Left: President Donald Trump gives remarks during an event celebrating the 2024 Stanley Cup Champion the Florida Panthers in the East Room of the White House in Washington, DC on Monday, February 3, 2025 (Photo by Aaron Schwartz/Sipa USA)(Sipa via AP Images). Center: WASHINGTON, DC – APRIL 13: U.S. District Judge Amy Berman Jackson listens during the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex Wong/Getty Images). Right: Hampton Dellinger (Office of Special Counsel).
President Donald Trump is doubling down on his attempt to boot the Biden administration’s whistleblower advocate, Hampton Dellinger, from his post at the Office of Special Counsel, filing motions for an “immediate administrative stay” of a stay — in both the district and appeals court — that was granted on Monday night that allowed Dellinger keep his job while the courts weigh whether his firing was legal.
“This court’s order greatly intrudes on the President’s lawful authority,” the Department of Justice argues in its motion filed Tuesday before U.S. District Judge Amy Berman Jackson, who had granted an administrative stay of Dellinger’s firing on Monday. “Second, the balance of equities and public interest overwhelmingly favor a stay pending appeal.”
Trump’s DOJ also took its request to the U.S. Court of Appeals for the District of Columbia, claiming in a separate motion that it is “unaware” of any other occasion in American history where a federal court has “purported to install a principal officer of the United States after the president has removed him — let alone to do so without finding that he was likely to prevail on the merits of his claim, as the district court did here.” The motion to the appeals court points to Supreme Court precedent as well as former President Joe Biden’s own 2021 firing of Andrew Saul, who was social security commissioner at the time, as reasons for swatting down the lifeline Jackson tossed to Dellinger on Monday.
Jackson, a 2011 Barack Obama appointee, ruled that Dellinger is allowed to remain in his position as head of the Office of Special Counsel until Thursday while requests for a more concrete solution are weighed. The move came after Dellinger, who was appointed by Biden in February 2024 to enforce whistleblower laws, filed a lawsuit Monday in the District of Columbia after being fired by the Trump administration last Friday “in a one-sentence email,” according to his federal complaint.
“On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately,” the email said, according to Dellinger’s complaint, which accuses Trump’s “purported removal” of the ethics enforcer as being “unlawful.”
“That email made no attempt to comply with the Special Counsel’s for-cause removal protection,” Dellinger’s complaint alleges.
According to the DOJ, even if reinstatement were a “permissible remedy” for an unlawful removal, Jackson “gravely erred” in ordering a stay of Dellinger’s firing “on an interim basis” given the “absence of any irreparable harm” to Dellinger, the Trump administration claims.
“This is not merely an abstract interference with Executive Branch prerogatives, but involves compelling the government to provide access to investigative files, while impeding the rightful Acting Special Counsel from faithfully executing the laws,” the DOJ says in its appeals motion, which also offered an alternative way of finding jurisdiction, should the appeals court need it.
“This Court should stay the district court’s order and should grant an immediate administrative stay pending consideration of this motion,” the department demands. “In the alternative, to the extent the Court harbors doubt about its appellate jurisdiction, it should treat this motion as a petition for a writ of mandamus and should grant a writ directing the district court to vacate its order.”
In district court, Trump’s DOJ claims Dellinger has not established that he will suffer irreparable harm if Jackson’s order is stayed pending an appeal. “A stay is not necessary to prevent any cognizable harm to plaintiff,” the DOJ’s motion says.
In his complaint, Dellinger says that by firing him from the Office of Special Counsel, the Trump administration “jeopardized” the functioning of an agency designed to stop exactly that.
“Congress authorized the OSC with a crucial investigative and oversight role to protect the integrity of the civil service in circumstances such as these,” his complaint says. “The President’s unlawful attempt to remove Special Counsel Dellinger from his office directly violates the modest but vital protections that Congress put in place and renders the OSC and the Special Counsel unable to fulfill their statutory mandate.”
The DOJ, however, insists that OSC can function just fine without Dellinger in charge.
“To the extent Plaintiff asserts irreparable harm to the functioning of OSC itself, that assertion is misplaced,” the district court motion to stay says. “Both because OSC can continue to function with an Acting Special Counsel (who had already assumed Plaintiff’s role before the district court’s order) and because Plaintiff would lack standing to raise such a harm. For these reasons, the Court should grant a stay of its administrative stay pending resolution of Defendants’ appeal.”
Dellinger, 57, was appointed by Biden to serve a five-year term before he was fired Friday. “The Special Counsel may be removed from that term ‘by the President only for inefficiency, neglect of duty, or malfeasance in office,”” Dellinger’s complaint says. “The constitutionality of that protection is dictated by nearly a century of binding Supreme Court precedent upholding materially identical restrictions.”
Dellinger’s termination and lawsuit comes less than a week after an employee of the National Labor Relations Board, an independent federal agency that enforces labor laws and protects workers’ rights to organize, sued Trump in federal court after being fired in January.
Gwynne A. Wilcox — a Biden appointee who filed her complaint on Feb. 5 — was fired via late-night email in what she claims was a blatant violation of the National Labor Relations Act, which allows the president to remove board members only in cases of “neglect of duty or malfeasance in office, but for no other cause” — and only after “notice and hearing,” according to Wilcox’s complaint.
“The President’s unprecedented removal of Ms. Wilcox defies 90 years of Supreme Court precedent that has ensured the independence of critical government agencies,” Deepak Gupta, an attorney for Wilcox, said in a statement. “Federal law is clear: The members of the National Labor Relations Board may only be removed for neglect of duty or misconduct, and only after a notice and a hearing. The President has violated the law.”
A White House official told Politico last week that Wilcox was among a group of “far-left appointees with radical records of upending longstanding labor law” who was fired by the Trump administration.
“They have no place as senior appointees in the Trump Administration, which was given a mandate by the American people to undo the radical policies they created,” the official said.
