FBI Agents File Class Action Challenging "Retaliatory Firing"

While FBI agents may be at-will employees who can, generally speaking, be fired for "any reason or no reason," they can't be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can't fire all the African-American agents, or all the agents registered as Democrats).

The Complaint, filed in DC District Court, is posted here. Plaintiffs are "employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity." They "intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest."

Three Counts of unlawful activity are alleged: (1) Violation of the First Amendment to the Constitution: Retaliation Based on Perceived Political Affiliation; (2) Violation of Plaintiffs' Substantive and Procedural Due Process Rights under the 5th Amendment; and (3) Violation of the Plaintiffs' Fifth Amendment Right to Privacy.

I think they've got a decent case - don't you?

Comments

[Brett Bellmore]

Nope.

"(1) Violation of the First Amendment to the Constitution: Retaliation Based on Perceived Political Affiliation;"

They're being fired for job related conduct. What makes this particular complaint especially ironic is that the investigation they're being fired for conducting did exactly what they're accusing the Trump administration of.

"(2) Violation of Plaintiffs' Substantive and Procedural Due Process Rights under the 5th Amendment;"

They're at will employees.

"(3) Violation of the Plaintiffs' Fifth Amendment Right to Privacy."

By being questioned about job related conduct?

[Bubba Jones]

They are being fired for being assigned to an investigation.

[Riva]

5000 agents on the J6 crusade. 39% of the entire f'ing Bureau. They lost their minds and reform is decades overdo.

[Dr. Ed 2]

Firing 39% sends a good message, like hanging Nazis at Nuremberg did.

[neurodoc]

Congratulations, Dr. Ed. Some amazingly stupid and repugnant things have been said over the course of time in the comments section of this blog, but for the present I can't think of any that have matched this contribution of yours, let alone exceeded it.

[Brett Bellmore]

Which still does not fall under any of the 3 allegations above.

[skeptical scientist]

Which is not constitutionally protected. They may be getting fired for a stupid reason, but that doesn't mean their firing is constitutionally forbidden.

[Kazinski]

Perhaps, but as Post says that's not grounds for reversing the firings.

[Dr. Ed 2]

Bubba, this is May Li writ large -- to a large extent, they followed illegal orders, just like Calley did. Some, like the Boston Office, protested the orders and that may save some jobs, but "I was just following orders" hasn't worked since Nuremburg.

Let's say that John Mitchell had the balls to stand up to Hoover and called the FBI on the stuff it had done to Dr. Martin Luther King, Jr. Could those agents have hid behind a lawsuit like this.

They could have been card-carrying Klansmen (if such things exist) -- they wouldn't have been fired for being racists or being generally disgusting human beings -- they would be fired for what they DID to King.

Same thing here -- it's what they did on the job and nothing else.

[Noscitur a sociis]

Bubba, this is May Li writ large -- to a large extent, they followed illegal orders,

Can you give an example of even a single order that you think was illegal?

[Absaroka]

It's not even My Lai writ microscopic.

"At least 347 and up to 504 civilians, almost all women, children, and elderly men, were murdered by U.S. Army soldiers from C Company, 1st Battalion,...Some of the women were gang-raped and their bodies mutilated, and some soldiers mutilated and raped children as young as 12.
...
The villagers were getting ready for a market day and at first did not panic or run away as they were herded into the hamlet's common spaces and homestead yards. Then the same trooper pushed another villager into a well and threw a grenade in the well. Next, he saw fifteen or twenty people, mainly women and children, kneeling around a temple with burning incense. They were praying and crying. They were all killed by shots to the head.
...
A large group of approximately 70–80 villagers was rounded up by 1st Platoon in Xom Lang and led to an irrigation ditch east of the settlement. They were then pushed into the ditch and shot dead by soldiers after repeated orders issued by Calley, who was also shooting. PFC Paul Meadlo testified that he expended several M16 rifle magazines. He recollected that women were saying "No VC" and were trying to shield their children."

That's a few highlights from wikipedia, who are leaving out the more graphic details of "and their bodies mutilated" that you can find in other sources.

[David Nieporent]

It's also worth noting that although people say that Calley's "Just following orders" defense didn't work, it essentially did; the guy got a slap on the wrist. A real slap on the wrist, not like when MAGA says that about anyone who isn't executed. Although his sentence was initially higher, what he actually served was just three years of house arrest for mass murder.

[David Nieporent]

Bubba, this is May Li writ large

It's My Lai. Not sure which is worse: your spelling or your analogy.

[Kords]

Both you and David Post are wrong. FBI agents are not at-will employees. Like almost all non-probationary federal employees, they are entitled to "for cause" employment protections under 5 U.S.C. §§ 7513 and 7543. And before they can be fired, they are entitled to 30 days notice and an opportunity to contest the adverse employment action.

[Brett Bellmore]

I suppose it was silly of me to assume Post had that right, but I still think their case, as stated, is a joke. Virtually everything in their filing is irrelevant, and they are literally arguing for a constitutional right to keep the President in the dark about the activities of his own subordinates.

[Life of Brian]

Reading the statutes you cited, I don't think that's correct:

5 USC § 7511(b)(8) appears to explicitly exclude most FBI employees from the definition of an "employee" eligible for protections under § 7513.

5 USC § 7541(a) appears to limit an "employee" eligible for protections under § 7543 to members of the Senior Executive Service.

[Kords]

Whoops, you are correct. I misread the exception to 5 USC § 7511(b)(8) exclusion of FBI employees under "subsection (a)(1)(B) of this section" as applying to agents who had been in their position for more than a year. But that applies only to preference eligible employees.

That said, I still think the firings are unlawful (even if not necessarily unconstitutional). Can't make fire federal employees for (1) disclosing information that the employee reasonably believes evidences any violation of law; or (2) making disclosures to a special counsel or inspector general or assisting a special counsel or inspector general in investigations.

[Noscitur a sociis]

1. It’s not “a special counsel” like Jack Smith, it’s the U.S. Special Counsel, a permanent position (despite the name) responsible for investigating Hatch Act violations and whistleblower retaliation. Not to mention that Smith wasn’t involved with most of the January 6 cases (none aside from Trump’s I believe).

[Brett Bellmore]

"That said, I still think the firings are unlawful (even if not necessarily unconstitutional). Can't make fire federal employees for ..."

But, who's proposing to?

[Dr. Ed 2]

That horse left the barn 15 years ago in academia with "interim sanctions."

Like with students in state colleges, they get fired now and can have a hearing later if they want one, and they can get their 30 days pay if they sue for it.

[ravenshrike]

Well, considering none of them have been fired yet, the 30 day notice thing doesn't come into play, and the second part will be "did you at any point make known your dissatisfaction with the duty in question?" and when the answer is no it will be "sorry, but we do not think that you make a good FBI agent. In 30 days your job is terminated".

[bernard11]

Are you defending the firings?

You're truly a Trump fanatic, beyond cultism, your
frequent disavowals notwithstanding.

Trump is firing people who did the jobs assigned to them.

[DJK]

Are you engaging with the substance of the argument? Which of the three categories are implicated and why?

[Riva]

And, if one is looking for fanatics, look no further than the fired agents' lawyer (courtesy of @nataliegwinters):

EXC: The lawyer suing Trump’s @DOJ on behalf of Jan 6 FBI agents fearing “political retribution” called to “remove MAGA” from government and “fire them ALL.”
She also demanded Biden “MUST MUST MUST remove MAGA from our institutions.
FIRE DEJOY!!! FIRE FLYNN!! FIRE WRAY!!!”
She then called for “Industrial strength disinfectant of MAGA bacteria in our institutions.”

[Brett Bellmore]

No, I'm not defending the firings. I'm critiquing the arguments cited approvingly in the OP.

As a policy matter, I think firing all 5,000 would go too far. (And I don't expect all 5,000 to end up fired!) As a legal matter, I think their challenge here is a steaming heap.

They are literally arguing that the President is not entitled to know what his own employees have been up to, lest he act on it. I think it's hard to fully express how crazy that position is.

[Life of Brian]

Trump is firing people who did the jobs assigned to them.

Huh -- I must have missed when "I was just following orders" became acceptable again.

[Bubba Jones]

2016

[Stupid Government Tricks]

"Just following orders"?

Yeah, that's an excellent defense.

ETA: should have refreshed.

[David Nieporent]

The same people are simultaneously claiming that

1) The president has the right to fire Inspector Generals, or any other executive branch employee he wants, because a president is entitled to only have people working in the executive branch who will blindly follow his orders; and
2) FBI agents should be fired for following orders of past presidents.

[Lee Moore]

The President has the right to fire IGs etc ..... because the executive power of the United States is vested in him. So it's up to him to decide who he trusts to do the executing.

The President therefore has the right to fire FBI agents for any reason or none.

Whether it is wise to do so or not, depends on the circumstances. As it happens he hasn't fired any FBI agents yet, he's just started investigating those involved in the J6 business. Which he is fully entitled to do, and given the torrent of reports of abuses at all stages of the J6 affair, seems eminently wise.

If an FBI agent who was "just following orders" gets fired, I'd be sympathetic. So long as he or she had made whistleblower reports on anything inappropriate he or she had witnessed during the investigation.

But mostly, to borrow Elon's comment about USAID, I suspect the FBI is not an apple with a worm in it, but simply a ball of worms.

[Jason Cavanaugh]

You are a dumb, Constitutionally illiterate fuck.

That paragraph is an overview of Article 2. The Powers (note the proper noun) granted to the President are enumerated in section 2+, helpfully using the same syntax.

Or rather it would be helpful to those with a brain. My apologies.

[Lee Moore]

I assume by "that paragraph" you mean the first sentence of Section 1 ?

What that sentence actually means is that whatever executive power the federal government has, is vested in the President. Not in anybody else. (Just as in Article 1 whatever legislative power the federal government has is vested in Congress.)

Section 2 describes some specific powers, but it is hard to believe that those are all the powers there are or could be. How would taxes be collected, criminals be pursued, roads be commissioned and so on, if the President's only executive power was to be Commander in Chief, write a treaty or two and appoint officers ?

In reality Congress - so long as it stays within its enumerated powers - can make laws which need to be put into executive effect. Such as laws providing for the collection of taxes, the pursuit of criminals and the building of roads. These executive activities are within the powers of executive branch to the extent that they are derived from constitutional laws passed by Congress.

What Section 1 Sentence 1 is telling us is that those executive powers cannot be transferred out of the President's control, to some other person or body. Certainly they can be exercised by constitutionally appointed Officers under the President's control. But not outside his control. For that would defy the first sentence of Article 2.

PS you do seem to be very emotionally invested in this issue. Do you have a paycheck interest in the management of the executive branch ? Or a loved one trembling at the prospect of Elon's teenage geeks let loose ?

[Michael Ejercito]

What Section 1 Sentence 1 is telling us is that those executive powers cannot be transferred out of the President's control, to some other person or body.
Very good point.

[Jason Cavanaugh]

You're close, but wrong.

That sentence is a statement of purpose for the entire Article, just like it is for Article 1. It then goes on to describe how Presidents are elected, just as Article 1 describes how Representatives, and then Senators, are elected. It then goes on to enumerate the actual Powers, just like it does in Article 1.

It's only "hard to believe" because you don't understand that Presidents are not Kings.

"How would taxes be collected, criminals be pursued, roads be commissioned and so on, if the President's only executive power was to be Commander in Chief, write a treaty or two and appoint officers ?"

The same way everything else is done: by the Legislature writing laws and the President signing them. The President's Constitutional authority does not change because of laws.

I am invested because a lot of partisan fucks in this country seem to think that his deliberate violations of the Constitution, and the laws, and now if I understand correctly, court orders, are somehow acceptable because the ends justify the means.

As far as I'm concerned, you are attempting to overthrow the Government and install an authoritarian who thinks he has the "Article 2 power to do whatever I want."

[Lee Moore]

moi : "How would taxes be collected, criminals be pursued, roads be commissioned and so on, if the President's only executive power was to be Commander in Chief, write a treaty or two and appoint officers ?"

toi : The same way everything else is done: by the Legislature writing laws and the President signing them. The President's Constitutional authority does not change because of laws.

The President's Constitutional authority does not change because of laws - that is established by the first sentence of Article 2. But the field over which the President's constitutional authority is exercised does expand or contract according to what laws Congress (constitutionally) passes, which require execution.

There may be the occasional law that is self-executing - eg maybe changing the name of a National Park. Once the park is renamed in the law, that's all you need. No further execution is required.

But most laws are not like that - they have to be executed. Taxes do not flow into the Treasury just because Congress passes a law. They actually have to be collected. This is an executive task. And since it is an executive task, Congress may only pass the task of execution to ..... the executive branch. It cannot award itself the task, nor give it to an agency independent of the President and controlled by Congress.

The first sentence of Article 2 requires Congress to hand the task over to the executive branch, that is to say the branch which has the sole possession of the executive power of the United States.

So your theory stubs its toe on the fact that almost all laws passed by Congress require the executive power to execute them.

Neither the first sentence of Article 1 or Article 2 are just general scene setting. They are the unequivocal statements of where in the federal government the exclusive legislative power and the exclusive executive power lies.

you are attempting to overthrow the Government

The President is the Government, so far as the federal executive power is concerned. It's right there in black and white, line 1 of Article 2.

Whoever seeks to exercise federal executive power without the President's consent - it is he who is trying to overthrow - or at least usurp the lawful authority of - the Government.

[Jason Cavanaugh]

You seem to have skipped right over the enumerated Powers of Article 1, 2, and 3 all being listed separately from their opening paragraphs.

Your argument is akin to claiming "legislative Power" in the opening paragraph of Article 1 means passing laws about anything and everything, while ignoring the actual Powers specifically being granted later.

You seem to be aware that the "legislative Power" in Article 1 is enumerated later (with consistent proper nouns, even!), because that phrase alone doesn't answer the question of "What does legislative Power mean?"

You then ignore the same language in Article 2, with the same proper noun, and the same question which should be asked "What does executive Power mean?"

Presumably, you're back on-board with me for Article 3 explaining what "judicial Power" meant below the simple statement of Section 1.

You are inconsistent in your argument and respect for the structure of the Articles because you have to be in order to be right. Executive Power means the enumerated Powers explained below the description of how Presidents are elected, just like the legislative Powers are enumerated after descriptions of how they are elected and the judicial Powers are enumerated after describing how the Courts are established.

You also ignore Clause 2 of Article 2, Section 2, which clearly indicates Congress can choose among three choices for who can appoint inferior Officers. Officers who execute laws, despite not being the President and not requiring the President's approval.

The President is not the government. The President has specific Powers granted to them by the Constitution, just like it does for the other two branches.

My argument is not only consistent, but it also maintains Checks and Balances. Yours creates a King.

[David Nieporent]

The President is the Government,

No, no, and — for more emphasis — no. The presidency is not the government, and the president is not the presidency.

[Lee Moore]

Your argument is akin to claiming "legislative Power" in the opening paragraph of Article 1 means passing laws about anything and everything, while ignoring the actual Powers specifically being granted later.

No. The opening sentence of Article 1, just like the opening sentences of Article 2 and 3, establish WHO has the legislative power, executive power and judicial power, in each case exclusively. Not WHAT the powers are.

But if you look carefully, there is a subtle difference between the opening of Article 1, and the opening of Articles 2 and 3. Article 1 begins “All legislative Powers herein granted…” – which makes it clear that “herein” is the only place where the legislative power of Congress is to be found. Articles 2 and 3 do not say that.

That is because there is another source of executive and judicial power besides the Constitution itself. Law that Congress enacts. We cannot tell the scope of executive or judicial power simply by looking at the Constitution, because the Constitution does not tell us all the things that needed to be executed or judged. We need to consult the statute book too. And the contents of the statute book, and the executive and judicial responsibilities that flow from it, expand and contract according to the particular statutes enacted.

However we seem to be agreed that the executive power includes the power to collect such taxes as the Congress has voted, using such methods as Congress has provided for. The essential point of difference, so far as I can see, is that you disagree with me, and the opening sentence of Article 2, about where the executive power – whatever it may amount to – is vested.

I think it is vested in the President. And that whatever laws Congress may enact, any attempt to vest executive power elsewhere than with the President, is flatly unconstitutional. (Which does not prevent Congress establishing agencies, so long as the President controls them. He is not expected to collect the taxes personally.)

Where do you think the executive power lies ?

[Jason Cavanaugh]

You continue to fail to recognize what "executive Power" is being granted to the President by the Constitution.

It helpfully lists them all, prefaced with "..shall have Power.." later in Article 2.

The President's authority extends beyond Officers of the United States, only so far as Congress authorizes when they create the inferior Officers. You keep overlooking that obvious point. That inferior Officers would be a part of the IRS, for instance, does not immediately give the President authority over those employees. The President would have authority over the Head of the Department, but CONGRESS decides if the inferior Officers are hired and fired by the President, the Courts, or the Head of that Department.

Our Constitution of limited, enumerated Powers did not set out to create an unlimited, omnipotent King immediately after rebelling against one.

[Lee Moore]

I think you are overlooking the obvious point that officers, inferior or otherwise, and employees engaged in the task of collecting taxes, are performing executive functions.

The Constitution does not permit Congress to infringe the President's sole authority to exercise the executive Power of the United States. Therefore whatever arrangement involving whatever species of Offcier or employee that Congress may propose must fall within the President's authority. If it falls outside the President's authority, it is unconstitutional.

So no I am not saying that the President has limitless executive power to do whatever he wants. I am merely saying that to the extent that executive Power to do anything in particular does exist, it lies with the President. Congress cannot place it anywhere else.

If you insist that the President may not direct the operations of IRS employees (or Officers) then all you are saying is that Congess has voted for taxes to be levied, but has not provided for a constitutionally permissible method of collection. Whatever IRS people do outside the President's control is unlawful because it is in breach of Article 2.

[David Nieporent]

Section 2 describes some specific powers, but it is hard to believe that those are all the powers there are or could be. How would taxes be collected, criminals be pursued, roads be commissioned and so on, if the President's only executive power was to be Commander in Chief, write a treaty or two and appoint officers ?

Because the president also has the power — indeed, the duty — to "take care that the laws be faithfully executed." So, yes, when Congress passes a law imposing a tax and directs the president to collect it via the government agency created by Congress, he is fulfilling his Article 2 duties. But if the president just declares that he thinks there should be a tax and orders people who report to him to start collecting it, he would not be; that would not be an executive power just because the people to whom he's giving the order are in the executive branch.

[Lee Moore]

I agree, except to the extent that I would switch the order of duty and power around in your first sentence thus :

Because the president also has the duty — indeed, the power — to "take care that the laws be faithfully executed."

That duty is worded as a duty not as a power. But the power must exist or else requiring the duty would be absurd. The duty therefore implies the power.

I see you slipped an agency in there, which is fine. But the first sentence of Article 2 which vests the executive power in the President makes it clear that if Congress establishes an agency, to execute a bunch of laws, the President must control the agency. It is unconstitutional for Congress to attempt to vest executive power beyond the President's exclusive executive authority.

[neurodoc]

"...given the torrent of reports of abuses at all stages of the J6 affair, seems eminently wise." How about describing those alleged abuses, citing credible sources in support of them, and saying how the federal judges who decided the cases dealt with them, since surely D counsel made the claims. Or are we just supposed to rely on you, who places unbounded credence in the word of Elon Musk, who says USAID is overflowing with "corruption"?

To put it gently, I think you are very credulous.

[Lee Moore]

I though the traditional approach was to reach a conclusion after an investigation rather than before. Are you proposing we do it the other way round ?

[Stupid Government Tricks]

No. I'm saying that "just following orders" is not a valid legal defense and hasn't been since the Nuremburg trials.

Your grammar would mean firing everybody, which is sillier than 57 genders.

[neurodoc]

"No. I'm saying that 'just following orders' is not a valid legal defense and hasn't been since the Nuremburg trials."

Unless the order was a clearly improper one, it might very well serve as a valid legal defense.

[TW]

I think it would make more sense to have the Inspectors General be employees of the legislative branch since the oversight that they're supposed to provide is on behalf of Congress in which case it would be up to Congress not the President to fire them.

[Michael P]

"Are you defending the firings?"

Which of these agents have been fired?

[Lee Moore]

I'd certainly be willing to exempt those of them who filed timely whistleblower reports.

[Ed Grinberg]

Trump is firing people who did the jobs assigned to them.

"We were just following orders" is a poor excuse; see here.

[Dr. Ed 2]

Lt. Calley was told to murder the civilians.

[Magister]

Calley claimed that in his defense, after abandoning his initial claim that it was an accidental airstrike. His commanding officer denied that he gave such orders and was acquitted, and Calley's claim was rejected by his court martial.

[sCuLLeRcRUsHEr]

Speculation again. Plus, 6,000 employees? Not 5,950 or 61,25? When I see round numbers like this, I call BS.

[not guilty]

FBI agents are at will employees? Is that as true as everything else you have said, Brett?

"To the victor belong only those spoils that may be constitutionally obtained." Rutan v. Republican Party of Illinois, 497 U.S. 62, 64 (1990). Elrod v. Burns, 427 U.S. 347 (1976) (plurality), and Branti v. Finkel, 445 U.S. 507 (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. The same applies to related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees. Rutan, at 65.

[TwelveInchPianist]

Huh? How is your cite inconsistent with FBI agents being at-will employees?

[not guilty]

The two paragraphs of my comment address different issues. As he is wont to do, Brett Bellmore told a whopper, and I called him out on it.

That having been said, even a government employee without a contractual right to continued employment enjoys First Amendment protection from being fired on his perceived political views. See, Perry v. Sindermann, 408 U.S. 593 (1972).

[TwelveInchPianist]

"Brett Bellmore told a whopper, and I called him out on it."

You did? Again, what part of your comment provides evidence that FBI agents aren't at-will employees? Are you sure you're not the one telling a whopper?

[Brett Bellmore]

Aside from my taking Post's word for whether they were at will employees, what do you suggest was the "whopper"? I'm curious.

[not guilty]

No "aside" about it. You said that FBI agents are at will employees.

[Brett Bellmore]

Right, like I said, my bad, assuming Post was right about that. That's what you're calling a "lie"? Assuming a legal scholar is right about the law?

You're nuts.

[CommentMonkey]

Post and Brett are right. Typically, "at will" refers to the contractual terms of the employment relationship. If there's no contractual restriction on the right to fire (or the employee's right to quit), the employee is at will. This is so even though pretty much every employee in both the private sector and public sector has some protections against discriminatory and retaliatory discharge - Title VII, the ADA, the FLSA, FMLA, etc. Public sector employees also have limited First Amendment protections. This does not mean they aren't at will employees.

[not guilty]

As with any civil servant, FBI employees are afforded statutory and constitutional rights. Therefore, any adverse employment action, including removal, must respect all required standard procedural and substantive due process protections. These include at a minimum, but are not limited to, the issuance ofa written proposal of disciplinary action or termination; an opportunity for the employee to respond and be represented by counsel (at his or her own expense); an opportunity for the employee to personally appear before a deciding official; and an opportunity to appeal any adverse decision that emerges out of that process.

The Acting Deputy Attorney General has been placed on notice thereof. https://static01.nyt.com/newsgraphics/documenttools/89607db8a5a0e29e/e293a6e3-full.pdf

[Life of Brian]

As with any civil servant, FBI employees are afforded statutory and constitutional rights. . . . These include at a minimum, but are not limited to, the issuance of a written proposal of disciplinary action or termination; an opportunity for the employee to respond and be represented by counsel (at his or her own expense); an opportunity for the employee to personally appear before a deciding official; and an opportunity to appeal any adverse decision that emerges out of that process.

Given your usual chest-thumping about citing legal authority for propositions, it's very curious indeed that here you 1) didn't cite any of this supposed statutory authority yourself; and 2) solemnly and credulously pointed us to a letter that doesn't cite any either.

As you've seen if you've browsed the comments at all, the last person who thought they had statutory authority was incorrect. Do you have anything?

[not guilty]

The signers of the letter that I link to, Mark S. Zaid, Norman Eisen and the Hon. Nancy Gertner, are knowledgeable and respected as practitioners and as a former jurist. I regard them as reliable, and I trust that they know whereof they speak.

[Life of Brian]

And so, as you've said to others hundreds of times here, you've got bupkis. Thanks for confirming.

I regard them as reliable, and I trust that they know whereof they speak.

I do believe that's the first time I've ever -- ever -- seen you cheerfully accept as true a bunch of ipse dixit based solely on the identity of the author. I can't imagine you'd debase yourself like this unless you actually had gone looking for this purported statutory authority (it doesn't take long!) and realized there is none.

[Bwaaah]

You present as if the Administration's actions are in violation of civil service protections, despite the presence of the at-will argument (e.g. LOB's cite of 5 USC § 7511(b)(8)). And you cite no law to the contrary, nor do your respected jurists cite any law to the contrary.

The substance of your argument seems to be that people you respect agree with you. Is this a work in progress, or is that it?

[not guilty]

I do not mean to suggest that a law enforcement officer having participated in an investigation is First Amendment protected activity. But the First Amendment prohibits a government employer from discharging a public employee based on the employer's mistaken perception that the employee had supported an opposing candidate or faction. See, Heffernan v. City of Paterson, 578 U.S. 266 (2016).

A fair reading of the complaint here is that the plaintiffs anticipate that they will be fired or disciplined based on President Trump's perception that they had supported improper criminal investigations or prosecutions of Trump supporters for participating in the siege of the Capitol on January 6, 2021. The complaint recites at ¶¶60-63:

60. On or about January 31, 2025, DOJ summarily terminated all of the attorneys who prosecuted Jan. 6 and Mar-a-Lago cases precisely because of the Trump administration’s
perception of those attorneys’ political loyalties.

61. Plaintiffs reasonably believe and fear that the information gathered in the survey will also be used to target them for retaliatory discharge due to the Trump administration’s perception of their loyalties.

62. Donald Trump has made repeated public pronouncements of his intent to exact revenge upon persons he perceives to be disloyal to him by simply executing their duties in investigating
acts incited by him and persons loyal to him.

63. Whatever the Trump administration believes about Plaintiffs’ political affiliation, it clearly believes that persons who were involved in the investigation and prosecution of Jan. 6 and Mar-a-Lago cases are insufficiently politically affiliated with Donald Trump to be entitled to retain their employment.

I would not say this case is a slam dunk, but it at least deserves inquiry as to the appropriateness of a preliminary injunction to preserve the status quo ante.

[Michael P]

Conversely, there is no constitutional bar on firing uniparty swamp creatures for acting like they were part of Panem's Capitol.

[Roger S]

I don't think that Trump cares about the political affiliations of the FBI agents. Probably some of them are Republicans. The problem is that they participated in a vindictive political witch-hunt that was detrimental to the FBI and justice.

[not guilty]

If the Department of Justice fires agents because the President mistakenly believes them to be political opponents, that would be a First Amendment violation -- albeit not one actionable for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). See, Bush v. Lucas, 462 U.S. 367 (1983) (holding there is no Bivens action for federal employees whose First Amendment rights are violated by their superiors). The John and Jane Does plaintiffs here are not seeking to recover damages.

If a plaintiff can make an initial prima facie showing that he was dismissed from government employment in violation of First Amendment guaranties, the burden shifts to the employer to show a preponderance of the evidence that it would have reached the same decision as to the plaintiff's re-employment even in the absence of the protected conduct. See, Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287 (1977).

[Roger S]

Trump does not have any mistaken beliefs. There was no protected conduct. The J6 prosecutors and agents really were pursuing felonies for what should have been misdemeanor trespassing.

[neurodoc]

The 140 federal LEOs who were physically injured, as well as those who died as a consequence of the violent January 6, 2021 insurrec-tion were victims of misdemeanor trespassing?! You are not an attorney, are you?

[Roger S]

The only one who died was an unarmed female civilian trying to walk into the Capitol building.

[neurodoc]

Brian Sicknick.
And Ashli Babbitt, one of your misdemeanor trespassers.

[Vryedni]

Ashli Babbitt is whom he's referring to as "an unarmed female civilian trying to walk into the Capitol building".

[Brett Bellmore]

The coroner didn't think Sicknick died as a consequence of J-6. The Capitol police brass decided to declare he did anyway, so he'd get some sort of posthumous award for dying in the line of duty.

[John Rohan]

Sicknick died of natural causes according to the medical examiner.

[Vryedni]

No, he's a mathematician.

[David Nieporent]

The J6 prosecutors and agents really were pursuing felonies for what should have been misdemeanor trespassing.

Even if a terrorist attack were mere "misdemeanor trespassing," the FBI agents did not decide what charges to bring.

[TwelveInchPianist]

"I do not mean to suggest that a law enforcement officer having participated in an investigation is First Amendment protected activity. But the First Amendment prohibits a government employer from discharging a public employee based on the employer's mistaken perception that the employee had supported an opposing candidate or faction. See, Heffernan v. City of Paterson, 578 U.S. 266 (2016)"

Your case says, "When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer’s actions are based on a factual mistake."

You agree that participating in the investigation is not protected political activity, so I'm not sure what your claim is.

If the claim is that Trump (mistakenly) believes that the agents' participation in the investigation was politically motivated, I don't see the problem. Trump is allowed to make mistakes.

[not guilty]

"If the claim is that Trump (mistakenly) believes that the agents' participation in the investigation was politically motivated, I don't see the problem. Trump is allowed to make mistakes."

Not this kind of mistake. Retaliation by an employer based on the perceived political affiliation, activity or views of a government employee is just as actionable under the First Amendment as retaliation based on actual political affiliation or activity. Heffernan v. City of Paterson, 578 U.S. 266 (2016).

The Court of Appeals in Heffernan affirmed the District Court's dismissal of the complaint, writing that "a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights." 777 F.3d 147, 153 (2015). SCOTUS reversed, reinstated the lawsuit and remanded for further proceedings. 578 U.S. at 275.

[TwelveInchPianist]

"'a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights.' SCOTUS reversed."

Sigh. And an FBI agent isn't exercising his constitutional rights when he conducts a criminal investigation. If the investigation is actual or perceived political activity, that makes the firing more justifiable, not less.

[Michael P]

Don't you get it? As ng has repeatedly said, if the moon is made of green cheese, then clearly Orange Man Bad!

(Naturally, ng has provided no evidence that the moon is made of green cheese.)

[damikesc]

"A fair reading of the complaint here is that the plaintiffs anticipate"

Seems absolutely no harm has fallen upon them. Seems this suit should be tossed for being pointless.

Thinking something bad might happen is not the same thing as something happening. Promising "No, nothing bad will happen to you" is asinine. They and their actions will be investigated. If they were legit, no problem. If not...fire them.

Out of a cannon, if one so wishes.

[Michael P]

"I think they've got a decent case - don't you?"

No, they have an entirely unsupported case. For example, government employees don't have a First Amendment right to work on specific investigations or prosecutions. Their arguments are demented.

[Bubba Jones]

They don't have a first amendment right to choose their cases.

Is not the same they don't have first amendment protections for working on the cases they were assigned.

[Brett Bellmore]

It's the same in regards to the fact that neither is a valid 1st amendment claim.

[Noscitur a sociis]

What is your authority for the position that FBI agents have a first amendment right to work on cases that they’re assigned to work on?

[Phanatic]

How is "you have the right to do what your boss tells you to do" a *first amendment* right?

[sCuLLeRcRUsHEr]

So, are you sayings it's protected speech do do what your employer says? I don't get it.

[Phanatic]

I'm saying there's no first amendment right to not be fired for doing what your boss told you to do. You can show up to work every day, do exactly what your boss tells you do, and he can fire you for doing that anyway. First amendment isn't implicated at all.

[Dr. Ed 2]

Derek Chovin was doing what hisa boss told him to do.

[not guilty]

IIRC, the chief of police testified to the contrary.

[damikesc]

Training materials say otherwise.

Threat of mob violence might make government employees want to not say anything to upset said mob.

[MatthewSlyfield]

"Training materials say otherwise."

The training materials Derek Chovin cited say that the only reason to use the type of hold he used is to apply a hobble restraint, which Chomin didn't do.

[Michael P]

"Is not the same they don't have first amendment protections for working on the cases they were assigned."

A distinction without a difference. There's no First Amendment right to either thing. No Fifth Amendment Due Process protections, either. And so forth.

[tylertusta]

They're banking on the DC judges to take the hint.

[Rossami]

They might have a case but it certainly isn't supported by anything in the snippet posted here.

[AmosArch]

Trump if nothing else provides an interesting case study of how even professional experts can become demented by politics to the point where they fail to understand even the basics of their own field.

[Brett Bellmore]

That's why they call it "Trump Derangement Syndrome". There's something about him that just breaks a lot of people.

[bernard11]

He sure has broken you.

[Commenter_XY]

Brett isn't the one who sounds broken, bernard11. Just saying. 😉

[grb]

Trump is firing law enforcement personal en-masse for no other reason than a snit about the case they were assigned to. That is fundamentally unfair to the point of raw evil. It cannot be defended by any argument, which is why I see no defense anywhere up and down these comments. It's nothing more than the petty cruelty of a vindictive child. Yet you yuck, snigger, and gloat about it, XY, because you're broken inside.

You've sold your soul, abandoned the distinction between right and wrong, no longer care about the difference between lie & truth, given up whatever trace of decency you ever once possessed.

When did cheering corruption & misuse of power become fun to you? Try defending this action instead of mindlessly giggling over it. See if you can do so without fouling yourself. See if there's enough left inside you that you even care.

[TwelveInchPianist]

It's a democracy. If people don't like the way government employees are doing their jobs, people can vote someone into office that will fire them.

And if someone doesn't like the way he's treated by law enforcement, he can run for office, get elected, and fire them.

[grb]

And yet even a cultist like yourself doesn't defend it. Nixon's corruption gave us the term "nondenial-denial". Trump's corruption might leave us with "nondefense-defense". Dictionary definition: Weaseling devoid of any principles whatsoever.

You now see so many MAGA who can vaguely remember having ethics. They can barely recall having standards or principles in the distant past. So they're just a little too queasy to outright defend Trump's lawbreaking or loathsome behavior. But like good whores, they put out anyway.

Their cult god requires service.

[Jason Cavanaugh]

Not according to the Constitution or the law.

In other words, you're a traitorous piece of shit excusing an authoritarian takeover of our system of Government.

I am glad that you are all making yourselves known.

[TwelveInchPianist]

"Not according to the Constitution or the law."

You guys have yet to even remotely make a case that the surveys are unconstitutional or illegal.

[Jason Cavanaugh]

Did I say anything about surveys?

[AmosArch]

You mean when people vote for someone they just....assume control of the government? WTF!! This needs to be stopped! Maybe Biden can assemble an army of patriots with psychic orders and a tweet that bears no resemblance to what those psychic orders supposedly are and march on the Capitol to stop this illegal takeover of power.

[Roger S]

They ought to be fired for participating in partisan political prosecutions. Even if they were obligated to participate, it is still preferable that the department be purged of all those acting contrary to the proper goals.

[damikesc]

"Trump is firing law enforcement personal en-masse"

He's done that? When?

And we should be mass firing ALL government employees.

[Stupid Government Tricks]

Maybe bernard11 is just following orders.

[sCuLLeRcRUsHEr]

Who need to be broken.

[TwelveInchPianist]

Yup. Not everything bad is unconstitutional, and I haven’t seen an argument that any firings are unconstitutional.

“ Retaliation Based on Perceived Political Affiliation”

If working on the J6 case is perceived political affiliation, they should be fired for that.

[windycityattorney]

So one of the Jan 6 defendants was from IL. To what I understand, many of the Jan 6 rioters wore masks or bandanas to cover their faces and of course there were lots of people participating in a chaotic scene. But the FBI had lots of videos; many of which were taken by the rioters themselves filming themselves and others and posting them to social media. The FBI took tips from public asking if they could identify the people captured in the various videos. This process carried on for some years due to the sheer volume of total investigations.

If an agent in IL took one of these public tips and investigated it and found out the tip was wrong so no action was taken - should they be fired? If an agent took one of these tips and found out it was corroborated and crimes were committed and it led to a charge, should that agent be fired?

The memo apparently is about *any* FBI employee who worked on *any* Jan 6 investigation. Would that not include both scenarios above? Any variety thereof no matter how trivial or consequential?

Lastly, do you think that if the administration fires thousands of FBI employees for not being sufficiently loyal to the President, that the thousands of replacements won't also be subject to a political litmus/loyalty test? Do political litmus tests raise any issues for hiring at the FBI? Should it? Did you hear potential FBI director Kash Patel's testimony at his confirmation hearing? Do you think Kash Patel is a serial liar?

[Dr. Ed 2]

They would be fired for not being properly loyal to the Constitution.

[TwelveInchPianist]

"If an agent in IL took one of these public tips and investigated it and found out the tip was wrong so no action was taken - should they be fired? If an agent took one of these tips and found out it was corroborated and crimes were committed and it led to a charge, should that agent be fired?"

If the actions were taken as a form of political affiliation, then of course they should be fired. FBI agents should act independently of politics.

[Sarcastr0]

If the actions were taken as a form of political affiliation
What does that even mean?

[TwelveInchPianist]

You tell me. The complaint claims that retaliation for being involved in J6 investigations is "Retaliation Based on Perceived Political Affiliation".

[Sarcastr0]

Which is not what you wrote.

[Bwaaah]

And you still don't understand his reference to "political affiliation?" Or is GOTCHA all you got? (which is not what you wrote)

[Life of Brian]

The memo apparently is about *any* FBI employee who worked on *any* Jan 6 investigation. Would that not include both scenarios above? Any variety thereof no matter how trivial or consequential?

Interestingly enough, the survey the agents are asking to be enjoined asks what specifically the agent's involvement was and when they were last involved.

Hopefully they'll not succeed and thus make it impossible to discern who may have been only trivially involved.

[windycityattorney]

As we seen with the Jan 6 pardons... which went from "non violent protestors who were treated too harsh" but not "those who acted violently or beat cops" to ALL of them, even the seditious conspirator Proud Boys and Oath Keepers... I don't expect this administration to care enough to separate the potentially 5,000 FBI personnel who were trivially involved or who were majorly involved.

Its a monumental undertaking in any event (and its not like the FBI and DOJ doesn't already have all the reports the agents generated or which were called to testify at trials of Jan 6 defendants) and all signs indicate discretion is not being utilized. So I imagine with what we know and the actions of this administration thus far; they will simply fire everybody who answers the survey and says they worked on Jan 6 cases. Which is what the plaintiffs fear. I think their fear is well founded given how this administration is quickly and systematically dismantling the federal government and purging people left and right...from inspector generals, to entire depts. They have the subtlety of using a chainsaw to perform a delicate surgical procedure.

[Life of Brian]

(and its not like the FBI and DOJ doesn't already have all the reports the agents generated or which were called to testify at trials of Jan 6 defendants)

Right. Which is why the survey (particularly given the level of detail it goes into on both J6 activities and organizational roles) seems to me to be much more indicative of an effort to understand who was actually driving the bus vs. simply being along for the ride. If they really just wanted to do a coarse-grained cut as you suggest, they already have the information they need to do that.

[damikesc]

Insisting on not having employees working against the Executive Branch is not a step too far, sorry.

[not guilty]

"If working on the J6 case is perceived political affiliation, they should be fired for that."

Uh, no. The First Amendment prohibits a government employer from discharging a public employee based on the employer's mistaken perception that the employee had supported an opposing candidate or faction. See, Heffernan v. City of Paterson, 578 U.S. 266 (2016).

[TwelveInchPianist]

What part of the case you cite involves "support" that extends to investigating a criminal case? Surely you're not suggesting that the first amendment allows agents to investigate criminal cases as a form of political support?

[Roger S]

They would be fired for their J6 work, and their contribution to the politicization of the DoJ, and not for supporting any particular political candidate.

[Sisyphus Rocks]

Exactly. There is no adverse employment action that has occurred to these plaintiffs or potential class members. The possibility that you might be fired is not an adverse employment action. While being put on probation if you were not already a probationary employee can be an adverse employment action, that hasn't happened to any of these employees.
The latest from the DOJ leadership is that they want to determine who the decisionmakers were on focusing so many resources on the J6 investigations, but the acting FBI Director has refused to provide that information, so they have obtained the list of all employees that worked on the J6 investigations in order to determine who the policy-making employees they actually want to review/investigate are. None of that is actionable.

[Riva]

Good. Better the worthless hack thugs are plaintiffs rather than active agents.

[Noscitur a sociis]

This complaint seems to have a few problems.

First, contrary to the title, the complaint isn’t complaining about retaliatory terminations (presumably because they haven’t happened yet). Rather, it seeks to enjoin assembling the information about agents’ work on January 6 cases altogether. That relief seems pretty dubious to me: I think the president is entitled to know what work his subordinates have done in their official capacities, even if they think he’s going to use that information improperly. I also don’t think a law enforcement officer has an enforceable privacy right not to be identified as having worked on a particular case, which seems to be their main theory in support of relief.

As far as the main issue: I would have hoped that it goes without saying, but Trump shouldn’t fire the agents just for having worked on a January 6 case. However, I’m having trouble seeing a constitutional violation. The terminations would be based on agents’ on the job work in their official capacities. The problem would be that they are getting punished even though they didn’t do anything wrong, but that’s how at-will employment works. (I don’t know enough about how the FBI works to know if there are statutory employment protections that could change this analysis.)

Finally, I note that the complaint incorrectly claims that Trump terminated every prosecutor who had worked on a January 6 case. He actually terminated the prosecutors in the DC U.S. Attorney’s Office who were still on probation and thus subject to firing without cause.

[RedheadedPharoh]

They were engaged in project that consumed nearly half of the FBI's resources for years and whose stated intent was "Shock and Awe". They were raiding homes of people who committed non-violent misdemeanors and punishing people with the process while covering-up their own involvement.

They aren't the good guys in this.

[AmosArch]

TBF coordinating a bunch of instigators in the 'insurrection' and then trying to cover up your direct participation in said 'insurrection' you are now responsible for investigating is a pretty big operation.

[sCuLLeRcRUsHEr]

What is your proof that Jan 6, by definition, was an insurrection?

[Bruce Hayden]

Because te FBI and DOJ told him that.

[David Nieporent]

Setting aside the maliciously false part of the Nazi's rhetoric, he's also not very bright. That half the FBI's agents worked on a J6-related case at one time or another does not remotely mean that half of the FBI's resources were focused on those cases.

[RedheadedPharoh]

e.g.
https://x.com/JohnStrandUSA/status/1886934746820960724

Storming the house of a peaceful protestor who had already turned himself in and terrorizing his family.

These agents deserve to be in pound-you-in-the-ass prison.

[David Nieporent]

That "shocking video" of a "violent FBI raid" is not shocking and does not reflect a violent raid. Nor was DeGregoris a protester or peaceful. He was an insurrectionist who attacked Capitol police to break into the Capitol as part of an effort to try to overthrow the government.

Nor had he "already turned himself in."

Nor, of course, does it have anything to do with the comment to which it's responding.

[John Rohan]

He was an insurrectionist who attacked Capitol police to break into the Capitol

You sad little man, still clinging to the "insurrection" description, despite the fact that no one involved with Jan 6 was ever convicted of insurrection (or even charged with it!). And the highest court of the land has refused to recognize it as such.

[Brett Bellmore]

" The problem would be that they are getting punished even though they didn’t do anything wrong, "

That's kind of dependent on how the case was pursued.

[grb]

Brett above : "No, I'm not defending the firings."

Well, that had a long lifespan, didn't it? Now you're back to equivocation and speaking out both sides of your mouth. As an aside, don't you ever regret whoring yourself to someone so sleazy this kind of double-talk is needed every day?

But if you're not ready to answer that question, then at least lay out your reasoning. Explain "how the case was pursued" might justify this threatened abuse of power. Explain how "how the case was pursued" could warrant firing thousands of agents just because they were assigned to a case.

Of course you'll play for time. As with the 06Jan pardons, you'll say there's no chance Trump will go that far. And if he does? You'll turn out like a dutiful lickspittle to excuse it. Is there any sense of decency left in you at all?

[Brett Bellmore]

You really do not comprehend the difference between supporting an action as a policy matter, and critiquing the arguments made that it is legally improper, do you?

IF, (That's a big if at this point.) Trump were to identify every FBI agent who in any way participated in the J-6 investigation and/or the investigations of himself, and fire every last one of them, that would be a very bad policy choice indeed.

Very bad policy choices are frequently constitutional and legal.

On the other hand, if Trump were to fire FBI agents on the basis of their political affiliation? Yeah, THAT would be bad policy AND unconstitutional.

But, if Trump selectively fires them on the basis of wrongful conduct, even if it's sorta legal wrongful conduct, that will be legal, constitutional, AND good policy. In that regard:

'Alarming' surveillance: Feds asked banks to search private transactions for terms like ‘MAGA,’ ‘Trump’

Yeah, anybody involved in that decision should be fired.

Or how about the guys who decided to SWAT the family of a J-6 suspect who had already surrendered to the police? Or the feds who released degraded video of the guy who planted those pipe bombs, claiming they had no better, and the phone company refuted that claim? Are those not proper basis for firing?

An awful lot of things done in the course of these investigations could properly be the basis for firing, even if the bare fact of being involved wouldn't be.

[David Nieporent]

'Alarming' surveillance: Feds asked banks to search private transactions for terms like ‘MAGA,’ ‘Trump’

It is passing strange that the House Judiciary Committee would find "alarming surveillance" and yet, rather than posting the documents supposedly proving it, would post a Fox News story quoting Jim Jordan talking about these documents.

[Brett Bellmore]

Not really interested in engaging with my point, are you?

Wake me when he fires all of them, at this point he's just collecting information so that he will know who he needs to fire. That refusing to provide that information self-identifies you as needing to be fired should go without saying, but in this company apparently doesn't.

[Commenter_XY]

Nas, can the POTUS simply say, "I have lost confidence in your ability to do your job", and that is the ballgame? It sort of seems that way to me. The POTUS can fire anyone in the Executive branch he wants, they all work for him, isn't that the case.

I don't see 1A issues, I see employment law issues. Am I wrong?

[Noscitur a sociis]

The POTUS can fire anyone in the Executive branch he wants, they all work for him, isn't that the case.

There are statutes that protect some federal employees from being fired for certain reasons. As I said, I do t know exactly which apply to FBI agents.

There are also relevant constitutional protections. For instance, employees generally cannot be punished for off-duty speech on matters of public interest that doesn’t interfere with their job duties. But I have trouble seeing how that’s implicated here.

[Michael Ejercito]

There are statutes that protect some federal employees from being fired for certain reasons. As I said, I do t know exactly which apply to FBI agents.
To the extent they restrain the President's authority to fire Article II employees (with the possible exception of Article I judges and their support staff), they are unconstitutional.

[Noscitur a sociis]

Narrator: they are not.

[Brett Bellmore]

Meta-narrator: Wait until the Supreme court chimes in on that.

[Sarcastr0]

You're saying that you think the civil service are all at-will employees, and anything other than that is unconstitutional?

Because there's a long line of cases holding otherwise.

[Brett Bellmore]

I'm saying it's entirely possible the Supreme court will overturn that line of cases, or at least severely pair them back.

[Michael Ejercito]

You're saying that you think the civil service are all at-will employees, and anything other than that is unconstitutional?
They are at-will with respect to the heads of their respective branches.

The only exception with respect to the executive branch are judges and support staff of Article I and Article IV courts and tribunals, just so long as they exercise only judicial power, a conclusion I reached after studying Ortiz v. United States, 525 U.S._ (2018)

FBI agents clearly exercise executive power, so they are at-will with respect to the President.

[Jason Cavanaugh]

“ The POTUS can fire anyone in the Executive branch he wants, they all work for him, isn't that the case.”

No, that is not the case you dumb fuck. Maybe read the Constitution once in a while.

[David Nieporent]

I just want to emphasize that none of them work for him. They work for the government, and thus ultimately for the people. Not for the president. They don't take an oath to him, and he doesn't pay them. They may report to him, but that's not at all the same thing.

[Lee Moore]

I just want to emphasize that all of them work for him, for as long as the executive power of the United States is vested in him.

They work for the executive branch of the government, and thus ultimately ultimately schmultimately Lathropian crap for the people. Not for the president. yes for the President They don't take an oath to him, and he doesn't pay them. They may report to him, but that's not at all the same thing. He arranges for them to be paid and they report to him, for as long as he says so and no longer.

[TwelveInchPianist]

Yup. They work for the government, and if the government is unhappy with their performance, the government can fire them. And it appears that is what is likely to happen.

[Bwaaah]

DMN: "That's nobody's business. It's the business of the government."

lol. He who lives by the Committee dies by the Committee. But I'm sure there are real people pulling strings in there somewhere. Or are they just dutiful agents of an indisputable interpretation of law, as David often insists?

Could David be anything other than right?

I suspect most of them will not be fired. But a review of internal FBI communications may turn up indications of political animus toward subjects of J6 and DJT investigations. (I would be surprised if it didn't find such cases.) If so, lawful termination would be reasonable to me.

[Bruce Hayden]

They work for the Executive branch, whose power is derivative of the President’s power, who has all Executive power. Art II, § 1, ¶ 1, cl 1. So, yes, they do work for him.

[Jason Cavanaugh]

That is not even a remotely correct understanding of Article 2. The President's enumerated Powers are listed in Section 2+.

"Firing anyone I like because they tried to prosecute my crimes" is not one of the Powers granted to the President.

[Mr. Bumble]

All: entirely or completely.

[RedheadedPharoh]

39% of the FBI was focused on J6 cases.

There are no more J6 cases. They aren't needed anymore.

We'll be fine.

[sCuLLeRcRUsHEr]

!'

[Mr. Bumble]

"I think they've got a decent case - don't you?"
Is that 3D sarc?

[MaddogEngineer]

Endless TDS...yawn.

Not in favor of their firing. Not sure if they have a case. Not interested in hearing about this from someone with TDS, because I'm unlikely (thought not impossible) to get a fair assessment.

[DJK]

I would have been happy with any analysis from Post at all. Instead, we just get a snarky comment at the end. Pretty pathetic.

[Sims]

"I think they've got a decent case - don't you?"
That's it? That's all you've got, prof? Your post amounts merely to news - news we can get anywhere else. We come here for sophisticated takes on interesting legal issues, and this aint that.

[DJK]

Never rage post.

[JoeFromtheBronx]

I think they've got a decent case - don't you?

Why do you think they have a decent case?

They were not fired merely because they were a certain race, religion, or political party. The firings were abusive. It could be part of an abuse of power impeachment proceeding.

I know. Stop laughing. Anyway, I'm not sure if there is a good legal claim. But, if you think so, perhaps, you can add more detail.

[Brett Bellmore]

They haven't even been fired yet, except for the probationary hires, who expressly have no job security at all. They're being asked to document what they did on a couple of cases, and are trying to get a court to enjoin that on the theory that, once the President knows, he'll fire them.

Literally, refusing to supply that documentation would, itself, provide Trump adequate cause for firing them!

[sCuLLeRcRUsHEr]

Have they already been terminated?

[Brett Bellmore]

No, they were just told that they might get fired depending on what was discovered, so polish up your resumes, don't make any big purchases, yada yada yada. Good advice under the circumstances, and I suspect the ones who really needed it knew who they were.

Which is sort of firing adjacent, but in a still drawing a paycheck, and nothing may actually happen, sort of way.

[damikesc]

What I don't get is --- what job on Earth might you not get fired depending on what info about your actions on the job is found out?

All jobs have that limitation.

[Doug Heffernan]

No field agent should follow an order or directive to investigate a day of love. It might be insubordination if an agent refuses to follow an order or directive to investigate a day of love, but the agent must yield to their own moral compass when faced with such a predicament.

We're talking about love here. And the criminalization of love. Any agent can't claim not to be a hater of love, and not for love's criminalization. and just say instead that they were following orders.

[DDT1958]

I'm assuming you are either being sarcastic, or you believe beating police with improvised weapons and squirting them with chemical weapons are acts of love. If it is the latter, I feel sorry for any significant other you might have.

[dwb68]

The president is entitled to know what work his subordinates have done. FBI agents do not have a privacy right here.

Also, the DOJ has a right to assess whether the investigation was politically motivated. Maybe some agents were forced to work on the case, maybe others hopped on or pushed it as a political agenda. The latter should be fired, not the former, I would think.

The countersuit would be something like this: these FBI agents infringed his civil rights, possibly lying on warrants "to get him."

Of course, the president can get this information one way or the other, the survey only makes it easier.

The names will start to leak, too.

The harder the FBI fights, the worse it will be for them. Every single agent works at the pleasure of the president.

A smart agent would come forward, show some remorse, and blow the whistle (Memo: to file, this was a bad idea), thereby ingratiating themselves. I think this class of 6000 will washout very quickly.

[Jason Cavanaugh]

"Every single agent works at the pleasure of the president."

To nobody's surprise, you are full of shit.

[dwb68]

The reason Trump is nuking the roster is precisely because the "civil servants" forgot that they civilly serve the American people, represented by the duly elected president. FBI agents were not elected, and don't get to pursue their own agenda.

[Jason Cavanaugh]

Look at the little Nazi immediately moving his goalposts to "I don't care if it's legal or not."

Fuck you people. America will not fall to your ilk, and you will suffer the consequences for trying.

[Bwaaah]

"I'm Jason Cavanagh and I'm always cranky because I can't keep my panties from riding up my ass."

Love,
Ilk

[Jason Cavanaugh]

C_Bitch's fluffer has another sexist remark to share!

Are you confirming that you intend to destroy America? Interested parties would love to know.

[Roger S]

We have an urgent need to de-politicize the DoJ. The best way is to fire everyone involved in politicized prosecutions.

[MollyGodiva]

You have it completely backwards. The DoJ is non-political and Trump is trying to make it political.

[Roger S]

Trump has a mandate to clean up the FBI. The voters did not want those prosecutions. They were only done to stop Trump from running for President.

[MollyGodiva]

Never in the history of the US have we recognized that the results of an election dictates criminal prosecution. That is not how it works.

[Roger S]

Correct. That is why those Biden DoJ prosecutors and agents must be fired. They ran prosecutions for political purposes.

[David Nieporent]

The voters did not want those prosecutions.

Yes, they did. That's why most of them voted against Trump.

[Brett Bellmore]

Huh, so every last person who voted for somebody other than Trump was fine with the political prosecutions, and just disagreed about who should be driving them? Interesting thesis, but I think it needs some evidence.

[Magister]

A fair number of people who voted for Trump did not want him to pardon violent January 6th offenders. And of course calling a prosecution "political" doesn't make it so.

[Brett Bellmore]

You know, it's fair to say that a lot of Trump voters didn't want violent J-6 offenders pardoned. I would count in that group. I thought most of them deserved pardons, but that there were certainly a minority who didn't.

It is also fair to say that not everybody who voted for somebody other than Trump DID want people who just played tourist prosecuted, contra Nieporent.

I like to think the majority of voters would have preferred more granular action on both ends. Neither "Shock and Awe" nor "Pardon everyone!"

[Bwaaah]

Don't be reasonable, Brett. DMN's in the house, and he has grossly simplified everything for us.

[David Nieporent]

Interesting thesis, but I think it needs some evidence.

Strangely, you didn't demand any evidence for the proposition that people who voted for Trump wanted him to take each of the acts he has taken.

[damikesc]

Didn't a much larger number vote against the person who was in Biden's admin that was engaging in this?

[Michael Ejercito]

The countersuit would be something like this: these FBI agents infringed his civil rights, possibly lying on warrants "to get him."
Kevin Clinesmith admitted to lying.

[not guilty]

Countersuit?? The defendants are the Department of Justice, which does not have civil rights, and the Acting Attorney General in his official capacity, as to whom no one "l[ied] on warrants 'to get him.'"

[Frank Drackman]

At least in the old days FBI Agents were mostly Attorneys/CPA's who could easily make more money in the private sector, now they're "Criminal Justice" and Sociology Majors who's next job will be trying to get you to buy the Extended Warranty at Best Buy.

[Dr. Ed 2]

Actually Frank, part of the problem with the Boston Office in the '80s was that they weren't and needed a gig when they retired.

[Drewski]

My impression from a skim is that it's well-pled and clearly the attorneys have experience with class actions. My knee-jerk is that the retaliation claims are a lot more likely to succeed and that the privacy claims may be too speculative for the court.

I bet they have a stack of credible threats, though. If they can back up their leak concerns at all then they should be able to get a preliminary injunction on the privacy stuff. I think they'll get one on retaliation regardless.

[Noscitur a sociis]

Can you elaborate? I’m not sure why a government official has a personal, enforceable right not to have the public learn truthful information about matters they’ve worked on. I certainly don’t see how they’d be entitled to have the president find out about it because of the risk he might make it public. And I definitely can’t see how it would be appropriate to do that via a class action, given both the wide variance in potential dangers, and the fact that many agents’ involvement is already a matter of public record.

[Drewski]

"I’m not sure why a government official has a personal, enforceable right not to have the public learn truthful information about matters they’ve worked on."

They've alleged Privacy Act violations that give them a cause of action they share in common, as well as a 5th Amendment right against disparagement by the government. The latter may be a little complicated for someone who "isn't sure why" a statutory cause of action creates a cause of action.

[Noscitur a sociis]

I appreciate that that’s your theory: I’m curious (and I mean that sincerely, I would find your thinking illuminating) as to why you think it’s meritorious.

To the extent it’s based on the Privacy Act specifically, it seems to me:

1. The Privacy Act doesn’t apply to this collection of data, only its further dissemination once that data has been compiled into a “system of records” and

2. To the extent that the purpose of collecting the information is to release it publicly, that would be authorized as a “routine use”.

[Drewski]

No clue about how routine use is analyzed, but as I said in my OP the publication concern may be too speculative for the court. Depends on what they got to back it up.

[David Nieporent]

as well as a 5th Amendment right against disparagement by the government.

My understanding, which I have not researched and am just dredging up from memory, is that no such claim can be brought.

[not guilty]

I suspect you may be thinking of Paul v. Davis, 424 U.S. 693, 711 (1976), which indicates that one's interest in reputation alone is quite different from the "liberty" or "property" protected against deprivation without procedural due process.

The instant plaintiffs' due process claims do not sound purely in harm to personal reputation. The complaint recites:

72. The Fifth Amendment to the Constitution protects against harms to a person’s reputation caused by government actors, often referred to as “reputation plus” and “stigma plus” harms.

73. Plaintiffs have a clearly defined interest in the maintenance of their reputations as professionals, acquired over years of faithful service to the United States.

74. Here, the potential of publication of information related to their work on Jan. 6 and Mar-a-Lago cases is an imminent threat to both their reputations, and to their prospects for either continued or future employment.

75. Moreover, Defendant has already harmed Plaintiffs’ reputation by publicly stating and implying that their work on Jan. 6 and/or Mar-a-Lago cases was somehow wrongful, dishonest, politically motivated or improper.

76. Not only would the publication of Plaintiffs’ names or other identifying information harm their safety and reputations, but it would also burden their ability to find future employment with any entity with an interest in maintaining positive relationships with the Trump administration.

77. The survey that Plaintiffs are being asked to submit does not afford them any opportunity to defend their honor or reputation, and does not give them an opportunity to challenge any perceptions regarding the propriety of their actions.

A federal employee covered by civil service protections has a property interest in continued employment, and there is a liberty interest in professional reputation, at least to the extent that a dismissal would deprive the employee not only of present government employment but of future opportunity for it. See, Board of Regents v. Roth, 408 U.S. 564, 573-574 (1972).

[Bruce Hayden]

There are two interpretations of the J6 investigations and prosecutions. The view of many Dems and their Deep State is that J6 was an Insurrection. The view of Trump, and many of his supporters is that the J6 activities were a setup by Pelosi, the Dems, and DOJ/FBI, and that the prosecutions of the J6 defendants, as well as Trump himself, were purely political. Moreover, the more we see and learn, the more dubious the prosecutions appear to have been. Trump did indeed request the National Guard, both on 1/5 and 1/6. On 1/5, his requests were rejected by both Pelosi and DC Mayor Bower. On 1/6, his order was essentially rejected by his own Chairman of the Joint Chiefs (which is why he may very well be reactivated, to be Court Marshaled, and reduced in retirement rank by 1 or 2 stars).

People were arrested and prosecuted who were merely in DC that day, and never came close to the Capital building. Others wee welcomed into the Capital, escorted around then left. Didn’t matter. The DOJ/FBI were after scalps. We still don’t really know how many FBI agents were embedded in the crowds, or really how many Confidential Informants (or other contract people) were there that day. Was the FBI paying for Ray Epps? How many others?

Many of the FBI people may have indeed just been following orders. Likely not as many of the prosecutors. The video they utilized was heavily curated by her J6 committee and her Capital Police. They got around Brady disclosure requirements by not requesting every thing (including uncharted video) that could exonerate the defendants. And not disclosing how many FBI (and likely AntiFA) instigators were involved. Etc. Why were the J6 defendants prosecuted so aggressively, so ruthlessly, while there was little DOJ prosecution of AntiFA in Seattle, or the pussy hats 4 years earlier? Etc. I don’t see a lot of the J6 prosecutors keeping their jobs, and, if anything, fewer of the prosecutors working for Jack Smith. And a lot of the FBI agents involved early on in those investigations worked for their Counterintelligence Division, where Peter Strzok etc worked four years earlier. Surprisingly number of FBI and DOJ personnel involved in the RussiaGate investigations of Trump were involved in the two investigations and prosecutions of Trump, in the Garland/Biden DOJ. But getting back to the people involved, many attorneys would consider many of the DOJ prosecutors to have violated their ethics in order to work on the prosecutions.

[Roger S]

Sure, many of them were following orders, but they still need to be fired. We need FBI agents who work on real cases, not political witch-hunts.

[Noscitur a sociis]

So, what do you think the FBI should have done on January 7? It seems like at least some crimes were probably committed! I note that Trump even acknowledged as much.

[Roger S]

The FBI could have asked their informants what they did, and maybe look for that supposed bomb.

[Bruce Hayden]

Ignored trespassing, etc. (95% or so). Only prosecute those committing violence, that wasn’t instigated by federal employees or contractors.

[Bwaaah]

"Ignored trespassing, etc. (95% or so). Only prosecute those committing violence"

But that would be interpreted as a nod to some of J6 having been political expression for which we tend to provide wide latitude. The anti-J6 people admit none of that. NONE.

There are disruptive protests that must be tolerated, and disruptive protests that must not be tolerated. It seems to be a question of sides, unless you're an attorney, in which case it's presented as an unmistakable question of law.

[David Nieporent]

The view of many Dems and their Deep State is that J6 was an Insurrection. The view of Trump, and many of his supporters is that the J6 activities were a setup by Pelosi, the Dems, and DOJ/FBI, and that the prosecutions of the J6 defendants, as well as Trump himself, were purely political.

Yes, but one is true and one is a deliberate lie. We do not need to indulge the fiction that Trump or any of his supporters ever tell the truth.

Moreover, the more we see and learn, the more dubious the prosecutions appear to have been. Trump did indeed request the National Guard, both on 1/5 and 1/6. On 1/5, his requests were rejected by both Pelosi and DC Mayor Bower.

Once again, every word by Bruce Hayden is a lie. (1) A president does not "request" the National Guard; he orders it. Trump did not.
(2) Trump's non-existent "requests" could not have been rejected by Pelosi or Bowser if they had existed, because neither Pelosi nor Bowser are not in the chain of command and neither has the ability to reject anything.

On 1/6, his order was essentially rejected by his own Chairman of the Joint Chiefs (which is why he may very well be reactivated, to be Court Marshaled, and reduced in retirement rank by 1 or 2 stars).

Ah, now we hear a new claim that there was an "order" rather than a "request" — but once again, the CJCS is not in the chain of command and cannot "reject" such an order. Chain of command runs from president to SecDef to the commander of the National Guard.

People were arrested and prosecuted who were merely in DC that day, and never came close to the Capital building.

Not a single person was arrested for merely being in DC.

Others wee welcomed into the Capital, escorted around then left. Didn’t matter.

Didn't happen, is what you actually meant to type.

We still don’t really know how many FBI agents were embedded in the crowds,

We know exactly how many: zero.

or really how many Confidential Informants (or other contract people) were there that day.

We know exactly how many: 26.

Why were the J6 defendants prosecuted so aggressively, so ruthlessly, while there was little DOJ prosecution of AntiFA in Seattle, or the pussy hats 4 years earlier?

Because trying to overthrow the government is the most serious crime one can commit; smashing the windows of a Starbucks is not.

[Jason Cavanaugh]

One correction here David,

https://dc.ng.mil/About-Us/

The DC National Guard does not report to SecDef. They are the only National Guard which reports directly to the President.

[David Nieporent]

The video they utilized was heavily curated by her J6 committee and her Capital Police.

Forgot to respond to this lie. The Capitol Police did not work for Nancy Pelosi. They were not "her" anything.

They got around Brady disclosure requirements by not requesting every thing (including uncharted video) that could exonerate the defendants.

Utter fiction.

[Brett Bellmore]

NEW: Obtained HBO Footage Shows Pelosi Again Taking Responsibility for Capitol Security on January 6

Fact check: Did Pelosi control Capitol police during January 6 attack?

Not solely, as it happens. But,

"The House and Senate sergeants-at-arms, who are nominated by each chamber’s leader and elected by chamber members, serve as the Capitol’s chief law enforcement officers for their respective chambers. Each makes decisions for the Capitol Police Board, which oversees the Capitol’s police force in concert with several House and Senate committees, including one on which Davis sits.

The House sergeant-at-arms reports to the House speaker just as the Senate sergeant-at-arms reports to the Senate majority leader, but there is no indication Pelosi controls day-to-day security operations. So we reached out to Davis’ office to ask what he was talking about.

Citing a Feb. 1 letter from Sund to Pelosi, Davis spokesman Aaron DeGroot responded in an email that the former police chief "alone could not request National Guard support because he ‘had no authority to do so without an Emergency Declaration by the Capitol Police Board.’ Requesting National Guard support is a major security decision, and it’s one that even the Speaker’s office admits they were involved in.

That description is accurate. According to a bipartisan Senate report on the Jan. 6 attack, the Capitol police chief "has no unilateral authority to request assistance from the National Guard" and "must submit a request for assistance to the Capitol Police Board for approval." Likewise, as DeGroot noted, Pelosi’s office has said Irving did request the speaker’s permission to call on the National Guard.

However, those facts do not prove Pelosi made all the calls on how Sund, Irving, and the other members of the Capitol Police Board responded to the crisis — most notably because then-Senate Sergeant-at-Arms Michael Stenger, who reported to then-Senate Majority Leader Mitch McConnell at the time, also played an active role.

As Sund noted in his letter to Pelosi, the police chief "notified the two Sergeant at Arms" around 1 p.m. on Jan. 6 that he "urgently needed support." Despite confusion over the statutory process for requesting National Guard assistance, both Irving and Stenger eventually approved Sund’s request to call for backup at 2:10 p.m., according to the Senate report."

So, no, they don't work "for" Pelosi. But she IS in their chain of command, and her office didn't authorize a request for National Guard assistance until 2:10PM, well after the rioters had already broken in.

[Bruce Hayden]

Τhanks.

[David Nieporent]

1) No, she is not in fact in the chain of command. The chain of command is Police Board -> Police Chief.

2) Even to the extent that she had influence — which would be fair to say — it was on a minority of the Board. She had no authority to either make or block a request.

3) And just to be clear, this is all a red herring because the National Guard did not and does not need a request (let alone order) from Pelosi, the Police Board, the Police Chief, or anyone else, except POTUS.

[Bruce Hayden]

Then why did it take the Republicans taking over the House in January of 2023 to get access to the bulk of the video? And why wasn’t the DOJ obligated, under Brady to provide all of the video of each of the defendants to them? Because many of the defendants never were offered that video. Because there was video of almost everything that day, and a tiny portion of it was released to anyone outside Congress until the Republicans retook the House. Was it blocked by Pelosi and her hand picked, highly partisan, J6 Committee (with her refusing to seat any Republicans selected by the Minority Leader)?

Regardless of your feelings on these prosecutions (which you have made obvious in the past), they very much impacted the recent election, by keeping the gross overprosecution of the J6 defendants before the right side of the political spectrum. Many were willing to crawl across broken glass to end these prosecutions. Meanwhile, the DOJ and FBI continued to expand their investigations, until at least the election last November, dragging in more and more defendants who had not even set foot on Capital grounds that day. Moreover, some of the prosecutors were still refusing to dismiss 18 U.S.C. § 1512(c)(2) Obstruction charges even after that election, despite the ruling by the Supreme Court 13 months ago that those charges were inapplicable (and yes, I remember your arguments on the losing side there).

Payback is a bitch, and the butcher’s bill is coming due. The DOJ knows it. The FBI knows it. Hence this lawsuit, trying to hide what various FBI people did there in order to escape accountability.

[David Nieporent]

Then why did it take the Republicans taking over the House in January of 2023 to get access to the bulk of the video?

For who to get access? The public?

And why wasn’t the DOJ obligated, under Brady to provide all of the video of each of the defendants to them? Because many of the defendants never were offered that video.

It was, and you're lying; all of the defendants who hadn't already pleaded guilty were offered any video relevant to them.

(with her refusing to seat any Republicans selected by the Minority Leader)?

Yet another Bruce Hayden lie. She seated Rodney Davis, Kelly Armstrong, and Troy Nehls, all of whom were Republicans proposed by McCarthy. It was McCarthy who refused to let them serve. (Republican Ken Buck also offered to serve, and McCarthy rejected him, also.)

[Noscitur a sociis]

People were arrested and prosecuted who were merely in DC that day, and never came close to the Capital building.

Can you give an example of one of the most unjust prosecutions that matches that description?

But getting back to the people involved, many attorneys would consider many of the DOJ prosecutors to have violated their ethics in order to work on the prosecutions.

Can you give a single, specific example of a prosecutor acting unethically?

[John Rohan]

>Can you give an example of one of the most unjust prosecutions that matches that description?

Enrique Tarrio got 22 years for the riot, and wasn't even there.

https://reason.com/2023/09/06/with-22-year-sentence-ex-proud-boys-leader-enrique-tarrio-pays-hefty-trial-penalty/

[Jason Cavanaugh]

It's always nice when disingenuous liars self-identify.

According to court documents and evidence presented during the trial, prior to the events of Jan. 6, 2021, Tarrio created a special chapter of the Proud Boys known as the “Ministry of Self-Defense,” which included co-defendants Nordean, Biggs, and Rehl. As part of this group, these defendants conspired to prevent, hinder, and delay the certification of the Electoral College vote and to oppose by force the authority of the government of the United States.

In the days leading to January 6th, Tarrio and other leaders of the Ministry of Self-Defense hand-selected members of the organization, including co-defendant Dominic Pezzola, to serve as “rally boys” during the attack on the Capitol. To prepare for the attack, Tarrio and the other leaders established a chain of command, chose a time and place for their attack, and intentionally recruited others who would follow their top-down leadership and who were prepared to engage in physical violence if necessary.

On January 6th, the group began their assault that day at 10:00 a.m. when Nordean, Biggs, Rehl, and others marched an assembled group of nearly 200 individuals away from speeches at the Ellipse and directly toward the Capitol. At 2:11 p.m., Pezzola smashed open a window, allowing the first rioters to enter the Capitol as Biggs and those with him entered close behind. Court documents say that Nordean, Biggs, Rehl, and the men they recruited and led participated in every consequential breach at the Capitol that day.

As the events of January 6th unfolded, Tarrio, who was monitoring the attack from afar, posted encouraging messages to his tens of thousands of social media followers, including: “Proud of my boys and my country” and “Don’t f****** leave.” Tarrio privately claimed credit for the riot at the Capitol, telling Proud Boys senior leadership, “Make no mistake . . . we did this.” On January 7th, Tarrio addressed the Ministry of Self-Defense members, telling them he was “proud of y’all.”

https://www.justice.gov/usao-dc/pr/proud-boys-leader-sentenced-22-years-prison-seditious-conspiracy-and-other-charges

Yeah, he was just "merely" hanging out having a hot dog somewhere.

[John Rohan]

What was the "disingenuous lie"? He wasn't there.

And 22 years? He could have killed someone and gotten less time.

[Jason Cavanaugh]

Are you a lying fuck and illiterate? Are you unaware of why I quoted your "merely" remark?

Yes, we used to punish attempting to overthrow the government more harshly than just killing someone.

[John Rohan]

Resorting to ad hominems is not a convincing argument.

BTW there was no path by anyone to "overthrow the government", and your quote was the prosecution's version of the case.

[шинка]

If they are a group that is among a larger group that is also being fired, then, no, they have a complete shit argument.

It has to be narrow and specific. Good luck proving that when Trump is laying off everyone.

They have a shit case.

[Michael Ejercito]

I disagree.

They can be fired by the President of the United States (whose authority that they exercise) for any reason- good, none, or bad. The Constitution guarantees it.

[MollyGodiva]

But it does not. No where in the Constitution does it even mention removal from office of anyone by the President. It is a doctrine that SCOTUS made up from nothing.

[Michael Ejercito]

The Constitution vests the executive power in the President of the United States.

As such, no one may exercise the executive power without consent of the President.

[David Nieporent]

The Constitution expressly allows Congress to vest at least one executive power in people other than the president.

[Bruce Hayden]

But not this one.

[Bruce Hayden]

Article II, § 1, ¶ 1, sentence 1.

It couldn’t be more prominent. The very first words of Article II grant the Executive power to the President. That is his most important power, by its placement first.

[Jason Cavanaugh]

I've already debunked this stupidity earlier in the thread.

Then again, all you ever do is come here and repeat lies that have been proven wrong a thousand times, because you're a piece of shit.

Nobody thinks you tell the truth.

[Michael P]

What do you think the very first sentence of Article II of the US Constitution means?

The executive Power shall be vested in a President of the United States of America.

[Sarcastr0]

I don't see what you claim in the words you quote. Neither has the Supreme Court.

Is this an Area Man Passionate Defender Of What He Imagines Constitution To Be?

[Jason Cavanaugh]

Good question dipshit. Maybe if you read further in Article 2 you'd see where it enumerates what Power the President shall have, just like it does for the other branches in their Articles.

[шинка]

It does imply it because he is the chief executive.

Think about historical context: There were no labor laws when the US Constitution was written. The president, like all other co-equal branches, has absolute domain over the executive branch except where the US Constitution says otherwise.

[Noscitur a sociis]

Can they be fired for their race or religion?

[Michael Ejercito]

Yes.

Just like the Speaker of the House can be fired by the House if a bare majority does not like his religion.

[MollyGodiva]

FBI employees are non-political positions. Their job is to enforce the law that Congress passes. If a particular FBI agent did something wrong, they can go through the normal process. To fire FBI agents for purely political reasons is quite dangerous and is a big step to turning the FBI into a secret police that is loyal to the President and not to the US or the Constitutions.

[Michael Ejercito]

We already had a secret police that was loyal to the President's opposition.

https://ethicsalarms.com/2021/12/16/from-the-i-dont-understand-this-at-all-files-2/

This is what you people support!

[Bruce Hayden]

Ha! Ha! Ha!

We saw how apolitical the FBI was, in 2016 and thereafter, when the FBI Director explained why they weren’t prosecuting Crooked Hillary for her thousands of violations of the Espionage Act, but the same group of FBI employees in that investigation (primarily their Counterintelligence Division, plus DD McCade and his office) initiated and ran the RussiaGate investigation investigation - utilizing the Steele Dossier, that they knew, early on, had been funded by Clinton and the DNC, And fabricated over drinks at a Georgetown bar. Then, they used the same already discredited Steele Dossier to acquire four successive FISA warrants on Carter Page, presumably to electronically surveillance their boss, President Trump, and his inner circle. Then set up the Mueller investigation, where they passed their collected evidence, to keep it away from the DOJ AG and IG and new FBI Director.

That’s the nonpartisanship in the FBI that so many on the right remember. It was given away by Peter Strzok’s promise to Lisa Page that he would make sure that Trump didn’t win the 2016 election, in text messages, in June/July of 2016.

[David Nieporent]

There were no thousands of violations of anything, even hypothetically. Also, the FBI director doesn't prosecute anyone. Also, the "RussiaGate" investigation was initiated before the Steele dossier was a gleam in anyone's eye. And that it was "funded by Clinton" is irrelevant to the price of tea in China, and it had not been "discredited," and, no, Carter Page was not part of the campaign by then, and Trump wasn't "their boss" by then. And of course they're not the ones who set up the Mueller investigation; Rod Rosenstein did.

So, pretty much every word you said was false.

[tylertusta]

Also, the FBI director doesn't prosecute anyone

Attorney General Lynch- in an attempt to escape the taint of scandal- said she would follow Comey's recommendation on whether to prosecute. It was Comey's decision to prosecute.

Also, the "RussiaGate" investigation was initiated before the Steele dossier was a gleam in anyone's eye

And reports are that James Comey sent FBI agents to conduct an off-the-books investigation into the Trump campaign.

... and, no, Carter Page was not part of the campaign by then

What does this have to do with the price of tea in China?

and it had not been "discredited,"

Incorrect.

The FBI knew it was opposition research before they filed their first warrant- that means that the credibility of the sources were suspect due to the financial and political motivations involved.

Furthermore, the FBI had direct information that the sources in the Steele Dossier were unreliable and not credible before the first warrant application was approved. Then the FBI kept lying to the FISC by excluding that information (I'm not talking about Clinesmith).

David, you never answered my last comment on this topic from a couple of months ago. So let's just clear things up:

Do you still maintain that the FBI did nothing wrong by excluding exculpatory information- including self-serving statements- in the FISA warrant applications? Do you still maintain that the FISC has never said that the FBI must include that information?

On what basis do you continue to maintain these beliefs?

[шинка]

At-will employment. You don't need a reason to fire them.

[MoreCurious]

I hate to throw cold water on this lively debate, but none of what is being said matters. There will come a point when these cases will end up in front of the SCOTUS, and we all know that the deck is stacked against the plaintiffs. The past couple of weeks have shown us that there are no rules, conventions, or laws that Trump won't violate. Despite the fact that most of his actions so far have been stupid, unlawful, or both, he will prevail.

[Krayt]

The rank and file just investigate what they're ordered to do. It's the movers and shakers at the top who organized this campaign.

I'd like a little more evidence some of the leaves at the bottom of this upside down tree were gung ho to git 'im.

The facetious claims of disinterested concern for rule of law was already applied by the time this or that filtered down to them.

[Noscitur a sociis]

This seems a little silly: as far as I know he’s currently 0-1 on challenges to his major initiatives. (0-2 if you count the TikTok case.)

[MoreCurious]

A lot of us thought the immunity case was a little silly, too, and we couldn't imagine the Supreme Court would give Trump a free rein to violate pretty much any law he wanted to.

[Bwaaah]

That's not cold water on the debate. That's cold water on your feelings about the Court. Not chilling, really.

[Bruce Hayden]

“The past couple of weeks have shown us that there are no rules, conventions, or laws that Trump won't violate.”

Tit for tat. Trump just survived 4 criminal and 2 civil LawFare suits against him by the DOJ and state Dem prosecutors (mostly shown to have been working with the Biden WH). That the criminal cases were all LawFare cases, so wouldn’t survive appeal on Due Process grounds, shows that they were politically motivated. Using LawFare based discretionary prosecutions in order to prevent Trump from being re-elected was what was unprecedented. Tit for Tat is just good game theory.

[CountmontyC]

First off as there have been no mass firings as of yet the case seems premature.
Secondly since the J6 cases seem to have been the single largest investigation by the FBI over the last four years it would seem like a very good idea for the new bosses to review what occurred. That the new big boss is President Trump doesn't change that the new bosses have the right to review the FBI's actions over the last four years. The agents have no right to hide their official actions from their employers. Refusal is a firing offense.

[PaulS]

Seems like he has said political persecutions must end - he sees these investigations as falling under that label. By collecting this information he will have better insight as to what resources the agency will no longer need. Perhaps the agency will say that there are "terrorists" that we should be investigating (that we haven't been), but that will be tough for people to swallow. It may be that the individuals involved, having spent years developing a skill set focused on an area that is no longer a focus may no longer be needed. However collecting the information doesn't make that decision

[CindyF]

Who are the FBI agents who filed the complaint? Or is this just a D.C. attorney filing the case on behalf of some fake FBI agents?

[David Nieporent]

Or is this just a D.C. attorney filing the case on behalf of some fake FBI agents?

No. This has been yet another episode of Simple Answers to Stupid Questions.

[not guilty]

"Who are the FBI agents who filed the complaint? Or is this just a D.C. attorney filing the case on behalf of some fake FBI agents?"

Any attorney who trifles with a federal court in that manner would quickly face severe consequences.

Plaintiffs' counsel filed a motion to proceed under pseudonym contemporaneously with the filing of the complaint. The motion recited that Plaintiffs will fully disclose their identities to Defendant. https://storage.courtlistener.com/recap/gov.uscourts.dcd.277085/gov.uscourts.dcd.277085.2.0.pdf The District Court granted leave to do so and ordered that "Within 3 days of this Order, Plaintiffs shall file on the public docket and under seal a declaration containing their real names and residential addresses." https://storage.courtlistener.com/recap/gov.uscourts.dcd.277085/gov.uscourts.dcd.277085.6.0_1.pdf

[Bruce Hayden]

There are maybe 7 FBI agents involved, currently anonymous, claiming to fear retaliation, and have sought class action status.

[not guilty]

There are nine employees/agents involved in the suit that Professor Post linked to.

There is another suit filed yesterday on behalf of the Federal Bureau of Investigation Agents Association, four John Doe plaintiffs and three Jane Doe plaintiffs. https://storage.courtlistener.com/recap/gov.uscourts.dcd.277103/gov.uscourts.dcd.277103.2.1.pdf That suit does not seek class certification. It does seek a temporary restraining order.

[Bruce Hayden]

Thanks. Remembered that it was an odd number above 5, but didn’t bother looking it up.

[SRG2]

Some of you have lost your fucking minds. To compare the J6 investigation with My Lai? Comparing FBI agents with Nazis hanged at Nuremberg?

These firings are 100% political and if you deny it, you're lying.

[Brett Bellmore]

Is it any more nuts than comparing people who wandered into the Capitol, looked around, and then walked out again, to Nazis? There were certainly some bad actors on J-6, but during the BLM/Antifa riots you had people literally attempting to set federal courthouses on fire WITH PEOPLE INSIDE. And the FBI didn't freak out to this extent!

If the J-6 folks had been remotely as violent as the BLM/Antifa rioters during Trump's first term, the Capitol building would have been a smoking ruin by the time they were done.

So, yeah, the utter freakout over J-6 relative the the left's own rioting shows some pretty serious political bias.

[Michael Ejercito]

They also attacked the White House, even burning a guard shack on White House grounds!

[SRG2]

"Whatabout"

And stop with your lying about the J6 rioters "wandering about" as though they were tourists. They were not. Perhaps you need toi persuade yourself in order to justify why people doing things you approve of but know were wrong should escape all consequence for their actions.

[Bruce Hayden]

Except that many of them actually were treated like tourists, early on, welcomed into the Capital by the Capital Police, and ushered around by them.

Then something changed. Was it the legally unjustified shooting and killing of Ashli Babbitt by a Capital Police Lt? Violence instigated by government agents like Ray Eppes, or the two buses of AntiFA? Or the unprovoked usage on non lethal means (such as rubber bullets and tear gas) by the Capita Police? At this point, we still don’t know the precise order of events, leading up from the Capital Police treating the protesters as tourists, to one of their supervisors gunning down Babbitt, and then watching on as another female protester was essentially beaten to death.

In their defense, at least Trump seems to have expected some violence, requesting the National Guard, the day before, which request was turned down by Speaker Pelosi and Mayor Bowser, and ordered the day of the protests by Trump, only to have that order ignored by the Chairman of the Joint Chiefs (who also promised the ChiComs that he would ignore orders to attack them)(which are why there is a push to reactivate, then court marshall, him, to reduce his retirement rank by one or two stars).

[David Nieporent]

In their defense, at least Trump seems to have expected some violence, requesting the National Guard, the day before, which request was turned down by Speaker Pelosi and Mayor Bowser, and ordered the day of the protests by Trump, only to have that order ignored by the Chairman of the Joint Chiefs

I already pointed out each of these lies already. Every word is false.

[SRG2]

RAY EPPS ZOMG! Did you know that Ray Epps was on the grassy knoll? That he singlehandedly sunk the USS Maine? That he wrote the Protocols of the Elders of Zion? That he was the intermediary between Fauci and the Wuhan lab?

what a lying fuckwit you are.

[Bruce Hayden]

“ These firings are 100% political and if you deny it, you're lying.”

So were the prosecutions. And that is the problem. They were green lighted, then heavily staffed by AG Garland, and approved by the Biden White House. A significant portion of Garland’s and the FBI’s budgets were utilized to effect these prosecutions, and that required a political decision.

[SRG2]

If career FBI agents had been so ordered by Garland et al and refused on the grounds the investigation was political, should they have been fired?

[John Rohan]

Forget Jan 6 for a moment. During the Summer of Floyd, the FBI sent a whopping 15 agents to investigate a freaking garage door pull at NASCAR that was shaped like a noose (which turned out to not be racially motivated).

Or in 2019, when Robert Mueller sent dozens heavily armed FBI agents to make a big public show of arresting Roger Stone. They even blocked off streets as if there was going to be some armed standoff and also tipped off CNN beforehand to get as much press coverage as possible, just to intimidate him and send a message to Trump. This wasn't some serial killer or drug lord, this was a 70 year old man who had never been arrested before in his life, and was accused of witness tampering. They could have simply sent two agents to his front door. Or contacted his attorney to instruct his client to turn himself in.

So yes, the FBI has become way to political and wasting resources and taxpayer money on these performative actions.

[David Nieporent]

also tipped off CNN beforehand

Citation [other than from Roger Stone's twitter account] needed.

[Michael Ejercito]

Do you deny the 15 agents sent to the NASCAR garage?

[John Rohan]

Sure is a coincidence that CNN, and no other news outlet, just happened to be there when the raid went off. "While the news hit most media organizations by surprise, CNN had a full camera crew waiting in the wings to capture the moment."

https://www.thewrap.com/cnn-pushes-back-tipped-off-fbi-roger-stone-arrest/

[Dr. Ed 2]

Good point David -- HOW DID CNN find out?

At best that's a security leak that they need to deal with, they need to maintain OpSec. And clearly, leaking to CNN (or OAN) is employee misconduct. If CNN can find out about this, they can also find out about a terrorism arrest, and that could get people killed.

[Bruce Hayden]

The problem here is that the largest investigation by the FBI and prosecutions by the DOJ over the last 4 years were the J6 cases. It appears to tens of millions of his supporters that they were highly political, and punitive prosecutions, esp given who and what weren’t prosecuted. It’s perfectly normal to expect that the new President, whose supporters were the targets there, to want to know which of his DOJ and FBI employees were involved, and esp those instrumental, in these highly political investigations and prosecutions. And these questionnaires were probably the 2nd step in this (1st step was probably looking through time records, etc, to determine who had billed time to these investigations). This will likely allow the DOJ (and DOGE) to efficiently determine which FBI employees to concentrate on, and which to ignore.

This lawsuit sets up a stark Separation of Powers issue, that will ultimately probably be decided by a 6-3 Supreme Court. How much Executive power has Congress taken, by statute, from the President and given to the unelected 4th branch of government, that derives its power from him, and report to him? Should their work be shielded from the President, even though they report to him, and exercise power derived from his, on privacy grounds? Does that interfere with his ability to exercise his exclusive Executive power?

And that is why I think that the plaintiffs in this case are likely to ultimately lose - because they are, essentially, trying to hide what they did from their Constitutional boss, the President, when what they did utilized Presidential Executive power. They utilized Presidential Executive power to investigate and prosecute, but are refusing to tell the person holding the office from which their power was derived, what they did with that power.

[MollyGodiva]

Bull. The FBI is not hiding info from Trump. This is about non-political career FBI agents because they investigated and prosecuted people who committed crimes the current President wanted them to commit.

[Michael Ejercito]

The FBI presented forged evidence to a FISA court to get a warrant on Carter Page.

[tylertusta]

And knowingly concealed evidence from the FISC that the Bureau was obligated to provide to the Court.

[Cyclops]

"[N]on-political" my ass. In 2016, 97% of DOJ employee donations went to Hillary (and the FBI is under the umbrella of the DOJ).

[DaveM]

The Dems lost the public on the J6 investigation. That's the real bottom line here. Now what a smart pol would do is pivot, grab a pitchfork, and join the chorus to demand an accounting.

Are there any smart people left in the Democratic Party? We shall see.

[tylertusta]

Of the voters who felt that democracy was at stake in the election, most of them voted for Trump.

[M L]

If the President doesn't control the executive branch, elections are fake.

[Cyclops]

"He can't fire . . . all the agents registered as Democrats"

What if they were all hired, in violation of the law, because they were Democrats? In 2016, 97% of DOJ employee donations went to Hillary (and the FBI is under the umbrella of the DOJ). If that's reflective of the actual make-up of the DOJ/FBI then it's beyond dispute that hiring and promotions were conducted on a partisan basis in violation of the law.

[River]

Lets take this one claim at a time. For First Amendment retaliation, I don't see it. The thing these people are being fired for doing is investigating an alleged crime. That's just not speech. Even if it were, it would be speech in the course of their employment, and thus unprotected under Garcetti v. Ceballos. Fifth Amendment due process may be the strongest claim, though I am much less familiar with the case law here. Personally I think reading the Due Process Clause as regulating government employment at all is a mistake, but as I understand it there is precedent here. As for Fifth Amendment privacy, I don't think I even understand what argument plaintiffs are trying to make. What they are being fired for isn't a crime, and being fired is also not saying anything, so this can't be self-incrimination.

[jdgalt1]

You may have a point -- but not one that ought to get anywhere; Trump can and should simply fire all FBI agents and close the agency's doors. FBI has been partisan, corrupt, and rotten to the core since its founding by executive order, and what one XO can do, another can undo. What necessary services it provides can better be handled by US Marshals.

But assuming this is not done, it is obvious to any objective observer that the Jan 6 and Mar-a-Lago actions were partisan and corrupt, and any officer who participated willingly in either doesn't deserve to keep his badge. These complaints need to be given precedence over (1) through (3). It is ludicrous for a police officer to complain of political discrimination when he starts things by committing it himself with his police powers shielding him from accountability.