Pretext

Pretext

By Warren S. Hecht

Generally, an employer can fire an employee with or without cause. The exception to the rule includes when the employer fires the employee because of discriminatory motives such as race, religion, age, or retaliation. These are hard cases for the employee to prove because most employers are smart enough not to leave a smoking gun. They usually have an excuse to justify their conduct. The people usually in charge of making an improper firing look legitimate are HR (human resources). They make a record to justify the adverse conduct, such as claiming that the employee was insubordinate or failed to do the job properly.

President Trump, being from the private sector, is well aware of how things are done. He has fired many people through the years.

The White House tried to use the same strategy in getting rid of James Comey, former director of the FBI. Instead of using HR, they used the attorney general’s office to set up a “legitimate” reason for the firing. When Comey was fired, the White House came out with the story that it was done by relying on the memo by the deputy attorney general, who was well respected. The memo criticized Comey for how he handled the e-mail investigation of Hillary Clinton. In particular, he criticized Comey’s comments made to Congress when they decided not to prosecute. Furthermore, he criticized Comey for informing Congress within two weeks before the election that they were looking at new e-mails, and then the subsequent comments right before the election that nothing had changed.

This might have worked but for a few problems. One was the timing. If the president wanted to dump Comey he should have done so right after the inauguration. Comey was fired right in the middle of the FBI investigation of the Trump team’s involvement with the Russians. The second was that the same president who decided to fire Comey praised him for these actions. Thirdly, the attorney general, who was not supposed to be part of the Russian investigation, signed off on the recommendation that Comey be terminated.

Thus, when people started doubting the credibility of this story, the administration, including the president, started giving different reasons for the firing and different time lines as to when the decision was made.

It appears that the reasons given for the firing are false and it was a pretext for something else. In employment cases, showing pretext is significant. There are some courts that have held that a showing of pretext is enough to prove discrimination or other illegal conduct. At a minimum, it should get the case to a jury.

Then the question becomes: What is the real reason that Comey was fired? For many of us, especially those who remember Watergate, it appears to be an attempt by the White House to stop or severely hamper the investigation involving Russia and those who were Trump advisers or those working in the White House.

The president admitted in his interview with Leslie Holt that the Russian investigation had some influence in his firing the FBI director.

It appears that the reasons given for the firing are false
and it was a pretext for something else

If the president thought that firing Comey would stop the investigation or hamper it, he is mistaken.

He has managed to turn an agency that during the election was pro-Trump to an agency that is angry at him and will work even harder to make sure they get to the bottom of what transpired.

Not only was the firing improper, but the way it was done shows the world what a person Trump is. I have some choice words but I do not want to get Rabbi Schoenfeld upset.

Comey found out about the firing while he was in Los Angeles giving a speech to a local FBI office. Comey saw the report on the television and thought it was a joke. I believe this was done to totally humiliate Comey.

Comey took the high road and commented that the president had the right to do so and thanked those with whom he worked.

Trump’s response was to have his spokespeople claim that Comey had lost the confidence of the rank-and-file FBI employees, which was totally false. Trump also threatened Comey about leaking a conversation he purported to have had, since there are tapes.

In contrast to Trump’s attacks on Comey, the day after Comey’s firing, the president was all smiles with the Russian foreign secretary and the ambassador who were invited to the White House. The ambassador is a known Russian agent and is one of the subjects of the FBI’s investigation of Russian meddling in our elections. The photographs of the event were taken by the Russian institution TASS and not by our media, since they were not allowed in the meeting room.

Of course, the diehard Trumpians have no problem with this episode. For them he can do no wrong. They will support him to the end. People forget how it was with Richard Nixon. It took a while for the Republicans in Congress to see the light and take the politically courageous act to go against the party’s president. Even today there is a significant group who felt that Nixon got a raw deal.

Hillary Clinton’s reaction was a reminder of why she was also not well liked. She blamed Comey for her losing the election. It is mere conjecture. If she had run a better campaign, including not coming across as being elitist and had come with less baggage, the emails would not have been an issue. If she had not been so careless or lazy in using her home server, there would have been no investigation. However, since she is not the president her reaction is not significant.

The president’s conduct in this incident is significant. The trap that the president wants people to fall into is to claim that those who are complaining about Russian conduct and his actions against Comey want to relitigate the election. This is not about relitigating the election. This is about a possible abuse of presidential power and his acting in a reprehensible manner and a foreign power trying to influence our elections.

Warren S. Hecht is a local attorney. He can be reached at whecht@aol.com

 

 

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