The mother of all employment cases

The underlying dispute over the firing of eight U.S. Attorneys reminds me of a type of employment law case — the discharge of a group of allegedly poor performing employees based in part on rankings which, in turn, are based on subjective assessments. The underlying subjectivity of the decisions, coupled with the faux objectivity of the ratings, provides endless fodder for a plaintiffs’ lawyer, especially when the ratings aren’t granular — that is when there are only a few possible scores. It’s usually easy enough for counsel to allege anomalies and otherwise blow smoke even in cases where a single plaintiff is discharged for performance reasons. When there are eight plaintiffs, and a much larger group that was retained, plus a significant paper trail, the possibilities are nearly endless. In this case, moreover, the “plaintiffs” are politically well-connected lawyers (that’s how they got to be U.S. attorneys in the first place), and they are “represented” in effect by Democratic politicians who control Congress and by their allies in the MSM.
Only the hunt for Alberto Gonzales based on reasons collateral to the underlying termination decisions has prevented a massive smoke-blowing campaign on the fired prosecutors’ behalf. But even so, one can see the hallmarks of this type of litigation in the MSM’s coverage to date. For example, yesterday’s Washington Post ran a story about how New Mexico prosecutor David Iglesias provided training to other U.S. attorneys in election fraud cases before being terminated for (in the Justice Department’s version) not aggressively prosecuting such cases. This is vintage employment litigation stuff — e.g., the plaintiff who provided training in dealing with sexual harassment claims only to be fired for not conducting an aggressive investigation in a particular case. On the surface, this may seem fishy, but the fallacy is not difficult to detect. Iglesias wasn’t fired for lack of expertise in election fraud law and procedure; he was fired (according to the Justice Department) for not being aggressive.
The Post also reported that Carol Lam, the U.S. attorney in San Diego, was the subject of a negative email by Gonzales’ assistant Kyle Sampson the day after she notified the Justice Department of search warrants in the Duke Cunningham bribery case. But Lam was already on the list of prosecutors likely to be let go, and she was not removed until months later at the end of her four-year term. Before leaving, she issued new indictments and her successor is aggressively prosecuting these cases. Diane Feinstein, who is now complaining about Lam’s treatment, was one of those who complained that Lam wouldn’t pursue immigration cases.
Today, the Post ran a front page story about the rating Patrick Fitzgerald received during this process. Apparently, he got the middle mark. Fitzgerald, of course, was not removed, but the Post uses his rating, as a garden variety plaintiffs’ lawyer would, for two purposes. First, it notes that two prosecutors with the same rating as Fitzgerald were replaced. But this is meaningless when ratings are non-granular and almost 100 people have been rated. Second, the Post suggests that Fitzgerald’s less than stellar rating discredits the ratings as a whole, given his reputation as a top prosecutor. But the issue is not whether the highly subjective ratings were correct, but whether they were used as a pretext to get rid of prosecutors for improper purposes. They certainly weren’t used that way against Fitzgerald, and I’ve seen no good evidence they were used that way against anyone else.
But the point for the Post and its Democratic allies is to blow smoke, and for that purpose this beast is a dragon.
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