The Four Pillars: Trump’s Immigration Plan

In his first State of the Union address, President Trump described four “pillars” to his immigration plan, with mixed reception. The pillars reinforce his campaign slogan to “Buy American, Hire American” and track with the immigration policy priorities he has previously outlined. These priorities include border security, interior enforcement and a merit-based immigration system.

The first two pillars address building a wall along the Southern border as well as a pathway to citizenship for certain undocumented foreign nationals presently in the United States, including about 800,000 young people (Dreamers) who were granted temporary status through the Deferred Action for Childhood Arrivals (DACA) program, now rescinded by President Trump.

The third pillar would end the diversity visa lottery (DV lottery). This program was established by Congress in 1990 and allocates 50,000 green cards to foreign nationals of countries with historically low U.S. immigration rates. Which countries are eligible can vary from year to year based on government-collected statistics as to how many foreign nationals have immigrated from those countries through other non-DV lottery programs. For example, in FY2018, most African countries were eligible, as were most European countries, except Great Britain. Countries that were not eligible included Pakistan, the Philippines, India, Mexico, Brazil, El Salvador, and Peru. The odds of being chosen are poor. Past data reveals about 14.5 million apply annually.

A common misconception, indeed one articulated by President Trump, is that the DV lottery program “randomly hands out green cards without any regard for skill, merit, or the safety of our people”. In fact, however, DV lottery participants must demonstrate that they meet certain educational or skilled work experience requirements in addition to clearing robust government background and security checks. Those selected in the DV lottery must be screened just like any other green card applicant – including family- and employment-based green card applicants. The process is arduous and can take months to complete. Security screenings include biometrics as well as name and fingerprint checks through multiple interagency government databases to identify potential criminal, national security, terrorism, organized crime, gang and other related issues. Applicants also must attend an in-person interview where they are again screened for potential red flags affecting admissibility.

The fourth pillar addresses family-based immigration and would limit it to immediate family members which include spouses and minor children. Referring to “chain migration”, President Trump stated that “a single immigrant can bring in virtually unlimited numbers of distant relatives.” This misconstrues current immigration law. The United States already limits family-based immigration. Family-based green cards are only available to spouses, children, parents and siblings (for U.S. citizens). Grandparents, aunts, uncles, cousins and other extended family members are ineligible. The number of family-based green cards are limited by annual quotas. For example, siblings of U.S. citizens who filed family-based petitions between 1994 and 2004 are only now current. In other words, the wait is long. Furthermore, sponsors of family-based green card applicants must also demonstrate that they have the financial means to support the intended beneficiary by signing a contract with the government agreeing to reimburse for any means-tested public benefit the beneficiary should receive, until the beneficiary has worked 10 years, becomes a US. citizen, dies or leaves the United States permanently.

U.S. immigration law is complex and a challenge to understand for those who aren’t regularly walking its trenches. For those curious about the Administration’s regulatory agenda, https://resources.regulations.gov/public/custom/jsp/navigation/main.jsp is a good place to start. Those interested in learning more about U.S. immigration facts can also access the American Immigration Council’s resources available at https://americanimmigration council.org/.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson.
More on Immigration at the National Law Review Immigration Page.

Trump Administration Releases Framework for Immigration Deal

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.
Read more immigration news at the National Law Review’s Immigration page.

BREAKING NEWS: Congress Sends Tax Cuts and Jobs Act to President Trump’s Desk for Signing

The Tax Cuts and Jobs Act (TCJA) has been passed by both houses of Congress and is now set to be signed into law by President Trump. The vote was 224-201 in the House with all the Democrats joined by twelve Republicans voting “no” and 51-48 in the Senate along party lines. Although the TCJA isn’t exactly great news for the renewable energy industry, it is far better than what was originally proposed in the House and Senate bills. Here are the main takeaways:

  • PTC Inflation Adjustment – The TCJA preserves the current 2.4¢/kWh PTC amount for wind with an annual inflation adjustment. The House bill would have reduced the PTC to 1.5¢/kWh with no annual inflation adjustment.

  • ITC Phase-out Schedule – The TCJA does not eliminate the permanent 10% solar ITC beginning 2023.

  • Continuous Construction Requirement – The TCJA does not include the statutory continuous construction requirement that was included in the House bill. Despite clarification from the House there was some concern as to whether the House bill would eliminate the four-year safe harbor that wind developers rely on under IRS guidance.

  • Orphaned Technologies – The TCJA does not include the ITC extension for orphaned technologies (e.g., fuel cell, small wind, micro turbine, CHP, and thermal energy) that were left out of the 2015 PATH Act. However, the Senate Finance Committee is proposing to include an extension for these technologies in its tax extenders package.

  • 100% Bonus Depreciation – The TCJA provides 100% bonus depreciation through 2022 for both new and used property. 100% bonus applies to property acquired and placed in service after September 27, 2017 with a transition rule permitting taxpayers to elect 50% bonus instead during the taxpayer’s first taxable year ending after September 27, 2017. This provides a big incentive to place projects in service this year in order to take advantage of depreciation deductions at the current 35% corporate tax rate.

  • BEAT Provision – The TCJA provides a Base Erosion Anti-Abuse Tax (BEAT) whereby a bank that makes 2% (or 3% for companies) of its deductible payments to a foreign affiliate is subject to the BEAT when those payments reduce its U.S. tax liability to less than 10% (12.5% beginning in 2025). The good news is that the TCJA provides that tax equity investors can use the PTC and ITC to off-set up to 80% of their tax liability under the BEAT. The bad news is that the 80% offset expires in 2025, so tax-equity investors in wind projects that generate PTCs over a 10-year time horizon could potentially have all of their credits clawed-back in the future.

  • Interest Deductibility – The TCJA generally limits the amount of interest that can be deducted to 30% of the business’s adjusted taxable income. In the case of partnerships, this limitation would apply at the entity level. Deductions that are disallowed are carried forward and used as a deduction in subsequent years. As we discussed in our blog post here on the House bill, this limitation could have an adverse impact on back leveraged transactions, which developers utilize to reduce their cost of capital and free up cash to invest in new projects.

  •  Corporate Tax Rate/AMT – The TCJA slashes the corporate tax rate from 35% to 21%, effective for tax years beginning after 2017, with no sunset. The TCJA does not include the corporate AMT that was in the Senate bill and which would have had a negative impact on projects generating PTCs after four years in operation. It remains to be seen whether the lower corporate rate will reduce demand for renewable energy credits among tax-equity investors in the market, which now have less tax liability to offset with credits.

© 2017 Foley & Lardner LLP
For more on Tax, go to the Tax Practice Group page.

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Since September 11, 2001, the State Department has given priority to security over quick visa adjudications. For many reasons, including heightened security, between 2001 and 2010, the U.S. share of the global tourism market had dropped markedly. The Obama Administration, concerned about the effect on the U.S. economy, took measures to “support a prosperous and secure travel and tourism industry in the United States.” The first steps were in 2010, when the National Export Initiative and the Travel Promotion Act became law. They mandated intergovernmental cooperation to work to establish a stronger brand identity for the U.S. and to promote exports. By 2012, President Barack Obama issued an executive order to continue the process of fostering more tourism and travel: Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness Order. One section ordered Consulates to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, recognizing that resource and security considerations . . . may dictate specific exceptions[.]”

Although the Obama EO contained a security waiver, on June 21, 2017, Trump signed his own EO, striking the 80 percent/three-week goal. This is being done in conjunction with the travel ban partially reinstated by the U.S. Supreme Court and the extreme vetting procedures instituted by Secretary of State Rex Tillerson.

Pursuant to extreme vetting, if deemed necessary to determine eligibility, visa applicants may be asked to supply:

  • Travel history during the last 15 years, including source of funding for travel;

  • Address history during the last 15 years;

  • Employment history during the last 15 years;

  • All passport numbers and country of issuance held by the applicant;

  • Names and dates of birth for all siblings;

  • Names and dates of birth for all children;

  • Names and dates of birth for all current and former spouses, or civil or domestic partners;

  • Social media platforms and identifiers, also known as handles, used during the last five years; and

  • Phone numbers and email addresses used during the last five years.

Assessing this amount of information and data obviously will take time. A White House spokesman stated that the elimination of the “arbitrary” three-week goal was needed because “[t]he president expects careful, accurate vetting of visa applicants, not a rushed process . . . .”

Business groups already troubled about possible deleterious effects from the travel ban and extreme vetting have expressed concern about additional delays in visa issuance. According to State Department’s own data, the nonimmigrant visa issuance rate has been dropping. In March, 907,166 were issued and the number was down to 735,000 in April.

This post was written by William J. Manning of Jackson Lewis P.C.

US State Department Clarifies Implementation of Travel Ban Exemptions

The diplomatic cable instructs consulates on how to interpret the US Supreme Court’s direction to enforce the restriction only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.”

This Immigration Alert serves as an addendum to our prior summary of the Supreme Court decision partially granting the government’s request to stay enforcement of two preliminary injunctions that temporarily halted enforcement of Executive Order (EO) No. 13780. As a result of this decision, foreign nationals from six countries (Libya, Somalia, Sudan, Syria, Iran, and Yemen) who cannot show bona fide ties to the United States may be denied visas or entry for 90 days starting Thursday, June 29 at 8:00 p.m. EDT.

The communication from the US Secretary of State’s office enumerates the following situations where the EO’s travel restrictions will not apply:

  • When the applicant has a close familial relationship in the United States, which is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or sibling, whether whole or half. This includes step relationships, but does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, or any other “extended” family members.

  • When the applicant has a formal, documented relationship with an entity formed in the ordinary course, rather than for the purpose of evading the EO. This includes established eligibility for a nonimmigrant visa in any classification other than a B, C-1, D, I, or K, as a bona fide relationship to a person or entity is inherent in the visa classification.

  • When there are eligible derivative family members of any exempt applicant.

  • When the applicant has established eligibility for an immigrant visa in the immediate relative, family-based, or employment-based classification (other than certain self-petitioning and special immigrant applicants).

  • When the applicant is traveling on an A-1, A-2, NATO-1 through NATO-6, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification.

  • When the applicant has been granted asylum, is a refugee who has already been admitted to the United States (including derivative follow-to-join refugees and asylees), or is an individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Applicants admitted or paroled into the United States on or after the date of the Supreme Court decision are also exempted, as are those currently in the United States who can present a visa with a validity period that includes either January 27, 2017 (the day the EO was signed) or June 29, 2017. Any document other than a visa, such as an advance parole document, valid on or after June 29 will also exempt the holder.

As described in the prior alert, any lawful permanent resident or dual foreign national of one of the six named countries who can present a valid passport from a country not on the list is not impacted by the EO. The EO also permits consular officers to grant case-by-case waivers to otherwise affected applicants who can demonstrate that being denied entry during the 90-day period would cause undue hardship, that entry would not pose a threat to national security, and that their admission would be in the national interest.

This post was written by Eric S. Bord and Eleanor Pelta of  Morgan, Lewis & Bockius LLP.

President Trump Shifts the U.S. Policy Towards Cuba

As we have previously reported on the growing fear that the Trump Administration would roll back President Barack Obama’s plan to normalize relations with Cuba. Then-candidate Donald Trump was calling President Obama’s deals with Cuba “one-sided” and beneficial “only [to] the Castro regime.” Last week Friday, at an event at the Manuel Artime Theater in Miami, President Trump officially announced his Administration’s new public policy towards Cuba and fulfilled a campaign promise.

Cuban FlagPresident Trump’s speech culminated in the issuance of a National Security Presidential Memorandum and an accompanying White House Fact Sheet on the U.S. Policy toward Cuba.  In sum, President Trump’s directive:

(a)  Ends economic practices that “benefit the Cuban government” by prohibiting most economic activities with the Cuban military conglomerate, Grupo de Administración Empresarial (“GAESA”). This change is most likely to affect the hotel and tourism industry sectors, since these are the industries said to be largely controlled by GAESA. A list of companies that will be on the “blacklist” will be issued by the State Department at a later date.

(b)   Adheres “to the statutory ban on tourism to Cuba,” by amending regulations related to educational travel (i.e., by ending individual people-to-people travel) and enforcing the strict record keeping requirements related to travel to Cuba.

(c)   Opposes any efforts in the United Nations or other international forums to lift the embargo on Cuba.

(d)   Supports the expansion of internet services and free press in Cuba by convening a task force that will work with non-governmental organizations and private sector entities to examine the challenges and opportunities in those areas.

(e)  Keeps in place the Obama Administration’s elimination of the “Wet Foot, Dry Foot” policy.

(f)  Ensures that engagement with Cuba in general is advancing the interests of the United States.

As explained in the new FAQs issued by the U.S. Department of the Treasury, the policy changes will not go into effect until the Treasury Department and the U.S. Department of Commerce have finalized their new regulations. Importantly, the new Cuba policy changes will not have retro-active effect. Those travel arrangements and commercial engagements that were in place prior to the issuance of the upcoming regulations will not be affected.

Al Cardenas, who heads the Latin America practice group at Squire Patton Boggs and previously served as the former Chairman of American Conservative Union and former Chairman of the Florida GOP, explains:  “Despite the emotional setting and rightful remembrance of the struggles of the Cuban people found in President Trump’s speech, which was focused on a Cuban exile audience, President Trump’s executive action preserves many of the changes made during President Obama’s Administration (some of which were outlined in President Obama’s 2014 Speech). For example, the respective embassies in Washington and Havana will remain open, the U.S. licenses issued to airlines and cruise line companies have been kept, efforts to expand direct telecommunications and internet access will continue, and the additional categories for travel to Cuba for the most part remain in place. While one-step back is the prohibition on U.S. travelers from staying at government-owed facilities, this should be a boon to the family-owned B&B’s and other rentals on the island. It remains to be seen whether there will be a significant drop off in tourist travel to the island.”

Viewed as a whole, President Trump is tightening some areas where improved economic relations with the United States could have benefitted some auspices of the Cuban Government.

This post was written by Beatriz E. Jaramillo and  Stacy A. Swanson of Squire Patton Boggs (US) LLP.

Comey’s Testimony Underscores Need for Strong Whistleblower Protections

For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

Intimidate and Silence the Whistleblower

In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.

Retaliate Swiftly and Severely Against the Whistleblower

Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.

Badmouth the Whistleblower and Their Work History

Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.

Attack the Whistleblower’s Credibility

Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

Desperate to defend themselves at all costs, corporations frequently employ this tactic—labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.

Create a Post-Hoc Justification for Firing the Whistleblower

Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.

Focus on the Whistleblower’s Alleged Misconduct

To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.

Sue the Whistleblower and Initiate a Retaliatory Investigation

Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation.  So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG).  I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey.  To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims.  When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value.  Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws.  And a jury can punish the employer for subjecting the whistleblower to abuse of process.

Why Whistleblowers Deserve Strong Legal Protection

In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability ReviewDraining the Swamp Requires Robust Whistleblower Protections and Incentives.

This post was written by Jason Zuckerman of Zuckerman Law.