The Trump administration has already taken hostile actions against some FBI employees who worked on investigations related to misconduct by President Trump, his allies and his supporters including: 

Based on these actions, FBI employees may reasonably fear retaliation from Trump administration officials.  As discussed below, such actions are not permissible under the U.S. Constitution, laws and DOJ/FBI policy.   

Any official request to open or conduct criminal, civil or disciplinary investigations of current or former FBI employees based solely on their participation in January 6th or classified documents investigations is illegal. Moreover, any request to open such an investigation based solely on an FBI employee’s private or public non-work communications protected by the First Amendment is also unlawful.  To open any such investigation or review, there must be an independent, non-retaliatory basis meeting all requirements of the FBI’s Domestic Investigation and Operations Guide (DIOG), DOJ policy and applicable law. 

Guidance

Any FBI employee who is asked to undertake investigative activity that appears to be retaliatory, including an investigation into agents who participated in January 6th or classified documents investigations, should consider taking the following steps: 

1) Document the request, including the individual(s) making the request and the alleged basis for the request.  

2) Seek legal review of the request by the FBI Office of General Counsel.

3) Determine, with advice of counsel, if any independent, non-retaliatory basis exists for the requested action.  If such an independent, non-retaliatory basis exists, limit any investigatory steps taken to that basis only.  No other investigatory steps may be taken.

4) Ensure, with advice of counsel, that no actions taken violate the FBI’s Whistleblower Protection Act, as all FBI employees who worked on the January 6th and the classified documents investigations should be protected under this Act.  Notify supervisors as needed to make sure no adverse actions are taken in violation of this Act. 

5) Notify the FBI Inspections Division and the DOJ Office of Inspector General of any official request(s) that have any retaliatory basis, as such action(s) are likely unlawful and must be reported for further investigation. 

6) Notify the official making the request in writing of all actions taken.  Further notify the official that you are also protected by the FBI’s Whistleblower Protection Act, and no adverse action can be taken against you for reporting retaliatory actions.

Legal protections against retaliatory investigations

Retaliatory investigations that do not have sufficient factual predication could violate numerous legal and policy provisions.

Investigative Procedure: Under FBI policy, agents may not undertake either a preliminary investigation or full investigation without sufficient factual predication. A criminal investigation into an FBI agent solely for participating in the January 6th or classified documents investigations would require independent, non-retaliatory predication that the agent engaged in criminal activity.  A generalized non-specific allegation of misconduct, even if in an Executive Order, is not sufficient to open a criminal investigation under FBI policy.  Protected First Amendment activity, which could include an agent’s private or public communications, cannot serve as factual predication.  To properly authorize an investigation, the allegation of wrongdoing must identify activity that would constitute a federal crime.  Without such factual predication, a criminal investigation into an FBI agent who participated in the January 6th or classified documents cases is prohibited.

Qualified Immunity: The doctrine of qualified immunity shields government officials, including law enforcement officers like FBI agents, from civil and criminal liability for official acts unless their actions “violate clearly established statutory or constitutional rights.” An agent who worked on the January 6th or classified documents investigations would almost certainly be protected by qualified immunity for their work on those cases.  The Supreme Court has held that overcoming qualified immunity is a “demanding standard,” generally granting qualified immunity unless the government officer’s conduct has been prohibited in a past case with incredibly similar circumstances.  As a result, even if an agent did commit misconduct or negligence, those agents cannot be criminally or civilly liable for those actions. 

Whistleblower Protection: 5 U.S.C. § 2303 prohibits adverse employment actions against an FBI employee who discloses “to a supervisor in the direct chain of command of the employee” information which the employee “reasonably believes evidences…any violation of any law, rule, or regulation.” (Emphasis added.) In the course of the January 6th or classified documents cases, FBI employees, as part of their job, reported possible violations of law to their supervisors and up their chain of command.  Therefore, any FBI employee working on those matters is potentially protected under the plain text of the whistleblower statute.  Thus, Bureau leadership would be prohibited from taking adverse employment actions against agents just because they worked on those investigations. If the Bureau tries to take retaliatory action against these employees, they should consider filing whistleblower complaints. Under § 2303, FBI employees who file whistleblower complaints cannot be fired, demoted, or otherwise punished for making the complaint.

Due Process: The Supreme Court has repeatedly made clear that “vindictive” prosecutions are illegal because they violate the Constitution’s Due Process Clause. The 10th Circuit has held that a prosecution is vindictive if “the prosecutor harbored genuine animus toward the defendant” and the defendant “would not have been prosecuted except for the animus.” Under these principles, a vindictive investigation conducted by a law enforcement agency could also be a due process violation. The Trump administration has made clear its hostility towards those who worked on January 6th and classified document investigations, and any official actions stemming from a retaliatory animus would likely meet the above definition of vindictiveness and therefore could be unconstitutional.

The information provided in this document is for general informational purposes only and does not constitute legal advice.

Read More in Reports