The Legal Landscape for DEI one year after the Harvard/UNC decisions - Business Law Today
Special Counsel Dellinger, Office of Special Counsel
Abandons appeal after D.C. Circuit lifts TRO
Department of Justice Attack on Georgetown Law School over "DEI"Georgetown Dean Treanor response to DOJ page 1
Treanor to Martin - page 2 We will adhere to our Jesuit and Catholic mission
David French - NY Times Op-Ed: The MAGA culture war comes for Georgetown Law
Dahlia Lithwick - Treanor's Exemplary Response to Bondi
DOJ Attack on ABA accreditation standard 206
Attorney General Pam Bondi to ABA Section on Legal Education
"At a minimum, accreditation standards that require a "commitment to diversity" encourage compliance through unlawful means. "
ABA Statement re Standard 206 206
ABA dashboard re standards for legal education
Attacks on lawyers
Executive Order Barring law firm Perkins Coie from federal contract work
Executive order: Investigate Covington & Burling for assisting Special Counsel Jack Smith
Cuts to funding of research universities
Sec'y of Education Linda McMahon announces "comprehensive review" of grants to Columbia University - alleging anti-semitism
Columbia Spectator report on threatened federal cuts
Columbia Medical School pauses spending, hiring amind NIH cuts
When a judge brings an expert into a case one can often glean what the advice will be. So it is with U.S. District Judge Dale Ho. He brought former Solicitor General Paul Clement to the DOJ request to dismiss the indictment against New York Mayor Eric Adams.
When Emil Bove as acting Deputy Attorney General sought to abandon the Justice Department's prosecution of New York Mayor Eric Adams for accepting favors from the government of Turkey.
Ehrn asppointed by Judge Ho it was predictable that a cautious path would be proposed by Clement - one of the most successful Supreme Court advocates of the past forty years.
Bove had offered only a dismissal without prejudice - conditioned on Adams compliance with the Trump administration's big deportation plans. Adams would be subject to indictment if he did not offer the compliance the Trump administration sought.
Clement urges Ho extract a price: the dismissal should be with prejudice, so that the adminsitraiton would not have the Sword of Damocles hanging over the Mayor's head.
Point I Rule 48(a) Vests Courts With A Limited, But Essential, Power To Vindicate Liberty By Avoiding Even The Appearance Of Executive Overreach.
Amicus brief of Paul Clement - annotated by the New York Times
Nearly two months into President Donald Trump’s lawless dismantling of the federal government, a small agency has stood up with a tell-all lawsuit. The lawsuit from the president of the United States African Development Foundation (USADF) asks the courts to spare the agency from obliteration at the hands of Elon Musk and his band of tech bros. In doing so, it lays out in detail just how Musk and his so-called Department of Government Efficiency go about their illegal takeovers—and how one tiny agency stood up for its mission and the rule of law.
On February
it is hereby ORDERED that Defendants Marco Rubio, Peter Marocco, Russell Vought, the U.S. Department of State, the U.S. Agency for International Development, and the Office of Management and Budget (the “Restrained Defendants”) and their agents are temporarily enjoined from enforcing or giving effect to Sections 1, 5, 7, 8, and 9 of Dep’t of State, Memorandum, 25 STATE 6828 (Jan. 24, 2025) and any other directives that implement Sections 3(a) and 3(c) of Executive Order Number 14169, “Reevaluating and Realigning United States Foreign Aid” (Jan. 20, 2025), including by: • suspending, pausing, or otherwise preventing the obligation or disbursement of appropriated foreign-assistance funds in connection with any contracts, grants, cooperative agreements, loans, or other federal foreign assistance award that was in existence as of January 19, 2025; or • issuing, implementing, enforcing, or otherwise giving effect to terminations, suspensions, or stop-work orders in connection with any contracts, grants, cooperative agreements, loans, or other federal foreign assistance award that was in existence as of January 19, 2025
DEPARTMENT OF STATE, ET AL. v. AIDS VACCINE ADVOCACY COALITION, ET AL.
ON APPLICATION TO VACATE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [March 5, 2025]
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2025cv0412-40
An important thrust of today's right wing legal academics and judges is to vindicate the theory commonly referred to as the unitary executive. It is an attack on the power of Congress. We can stroll through the classic documents of the American war of independence and the foundation of the United States of Americ and find a trove of denunciation of monarchic authority. And celebration of states rights to enslave.
But the modern "conservative" movement is a celebrant of executive power. One strain of this is the assertion of Presidential power to hire and fire. This view - of which John Roberts is an exponent - views the entire Executive Branch as fingers on the President's hands.
Seila Law - a law firm resisted a subpoena by the Consumer Financial Protection Bureau. Despite its single director structure and limitation of discharge power to good cause was attacked as an intrustion on Presidential power . Roberts explained that "[t]he Director possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power". The high court rejected Congress limitation of Presidential power, to discharg eonly for “inefficiency, neglect of duty, or malfeasance in office,” 12 U. S. C. §5491(c)(3)
The Clerk of the Supreme Court in the Seila Law decision summarizes the theory this way:
Article II vests the entire “executive Power” in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. It was recognized by the First Congress in 1789, confirmed by this Court in Myers v. United States, 272 U. S. 52, and reiterated in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 [2010].
But "[i]n Free Enterprise Fund, the Court recognized that it had previously upheld certain congressional limits on the President’s removal power. But the Court declined to extend those limits to “a new situation not yet encountered by the Court.” 561 U. S., at 483. Free Enterprise Fund left in place only two exceptions to the President’s unrestricted removal power.
One of those exceptions was the
Free Enterprise Fund left in place only two exceptions to the President’s unrestricted removal power. First, Humphrey’s Executor permitted Congress to give for-cause removal protection to a multimember body of experts who were balanced along partisan lines, appointed to staggered terms, performed only “quasi-legislative” and “quasi-judicial functions,” and were said not to exercise any executive power
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CATHY A. HARRIS, in her personal capacity : and in her official capacity as Member of the : Merit Systems Protection Board, : : Plaintiff, :
Civil Action No.: 25-412 (RC) : v. : Re Document No.: 22 : SCOTT BESSENT, in his official capacity as : Secretary of the Treasury, et al., : : Defendants. : M
MEMORANDUM OPINION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION
Plaintiff Cathy A. Harris was appointed to the Merit Systems Protection Board (“MSPB”) on June 1, 2022, for a term set to expire on March 1, 2028. Federal law states that members of the MSPB may be removed from office “only for inefficiency, neglect of duty, or malfeasance in office.”
On February 10, 2025, President Donald J. Trump informed Harris that her position on the MSPB was “terminated, effective immediately” but provided no reason for Harris’s termination. The following day, Harris filed this lawsuit against President Trump and several other federal officials (“Defendants”), claiming that her termination violated federal law. She moved for a temporary restraining order enjoining Defendants from treating her as removed from office, which this Court granted.
The parties consolidated preliminary injunction briefing with the merits, and Harris moved for summary judgment. The Court grants that motion, along with declaratory judgment and a permanent injunction.
With Donald Trump back in the White House, each new week produces an onslaught of radical policy initiatives.
In an essay posted on Substack, Stephen I. Vladeck, a law professor at Georgetown, described a sequence — running from Feb. 21 to Feb. 27 — of what are, in effect, warnings designed to intimidate and even silence the nation’s legal community.
There is Secretary of Defense Pete Hegseth’s Friday night sacking of the senior military lawyers in the Army, Navy, and Air Force — lawyers who, by law, are required to provide “independent legal advice” to the Pentagon’s civilian and military leaders.
There is President Trump’s revocation of security clearances for all of the lawyers at Covington & Burling who were in any way involved in pro bono representation of special counsel Jack Smith once he left government service (and Trump’s ominous suggestion, captured in the video in which he signed the revocations, that “you’re going to do this with more firms, right?”). There is the threat by interim D.C. U.S. attorney Ed Martin that Covington faces a criminal investigation for its representation of Smith.
Vladeck explained the significance of these developments:
What the Trump administration is doing is not just about specific lawyers representing unpopular clients, but is rather far more ominous: The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is.
That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them — such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.
In addition to revoking the security clearances, Trump wrote in a Feb. 25 memorandum, “I also direct the attorney general and heads of agencies to take such actions as are necessary to terminate any engagement of Covington & Burling L.L.P. by any agency to the maximum extent permitted by law and consistent with the memorandum that shall be issued by the director of the Office of Management and Budget.”***
Update: D.C. Circuit Court of Appeals stays order of Judge Berman Jackson who reinstated Hampton Dellinger as Special Counsel to Office of Special Counsel which oversees Merit System Protection Board to protect whistle blowers, etc.
The Circuit cited Nken v. Holder, 556 U.S. 428, 434 - an alien removal case in which the court restated traditional criteria for a stay of an injunction:
“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
Briefing is set to conclude mid April, with oral argument to be set at that time. So the flood of federal probationary workers fired on order of Elon Musk . - GWC
5 U.S.C.§ 1211(a), establishes the Office of Special Counsel, an independent agency of the United States with a century-old origin and a history of fulfilling its statutory function spanning twelve presidential administrations. It provides in relevant part:
Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. ... The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
The powers of the Special Counsel are quite limited under 5 U.S.C. 1212. The SC can issue subpoenaes and appear as amicus curiae but does not prosecute violators of the law. The complaints the Special Counsel authorizes are heard before the Merits Systems Protection Board.
But in Seila Law (2022) Chief Justice John Roberts sounded an alarm very much like the so-called unitary justice theory - an academic formulation that would grant monarchic power to the President. Roberts wrote:
Article II vests the entire executive power in the President alone,. but "the Presdient's executive power generally includes the power to supervise and, if necessary, to remove those who exercise presidential authority on his behalf".
This exoression of nearly sovereign power has been embraced by Donald Trump whos newly confirmed Treasury Secretary sent a Tweet to Hampton Dellinger, who was serving a five year Senate-confirmed tterm:
On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately. Thank you for your service[.]Scott Bessent, Secretary of the Treasury Ex. A to Compl. [Dkt. # 1-1] (“Ex. A”).
U.S. District Judge Amy BermanJackson began her careful sixty seven page opinion in Hampton Dellinger, Special Counsel, OSC v. Scottt Bessent, Sec'y of Treasury this way:
As of the close of the business day on February 7, 2025, plaintiff Hampton Dellinger was the Special Counsel of the Office of Special Counsel, having been appointed to a five-year term by the President of the United States and confirmed by the United States Senate. In that position, he served as the head of the small independent agency tasked with shielding federal employees from prohibited personnel practices, including retaliation for whistleblowing, in the workplace. At 7:22 p.m. that evening, he received the email message above from Sergio N. Gor, Assistant to the President, Director of Presidential Personnel Office, The White House, with no additional explanation or reasoning.
Judge Berman concludes:
The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda; it is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent. In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the President’s Article II power as it was described in Humphrey’s Executor: a constitutional license to bully officials in the executive branch into doing his will. For those reasons and the reasons stated below, plaintiff’s cross-motion for summary judgment [Dkt. # 23] will be GRANTED, and defendants’ motion for summary judgment [Dkt. # 22] will be DENIED.
Proposed amicus brief by fourteen former federal judges
***IV. ARGUMENT A. If the Court finds an improper quid pro quo, it should exercise its authority under Rule 48(a) to deny the DOJ’s request for dismissal.
Federal Rule of Criminal Procedure 48(a) provides that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint.” “The words ‘leave of court’ were inserted in Rule 48(a)” and “obviously vest some discretion in the court.” Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977); see also United States v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 75 F.R.D. 473, 475 (S.D.N.Y. 1977) (“Nederlandsche II”) (“The effect of Rule 48(a) necessarily turns what was once solely the prerogative of the executive into a shared responsibility between the executive and judicial branches of government.”).
Rule 48(a) does not permit “the trial court to merely serve as a rubber stamp for the prosecutor’s decision.” United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973). Indeed, Rule 48(a) was amended to require leave of court pprecisely in order to prevent prosecutorial abuse. See, e.g., Thomas Ward Frampton, Why Do Rule 48(a) Dismissals Require “Leave of Court”?, 73 Stan. L. Rev. Online 28 (2020).
In Rinaldi, the Supreme Court indicated that courts may deny leave under Rule 48(a)
(1) “to protect a defendant against prosecutorial harassment” or
(2) “if the motion is prompted by considerations clearly contrary to the public interest.” Rinaldi, 434 U.S. at 29 n.15. The Second Circuit has likewise suggested that courts may deny Rule 48(a) motions where “dismissal is ‘clearly contrary to manifest public interest.’” United States v. HSBC Bank USA, N.A., 863 F.3d 125, 141 (2d Cir. 2017). Courts have primarily analyzed two factors to determine whether dismissal is contrary to public interest.
In an order on Saturday evening, Judge Amy Berman Jackson granted a permanent injunction against the government, allowing Hampton Dellinger to remain the head of the Office of Special Counsel, which protects federal whistle-blowers.
A federal judge in Washington on Saturday blocked President Trump from ousting the leader of a federal watchdog agency, saying that the effort to remove the official without due cause had violated the law.
In an order on Saturday evening, Judge Amy Berman Jackson granted a permanent injunction against the government, allowing Hampton Dellinger to remain the head of the Office of Special Counsel, which protects federal whistle-blowers.
The order required the Trump administration to recognize Mr. Dellinger’s authority in that position, barring it from taking any action to “treat him in any way as if he has been removed” or otherwise interfere with his work.
The administration immediately moved to challenge the ruling, starting an appeals process that appeared likely to end at the Supreme Court.
In a 67-page opinion explaining the order, Judge Jackson, of the U.S. District Court for the District of Columbia, stressed the unique responsibilities Congress gave the office when it was created under a 1978 law. She noted its central role in protecting whistle-blowers in the federal government, a role that she said would be compromised if Mr. Dellinger were allowed to be removed without a cause stipulated under the law.
https://www.nytimes.com/2025/03/01/us/politics/dellinger-trump-watchdog-judge-jackson.html?unlocked_article_code=1.004.lY43.gdZNAX7CqU95&smid=url-share
