The DC Court is answering for Trump
D.C. Circuit Clears the Way for Trump to Fire Special Counsel
 Last week, I wrote a column questioning the legal basis for the opinion by Judge Amy Berman Jackson in favor of fired Special Counsel Hampton Dellinger. It appears that the D.C. Circuit agrees. An appellate panel just permitted the removal of Dellinger just four days after Jackson declared the removal “unlawful.”
Judge Jackson had a good-faith reliance on her narrow reading of existing precedent. However, the precedent is far from conclusive and brushes over some striking conflicts with prior rulings of the Supreme Court.
It is unclear whether the current Supreme Court would agree with an exception for minor or de minimus intrusions. Many scholars and judges believe that a president either has Article II authority to fire executive branch officials or he does not.
The D.C. Circuit agreed to stay the order of Jackson pending appeal and included this language in the short order:
“FURTHER ORDERED that the emergency motion for a stay pending appeal be granted, and that the district court’s March 1, 2025 order be stayed pending further order of the court, except to the extent that order vacates the Temporary Restraining Order entered by the district court on February 12, 2025. This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.”
Dellinger is now likely to appeal and the matter can go to the Supreme Court.
 As I wrote earlier, I do not believe that this fight is ultimately about Dellinger. Once again, I have little doubt that he will be removed. The only question is when and how.
The real interest of the Administration, in my view, is to challenge long-standing limits put by the Court on presidential authority under Article II. The most obvious target is Humphrey’s Executor v. United States (1935), which established the right of Congress to create independent agencies. As I noted in the prior column:
“It found that Congress could, without violating Article II powers, provide tenure protection to “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” The Court in cases like Seila Law cited that precedent for one of the exceptions to executive power. It also cited an exception for giving tenure protection to “certain inferior officers with narrowly defined duties,” under Morrison v. Olson (1988). Jackson cited both cases and those exceptions in shoehorning the Special Counsel into a narrow band of quasi-executive positions.
What may be overlooked in the filings of the Administration before the Supreme Court in the Dellinger case was this line in a footnote: “Humphrey’s Executor appears to have misapprehended the powers of “the New Deal-era [Federal Trade Commission]” and misclassified those powers as primarily legislative and judicial.” It went on to suggest that the case is not only wrongly decided but that the Justice Department “intends to urge this Court to overrule that decision.”
Described by the Court as “the outer-most constitutional limits of permissible congressional restrictions on the President’s removal power,” the Trump Administration appears set to try to redraw that constitutional map.”
The question is whether Dellinger wants to risk being the vehicle for such a potential major reframing (and enhancement) of presidential power. I viewed the Jackson order as not just expected but welcomed by the Administration. If it wanted to challenge these cases, the Jackson opinion was the ideal foundation for the Administration.
Even if Dellinger drops his case, there are other cases in the works that could bring the same review by the Court. However, in my view, Dellinger is the best option for the Administration in offering a clean, threshold question on the scope of presidential authority to fire executive branch officers.
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