Federal judge briefly extends bar on Trump's bid to fire government watchdog

WASHINGTON (CN) — Hampton Dellinger, the head of the Office of Special Counsel, can remain in his post until March 1, a federal judge ruled Wednesday, extending a block on President Donald Trump’s attempt to remove the independent government watchdog.

But only hours after U.S. District Judge Amy Berman Jackson extended a temporary restraining order keeping Dellinger in office, Trump asked the Supreme Court for emergency intervention.

The high court punted on Trump’s previous appeal — the first in Trump’s firing spree to rise to the court. Since then Dellinger challenged the legality of probationary employees. Trump said the action demonstrated why the watchdog needed to be removed from office immediately.

“In short, a fired Special Counsel is wielding executive power, over the elected Executive’s objection, to halt employment decisions made by other executive agencies,” Sarah Harris, the acting solicitor general wrote in a letter to the court.

Trump asked the justices to vacate Jackson’s order but suggested that at the very least the high court needed to continue holding his application in abeyance until a final ruling from the lower court.

In her 5-page order, Jackson said the extension would allow her to properly consider the significant constitutional questions at hand an provide a more substantial opinion on Dellinger’s permanent injunction motion for the high court to consider.

The Office of Special Counsel was created in 1979 to protect whistleblowers throughout the federal government, including its executive branch agencies. It does not have prosecutorial power, nor is it connected to the special counsels appointed by the U.S. attorney general, like former special counsel Jack Smith.

Justice Department attorney Madeline McMahon argued at a Wednesday hearing that the public has a vested interest in a strong executive, and preventing the president from handpicking someone to replace Dellinger would cause Trump to “lose control over an executive branch agency.”

Jackson, a Barack Obama appointee, said the public also has a strong interest in protecting whistleblowers.

That interest has garnered bipartisan support, as pointed out by Dellinger’s attorney Joshua Matz of Hecker Fink. When he signed the Whistleblower Protection Act of 1989, Republican former President George H. W. Bush praised the statute for “enhancing the authority” of the Office of Special Counsel to protect whistleblowers and retained the requirement that the agency head could be removed only for inefficiency, neglect of duty or malfeasance.

On Wednesday Matz said the Office of Special Counsel’s independence poses no threat to the president’s executive authority.

“It seems to me that the president, who has sworn an oath to faithfully execute the law, would not perceive a need for direct political control of an office that exists to ensure that even when powerful people in government abuse their power, there’s somewhere for a whistleblower to go where they can be protected,” Matz said.

Matz acknowledged that Jackson cannot directly order Trump to reinstate Dellinger and that Trump could find a for-cause reason to terminate him. But she could issue a declaratory judgment that applies to those acting on behalf of Trump, he argued — such as Office of Management and Budget Director Russell Vought or Sergio Gor, director of the White House Presidential Personnel Office.

Jackson prevented Dellinger’s termination on Feb. 12. The Justice Department appealed to the D.C. Circuit and the Supreme Court to reverse her temporary restraining order, which had been set to expire Wednesday.

The Supreme Court punted review until the order expired in an apparent 5-4 ruling Friday on its shadow docket. Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have denied the government’s petition outright, while Justices Neil Gorsuch and Samuel Alito said the federal judge exceeded her authority by interfering with the executive branch.

The federal judge noted the “very unusual posture” of the case’s circumstances in her order and during Wednesday’s hearing, commenting that while the normal course would require the D.C. Circuit to review her decision first, the case was “in some other world already.”

Dellinger’s is one of several high-profile independent agency terminations to be challenged in the federal courthouse in Washington.

Trump has moved to fire members of the National Labor Relations Board, the Federal Labor Relations Authority, the Merit Systems Protection Board and the U.S. Privacy and Civil Liberties Oversight Board since Jan. 20.

He also terminated 17 inspectors general across federal agencies like the Departments of Defense, State, Education, Labor, Agriculture, Veterans Affairs, Health and Human Services, and others, eight of whom sued him on Feb. 12.

Follow @Ryan_Knappy