Context: I work in employment law, and have defended employers against cases of retaliation brought by discharged employees.
We were concerned by — and paid money to settle — cases of retaliation that were way, way more tenuous than this.
The key factors to consider in assessing cases of retaliation are: (1) whether the employee engaged in protected conduct, (2) whether the employer has motive for punishing that conduct, (3) the timeline between the protected conduct and the termination, and (4) if such evidence exists — which it rarely does — extrinsic written or verbal evidence that the employer’s decision to discharge the employee was directly linked to the protected activity.
In light of all those factors: This is hands-down the most open-and-shut case of retaliation I’ve ever seen.
1. Protected conduct: Testifying in relation to an investigation against one’s employer is a classic example of protected conduct. We even had an example based on exactly this hypothetical for our oral arguments is our first year of law school.
2. Motive: These two witnesses’ testimony was not favorable to Trump, which gives him a motive to retaliate.
3. Timeline: Trump firing these guys two days after he was safely acquitted is the most suspicious timeline I’ve ever seen.
4. Extrinsic verbal/written evidence: Trump straight up admitted to reporters when asked about this: “I’m not happy with him.”
I can only assume that the Trump Administration was so open and obvious about these firings because they are more interested in sending a message than in whatever legal consequences, if any, may ensue.
If this kind of thing isn’t illegal in the context of those serving a Presidential Administration — and I’m not sure since I defended private employers, not the White House — it should be.
Trump has just sent a message that he can, and will, purge any and everyone in his Administration who voluntarily speaks up.
Between that — and the baseless and sweeping claims of executive privilege we just saw in the impeachment trial, which went unchallenged by the GOP Senate — Trump has made himself effectively unaccountable to the law.
But not unaccountable to voters. Let’s hope.