Late on February 7, President Donald Trump fired Special Counsel Hampton Dellinger, the head of the Office of Special Counsel (OSC). Dellinger quickly challenged his termination in court, arguing that the White House did comply with the for-cause removal protections afforded to the Special Counsel.

On February 12, the U.S. District Court for the District of Columbia issued a temporary restraining order (TRO) in favor of Dellinger preventing the White House from removing him from his position as Special Counsel. While the Trump administration appealed this order to both the D.C. Circuit and the Supreme Court, both courts chose not to weigh in on the issue before the TRO expires on February 26.

The termination of Special Counsel Dellinger is a dangerous decision which undermines the whistleblower system for federal employees, whistleblowers who are critical to rooting out waste, fraud and abuse in the federal government.

However, the statutory language is clear in protecting the Special Counsel from removal without-cause, and the constitutionality of that protection is in line with Supreme Court decisions on related protections. 

The District Court ruling found that a TRO was suitable in this case because “there is a substantial likelihood that plaintiff will succeed on the merits,” pointing to the clear statutory language and the Supreme Court’s positioning on the constitutionality of the statute.

A hearing is scheduled for February 26, where the District Court Judge may issue a ruling on Dellinger’s motion for a preliminary injunction requesting the court to permit him to stay in his job and complete his 5-year term of office.

The Office of Special Counsel’s Statutory Background 

The OSC, headed by the Special Counsel, was first established as part of the Merit Systems Protection Board (MSPB) with the passage of the Civil Service Reform Act of 1978. The Whistleblower Protection Act of 1989 expanded the powers of the OSC and removed it from within the MSPB, establishing the OSC as an independent agency.

The OSC increases transparency and accountability within the federal government by protecting federal employees from whistleblower retaliation and providing a secure channel for federal employee whistleblowers to report wrongdoing.

Under federal statute (5 U.S. Code § 1211) the Special Counsel “shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years.”

And the statute clearly states that “The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”

In its brief notice to Dellinger alerting him of his termination, the White House did not point to any issues with his performance as Special Counsel and has not raised any cause for doing so subsequently.

In its ruling, the District Court notes that “the effort by the White House to terminate the Special Counsel without identifying any cause plainly contravenes the statute. It further states that the statute’s language “expresses Congress’s clear intent to ensure the independence of the Special Counsel and insulate his work from being buffeted by the winds of political change.”

The White House’s firing of Special Counsel without cause is thus a clear violation of the law.

Constitutionality of For-Cause Removal Protections

According to the District Court ruling, the White House’s “only response to this inarguable reading of the text is that the statute is unconstitutional.” However, as the ruling elucidates, the Supreme Court has upheld for-cause removal protections for positions similar to the OSC and even recently explicitly carved the OSC out of a pronouncement about the President’s removal authority.

For close to a century, the Supreme Court has repeatedly weighed in on whether statutory protections for federal officials appointed by the President counter the removal powers of the Executive and are therefore unconstitutional. The Court’s rulings are clear that positions at independent agencies which exercise some level “quasi-judicial” powers can be protected through some form of for-cause removal limits.

In 1926, the Supreme Court ruled in Myers v. United States that the President had authority to remove a postmaster without Senate approval and that an 1876 law requiring Senate approval was unconstitutional as it interfered with the President’s constitutional duty of seeing that the laws be faithfully executed.

In subsequent rulings, however, the Supreme Court has clarified and narrowed this precedent by ruling that “the character of the office” at hand determined whether for-cause removal protections were constitutional.

In Humphrey’s Executor v. United States and Wiener v. United States, the Supreme Court held that the Myers precedent only held for executive officers restricted to the performance of executive functions. The Court ruled that for-cause protections are constitutional for officers at independent agencies who carry out quasi-legislative or quasi-judicial duties.

In its ruling, the District Court pointed to recent Supreme Court decisions striking down for-cause removal protections for specific offices and noted the clear distinctions drawn out by the Supreme Court between those posts and the Special Counsel.

For example, in striking down for-cause removal protections for the head of the Consumer Finance Protection Bureau (CFPB) in 2020 in Seila Law LLC v. Consumer Fin. Prot. Bureau, the Court affirmed that the OSC is distinct and not implicated in that ruling because the Special Counsel “exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees” and “does not bind private parties at all.”

The District Court also pointed to the Supreme Court’s 2021 ruling in Collins v. Yellin, which found that a statute prohibiting the President’s firing of the Federal Housing Finance Agency (FHFA) director violated the separation of powers. In that ruling, the Supreme Court pointed to the FHFA’s ability to impact ordinary Americans through direct regulation or action. The OSC by contrast, “is not an agency endowed with the power to articulate, implement, or enforce policy that affects a broad swath of the American public or its economy,” according to the District Court ruling.

“In sum, the OSC is an independent agency headed by a single individual, but otherwise, it cannot be compared to those involved when the Supreme Court found the removal for cause requirement to be an unconstitutional intrusion on Presidential power,” the District Court ruled.

Conclusion 

The role of the Special Counsel is critical to the functioning of the system of whistleblower protections in place for federal employees. Recognizing the need for his position to be free from Presidential interference, Congress explicitly prohibited the termination of the Special Counsel without cause, a prohibition backed up by Supreme Court precedent.

This dangerous decision to terminate Special Counsel Dellinger should thus be struck down in court. In doing so, the Special Counsel can continue its critical work in protecting federal employee whistleblowers and empowering federal employees to expose corruption, fraud, waste, and abuse and, in turn, save taxpayers billions of dollars.

The District Court’s TRO is an important first step, and future court rulings should follow suit given the clear statutory language and the Supreme Court’s previous rulings on Presidential removal authority.

Geoff Schweller also contributed to this article.