Trump Administration Appeals Special Counsel Case to SCOTUS—No, Not The Jack Smith Case.
On Thursday, I wrote about the case of Hampton Dellinger, who served as the sole director of the Office of Special Counsel. (I use the past tense quite deliberately.) This position has nothing to do with DOJ special counsels, like Jack Smith, who are appointed to investigate the executive branch. Dellinger’s position concerns civil servants, whistleblowers, the Hatch act, and other employment-related matters. Trump removed Dellinger from office.
The District Court entered an “administrative stay” ordering Trump to allow Dellinger to remain in office. The D.C. Circuit did not allow the government to appeal the administrative stay. Then the District Court entered a Temporary Restraining Order, requiring Trump to continue recognizing Dellinger as the Special Counsel. Generally, a TRO lasts for fourteen days, and is not appealable. Courts can only grant a writ of mandamus to dissolve a TRO.
A divided panel of the D.C. Circuit declined to dissolve the stay. The majority found that the opinion was not subject to immediate review. Judge Katsas dissented. He found the order should be subject to immediate review, especially where it infringes on the President’s removal power. Katsas points out that in the past, removed officers sought to challenge their removal by seeking backpay. There is no recorded case where a federal court ordered the reinstatement of a removed officer. Moreover, the injunction seems to squarely run against the President, as it requires him to recognize Dellinger as the head of the department, even though Trump has appointed someone else. There is a long-runing dispute under Mississippi v. Johnson about whether the federal courts have the power to enjoin the president. This case screams for urgent appellate review, but the D.C. Circuit said “Come back in two weeks.”
The Trump Administration has now f
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