A federal judge has agreed to extend a temporary restraining order that will keep Hampton Dellinger, a top government watchdog, in his role at the Office of Special Counsel as a battle over his abrupt firing ensues in court with the Trump administration.
Lawyers for the Justice Department and Dellinger met in Washington, D.C., Wednesday to argue the case before U.S. District Judge Amy Berman Jackson.
Dellinger currently heads the Office of Special Counsel, or OSC, an entity that enforces whistleblower retaliation protections and tamps down on partisan political activity by federal employees.
He was fired by the Trump administration on Feb. 7 after he received an abrupt generic email from Sergio Gor, the director of White House presidential personnel, notifying him of his termination. There was no specific cause given for his firing but only a statement that it was on President Donald Trump’s orders.
Dellinger swiftly sued, kicking off a showdown in federal court over the administration’s authority to remove without cause. He was confirmed by the Senate last March for a five-year term, and longstanding laws dictate that the head of the OSC can only be forced out when there is proof they have neglected their duty or otherwise acted in malfeasance. (The OSC shares no relationship to the special counsel’s office that prosecuted Trump for multiple now-dismissed criminal indictments.)
This factor for removal, Dellinger’s attorneys argued, is what keeps officials from being chilled or politically influenced.
Jackson was the first to issue a halt on Dellinger’s firing two weeks ago, but the Trump administration unsuccessfully appealed and then sent Justice Department lawyers scurrying to the Supreme Court for emergency intervention.
The high court sent the question back down to Jackson while keeping the restraining order in effect until she could rule. Per her order on Wednesday, the temporary restraining order, or TRO, will remain until March 1.
During the hearing, Jackson said that, while she had the plain authority to extend the restraining order for up to 14 days as she weighed the merits of the case and decided on whether she could issue a preliminary injunction, she said she was hyperaware of how fruitless that effort might be.
The Justice Department would likely turn around immediately after her ruling and tell the appeals court — and then likely the Supreme Court — that it could not bear the thought of Dellinger staying in office just one more day, let alone 14 as TRO laws permit.
U.S. attorney Madeline McMahon told Jackson early Wednesdayshe was right to assume that.
Letting Dellinger stay at OSC is an “unprecedented intrusion into the president’s authority” by the courts, McMahon argued, adding that it would be irreparably harmful to the president.
On that point, Jackson pressed McMahon.
So far, the only arguments the court has heard from the administration on “harm” regarded the harm allegedly posed to Trump specifically. Could the Justice Department weigh in at all, Jackson asked, on the harm posed to the public by the administration opting to remove someone whose “actual job is to be a check and balance”?
“It seems like protecting whistleblowers is a very popular concept,” Jackson said, noting that there is a public interest in eliminating federal corruption and that a bipartisan caucus in Congress has even praised the OSC for its independence and willingness to enforce whistleblower protections regardless of who is president.
McMahon would not deny that there was “a place for OSC,” she said, but in this instance, “the harm is to the president because he is the most democratically elected official” whom “everyone” selected to run the country as he sees fit.
Attorneys for Dellinger and Jackson alike were careful on Wednesday to clarify that the actual question before them is not whether Trump has the authority to remove agency heads for cause as president.
The question is whether Dellinger’s removal was improper because there was no reason given for his ouster, and for this particular agency, there are specific hurdles the president must clear before he can begin firing people.
Dellinger’s lawyers want the court to issue a declaration stating that he cannot be removed without cause and that no one in the administration who was named in his complaint, including Treasury Secretary Scott Bessent or Russell Vought, head of the Office of Management and Budget, can stand in the way as Dellinger does his job.
When the Justice Department asked the Supreme Court to weigh in last week, only Justices Neil Gorsuch and Samuel Alito expressed doubt that the district court had the power to grant a temporary restraining order that appeared to incur on the president’s orders removing an official.
But Joshua Matz, Delligner’s authority, noted that “we’ve never requested an injunction on the president.”
“Courts have long held that unlawful actions of the president can be reviewed and remedied with injunctive relief against subordinate officials responsible for implementing unlawful actions,” Matz said.
The Trump administration’s defense of Dellinger’s removal has relied on “borrowing out of context language” from the Supreme Court’s immunity ruling granting presidents sweeping immunity protections, Matz argued. The Justice Department, he said, has relied heavily on a line in that opinion stating that investigative activities are “core” powers of the presidency.
“But they fail to mention that the entire part of that opinion was about criminal law enforcement,” Matz said, adding that it did apply to the civil matter at hand.
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Since Dellinger and the OSC are tasked with conducting investigations, the Justice Department contends that surely means both are subject to the president’s control and final say.
However, Matz told Jackson that until a few weeks ago, the Justice Department wouldn’t have ignored years of precedent to make that claim.