Federal officials fired by Trump face tough road in court

 

President TrumpDonald John TrumpFive takeaways from Trump-Biden debate clash The Memo: Debate or debacle? Democrats rip Trump for not condemning white supremacists, Proud Boys at debate MORE’s recent shake-up of agency watchdogs has his critics fuming, but legal experts say that federal officials fired for even apparently political reasons have little legal recourse.

Trump’s firing of intelligence community watchdog Michael Atkinson last Friday was widely seen as payback for his handling of the Ukraine whistleblower complaint that sparked the president's impeachment by the House.

Legal experts, though, say that those ousted by Trump’s recent moves against inspectors general at multiple federal agencies and by his broader post-impeachment purge would be unlikely to win if they sued the U.S. government.

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“It is a sad political commentary that Atkinson was let go for doing his job,” said employment attorney Thomas Spiggle. “The only punishment Trump may face is some karma at the ballot box.” 

A president is entitled to populate his ranks with trusted employees, though there are some constraints on his latitude.

Trump has fired or reassigned numerous other federal workers. In what has been dubbed the “Friday Night Massacre,” Trump on Feb. 7 dismissed impeachment witness Lt. Col. Alexander VindmanAlexander VindmanImpeachment witness Alexander Vindman calls Trump Putin's 'useful idiot' The Hill's Morning Report - Sponsored by The Air Line Pilots Association - Trump, Biden renew push for Latino support Strzok: Trump behaving like an authoritarian MORE and his twin brother from the National Security Council and hours later fired Ambassador to the European Union Gordon SondlandGordon SondlandGOP chairman vows to protect whistleblowers following Vindman retirement over 'bullying' Top Democrat slams Trump's new EU envoy: Not 'a political donor's part-time job' Trump names new EU envoy, filling post left vacant by impeachment witness Sondland MORE, another impeachment witness.

More recently, Trump fired, removed or publicly berated inspectors general across multiple federal agencies in the span of less than a week, including the oversight official who was tasked last week with overseeing the massive $2.2 trillion coronavirus stimulus package.

A group of legal heavyweights, Lawyers Defending American Democracy (LDAD), said Trump’s treatment of the inspectors general undermined the rule of law.

“Article II of the Constitution, in clear and unmistakable terms, commands the president to 'take Care that the Laws be faithfully executed.' By necessary implication, this includes the duty to protect the officials who execute the laws,” said James McHugh, a former justice on the Massachusetts Appeals Court and one of LDAD’s steering committee members. 

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“When the president fired Inspector General Atkinson for doing what the law required Atkinson to do, the president directly violated that duty,” McHugh added. 

But other experts say the high-profile Trump firings that have grabbed national headlines would be unlikely to produce victories in a court of law.

“By and large, most of the civil servants the president has sought to purge from the ranks lack much in the way of due process rights,” said Bradley Moss, a national security lawyer. “The idea that government employees can’t be fired is largely a myth, especially for those who work in the national security and defense agencies.”

A fired worker’s chances of winning a wrongful termination case under federal civil service laws would depend on a number of factors: whether they were a political appointee or rose through the civil service ranks, the degree of protections afforded by their particular department or agency, and whether any federal law gave additional cover to their particular job.    

The result is a tiered system of protections for the federal workforce. The various layers are spelled out in the Civil Service Reform Act of 1978, the main federal law that governs a federal worker’s due process rights upon firing.

Unless an agency can show a good reason to remove them, federal workers tend to “enjoy a type of tenure,” said employment attorney Richard Renner.  

Many employees can also challenge their dismissals through an appeals avenue called the Merit Systems Protection Board. But in Atkinson’s case, he had very little protection because the inspector general serves at the pleasure of the president and can be removed for any reason.

“Unfortunately, he has no employment law recourse,” Spiggle added. 

Employees who work in agencies tasked with overseeing the nation’s security and defense are also more vulnerable than most of the federal workforce.

“The bulk of those employees lack protections under existing federal civil service laws and effectively are at-will employees,” Moss said. 

While the president has a degree of freedom to reshuffle personnel, he cannot fire employees for reasons that violate the Constitution or statutory protections against discrimination for things such as race or disability. 

Two wrongful termination cases brought by a pair of fired FBI officials that are currently pending in federal court in Washington, D.C., though are seeking to test the limits of Trump’s controversial personnel moves.

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The lawsuits were filed by former FBI Deputy Director Andrew McCabeAndrew George McCabeThe FBI and special counsel's horrible, terrible, miserable week Judge will not dismiss McCabe's case against DOJ Graham: Comey to testify about FBI's Russia probe, Mueller declined invitation MORE and former FBI agent Peter Strzok after being sacked by Trump following their involvement in the probe into possible collusion between the Trump campaign and Russia.

Both Strzok and McCabe allege, among other things, they were fired as retribution for expressing political views that didn’t line up with Trump’s, in violation of the First Amendment.

Aitan Goelman, an attorney at Zuckerman Spaeder who represents Strzok, said he would agree that it is "a myth that federal employees cannot be fired."

“But that doesn’t mean that they can be fired for improper reasons,” he added.

“Career civil servants, like Pete, can’t be fired because they expressed political opinions that the president disagrees with,” Goelman continued. “The entire executive branch is not the president’s personal political army. This isn’t Russia.” 

But experts say prior judicial rulings suggest a steep climb ahead in court for McCabe and Strzok.

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“There might be statutory loopholes that would apply in particular factual situations like that of McCabe or Strzok,” Moss said.

But he predicted the “odds are that the weight of existing precedent will doom their cases in the end.”