In Washington, D.C., a federal judge recently provided support to Hampton Dellinger, an ethics enforcer for President Biden, in the face of potential conflict with the Supreme Court. The Trump administration has been attempting to remove Dellinger from his position at the Office of Special Counsel.
During a hearing, the judge did not hold back in criticizing Justice Department attorneys representing President Trump. They were arguing against U.S. District Judge Amy Berman Jackson’s decision to extend a temporary restraining order (TRO) that allowed Dellinger to remain in his role. The judge pointed out that the DOJ lawyers were basing their case on a very specific exception – the idea that presidential authority prevails over established norms.
The judge was straightforward in his assessment of the situation, highlighting that the Trump administration’s stance revolves around the belief that presidential power supersedes all else. This legal battle underscores an ongoing struggle between the current and previous administrations over the position held by Dellinger, raising the stakes for a potential confrontation that could involve the Supreme Court.
“So what Congress has done, and what presidents of the United States have done, is irrelevant — it’s only what the current president wants?” Jackson, a Barack Obama appointee, asked DOJ lawyer Madeline McMahon during the Wednesday morning hearing.
“That’s how we define articles of power now?” she added.
McMahon argued that as president, and as part of his Article II authority, Trump “is able to remove the special counsel for any reason at all” and he has the power to “supervise the entirety of the executive branch,” meaning he can “remove his direct subordinates for any reason at all.” Jackson, however, feels that Dellinger, as a bipartisan ethics enforcer who has “rule-reading authority” but not “rule-making authority,” is an exception — and she let McMahon know it Wednesday.
“Special counsel [is] nominated by the president and approved by Congress, to protect whistleblowers against retaliation,” the judge said. “[I]f your position is that that person could be fired if the president was concerned that that person would blow the whistle on actors in his own administration, how does that make any sense?”
After Dellinger lawyer Joshua Matz pointed out that the Trump administration skipped the ordinary appeals process and launched its Supreme Court bid before a judgment was handed down by the lower court, Jackson went on to blast Trump’s Supreme Court application that he filed earlier this month to hear the Dellinger case as a bid to review an “unappealable TRO” — a move she described as highly unusual.
“We’re in some other world now,” the judge said.
“The petition that’s in front of the Supreme Court, the application from the acting solicitor general, is an application for relief from the point at which the court enters final judgment in the case,” Matz said. “The TRO dissolves. And unless we are going to ignore all the normal rules of appellate jurisdiction and procedure, the application is mooted and the government is free to then take a new appeal and the ordinary course.”
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Matz and Jackson both acknowledged that if Jackson extended her TRO, which was set to expire Wednesday at midnight, to let Dellinger — who was appointed by Biden in February 2024 to enforce whistleblower laws — keep his job, the DOJ lawyers could go back to the justices “tomorrow” and say they “couldn’t bear the thought of another four or five days.” Matz said he thought that would be “extremely and uncommonly silly” for the government to do.
“That’s why I’m not going to exercise the authority that I claim to have,” Jackson said.
She asked both parties to allow for an extension of the TRO for a few more days to consider what they argued Wednesday in regard to the TRO, to which Matz agreed and McMahon refused.
“The government does not believe there is good cause,” McMahon said. “The order would be an extension of what is an unprecedented intrusion into the president’s authority under Article II. And the harm that the government is transparently suffering when the individual he would like to be an OSC is prevented from doing so and the individual he would like to not be there is staying, there incurs an irreparable harm on the government and we are not able to agree.”
“The Court is well aware that the case is in the very unusual posture of being the subject of an application before the Supreme Court before a final order has been issued and before the United States Court of Appeals for the District Columbia has had the opportunity to review that final order,” Jackson wrote. “It recognizes that the Supreme Court — with the understanding that the TRO expires at midnight tonight — is holding the application in abeyance until that time. So it is incumbent upon this Court to resolve this matter even more expeditiously than the Federal Rules of Civil Procedure would ordinarily permit; and the Court will do so.”
Jackson found that there was good cause to extend her original TRO through Saturday, March 1, so that the “status quo will be preserved for the brief period of time” it takes the judge to complete her overall ruling. Jackson said repeatedly Wednesday during the hearing that she felt Dellinger’s job at the OSC and the office itself was too unique for the president to bypass precedent, especially since Dellinger is meant to serve a five-year term.
Earlier in the day, Jackson had commented on the singular nature of the position Dellinger and his predecessors have held.
“This office is so unique,” Jackson said during oral arguments, noting how the OSC was “deliberately constructed by Congress to kind of have a foot in and foot out” of government workings, regardless of political affiliation. “It doesn’t bear resemblance to any other,” she said.
According to McMahon, that doesn’t matter because it’s still an agency that she claims reports to Trump and has a “singular head” that can be fired.
“Congress deliberately created this unusual situation with an official with a term that was designed to overlap more than one president, and the president at the time signed it in law … for the very purpose of ensuring the independence of special counsel,” Jackson said. “If the balance struck by those presidents and Congress is unsatisfactory to the current president, isn’t the remedy to marshal congressional support to change it?”
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Less than a day after being shot down earlier this month by a federal appeals court, Trump‘s DOJ had asked the Supreme Court to sign off on his repeated attempts to fire Dellinger, arguing that judicial rulings handed down against his termination in recent weeks “irreparably harm the presidency” by curtailing Trump’s ability to “manage the Executive Branch in the earliest days of his Administration.”
The move came after the U.S. Court of Appeals for the District of Columbia Circuit rejected an attempt by the DOJ to green-light Dellinger’s axing, voting 2-1 to let him keep his job through the TRO that Jackson issued.
“This case involves an unprecedented assault on the separation of powers that warrants immediate relief,” the DOJ’s Supreme Court application says.
