Can Donald Trump fire someone who works in the Justice Department?

3

Donald Trump complained on Twitter about someone who still works for the Justice Department.

How the hell is Bruce Ohr still employed at the Justice Department? Disgraceful! Witch Hunt!

Isn't the Justice Department part of the executive branch? Obama has fired generals and Trump fired an FBI director, so can't Donald just fire the guy he is complaining about?

  1. Is the Justice Department part of the executive branch?
  2. Can Donald Trump fire Bruce Ohr?

Chloe

Posted 2018-08-30T17:09:33.387

Reputation: 5 729

technically speaking, most likely, he probably cannot as per labour policies. The person's immediate direct supervisor probably has to fire them. – user4012 – 2018-08-30T17:17:35.637

He could pressure the Attorney General to do it. – Max – 2018-08-30T17:18:10.290

1

@Max I don't think so. Indeed, Trump tweeted: "Jeff Sessions said he wouldn’t allow politics to influence him ...." A more reputable source (I have not read its contents)

– JJJ – 2018-08-30T17:46:10.680

1With respect to Obama firing Generals, Generals in the U.S. Military are political positions. – hszmv – 2018-08-30T19:32:50.760

1@user4012 the labor laws began to cover employees of the executive branch because of an agreement between fmr President Carter and Congress. Whatever recourse employees of the executive branch may have, it is against their immediate supervisors rather than against the President himself. These labor rules continue to be in effect because a President conceded to them. Any president can withdraw this concession unilaterally. And no president is subject to those rules himself. The only employee of the executive branch a President cannot fire is the Vice President. – grovkin – 2018-09-19T17:25:47.887

Answers

3

In General, No

Not all federal executive employees can be fired by the President. Historically, they used to be able to. However, this led to a spoils system in which new Presidents would fire large portions of the executive branch and replace them with their own supporters.

In 1833 the Civil Service Act was passed to limit this kind of behavior (the act was revised extensively in the 1970's). This report to Congress describes limitations on firing civil servants (see pg. 27). Employees may be fired for performance or behavior-related reasons, but not for non-employment related reasons. There is an appeals process to a third-party for disputes over personnel actions.

The Special Position of the Dept. of Justice

The Department of Justice is also in a special position. There is a lot of media coverage on the subject. Time published this article summarizing the President's relationship to Department of Justice officials here, which is based on Dr. Harriger (prof. of political science at Wake Forest). The high-level synopsis is that since Departmen of Justice investigators have a Constitutional duty to ensure that the law is executed correctly, they cannot be fired by the President for doing that job.

Of course, what is allowed in practice will be a highly political (as well as legal) situation.

indigochild

Posted 2018-08-30T17:09:33.387

Reputation: 22 718

1Yeah. That sentence is supposed to mean that the President can't fire anyone in the executive branch (that is, for the set of executive branch employees there exist employees he can't fire). I'll edit the wording. – indigochild – 2018-08-30T17:52:23.887

4This answer is incorrect, The president can indeed fire anyone in the executive branch including the special prosecutor (as stated in the article). of course the pendleton act does protect firings from certain protected positions, but the act also states that the president can designate which positions are protected, furthermore, the president can eliminate any position in the executive branch as no longer required. That being said, in practice, any firings become political because impeachment is political. Basically, president does something people don't like, get impeached – Frank Cedeno – 2018-08-30T19:53:18.937

5@FrankCedeno I'd be interested in seeing that comment expanded to an answer. I've always heard it said that the only way the special prosecutor could be fired was with a "Saturday Night Massacre" style firing spree -- I'd be interested in seeing evidence to the contrary – divibisan – 2018-08-30T20:10:47.150

1@FrankCedeno I'd agree with divibisan that your comment is worth being it's own answer. I'm leaving this up because it matches what I'm reading in summaries by people who know more about this than I do. – indigochild – 2018-08-30T21:07:18.963

@divibisan "Saturday Night Massacre" was during the time when special prosecutor law was in effect. The last special prosecutor was Ken Star and the law was not renewed and was allowed to expire (in 1999 I think) because Ken Star's investigation was seen as an unchecked power. There are various "special counsels" who can be appointed by either AG, President or Congress, but these special counsels' mandate is controlled, and maybe modified, by those who empower them. They only have independence as long as their mandate allows it. – grovkin – 2018-09-19T17:33:00.170

@grovkin I was using "Saturday Night Massacre" as an analogy for what the president would have to do in order to have Bruce Ohr fired (if indigochild's answer is correct), not to say that he is protected specifically by the special prosecutor laws. – divibisan – 2018-09-19T17:37:59.673

This answer is plainly wrong. If you read the how the civil service workers' protections were extended to allow unionization, you'll see that it was an agreement between President Carter and Congress. Then President Carter effectively asked Congress to codify what those protections would be in a law. It gave administrative recourse to executive branch employees to resolve disputes against their supervisors. A President cannot be stripped of his power to dismiss executive branch employees without a Constitutional amendment. – grovkin – 2018-09-19T17:38:23.243

@divibisan my point was that while it was a historically well-known event, it's no longer applicable because the law (which allowed a special counsel with that much independence) is no longer in effect. – grovkin – 2018-09-19T17:40:32.997

@grovkin True, but if, as indigochild says, rank and file FBI agents are protected by the civil service laws from being fired by the president, then if the president really wanted to fire an agent, they would have to pressure the Attorney General to do it and, if they refused, fire them and find someone in the DOJ who would. – divibisan – 2018-09-19T17:44:19.243

@divibisan ultimately, conceding to civil service protections for executive branch employees is what every President does out of his will rather than because he must. The only employee of the executive branch that a President cannot fire is a VP. Civil service was created because the frequent dismissal of the entire staff created too much turmoil and interfered with the functioning of the executive branch. It was a matter of practicality rather fairness. Not allowing an elected President to dismiss those on his payroll would have been a direct challenge to his power. – grovkin – 2018-09-19T17:52:47.087

@grovkin That sounds like you disagree with indigochild's answer. If you think it's wrong, rather than arguing with an unrelated 3rd party in the comments, you should post your own answer! – divibisan – 2018-09-19T17:55:10.837

@divibisan I posted a comment saying that this answer is plainly wrong and I downvoted the answer. – grovkin – 2018-09-19T17:56:54.567

Let us continue this discussion in chat.

– divibisan – 2018-09-19T17:58:57.720

Here's why the Civil Service Act did not preclude a President from firing anyone at will. From Wikipedia (linked in the answer): *"The The Act also allowed for the President, by executive order, to decide which positions could be subject to the act and which would not."* And anything that is subject to an executive order maybe changed by any President at any time. – grovkin – 2018-09-19T18:01:50.423