Does Former FBI Deputy Director McCabe Have Claim Under First Amendment?

On Friday, March 16, 2018, Attorney General Sessions decided to terminate the employment of former FBI Deputy Director Andrew McCabe, shortly before McCabe would have been eligible to retire with his full pension after more than 21 years of service at the FBI. According to reports, the Attorney General stated that Mr. McCabe was being terminated for a lack of candor – – including under oath – – as part of an investigation into his activities, and that both the Department of Justice Inspector General and the FBI Office of Professional Responsibility recommended Mr. McCabe’s dismissal. Mr. McCabe, on the other hand, denies that he was dishonest. The New York Times reported that “Mr. McCabe promptly declared that his firing, and Mr. Trump’s persistent needling, were intended to undermine the special counsel’s investigation in which he is a potential witness.” In response to his firing, McCabe released a statement claiming that he was being

singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of [former FBI Director] James Comey.The release of this report was accelerated only after my testimony to the House Intelligence Committee revealed that I would corroborate former Director Comey’s accounts of his discussions with the President.The OIG’s focus on me and this report became a part of an unprecedented effort by the Administration, driven by the President himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn.

In a separate interview with Politico, McCabe reportedly stated that “they have every reason to believe that I could end up being a significant witness in whatever the special counsel comes up with, and so they are trying to create this counter-narrative that I am not someone who can be believed or trusted.” While Mr. McCabe, who has retained a lawyer, is likely considering multiple legal claims, one claim that he may review involves his rights under the First Amendment, which prohibits the Government from retaliating against employees for speaking on matters of public concern.

Historically, numerous federal courts have concluded that witnesses testifying under oath are protected by the First Amendment and cannot be subjected to retaliation by the Government because of their testimony. However, the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos narrowed free speech protections so that public employees were no longer protected by the First Amendment for speech made pursuant to an employee’s official job duties. In 2014, the Supreme Court decided another First Amendment case, Lane v. Franks, and held that the First Amendment prohibited retaliation by the Government against public employees who provided testimony under oath outside the scope of their ordinary job duties, even if the testimony relates to their employment or information they learned during the course of their employment. The Supreme Court’s opinion in Lane contained strong language regarding the importance of truthful testimony and why the First Amendment protects it. The Court stated that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth . . . When the person testifying is a public employee, he may bear separate obligations to his employer – – for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation render sworn testimony speech as a citizen that sets it apart from speech made purely in the capacity of an employee.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014). The Supreme Court added that “[i]t would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials – – speech by public employees regarding information learned through their employment – – may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.” Lane, 134 S. Ct. at 2380. However, since the parties in Lane agreed that the employee’s testimony was not given pursuant to his ordinary job duties, the Supreme Court stated that it was not expressing an opinion as to whether an employee’s truthful sworn testimony would be protected by the First Amendment if it was given as part of an employee’s ordinary job duties.

Since the Supreme Court’s 2006 decision in Garcetti, federal courts have reached different conclusions on whether public employees who testified under oath were still protected by the First Amendment, depending on the individual facts of each case, but it appears that the majority of courts have concluded, consistent with Lane, that the truthful testimony under oath is still protected by the First Amendment if it related to matters of public concern. See, e.g., Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008); Chrzanowski v. Bianchi, 725 F.3d 734 (7th Cir. 2013); Caruso v. City of New York, 973 F. Supp. 2d 430 (S.D.N.Y. 2013); Wynn v. New Orleans City, Civ. No. 12-037 (E.D. La. Feb. 26, 2014).

It remains to be seen whether Mr. McCabe will pursue a claim of retaliation under the First Amendment, but one of the issues in such a claim would be whether his testimony to Congress was protected by the First Amendment, or whether he is without First Amendment protection for his testimony because it was given pursuant to his official job duties. On that question, many of the factors identified by the Supreme Court in Lane would support a conclusion that McCabe’s testimony should be protected by the First Amendment: every citizen has an obligation to testify truthfully to Congress; there are many policy reasons why Congress needs witnesses to testify truthfully; and witnesses face severe penalties if they provide false testimony to Congress, and employees should not have to choose between their obligations as a citizen and their desire to save the jobs. Moreover, if the Executive branch of the federal government had the ability to retaliate against public employees for their truthful testimony under oath to Congress, it would raise concerns regarding the ability of Congress to exercise its constitutional authorities which would undermine our system of checks and balances.

If McCabe were able to prevail on that question, in order to demonstrate a violation of his First Amendment rights, he would still need to prove other facts, including that he was terminated in retaliation for his First Amendment protected speech, as opposed to the non-retaliatory reasons that the Government would rely upon, including McCabe’s alleged lack of candor. If Mr. McCabe met that burden, the Government would also be able to assert a defense, named after a Supreme Court case called Mt. Healthy School District v. Doyle, that it would have made the same decision and terminated Mr. McCabe anyway — even if he had not engaged in First Amendment protected speech — because of his alleged misconduct. Mr. McCabe would then have an opportunity to prove that the Government’s contention is false or pretextual, or a cover-up, to conceal its actual retaliatory motive.