Unlike the man who fired him, Jame Comey isn’t talking. He has declined an invitation to talk to a Senate committee. He has made no public statements about the event, even though others have. What could he be doing? Here’s my best guess.

Mr. Comey is a smart, methodical, and persistent lawyer and investigator. Why wouldn’t he come out swinging? I think he has been talking to some other very smart lawyers. If he is going to fight, he will do it on his own home turf, a court room. He could be considering a civil suit for Wrongful Termination or similar cause of action. The grounds could be that the dismissal was based on false premises, and/or an intent to obstruct justice, and/or personal animus, or some such language. The important goal of such a suit would not be a financial award of damages or settlement. It would be the discovery process, the gathering of evidence.

Discovery in such an action would include obtaining depositions under oath from the President, Attorney General, Deputy Attorney General, the then Deputy FBI Director, and probably others who would have knowledge of the decision and its history. Any and all documents relating to the action would be sought and if need be, subpoenaed, as would any recorded conversations and statements relevant to the matter.

Once the suit was filed, Comey could refer any and all questions about the firing and the law suit to his attorney. He would then be free to testify to lawmakers about any subject other than the firing because that would be a subject of pending litigation. He could talk, within the usual limits, about the status and progress of the “Russia” investigation up to the point of his leaving the FBI, his previous conversations with Mr. Trump, and morale and other conditions within the FBI before his leaving.

The first likely response to such a suit could be that since the FBI Director serves “at the pleasure of the President”, no reason for such a dismissal is needed or relevant and it would be argued that the Plaintiff would have no Standing to sue. But, reasons were given, multiple and contradictory reasons. The judge hearing the case would have some interesting arguments and motions to consider even before any evidentiary claims. A claim of Executive Privilege would also be likely made to prevent or limit discovery.

I could be wrong about all of this, but Comey’s silence does lead me to suspect he is planning a response, and one which would help to expose the President’s motives in a court process. A civil suit would be heard by a Court of Equity where the standard of proof is, “the preponderance of the evidence,” as opposed to a criminal case in a Court of Law where the standard is, “to a moral certainty and beyond a shadow of a doubt.” In a civil case, if the defense were to seek to avoid Discovery and a public presentation of the evidence, they could offer a settlement in money or actions. The Plaintiff could refuse any offered settlement and insist on seeing the process through.

Of course, if Mr. Trump keeps firing or demoting people connected to a certain investigation, it could become a class action suit.

I do expect something interesting, and probably quite infuriating to a certain Chief Executive, to happen.



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