Thursday, May 11, 2017

Comey's Firing: A Primer on Pretextual Excuses

Trump fired FBI Director Comey yesterday based on  the Deputy Attorney General's memorandum that discussed at length Comey (mis)handling of the Clinton email investigation.  I agree with the memorandum, and believe that Comey's conduct described in that memorandum would justify terminating Comey, but I nonetheless find the termination of Comey deeply troubling.  How can that be?  Because the memorandum was a mere pretext for more troubling motives.

In employment law there is a well-known doctrine called "pretext."  It states that if you  even terminate an employee for reasonable and plausible reason, you can still be found liable for the violation of the employment laws if your reason was merely a pretext for an improper reason.  the typical case is when a black employee is fired "because she came to work late," when the real reason she was fired was because she was black.

It is stunningly obvious, and the news reporting even by conservative newspapers like the Wall Street Journal supports, that the rationale offered by the Trump Administration was a complete pretext.  Hell, Trump applauded Comey's handling of the Clinton email investigation at the time.  If he had serious concerns about Comey's behavior in the investigation, Comey would have been terminated early in the Administration.  He was not.  Trump's reliance on this explanation is simply laughable.

Well sourced news stories now make clear that Trump had other reasons to dislike Comey--most notably Comey's statement that there was no Obama wiretapping of the Trump campaign, his statement that he felt "nauseous" that he might have influence the election, and Comey's dogged focus on the Russia investigation.

So while the Rubenstein memorandum offers a reasonable basis to terminate Comey, it is clearly a mere pretext for the firing.  As such, the termination of Comey hurts the independence of the FBI and should be troubling to all Americans.

1 comment:

  1. Thanks for the post , just should be emphasized :

    The pretext is illegitimate , not necessarily due to its appearance as such ( formal appearance ) this is because : The pretext can be a well established and justified reason for firing someone , if as such it is so !! Then , pretext becomes trigger !! One should not confuse , trigger , with pretext . It is possible , that the events , leading to establishment of pretext ( as appeared to be so ) are justifying firing , but :

    The historical record of the employee , is anyway disturbing as such , then : the so called pretext , is only the justified trigger for firing , but , it is simply the " last straw " breaking the neck of the beast , yet , justified per se , but appears only , to look like illegitimate pretext .