Last week, we commented on the fact that Representative Nunes had recused himself from the investigation into President Trump’s Russia ties after appearing less than impartial in the investigation. Some employers may view the actions of Nunes in briefing the White House on certain classified information was not really wrong and, it could be argued, simply part of the investigation in confronting the accused.
It is certainly true that in any investigation, care should be taken to insure that both the complaining party and the accused have an opportunity to be heard. However, there is a time and a place for confronting the accused. Generally speaking, when conducting an investigation, it is usually best to speak with the accused after all other facts have been gathered. In this way, you can conduct the investigation in a much more efficient matter and will not have to repeatedly interview the accused as more evidence is gathered.
Even more importantly, by waiting to gather even more evidence, you may avoid implicit bias and insure a more thorough investigation. Clients routinely ask me how investigations are going midstream and I always truthfully answer that “I’m not sure yet.”
I’m not simply avoiding having a discussion with my clients when I say this. When I act as an investigator for clients, I know that I work to keep an open mind until all evidence is gathered. This is not always easy as it is human nature to start forming opinions about the stories being told to you. However, if I prejudge a witness as not being credible or that their claims are ridiculous, I will consciously or not, steer the investigation towards the conclusion that fits that prejudgment. In such cases, investigators may short cut an investigation and miss the second or third claim that has merit.
I’ve been listening to a decent amount of criminal justice podcasts, namely “Undisclosed,” and they talk frequently of “confirmation bias.” In short, confirmation bias in an investigation means that if an investigator assumes a certain result is likely, then the investigation will lead to that conclusion. In order to make sure that the desired conclusion is reached, investigators may ignore information that does not fit that conclusion or exaggerate the importance of evidence that does fit the conclusion.
By waiting until an investigator has a full picture of the evidence for and against an accused, the investigator can hopefully avoid any confirmation bias.
Yesterday, we posted about Representative Nunes stepping down from the investigation into Russian interference with the election. As we noted, as a direct result of his actions in briefing the White House on certain evidence that was found, he appeared less than impartial.
The mere fact that he briefed the White House in the midst of the investigation is to me less damaging to the appearance of impartiality than what he actually said. After briefing the White House, Representative Nunes rushed to make statements to the media that a “source” showed him intelligence reports indicating that communications of members of Trump’s campaign had been collected by the intelligence community. This gave President Trump the chance to argue that he was “somewhat vindicated” and that his claims of wiretapping were true.
What likely got missed by most people in Representative Nunes’ statements was the fact that there was no evidence that Trump Tower or Trump himself had been illegally wiretapped as had been claimed. Although Nunes and Representative Schiff had both previously noted there was no evidence of illegal wiretapping, Nunes’ statements as he rushed from the White House made it appear that there was new evidence since those statements; evidence that corroborated the President’s claims.
Instead, as was clarifed by Nunes in later days, members of Trump’s team were not targeted for a wiretap. Rather, those members merely happened to be recorded having communications with Russian agents in legal surveillance. Even fellow Republicans questioned why Nunes made the disclosure he did or that it was significant. However, by this point, the damage was done and it is likely that the general public at large believes the broader claim that there was evidence that President Trump was subjected to an illegal wiretap.
If it is not already apparent from the above, making public statements about details of an ongoing investigation is not a good idea. In the employment context, this could have a chilling effect on the investigation and future investigations. For example, employees may not raise future complaints if they believe that an investigation will not be confidential. With regard to the current investigation, witnesses may not come forward as they believe there is no point since there was already a finding in the investigation.
Finally, even assuming that a thorough investigation is completed and no wrongdoing is found, the complaining employee will likely not believe that there was an impartial investigation. Instead, the employee will believe that the employer was always on the side of the acccused and is now engaged in a cover-up to protect that employee.
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About a month ago, we posted that employers could take some lessons from the investigation into President Trump’s claims that he was illegally wiretapped by the Obama Administration. This investigation still proves to be a cautionary tale for employers.
One of the key, and sometimes difficult, decisions in any investigation is who should conduct the investigation. Should the investigation be done by HR or an executive in the Company? Or should the investigation be conducted by an outside third party?
What may have gotten lost in last week’s news of the bombing in Syria is the fact that House Intelligence Chairman Devin Nunes has recused himself from the committee’s probe into Russian interference in the election. This news came after Nunes was criticized for speaking publicly about classified surveillance reports that seemingly gave support to President Trump’s claims that he was wiretapped.
Why the criticism? Well, because before Nunes disclosed the evidence to his fellow members of the committee, he briefed the White House on what he found. As anger grew over this breach of protocol and the fact that it lent credibility to claims that the investigation was biased, it was discovered that he had in fact reviewed the documents in question at the White House.
Now that he has recused himself in the face of ethics charges filed against him for his actions, the question remains whether anyone on the outside will believe that the new lead, Representative K. Michael Conway (R-Tex.) will conduct an impartial investigation.
Employers should take note that the perception of impartiality is key to a good investigation. In this case, regardless of whether Nunes could be impartial if presented with evidence of ties to the Trump campaign and the Russian hackers, by so publicly rushing to the defense of the President and his team before any investigation was complete, he tanked the investigation. Employers should be careful to select an investigator that can be seen as impartial and not favoring the accused in the investigation.