The Trump administration complained to the Supreme Court that one of the people it’s trying to fire, special counsel Hampton Dellinger, is positioning himself to block firings of other employees.
Acting Solicitor General Sarah M. Harris has urged the justices to let the administration kick Mr. Dellinger out of his post so he’s not holding office while challenging his firing in court. To leave him there abuses President Trump’s power to control the executive branch, she said.
“In short, a fired special counsel is wielding executive power, over the elected executive’s objection, to halt employment decisions made by other executive agencies,” Ms. Harris said in a letter to the high court Wednesday.
She urged the justices to vacate a lower court order keeping Mr. Dellinger in place.
The Office of Special Counsel is considered an independent agency in the executive branch, with its chief appointed for a five-year term and under the law can be fired only for cause. Mr. Dellinger was tapped by President Joseph R. Biden.
Mr. Trump moved to fire him, saying a president must be able to have his own team in key executive posts and arguing the law restricting his firing powers is unconstitutional.
The special counsel serves as a sort of interior cop for government employees. It monitors Hatch Act violations, protects whistleblowers and goes to bat for employees who face illegal personnel actions.
Under those auspices, Mr. Dellinger — after Mr. Trump fired him and a judge temporarily blocked the firing — challenged the president’s firing of six probationary employees in other agencies. Mr. Dellinger asked the Merit Systems Protection Board, which handles personnel complaints, to delay the probationary firings for 45 days to give him a chance to investigate more.
The MSPB agreed to do so.
Mr. Dellinger’s lawyer told the Supreme Court on Thursday that it was the MSPB, not Mr. Dellinger, who made the final decision. The lawyer also called the probationary employee issue “a distraction” from the larger issue over Mr. Trump’s firing of Mr. Dellinger.
U.S. District Judge Amy Berman Jackson issued an initial temporary restraining order keeping Mr. Dellinger in office. That TRO was to expire Wednesday, but the judge extended it into this weekend, saying she needed time to write a thoughtful ruling.
The Trump Justice Department sought a stay of the TRO in a circuit court, and when that failed the administration went to the justices.
Now with Judge Jackson’s extension, Ms. Harris has asked for speedy action.
Mr. Dellinger’s lawyers said the Supreme Court should give Judge Jackson the time she needs.
Mr. Trump has been prolific in his firings, reaching the most senior of agency heads and the most junior probationary employees as he tries to trim the size of the federal workforce and get rid of people he fears wouldn’t back his plans.
Mr. Dellinger falls into that latter category.
Courts have generally held that a president can install his own people in critical executive posts, but the law carves out exceptions for independent agencies whose leaders are supposed to be insulated from political pressure.
Mr. Trump argues those restrictions are unconstitutional.
Judge Jackson, during a hearing Wednesday, said Mr. Dellinger’s post is unique among federal officers in that he has statutory duties to report to the president, Congress and the public.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.