Firing FBI Director James Comey Is Classic Employer Retaliation Against A Whistleblower—But Does He Have A Case?

Employment Attorneys Serving Northern and Central New Jersey

The attorneys at Green Savits have handled many whistleblower cases on behalf of police officers, doctors, corporate senior management, sales employees and others. So when we observed the firing of FBI Director James Comey, we immediately recognized the classic elements of whistleblower cases being played out on the national stage.  The Comey firing is instructive on how whistleblower cases are proven.

When President Donald Trump fired FBI Director Comey, various reasons were given to justify the decision. First, the Trump Administration’s press secretaries said the decision was based on now former Director’s Comey public statements about Democratic presidential candidate Hillary Clinton’s email server. Comey’s public statements included his decision in July 2016 to recommend not to prosecute but that she was negligent in her handling of potentially classified emails, his letter to Congress on October 28, 2016 that the FBI was re-opening the investigation based on emails found on Anthony Weiner’s cell phone and his letter some two days before the election that said that nothing new was found and the investigation was closed.  Recently confirmed Deputy Attorney General Rosenstein wrote a memo saying that Comey’s actions violated Justice Department policy and what was worse was that Comey refused to acknowledge that fact and stood by his actions.  So, Trump Administration officials said that based on Rosenstein’s memo and the recommendation of Attorney General Jefferson Sessions, the President fired Comey.

Yet, a couple days later in an interview with NBC’s Lester Holt, President Trump contradicted his press spokesman’s and spokeswoman’s stated justification by saying that he was going to fire Comey no matter what recommendations were given to him by Attorney General Sessions and Deputy Attorney General Rosenstein.  Furthermore, President Trump implicitly admitted that he fired Comey for pursuing the investigation of the Trump Presidential campaign’s alleged collusion with Russian operatives to influence the 2016 Presidential election.

So, two whistleblower concepts were at play.  First, Trump’s statement to Lester Holt that he was thinking of the waste of an investigation about collusion between the Trump campaign and Russian intelligence when he decided to fire Comey.  This is what we refer to as “smoking gun” or direct evidence of a possible illegal retaliatory motive.  That is, the individual who has the decision-making authority to fire an employee admits that the decision was based on an illegal retaliatory reason.  The second concept is what we call “pretext” or a smokescreen for the real reason(s) for the firing. Here, the first Trump Administration’s press statements that Comey was fired for his violation of Justice Department guidelines when he publicized his decision-making about the criminality or lack thereof of Hillary Clinton’s email server was a pretext or smokescreen for the real reason for firing Comey which Trump gave in his Lester Holt interview.

Now does Comey have a whistleblower claim under federal law?  The answer is no.  Whistleblower cases are created by statutes and there is none that would apply to a FBI Director being fired by the President of the United States.  The FBI Director under federal law is nominated by the President and if confirmed, can server no more than a ten-year term in office.   However, because the FBI Director is a presidential appointee subject to confirmation by Congress, the person occupying that position serves at the unbridled discretion of the President. Thus, the President has the legal right to fire the FBI Director even if for sordid reasons.

So, let’s assume that Comey was fired by the CEO of a New Jersey publicly traded company for insisting on investigating, reporting or objecting to what he reasonably believed is illegal conduct; does he have a whistleblower claim?  The answer may be yes and could bring a lawsuit under the New Jersey Conscientious Employee Protection Act or possibly federal laws. When the CEO comes up with a pre-textual reason for that firing, we at Green Savits will set out to prove that the real reason was an illegal retaliatory motive.

So, if you believe that you are experiencing illegal retaliation because you reported, objected to or refused to participate in what you believe to be illegal conduct by your employer, the attorneys at Green Savits, LLC are here to assist.  Call us at (973) 695-7777 or contact us today as indicated on top right hand corner of this page.