SDNY
COURTHOUSE,
Sept 18 – Maurene Comey sued
the DOJ for being fired,
saying that "the politically
motivated termination of Ms.
Comey—ostensibly under
“Article II of the
Constitution”—upends bedrock
principles of our democracy
and justice system. Assistant
United States Attorneys like
Ms. Comey must do their jobs
without fearing or favoring
any political party or
perspective, guided solely by
the law, the facts, and the
pursuit of
justice."
Complaint on Patreon here
The firing took
place soon after the mix
verdict in US v. Sean Combs in
the U.S. District Court for
the Southern District of New
York, and amid since-denied
requests for unsealing of
Epstein and Ghislaine Maxwell
grand jury transcripts.
The discovery in
this case, and any trial,
could get into both issues.
Docketed on
November 4, "the initial
pretrial conference in this
matter is hereby ADJOURNED to
December 4."
Judge Furman: I'm
inclined to stay discovery
pending inquiry into my
jurisdiction. I note this case
might involve requests for
deposition of high
Administration officials, who
made the decisions. But first
let's see the defendants'
motion to dismiss, I think
Maurene Comey's
lawyer Nicole Gueron: We'd
like to change your mind. We'd
like discovery into who made
the decision. A search of her
name in the files of decision
making officials. The White
House stated that the decision
was not made by the President
but by DOJ
AUSA Lesperance:
I disagree that the Government
has conceded that the
discovery that will be sought
is appropriate. We said the
mechanisms also exist in the
MSPB. Even this limited
discovery is not as simple as
to search - whose file?
Executive privilege
Furman:
I'm not going
to actually
rule now but
I'm inclined
to stay with
my initial
position, and
stay
discovery.
On May
26, in the
run-up to an
in-person
appearance,
the US
Attorney's
Office filed
an answer,
with a one
page
ratification
of decision to
terminate, on
Patreon here.
On May
28, Inner City
Press covered
the
status
conference,
including:
OK -
inside, NDNY
lawyer Karen
Lesperance
says firing
was authorized
by Article II.
Judge
Furman (paraphrasing)
Could a
President
fired all
black
employees? Or
all white
employees?
NDNY's
Lesperance:
That would
seem to raise
some concerns.
Comey's
lawyer Jennifer
Ellen Blain:
This is
breathtaking
NDNY's
Lesperance:
We'll file our
brief by June
5. Then they
could ask for
discovery to
respond.
Comey's
lawyer Blain:
Firing her for
her father's
name violates
the First
Amendment.
Judge:
Reply to Aug
21...
Late on
June 5 DOJ
filed its
motion for judgment on
the pleadings,
leading with "Comey
was Removable
at Will Under
Article II of
the
Constitution. Plaintiff
was Removable
at Will Under
28 U.S.C. §
542. Plaintiff’s
Removal Under
Article II and
28 U.S.C. §
542 Qualifies
as Removal for
“Efficiency of
the Service”
Under the CSRA" - 34 page
memo on Patreon here
On
August 18 Judge
Furman set an oral
argument, a
month out:
"ORDER: The
parties shall
appear for
oral argument
on the
cross-motions
for judgment
on the
pleadings in
Courtroom 24B
of the Daniel
Patrick
Moynihan
United States
Courthouse,
500 Pearl
Street on
September 18,
2026, at 11:00
a.m. SO
ORDERED."
Inner
City Press was
there on
September 18
and live
tweeted, here:
All
rise!
Judge
Jesse Furman: Please
sit. Let's start with
the Article II argument,
then the statutory
arguments.
AUSA Tyler J. Becker: It
was made clear in Trump
v. US that criminal
prosecutions are in the
President's power. It
belongs to him, not
bureaucrats
AUSA
Becker: AUSAs who appear
to prosecute on behalf
of the US - she admits
her cases were high
profile matters, fraud
and the like - so she
must be removable at
will. With the power to
appoint comes the power
to remove.
Judge: Under Section
542, isn't it the AG?
AUSA:
We rely on the vesting
clause.
Judge Furman: But
Congress can impose
restrictions on the
removal of inferior
officers, no?
AUSA: In the case they
cite, that wasn't the
issue.
Judge Furman: Do we
agree Ms. Comey was an
inferior officer or
employee?
A: Yes
Judge
Furman:
On patents judges,
wasn't removal subject
to review by a principal
officer?
AUSA: The Supreme Court
made them inferior
officers. This case is
distinguishable.
Judge Furman: Perhaps
Morrison was improperly
decided. Even Justice
Scalia...
Judge:
All eight Justices who
participate in that case
agreed on this.
DOJ's Becker: The
vesting clause is the
relevant source of
authority.
Judge Furman: You think
Morrison is abrogated by
Slaughter?
Backer: Yes.
DOJ's
Becker:
The Supreme Court has
overruled Humphrey's
Executor.
Judge Furman: The
Slaughter decision said
it was not determining
the fate of those not
before it. The Supreme
Court has the
prerogative to revisit.
Perhaps you are teeing
it up for that
DOJ's
Becker:
This was directed by
former AG Bondi, but it
was ratified.
Judge Furman: But you
are moving for judgment
on the pleadings, and
your pleading are silent
on that. How can I rule
on the pleadings?
Ratified by Mr. Blanche?
I can assume whatever I
want
Judge
Furman:
A lawyer could be fired
for taking a position
that is contrary to the
policy of the United
States, no?
DOJ's Becker: Of course
if an AUSA said
something the Government
didn't agree with, it
would be firing for
cause. We're not arguing
that here.
DOJ
Becker: This is about
prospective, like
removing FTC
commissioner from
another party. We are
limiting ourselves here
to prosecutors who
appear in court for the
US.
Judge Furman: Ms. Blain?
Jennifer Blain of
Clarick Gueron Reisbaum
LLP: May it please the
court
Maurene
Comey's
lawyer Blain: She is
being fired because of
her DNA. Note that line
AUSAs are in a rigid
structure. The CSRA does
not intrude on the
President's authority.
In the Trump case the
Court said the President
has authority to
prosecute. not this
Judge
Furman:
Let me press you. Could
Congress say that an
AUSA should be removed
if he or she does or
doesn't do something?
Comey's Blain: You don't
need to decide that
today. Slaughter was
about an independent
commission
Judge
Furman:
Isn't this line of cases
threatened?
Comey Blain: That does
not mean overruled...
Judge Furman: Let's turn
back to Mr. Becker on
the statutory issues.
You concede she was an
outstanding AUSA?
DOJ's Becker: Her
performance review say
that
Judge
Furman:
Tell me why 542 trumps
the CSRA, no pun
intended
DOJ Becker: The CSRA
does not change the
President's power under
542(b).
Judge Furman: But until
now hasn't DOJ taken the
opposite position, back
to the 1970s?
Comey's
Blain:
She is being punished
because her father is a
political enemy of the
president. We need a
declaratory judgement
that civil servants
retain First and Fifth
Amendment rights, and
for name clearing. The
Framers spoke on
"corruption of blood"
DOJ's
Becker:
She is only ask for
reinstatement for a few
months for retirement
purposes.
Judge Furman: What about
her First Amendment and
reputation claims?
DOJ's Becker: She relies
on perceived political
party, and her father.
That's not enough in the
2d Circuit
Judge
Furman:
Are you say the court
couldn't inquire into a
removal for racial
reasons?
DOJ's Becker: 542(b) is
restricted to
Constitution Acts. But
Article II, not
reviewable.
Judge Furman: Even on
race?
DOJ's Becker: Article II
does not permit that
inquiry
Judge
Furman:
The social media
influencer, we are not
using her name, linked
Ms. Comey to the Deep
State. What about that?
DOJ's Becker: I'm not
sure what her claim
about that it. A
declaratory judgment on
name-clearing could
address that.
Comey's
lawyer:
On discovery, they say
they will not search
Executive Office of the
President records. We may
need to move to compel.
Extra / analysis
on X for Substack here
and Substack here
The case is Comey
v. US Department of Justice,
et al., 1:25-cv-7625 (Furman)
***
Your
support means a lot. As little as $5 a month
helps keep us going and grants you access to
exclusive bonus material on our Patreon
page. Click
here to become a patron.
Feedback:
Editorial [at] innercitypress.com
Mail: Box 130222, Chinatown Station,
NY NY 10013
Other, earlier Inner City Press are
listed here,
and some are available in the ProQuest
service, and now on Lexis-Nexis.
Copyright 2006-2025 Inner City
Press, Inc. To request reprint or other
permission, e-contact Editorial [at]
innercitypress.com
,
