Dellinger Exit Deepens OSC Politicization as Workers Lose Ally

The credibility of an independent US whistleblower agency protecting federal workers who report fraud and misconduct is in question following President Donald Trump‘s unusual dismissal of its leader, who later dropped his termination challenge.

Then-Special Counsel Hampton Dellinger suffered a significant setback last week when a federal appellate court granted the Trump administration’s bid to pause a district judge’s ruling that his dismissal was unlawful. Dellinger, who had remained as head of the Office of Special Counsel by the district’s order, decided to drop his litigation.

Dellinger’s unprecedented Feb. 7 termination without explanation was part of the president’s broader efforts to seize control of independent federal agencies. Dellinger’s five-year term was set to expire in 2029, which would have made him head of the OSC through the entirety of Trump’s second term.

The nature of his departure underscores the fragile balance between political influence and the need for impartial oversight at an agency tasked with investigating and prosecuting allegations of fraud, waste, and abuse, and safeguarding federal employees and whistleblowers against retaliation and mistreatment, administrative and civil law scholars said.

While his case was playing out, Dellinger became a major ally for fired government workers as the administration sought to dramatically downsize the federal workforce. Earlier this month, more than 5,000 Department of Agriculture probationary employees were ordered to return to their positions after the Merit Systems Protection Board, which mediates disputes between federal agencies and their employees, found that the administration violated laws that shield career staff from political influence.

Dellinger’s office had signaled it planned to ask the MSPB to reinstate fired employees from other departments before his termination takes effect while he pressed his case.

But the administration’s move to remove Dellinger likely means the OSC won’t remain a nonpartisan bulwark against corruption and abuse of power in the current political climate, according to academics.

“It’s over,” said David Super, a professor at Georgetown University who specializes in administrative and constitutional law. “Mr. Trump made very clear that he only wants strict partisans in government offices, so there will be no independence.”

“Whoever is the new special counsel will do whatever the administration wants without any independence,” he said.

Unless the Supreme Court intervenes in a similar dispute and clarifies the president’s authority to dismiss the head or a member of an independent federal agency, Dellinger’s firing may set a precedent that allows future presidents to exert greater control over these agencies, said Paul Schinner, a worker-side attorney at Halunen Law who represents whistleblowers.

“It will be interesting what they do; whether they’ll replace Dellinger with someone more aligned with” the purported objectives of Elon Musk and his Department of Government Efficiency to weed out fraud and wasteful spending, “or dismantle the Office of Special Counsel because they think it’s unnecessary,” he said.

The administration hasn’t yet offered any policy justification for the firing, Schinner said.

Strategic Decision

Dellinger’s exit comes amid Trump’s overhaul of the federal workforce and other high-profile removals that could prove just as consequential for independent federal agencies.

Last week, Gwynne Wilcox was reinstated to the National Labor Relations Board after a federal judge reversed Trump’s termination of her. The president lacked the authority to fire members of the NLRB despite their for-cause removal protections, and his dismissal of Wilcox “was a blatant violation of the law,” Judge Beryl Howell, an Obama appointee to the US District Court for the District of Columbia, ruled.

The administration appealed the order.

Meanwhile, the two Democratic Equal Employment Opportunity Commission members whom Trump fired in January are expected to sue.

In a statement announcing his dropping of the case, Dellinger said he believed the D.C. Circuit’s decision to side with the administration meant his odds of ultimately winning at the Supreme Court were “long.”

Dellinger had strong arguments that could have potentially convinced the high court to cement the agency’s independence and curb the power Trump is assuming, legal scholars said. However, Wilcox’s case appears to be a much stronger candidate, they noted.

That’s because Dellinger is the sole leader of the OSC, Super said. He’s a lawyer who specializes in a specific area of technical law, which differs from the types of technical expertise found in other members of multi-member federal agencies that courts have traditionally determined Congress shields from presidential control, the professor said.

“I think he just made a strategic decision that his case wasn’t the best case to raise the issue,” said Neal E. Devins, a law and government professor at William & Mary Law School.

“It was best to take a pass and let somebody else bring a case and then if that result is favorable in terms of the court, upholding the protections, he could come back and have a stronger case,” Devins said.

‘Licking its Chops’

The legal debate over Trump’s terminations is progressing toward a Supreme Court review of its 1935 Humphrey’s Executor v. US decision, which permits limitations on the president’s authority to dismiss independent agency officials. Legal scholars said that every high court case following Humphrey’s Executor preserved its holding that limitations on the president’s power to dismiss agency board and commission members is constitutional.

The administration maintains that the president should have unfettered authority under the US Constitution to fire Dellinger for any reason at all.

Some justices in the past have signaled support for broad executive power, and Wilcox’s case could settle the question over the scope of the president’s power, Schinner said.

“By firing Dellinger and the NLRB member, it looks like the administration is licking its chops in front of the Supreme Court,” he said.