Michael Dorf: What the Law Says About Comey's Abrupt Firing

Donald Trump shakes hands with then–FBI Director James Comey in the Blue Room of the White House on January 22, 2017. Andrew Harrer-Pool/Getty

This article first appeared on the Verdict site.

To justify firing FBI Director James Comey on Tuesday night, President Trump invoked a memorandum from Deputy Attorney General Rod Rosenstein that cited Comey's breaks with protocol last year in publicly discussing the investigation into Hillary Clinton's use of a private email server. The justification is wildly implausible as an actual causal account of the firing.

For one thing, Trump had previously praised Comey for some of the very acts that the Rosenstein memo identifies as damaging "the FBI's reputation and credibility."

Moreover, the timing is extraordinarily suspicious. Rosenstein produced his memo the same day that Trump fired Comey, without waiting for the result of an Inspector General investigation of Comey's handling of the Clinton case.

Why the rush? The motive seems obvious. Comey has been overseeing an investigation into possible collusion by members of the Trump campaign with Russian efforts to interfere in the 2016 presidential election. Although Trump has repeatedly mischaracterized statements by Comey and others to suggest that there is no evidence of such collusion, it has been clear for some time that the administration would much prefer a servile FBI Director.

Indeed, leaked reports of discussions at "the highest levels of the Trump administration" confirm the inferences that can readily be drawn from the public record. Reportedly, Trump tasked Attorney General Jeff Sessions with finding a basis for firing Comey, despite the fact that Sessions has recused himself from the Russia investigation. Sessions then endorsed the Rosenstein memorandum.

In response to the backlash to the "Tuesday Night Massacre," Trump accused Democrats who had previously criticized Comey for his handling of the Clinton investigation of hypocrisy. Never mind that the charge applies with at least equal force in the opposite direction; does Trump nonetheless have a point? If Comey's mishandling of the Clinton investigation made him a flawed FBI Director, does Trump's real motive for firing him matter?

The short answer is yes. An analogy to employment discrimination shows why.

Title VII of the 1964 Civil Rights Act makes it unlawful for employers with fifteen or more employees to fire an employee on the basis of "race, color, religion, sex, or national origin." Title VII protects people even if they are so-called employees-at-will, meaning that they lack contractual tenure or other general protection against firing. As the case law construing Title VII makes clear, a covered employer does not need a good reason to fire an at-will employee, but the employer cannot do so for a bad reason.

Related: Michael Dorf : What Does Trump Mean By Political Correctness?

For example, suppose that Sheila works as an at-will employee for a large corporation. Sheila can be fired because she smokes in a non-smoking area. She can be fired because she shows up late to work. Sheila can even be fired because her supervisor has a personality conflict with her.

But Sheila cannot be fired because she is white, because she is a Methodist, because she is a woman, or because her ancestors came from Sweden.

When employees sue under Title VII, employers typically defend on the ground that the employee was not fired (or subject to some other covered adverse employment decision) on one of the illicit grounds. Rather, the employer will say, the employee was fired for some other, permissible, reason. A judge or jury must then decide what the real reason for the firing was.

The Supreme Court laid out the framework for adjudicating such cases in its 1973 ruling in McDonnell Douglas Corp. v. Green. Once the plaintiff makes an initially plausible claim that she was subject to illicit discrimination, the burden shifts to the employer to come forward with a non-discriminatory ground for the decision. After that, the plaintiff offers evidence and arguments for concluding that the employer's stated ground is simply a pretext for a discriminatory reason.

To return to our hypothetical example, suppose that Sheila shows that she was fired and replaced by a man. She also points to sexist comments made by her supervisor. The company says no, Sheila was fired for smoking in non-smoking areas.

But then Sheila responds with evidence that numerous male employees also smoked in non-smoking areas and were not fired. Thus, she says, her conceded violation of the no-smoking rules was not the real reason for her firing. She was really fired, she says, because of her sex, in violation of Title VII.

The case would go to the jury for a determination—based on the weight of all the evidence—of the real reason Sheila was fired.

Applying the Title VII Analogy

To state the obvious, Title VII does not apply to Trump's firing of Comey. Comey cannot sue Trump for wrongful termination. The case against Trump is political, rather than legal.

Nonetheless, Title VII provides a useful means of thinking about the Comey firing because of the widely shared premise that the issues have the same structure.

Critics contend that Comey was fired because Trump did not want him to conduct an independent investigation into possible collusion with Russia. Trump and his defenders say no, Comey was fired for a legitimate reason: his poor handling of the Clinton matter. Just as in a typical Title VII case, we have conflicting accounts of the reason someone was fired.

Notably, the framework that the Supreme Court laid out in McDonnell Douglas did not derive from any particular language in Title VII. The statute is silent on the question of how judges and juries should decide whether someone was in fact fired for a bad reason.

The unanimous opinion by Justice Lewis Powell in the McDonnell Douglas case was simply an application of logic and common sense to the problem of how to resolve a factual dispute over the reasons for an adverse employment decision. That same logic and common sense should apply in resolving the factual question about the Comey firing.

Related: Michael Dorf : Trump Can't Claim Immunity. Ask Paula Jones

Applying the Title VII analogy, two salient features stand out. First, the fact that the FBI Director serves at the pleasure of the president is irrelevant to the key question. Employees at will have Title VII protection against firing for bad reasons. An employer defending a Title VII lawsuit does not win its case simply by pointing out that the discharged employee lacked contractual protection. The question—in both contexts—remains whether the firing was for an affirmatively bad reason.

Second, Trump should not prevail in the court of public opinion on the ground that Comey was doing a poor job. Even if Sheila could have been fired for violating the company's no-smoking rules, if she actually was fired as a result of sex discrimination, she wins her case.

Here the question is not whether Comey's handling of the Clinton case warranted his termination as FBI Director. Even assuming it did, if Trump's real reason for firing Comey was to undercut the investigation into collusion with Russia, he will be properly judged to have acted wrongly.

People sometimes say that we can never know the reasons why others act. In some theoretical sense, perhaps that is true. But the law often assigns motives based on the weight of evidence.

Here that evidence—of exactly the same sort that courts routinely weigh in Title VII cases—overwhelmingly indicates that Trump's asserted grounds for firing Comey were pretextual.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

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