, in a terse letter delivered to FBI headquarters rather than Comey himself. Comey learned of his termination only after press reports appeared on television during a speech Comey was delivering to FBI employees, many of whom broke down in tears at the news. Second, he publicly demeaned and insulted Comey, knowing that Comey could not respond publicly without appearing biased, and again deeply alienating Comey’s supporters. Third, he assumed that Democrats were like him, that is, spiteful and vindictive, and completely discounted the notion that Democrats wanted to learn the truth about Trump’s Russia connections and potential coordination with Vladimir Putin in subverting the election. While Democrats had good cause to be critical of Comey for putting his thumb on the scale just days before the 2016 election, they also wanted the FBI’s Russia investigation to proceed without political interference. Trump erroneously assumed that Democrats would welcome the news of Comey’s termination and was taken aback when Senator Schumer told Trump that firing Comey was a very serious mistake.

For a person who brags that he is the greatest personnel manager who ever lived, Trump’s manner of terminating Director Comey reflects a staggering level of incompetence and naivete, the blow back on which a first year law student could have seen coming from a mile away.

Pittsburghh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

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