DC Circuit to hear Trump bid to fire government watchdog after federal judge finds effort illegal

WASHINGTON (CN) — President Donald Trump’s effort to fire Hampton Dellinger, head of the Office of Special Counsel, will likely face a skeptical D.C. Circuit panel, legal experts said Monday.

After U.S. District Judge Amy Berman Jackson ruled that President Donald Trump could not fire Dellinger without a valid reason, Trump immediately appealed the decision to the D.C. Circuit Court of Appeals.

He asked the appellate court on Monday to freeze the Barack Obama appointee’s order allowing Dellinger to remain in his post until the appeal is resolved.

While oral arguments have yet to be scheduled, the case will be heard by U.S. Circuit Judges Karen Henderson, Patricia Millett and Justin Walker, a George H. W. Bush, Obama and Trump appointee, respectively.

Alan Morrison, associate dean at George Washington University Law School, said in an interview with Courthouse News that he expected the appellate panel to uphold Jackson’s decision that the independent government watchdog cannot be fired at the president’s whim.

“The question is, can Congress decide that it wants to have an agency that’s not subject to presidential control?” Morrison said. “It’s the president’s control that the [Office of Special Counsel] is trying to investigate, that’s what the issue is here.”

In a scathing 67-page opinion issued Saturday night, Jackson said that Trump could legally fire Dellinger only for inefficiency, neglect of duty or malfeasance in office under the Whistleblower Protection Act of 1989.

The government’s argument that Trump should have “unfettered authority” to fire Dellinger without reason would destroy the agency’s independence, Jackson said, noting that both Congress and President George H. W. Bush highlighted the watchdog’s independence as its “defining and essential feature.”

“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,” Jackson said.

Dellinger’s termination, relayed in a one-sentence email on Feb. 7, was the first of Trump’s firing spree to reach the U.S. Supreme Court after Trump asked for emergency intervention to block Jackson’s first pause on the firing.

The appeal reached the high court after another D.C. Circuit panel, consisting of U.S. Circuit Judges Gregory Katsas, Michelle Childs and Florence Pan, dismissed the appeal for lack of jurisdiction over Jackson’s emergency relief.

The high court punted Trump’s appeal until Feb. 26, where Jackson extended her order through Saturday, which Trump immediately appealed again.

Morrison doubted that the Supreme Court would intervene, suggesting the high court would allow the case to proceed at the D.C. Circuit, similar to how it handled Trump’s immunity case.

“It’s hard to see how the president, or anybody else, is going to be seriously injured by allowing him to stay in office a few more weeks or months,” Morrison said. “Once he’s out of there, he’s out of there, his job is destroyed and who knows what happens to the office.”

Jackson rejected the Justice Department’s argument that the case infringed on the president’s constitutional authority and weakened the executive’s power.

Jackson highlighted a pair of similar cases, Seila Law LLC v. Consumer Financial Protection Bureau and Collins v. Yellen, which both centered on apparent restrictions to the president’s ability to remove officials from the bureau and the Federal Housing Finance Agency, which have significant authority within the executive branch.

That concern does not apply to the Office of Special Counsel, Jackson said.

The Office of Special Counsel effectively acts as an ombudsman, where Dellinger can investigate claims of wrongdoing and encourage agencies to address the accusations, but he cannot force agencies to take action.

“This is not significant executive authority,” Jackson wrote. “It is hardly executive authority at all.”

Dellinger’s case, when it eventually reaches the Supreme Court in full, is expected to present an opportunity for the high court to either overturn or strengthen the landmark 1935 case Humphrey’s Executor v. United States, which has long limited the president’s ability to remove independent agency heads.

That decision would impact Trump’s dismissals of members from the National Labor Relations Board, the Federal Labor Relations Authority, the Merit Systems Protection Board and the U.S. Privacy and Civil Liberties Oversight Board.

“In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the president’s Article II power as it was described in Humphrey’s Executor : a constitutional license to bully officials in the executive branch into doing his will,” Jackson wrote.

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