Conservatives stood agape last week at the inspector general’s refusal to state the obvious in his 568-page review of the FBI and Justice Department’s handling of the Clinton probe: A pro-Hillary political bias led officials to let her off the hook.
While Michael Horowitz’s report highlighted numerous instances of anti-Trump and pro-Hillary bias, in true lawyerly fashion he focused in the conclusion on the lack of “documentary or testimonial evidence” showing that political prejudice “directly affected” the decisions made in the investigation.
As a lawyer with a niche in employment law, this phrasing struck a chord of hilarity in me, because the methods of proving discriminatory intent are well-established, and such direct evidence of animus (or favoritism) is not required to show that an illegal motive drove an employment decision.
Under the federal statute that prohibits discrimination in employment on the basis of age, sex, race, national origin, or religion, a plaintiff must prove an employer took an adverse employment action because of the employee’s membership in a protected class. In other words, an employee must prove that because he is African-American, and not Caucasian, the employer denied him a promotion (or didn’t hire him, or fired him). Over the years, the courts have crafted two methods of proving discriminatory intent: the direct method and the indirect method.
Under the direct method, a plaintiff must present direct or circumstantial evidence of animus. Direct evidence basically involves an admission that the illegal animus, whether it be race or sex, national origin or religion, motived the employment decision. “I fired Ed because he is too old to coach football,” would be a simple example.
Circumstantial evidence may also establish discriminatory intent but requires an added inference. For instance, circumstantial evidence that racial animus motivated the employer could come in the form of past racist statements or racial slurs, even without the employer tying the employee’s race to the current employment decision. An employer’s past race-based employment decisions would likewise serve as evidence that race motivated the employer’s treatment of this employee.
However, given the ease with which an employer can disguise discriminatory intent, employees can instead prove illegal animus through the indirect method. Under the indirect method, an employee creates an inference of discriminatory intent by showing that the employer treated the plaintiff differently than similarly-situated employees of a different race (or religion, or sex, etc.).
Thus, an African-American employee who qualified for a promotion, but was rejected in favor of a Caucasian employee, could establish an inference that the employer discriminated against the plaintiff because of his race. The employer must then produce evidence of a legitimate non-discriminatory reason for the decision, such as that the Caucasian employee’s sales figures consistently exceeded the African-American employee’s, justifying the promotion.
Now let’s apply these well-established principles of employment law to a theoretical investigation into a company’s two sets of employees — Hillary Clinton and her associates and Donald Trump and his associates — pretending for purposes of illustration that team Hillary is Caucasian and team Trump is African-American. Let’s also assume that the comments were race-based instead of Trump-based.
Here is Lisa Page’s text to Peter Strzok in that context: “That African-American is not ever going to become president, right? Right?!” And his response: “No. No he won’t. We’ll stop it.” That statement, if spoken in the context of an employment decision, would be the rarely existent direct evidence of racial animus.
That the agents spoke about Trump instead changes nothing of import: It provides direct evidence of an illicit motive. That evidence is backed up with the additional circumstantial evidence consisting of anti-Trump and pro-Hillary messages exchanged by Page and Strzok and the other unnamed agents.
Applying the indirect method of proof is equally damning. Hillary and Trump are similarly situated, yet in investigating allegations of illegality, the FBI approached the cases differently. Consider, for instance, the FBI’s approach to questioning witnesses. Following the FBI’s questioning of a tech person who had helped the Clintons at their Chappaqua residence, a text conversation between an FBI employee and an agent included this tidbit:
FBI Employee: ‘boom…how did the [witness] go’
Agent 1: ‘Awesome. Lied his -ss off. Went from never inside the scif [sensitive compartmented information facility] at res, to looked in when it was being constructed, to removed the trash twice, to troubleshot the secure fax with HRC a couple times, to everytime there was a secure fax i did it with HRC. Ridic,’
FBI Employee: ‘would be funny if he was the only guy charged n this deal’
Agent 1: ‘I know. For 1001. Even if he said the truth and didnt have a clearance when handling the secure fax – aint noone gonna do sh-t’
In contrast, when the FBI interviewed Trump’s former national security advisor, Michael Flynn, the agents reported that they did not believe Flynn had lied. Yet, the DOJ later charged Flynn with lying to investigators to force him to cooperate and hopefully reveal dirt on his boss. Is there a legitimate explanation for this disparate treatment? No.
Consider, then, how these facts would look to a jury considering a race discrimination case in which an employer decided to investigate two employees suspected of theft. In interviewing witnesses to the events, the employer uses a velvet touch when questioning witnesses possessing information about the Caucasian employee (Hillary in our hypothetical), while applying an iron fist in interrogations of witnesses close to the African-American employee (Trump in our scenario.) It would involve race-based discrimination — just like the comparative handling of the Clinton and Trump investigations involved politically motivated discrimination.
Horowitz, however, is not trying a discrimination case. He is not trying any case. But that doesn’t mean that the public cannot judge for itself whether political bias prompted the FBI and DOJ’s inaction in the Clinton probe and motivated their overreaction in the Trump campaign probe. To borrow a phrase from yet a third area of the law: “I know it when I see it.” And so does everyone else.