Thursday, May 11, 2017

Possible Remedies for Comey's Firing

by Michael Dorf

In response to the Tuesday Night Massacre, I wrote my latest Verdict column early. It's called What Employment Discrimination Law Teaches About the Comey Firing. My answer: (1) Although employment discrimination law does not of its own force apply to the Comey firing, broadly speaking it addresses the same topic, namely, when is a termination wrongful? (2) The fact that the FBI Director serves at the pleasure of the president does not insulate the firing from scrutiny, in the same way that employees at will have Title VII protection against being fired for bad reasons. (3) Even if Comey could have or should have been fired because he mishandled the Clinton email investigation, that does not excuse Trump's firing him for the affirmatively bad reason of attempting to suppress the investigation into collusion with Russia to affect the election.

That last point raises a further question that I do not address in the column: If Comey was doing a bad job but was fired for the wrong reason, what is the remedy? Here the Title VII analogy appears to run out. Title VII authorizes reinstatement as an equitable remedy for improper discharge, but reinstatement sometimes is unavailable. For example, if an employee and her supervisor have an irreconcilable personality conflict that arose as a result of the discrimination, reinstatement would be improper. In such circumstances, the court would order "front pay" (in addition to back pay) as a substitute for reinstatement.

But there is no possibility of damages of any kind for Comey, because Title VII doesn't apply. It's just an analogy. So what is the remedy?

To begin, I would push back on the assumption that Comey was doing a bad job. I agree with the conventional wisdom--as reflected in the memo from Deputy AG Rod Rosenstein--that Comey badly mishandled the Clinton investigation through his public statements. But it's worth noting that, as Marty Lederman notes, Rosenstein's memo did not actually recommend firing Comey. And quite apart from whatever Rosenstein thought about that question, there is a case to be made for the proposition that Comey would have been well qualified to stay in the Director job. The very independent streak (bordering on self-righteousness) that led Comey astray in the Clinton case arguably suited him well to lead the FBI under a president who has so little respect for conventional limits on his power.

Nonetheless, we know that Trump won't reinstate Comey. Suppose you think that's actually appropriate. In other words, suppose you think that Comey shouldn't be heading the FBI but that Trump fired him for a bad reason. With nothing like front pay as a remedy, what should the remedy be?

In constructing a remedy, I would emphasize that unlike an employment discrimination case, in which damages serve both to remedy the wrong to the victim and deter/punish the wrongdoer, here we need not be concerned about making the victim whole. Comey will land on his feet, and, more  importantly, unlike someone who is wrongly fired because of race or sex discrimination, what made Trump's firing of Comey wrongful was not so much that it wronged Comey as that it transgressed a structural principle of justice--namely, that no one should be judge in his own cause. Harm to Comey is incidental. The wrong that needs remedying here is the attempted thwarting of the Russia investigation.

With that thought in mind let's consider some options.

(1) Impeachment is one obvious possibility, but it looks highly unlikely. Although some Senate Republicans (e.g., Bob Corker, Jeff Flake, and John McCain) have expressed concern about the Comey firing, Mitch McConnell probably speaks for the vast majority of GOP Senators and Representatives in toeing the administration line.

And why not? Trump's first three and a half months in office have proved that he will enthusiastically promote economic and social policies long favored by the far right, while falsely projecting economic populism to mollify the part of the Republican base that might otherwise oppose the party's support for the uber-wealthy. There's no angle in pushing back against Trump for a majority of the House, much less two thirds of the Senate.

(2) If a few well-placed Republicans in Congress wanted to do so, they could push back with steps short of impeachment. Both the House and the Senate Intelligence Committees are conducting investigations. Even with Devin Nunes no longer leading the House effort, it seems unlikely to go anywhere. Bob Corker has shown somewhat greater interest in conducting a non-sham investigation. Perhaps the Tuesday Night Massacre will stiffen his spine. That said, the congressional investigators have subpoena power but are otherwise highly reliant on the FBI and our intelligence agencies for much of their fact gathering. The more that Trump is able to consolidate his control of these angencies, the less effective the congressional efforts will be. A well-staffed select committee could do a more thorough job with less reliance on the administration, but that would likely be regarded as a step down the road to impeachment. Hence, see (1) above.

(3) A normal Republican administration would at this point seek to reassure the public that Comey's firing had nothing to do with the Russian investigation by nominating someone with a clear reputation for independence and integrity to fill the Director's position--Preet Bharara, for example. Something like that is at best a remote possibility. As many of Trump's other appointments illustrate, this administration simply does not care about how it comes across to elite opinion makers. The fact that Rudy Giuliani is even being discussed as a possibility is telling.

(4) If Trump does not name someone with unquestioned integrity and independence to head the FBI--and even if he does--expect continued calls for a special prosecutor. A special prosecutor is no magic bullet, of course. Depending on who it is and the terms of his or her engagement, a special investigation could take years and lead down numerous blind alleys.

Moreover, without new legislation by Congress (overriding a certain veto by Trump) providing insulation from being fired for the special prosecutor, anyone appointed would be at risk of getting the Comey treatment. When Justice Scalia wrote his lone dissent in Morrison v. Olson, he seemed like a bit of an antiquarian, insisting on a view of separation of powers that was hard to reconcile with the modern administrative state. Then came the Starr investigation of Bill Clinton, and Scalia seemed more like a prophet; even liberals who had dismissed Scalia's Morrison dissent came to see the risk that an independent counsel could abuse his power.

Now the pendulum may be swinging back in the other direction, reminding us why the post-Saturday Night Massacre Congress wrote the Independent Counsel Act in the first place.

Scalia wrote in his Morrison dissent that "[p]olitical pressures produced special prosecutors -- for Teapot Dome and for Watergate, for example -- long before [the Independent Counsel Act] created the independent counsel." That's true. It's also true that after Nixon fired Archibald Cox, political pressure led to the appointment of Leon Jaworski as his successor.

Yet there is reason to think that times have changed. Even if the Trump/Sessions Justice Department does name a special prosecutor, Trump would not hesitate before firing that special prosecutor if he or she turned up the heat. No doubt Trump would provide some transparent pretext for the firing--the investigation is wasting taxpayer dollars seems like a plausible candidate--that would then be echoed by the GOP Trumpologists in Congress and on Fox News.

The political pressure that produced the special prosecutors in the Watergate case was bipartisan. These days, however, political pressure in one direction tends to produce equal and opposite pressure in the other direction. The Trump White House can be swayed by political pressure, but at least some of it will have to come from the right. Don't count on that.

18 comments:

David Ricardo said...

Mr. Dorf is correct. Fox News, the WSJ editorial pages, the hard core conservatives who dominate the Republican party, the Congressional leaders like McConnell and Ryan, the Trump blindly loyalists like AG Sessions will never abandon Trump as long as he supports repeal of ACA, putting women in jail for having an abortion and support for tax cuts for the wealthy.

The only remedy is the ballot box. That is a long and hard and expensive route, but it is the only path.

el roam said...

It didn't even cross , the mind of the author of that post , that the basic flaw in that process of firing , was the fact ( it seems at least so far ) that no due process has taken place . One can't fire an employee , without hearing , and due process actually ( The Fifth amendment ) . More specifically , is the " Civil Service Reform Act of 1978 " which states clearly :

" Sec 3 (3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees; "

End of quotation :

So , I can't state right now , whether , a specific provision , exempt the FBI director issue or case , but , clearly , it is contradicting constitutional principles .

Beyond it : A good possibility , beyond the due process issue , is that : The Russian investigation ( concerning Trump ) was the trigger , while other problematic accumulated issues , were driving Trump to fire him. But needs to be explored further of course .

Thanks

el roam said...

Just further clarification , according to news reports , Comey has learned that he has been fired , from TV simply , here for example :

http://edition.cnn.com/2017/05/09/politics/james-comey-fbi-trump-white-out/

Thankd

el roam said...

By the way , the first link put by the author of the post , is broken!! leads to nowhere . Thanks

Joe said...

The link needs to be fixed but it's fairly easy to determine the proper url by looking at it. https://verdict.justia.com/2017/05/10/employment-discrimination-law-teaches-comey-firing

Comey was probably fired for illicit reasons & even if you thought he should be fired (devil/deep blue sea there with Trump in office), it was done in a horrible way. As suggested, it is not about Comey as much as the overall sanctity of the law.

The essay lists possible remedies and in turn is pessimistic. Well, appreciate honesty. The ballot box is cited. That's fine. The ballot box is itself the conclusion of a long process, including an extended firm opposition by the minority in Congress. Their power is limited, but opposition to Trump/Republicans in general has not been shown to lack results even at this early date. A "loyal opposition" view of the law, which Michael Dorf takes part in (see also, Take Care blog) is part of it. This is a long slog and at this point includes being to new party of "no."

Just say "no" to deplorables. The filibuster of Gorsuch instead of endorsing him was an appropriate part of this overall battle.

Joe said...

ETA: I honestly don't like the ugly feelings I have for the opposition party. People close to me are Republicans.

But, they are showing no shame in Congress and even minimal acts of pushback of Trump, who is there in large part because of their actions [cf. France, where so many in the center right did not endorse Le Pen] seems too much. Sen. Collins not even making concerned noises (not much without actions) about Comey is an example.

So, "deplorables" is to me an accurate label at some point. They are being deplorable. This doesn't mean there is a lack of degrees and limits among themselves. But, at some point, it's not enough to change the basic bottom line. It's upsetting but reality.

Michael C. Dorf said...

Sorry about the link. I fixed it.

el roam said...


Just to emphasize it :

First , Remedy , follows wrongdoing , first one must specify , what is the right violated , and in accordance , the remedy , linked to it .

Second : When there is hearing ( due process ) before firing , then , honesty and transparency would come closer . Surly , one may suggest , that if malicious or unreasonable attitude or reason , were the cause of firing , then , Trump in our case , wouldn't be able to state it clearly , head on to Comey ( that fired due to Russian probe ) . And then , he would have to clearly state : what is the reason ?? And when specified , one can attack or refute allegations and wrongdoings . Things become more transparent and honest , by and to all actors , and even to public !

Third : I don't know whether the FBI director is exempted from hearing and due process , yet , the philosophy , for such exemption , can be very simple : Public trust . The director and the president , must be very well coordinated , trust is needed . Acting for public benefit . Once, bitter personal rivalry reigns, then, the public is suspicious, concerning the motives , functioning and actions of both (serving personal interest, instead of public interest). That is why one may argue , that sufficient for Trump , to doubt his functioning , in order to fire him . It is about trust , and public trust anyway . But , legally , I can't clearly cut it right now .

Finally , whatsoever , there is no way , that the FBI director , learns from random TV broadcast , that he has been fired right now . It doesn't imply necessarily hearing, yet, this is not an appropriate method and governing.

Thanks

egarber said...

<<There's no angle in pushing back against Trump for a majority of the House, much less two thirds of the Senate.

It speaks to our sad state of affairs that putting country over party isn't even remotely considered an angle. Sigh.

el roam said...

One may find great interest , in that angle of the firing ( the blog itself , very recommended ) :

https://www.justsecurity.org/40871/white-house-offers-credible-evidence-backup-assertion-fbi-morale/

Thanks

el roam said...

One may also find great interest in that post or take of Alan M. Dershowitz in this regard :

https://www.gatestoneinstitute.org/10336/president-trump-did-not-obstruct-justice

Thanks

Michael C. Dorf said...

The Dershowitz post proves that he is well past his sell-by date. In addition to the absurd false equivalence he draws between Trump supporters and critics, Dershowitz says that Trump cannot have committed obstruction of justice by firing Comey because the president has the power to fire the FBI Director. That's sheer idiocy. If it were shown that Trump took a bribe from Putin to fire Comey, or fired Comey in exchange for a hit man (who didn't like Comey) killing one of Trump's critics, Trump could be prosecuted for accepting a bribe or murder, respectively. I don't know enough about the law of obstruction of justice or about the underlying facts to know whether the allegation of obstruction is plausible, but Dershowitz's argument against its plausibility is just flat-out wrong.

Shag from Brookline said...

Mike, Thanks for your comment concerning the Dersh. I might remind those who seem to have a fondness for the Dersh of your April 1st post a couple of years ago. As a geezer lawyer, familiar with Gen, McArthur, I note that some old lawyers never fade away, especially with the protection of Florida's laws.

And there is an old saying of carpenters: Measure twice and cut once - otherwise toothpicks may result.

Joe said...
This comment has been removed by the author.
Joseph Simmons said...

I have no particularly fond feelings for Dershowitz, but I think Prof Dorf grossly over-reads his statement about the significance of Trump being able to fire Comey. Setting aside wild speculation about bribe and murder-for-hire, and instead rooting Dershowitz's meaning in the theory floated that the firing was to impede investigation into Russian connections, I find Dershowitz's statement reasonable and correct.

I recall that Prof Dorf entertained the idea that Gov Perry might have acted illegally for issuing a veto (when an official refused to resign). I recognize the alternative legal thinking where we might imagine fantastic schemes of bribes and murders, but without such criminal acts, I think the exercise of vested authority is not unlawful. As Dershowitz stresses, actus reus is important. If all we have is that Trump fired Comey, there is not actus reus. If we have that Trump acted on a bribe, that is the actus reus.

I struggle to understand the animus to Dershowitz here.

Shag from Brookline said...

Joseph, I don't note animus on Mike;s. Maybe on my part? In any event as to Mike, note the closing of his comment:

"If it were shown ... [hypo], Trump could be prosecuted for accepting a bribe or murder, respectively. I don't know enough about the law of obstruction of justice or about the underlying facts to know whether the allegation of obstruction is plausible, but Dershowitz's argument against its plausibility is just flat-out wrong."

Disagreement with the Dersh does not constitute animus per se. I confess that I'm well past my sell-by date.

Joseph Simmons said...

Use of the term "idiocy," offering an extremely uncharitable reading of what Dershowitz wrote relying on extreme hypotheticals, and the age-related sentiments read like animus to me.

Disagreement is fine, but Prof Dorf's argument is not at odds with what Dershowitz wrote. For example, the latter wrote, "There should have to be an unlawful act. And exercising constitutional and statutory power should not constitute the actus reus of a crime." Saying that bribery and murder would change things...is obvious.

Dershowitz was making a particular argument based on what we currently know or can reasonably speculate concerning the firing, not writing a law journal article to satisfy every tittle of legal possibility.

Ostensibly legal acts might be found to be illegal if other facts are established. That is not novel.

Michael C. Dorf said...

Joseph Simmons conveniently omits the sentence in the Dershowitz piece that precedes the language he quotes. Here is the full quote: "Even assuming that President Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. There should have to be an unlawful act. And exercising constitutional and statutory power should not constitute the actus reus of a crime. Otherwise the crime would place the defendant's thoughts on trial, rather than his actions."

See that? Dershowitz thinks that EVEN ASSUMING Trump fired Comey for an improper motive--and the only improper motive that is in play is to suppress the Russia investigation--Trump can't have committed obstruction because "motive alone should never constitute a crime." But this is pure sophistry. Trump wouldn't be guilty because of "motive alone." He would be guilty because of his motive combined with the act of firing. Dershowitz is saying here exactly what I attributed to him: If the president has the power to do something, such as fire the FBI Director, for a legitimate reason, then he has the power to do it for a bad reason. And that argument, if accepted, would carry over to the extreme hypotheticals I gave, including doing it in exchange for someone else committing murder, because he had accepted a bribe, or whatever.