DOJ Tells Leaders They Can Fire Certain Probationary Lawyers (1)

The Justice Department has authorized division leaders to terminate probationary employees based on performance, according to an email reviewed by Bloomberg Law that provides mixed signals on whether such firings are mandatory.

DOJ’s human resources office “recently provided guidance to components that they should promptly identify and remove probationary employees whose performance or conduct merits separation from federal service,” an administrative officer from the attorney recruitment office wrote to department officials Feb. 25.

The department’s attorney recruiting office director normally retains that termination power, but transferred it Feb. 25 to DOJ assistant attorneys general and other office chiefs in order to “facilitate prompt action,” the email stated.

“Nothing in the delegation requires that Component Heads take any immediate action to terminate attorneys or law clerks,” the email continued. Decisions do to so “should be made consistent with sound management practices” including consulting with an employment counsel.”

This guidance comes as more than 30,000 employees—mostly probationary, meaning they lack stronger job protections—have been fired from other agencies since President Donald Trump took office.

DOJ officials received the memo the same day that the Merit Systems Protection Board ordered the temporary reinstatement of six probationary employees at unnamed federal agencies, pending the outcome of an investigation into whether their terminations violated civil service law.

DOJ’s overall workforce of 115,000 has been targeted in other ways thus far—such as the firings of people who investigated Trump, investigations of lawyers who prosecuted Jan. 6 defendants, and threats of termination for anyone who doesn’t vigorously advocate for the administration’s agenda.

But DOJ employees haven’t yet been forced out of their jobs to nearly the same extent of other departments.

The latest memo to DOJ leaders on their newer hires suggests that could be changing.

The White House’s Office of Personnel Management had previously ordered office leaders at the Justice Department—and throughout the federal government—to submit lists of employees on probationary status, generally meaning they were hired in the prior year or two.

It’s unclear how many probationary employees work at the department and even harder to ascertain the share of that subset whose bosses would consider their performance to merit termination.

Most of the components are led by acting political appointees who’ve had just a month to get acquainted with their employees.

The nation’s 93 US attorneys were directed earlier this month to compile lists of probationary employees and to describe whether they were focused on Trump priorities of national security, immigration, or public safety.

All US attorneys were given two business days to justify whether anyone was worth retaining.