By Dr. Ken Broda-Bahm:
Why did President Trump fire FBI Director James Comey? As of press time for this blog post, the answer is that it depends on who you ask and what day, and sometimes what time of day, you ask them. A detailed timeline from the New York Times focuses on the shifting rationale, but the broad outline is that on Tuesday, May 9th, the surprise termination letter said the reason was to "restore public trust and confidence" in the FBI, and referenced that the President had accepted the recommendation of Deputy Attorney General Rod Rosenstein, who grounded the advice in Comey's poor handling of the investigation into Hillary Clinton's email during the presidential campaign. Vice President Mike Pence and many others repeated that explanation. Then the next day, spokesperson Kellyanne Conway seemed to contradict that in an interview with Anderson Cooper saying it had "nothing to do with the campaign from six months ago." Then one day later, in an interview with NBC's Lester Holt, Trump himself seemed to abandon both explanations, criticizing Comey (some would say, ironically) as "a showboat" and "a grandstander," the President said that it was his decision, a decision which was made before he received Rosenstein's letter, and a decision that was based on Comey's pursuit of the "made up story" on Russian involvement in the presidential campaign.
Of course, in one sense, the explanation may not matter: Whatever the optics, the President does have the power to terminate the FBI Director. However, as I'm watching this all play out in the news cycles, it does strongly remind me of an employment litigation situation where unclear and inconsistent statements surrounding performance and termination raise the specter of that dreaded word, "pretext." A company with the full right to fire someone for a good and legally defensible reason can still face the full force of a discrimination or retaliation claim if that good reason lacks credibility and is deemed a pretext instead. Ultimately, it ends up being a question for the juror or the arbitrator: Is the proffered reasons the real reason? On that subject, the Comey termination and the communication surrounding it serves as a good example of what not to do when offering an explanation for termination or other adverse actions in the workplace. In this post, I will look at a few of the main themes contributing to that list of "Don'ts."