Journal darkonc's Journal: Why FBI director Comey should sue for his job back 1
I have a possible answer for why Comey has been so quiet of late. Many people have commented on how â" given that Comey is no longer head of the FBI, he is now free to express his opinions on a number of issues related to what has been going on in the agency. Some of these people are wondering just why he hasn't taken advantage of that freedom. I have a possible explanation as to why â" he may not consider himself out of a job just yet. I think that he may be planning to sue for his job back.
His probable ability to sue for his job back hinges on the kind of appointment that he was given. To explain this, I'm going to fall back on British law (which US law inherits) and Canadian law (closely related). This is both because I know Canadian law better and because I think that the Canadian common law has more distinction in this area.
In Canadian/British law (as opposed to US legality which uses 'good behavior' differently), there are two distinct types of appointments that cam be made: 'at pleasure' and 'on good behavior'. At pleasure appointments seem to be the most common in the US. These appointees can be seen as representing the person who appointed them. They are appointed at the pleasure of the appointer and, more importantly, they can be fired at the pleasure of the appointer Keen Vs Canada indicates that the bar one needs to pass in order to legally dismiss an at pleasure appointment is rather low.
At Pleasure type appointees can generally be seen as representing the person who appointed them because they can be fired for little or no reason, they can be expected to hold high regard for the interests and wishes of the person (or office) that appointed them.
Good Behavior type appointments, on the other hand are generally used in situations where there is some need for independence on the part of the appointee. Judgeships are a perfect example.. The FBI directorship is a second example. In a society where rule of law is sacrosanct, it is important that anybody can be reached by at least one investigatory body. In the case of The President, the investigatory body of primary jurisdiction is the FBI. Although the legislature and the courts can act in the case of a rogue president, the FBI can provide an independent investigatory purpose. Investigation is the FBI's primary expertise. In cases such as now where the Senate and House are friendly to the administration, an incriminating report by the FBI could give the legislative branch a critical push to take action. In cases where the legislature is inimical to the executive, an vindicative report by the FBI could similarly put a stop to an unnecessary witch hunt. However, if the independence of the FBI is impaired (either apparently or actually), then the functionality of the FBI in this manner can be seriously impaired.
The argument that the directorship of the FBI is a 'good behavior' type of appointment that can only be fired on good cause comes from two directions. One is estoppal. In the entire history of the FBI, a director has only been removed once (William Sessions in 1983), and that time was for good cause.
The second argument is functionality. The FBI needs to be an independent investigatory body and, if the director of the FBI is looking over his/her shoulder to the executive branch every time (s)he sees a need to investigate a member of one of those bodies, then the FBI will be unable to function with real impartiality. It is important, in a jurisdiction that values the rule of law that not only should justice be done, but that justice be seen to be done. At the very least, there will be strong cause for public discomfort over the appearance of partiality of the FBI if The President can fire the director without serious cause â" especially in a situation, such as the one this month, where the FBI director is overseeing an investigation of the President's administration..
The third reason is the wording of the legislation surrounding the appointment of the Director. The Director is appointed for a fixed term of 10 years. It is reasonable to presume that, should that appointment be terminated, there should be some reasonable cause for the termination. The FBI directorship is one of the few with a specific term, and the length of that term should generally be respected unless there is good cause to disrespect it.
Stupid (Score:2)