Maurene Comey’s Case Will Tell Us: Does Impartial Justice Still Exist?

The answer to that question would not have been in doubt a year ago. The law is long established. The Civil Service Reform Act, and related due process protections, bars arbitrary, politically motivated firings of career employees. AUSAs, while their own category of “career excepted-service employees,” are covered. And due process principles require that any firing be for cause, with notice and an opportunity to respond. By those metrics, Comey’s case is a slam dunk.

But Trump has repeatedly asserted power to ravage the federal workforce, and the Supreme Court, especially of late, has more often than not backed him up. Other cases over the last nine months have also produced unpleasant surprises in shadow docket rulings.

Moreover, there is a real possibility that courts recognize the violations and award damages but stop short of reinstatement—the only result that would truly vindicate Comey and protect the public interest in an independent DOJ. Some courts of appeals have already suggested that even if the firing was illegal, they lack authority to order the executive branch to put people back to work.