A progressive ode to the administrative state will be tested.
It was as sure as the sunrise that Judge Amy Berman Jackson would rule that President Trump’s firing of Special Counsel Hampton Dellinger (which we’ve covered here, here, here, and here) was illegal. Having dragged the matter out as far as she figured she could without meaningful appellate intervention, she finally issued a 67-page opinion against the president on Saturday evening.
As Rich and I discussed on the podcast last week, Judge Jackson, an Obama appointee, is a doctrinaire defender of the administrative state. She believes Congress is at liberty to create “independent” agencies (i.e., parts of a contrived fourth branch of government rather than of the three branches established by the Constitution) and that even when these agencies exercise executive power (i.e., the power the Constitution vests wholly in the president) Congress may restrict the president’s authority to remove that official at will.
The Office of Special Counsel is the prosecutorial arm of the Merit Systems Protection Board (MSPB), created by the progressive post-Watergate Congress in the Civil Service Protection Act of 1978 to regulate the federal work force. Though prosecution is a quintessentially executive function, Congress provided a five-year term for the special counsel, which Judge Jackson interprets (no doubt correctly) as an intention to give the office independence from the president.
Congress also purported to bar the president from terminating the special counsel unless he could establish (1) inefficiency, (2) neglect of duty, or (3) malfeasance in office. President Trump, however, fired Dellinger — or tried to — for no cause; he simply (and as a constitutional matter, appropriately) wants to replace the Biden appointee with his own appointee.
Judge Jackson’s take on the matter is diametrically opposed to the administration’s. The judge finds the Trump position unreasonable because the whole point of the civil service protections that the special counsel enforces is to make them independent of politics. The Trump Justice Department finds Jackson’s position untenable because the Constitution mandates that executive power be politically accountable — in our system, such power cannot legitimately be independent of politics (and, as Dellinger, a Democrat, has illustrated since the litigation began, he is nothing if not a political actor committed to thwarting the president’s determination to pare down the federal workforce).
To repeat what I’ve contended before, Jackson’s position is weak, and it doesn’t get better over 67 pages. She argues, for example, that the statute’s three grounds for presidential removal of the special are broad and cover all potentially worthy reasons for firing an official who wields executive authority; Trump, she counters, wants to be able to fire “on a whim or out of personal animus.” To the contrary, a president may want his power exercised by someone he has chosen and whom he trusts to adhere to his enforcement priorities. That is not a whim or personal animus — which Judge Jackson would certainly understand if Congress suddenly (and unconstitutionally) enacted standards that judges had to follow in hiring or firing law clerks.
Given the weight of authority holding that presidents must be able to remove executive officers at will, Jackson must also resort to the last bastion of jurists determined to dodge precedent: the office of special counsel is “sui generis.” We’re to believe this government bureaucracy is different from all the other government bureaucracies in all the past cases — in this instance, because it’s really small, it doesn’t affect the private economy, and, well, it was designed by well-meaning progressives to be independent. It protects “federal civil servants” from the “unethical” and “unlawful” practices of their politically empowered superiors (especially when those benighted voters elect Republicans!).
But no, the office of special counsel is not sui generis. It’s a prosecutor’s office. We’ve got an abundance of those. Of course we don’t want prosecutorial power to be politicized — not in the special counsel’s office and not in the Justice Department. In our system, however, we account for that possibility by making prosecutorial power politically accountable. Indubitably, it is to Judge Jackson’s chagrin that the voters ousted Democrats this time around, but she might take hope — just as the Trump administration should take heed — that this outcome had lots to do with the Democratic administration’s politicization of government prosecutorial powers against political foes.
It is just precious to read Jackson’s odes to independence and non-political enforcement. Here, without precedent, she used a temporary restraining order to re-install an officer whom the president removed. That Democrat then used his temporary lease on life to make an application to the Democrats on the MSPB to shield from firing a half dozen federal employees who lacked civil service protections because they are still in their probationary phase. The Democrats on the MSPB, naturally, endorsed this application, laying the ground work to block the Trump administration from removing tens of thousands of similarly situated employees.
This was politics through and through.
The action now moves to the D.C. Circuit, a divided three-judge panel of which previously refused to disturb Jackson’s TRO — not because she was right but because she had committed to having a hearing in two weeks (which she then delayed by three days so she could rule on a Saturday night, knowing the Trump DOJ wanted to appeal immediately). I would anticipate more foot-dragging, which will give the independent, totally non-political Biden-appointed special counsel time to be more of a thorn in the Trump administration’s side.