A federal judge's ruling on Saturday that President Donald Trump unlawfully fired Office of Special Counsel head Hampton Dellinger last month sets up a possible Supreme Court battle over the action.
District Judge Amy B. Jackson ruled in favor of a preliminary injunction reversing the firing; Dellinger was nominated to the position by former President Joe Biden and confirmed by Congress last year to a five-year term.
Jackson believes that Dellinger's position is not fireable by the president because it needs to be independent to function as a watchdog over the president and other officials.
“The Special Counsel’s job is to look into and expose unethical or unlawful practices directed at federal civil servants, and to help ensure that whistleblowers who disclose fraud, waste, and abuse on the part of government agencies can do so without suffering reprisals,” Jackson wrote. “It would be ironic, to say the least, and inimical to the ends furthered by the statute if the Special Counsel himself could be chilled in his work by fear of arbitrary or partisan removal.”
The Office of Special Counsel oversees enforcement of the Whistleblower Protection Act since its creation in 1989, and later began to oversee the Hatch Act as well.
The Hatch Act prohibits civil service employees in the executive branch from campaigning and certain other political activities.
Because Dellinger was fired via a one-sentence email that didn't give any cause, Dillinger argued in his suit, his firing violated language stating that his position can only be fired by the president for “inefficiency, neglect of duty or malfeasance in office.”
“That email made no attempt to comply with the Special Counsel’s for-cause removal protection,” Dellinger’s lawsuit said. “It stated simply: ‘On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately.’”
Trump has argued that as president, he can fire anyone he wants in the executive branch.
He has made it a point to fire as many partisan and Democrat-appointed federal employees as he can after employees in those groups have continuously worked against him and undermined him in every way possible.
He sees Dellinger's firing as part of gutting the deep state and wants to replace him with his own appointee just like he has for every other nominated position in the executive branch.
DOJ representative Madeline McMahon said Jackson’s order was an “extraordinary intrusion” into the president’s authority and asked him to stay the order until the D.C. Circuit can rule on it, but Jackson refused.
If the case does go to the Supreme Court, it will be the first such ruling on the issue.
A previous case, Seila Law v. Consumer Financial Protection Bureau, left out the Office of Special Counsel from the list of federal agency heads the president can fire at will, but didn't say the president could not do so.
