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.