Trump’s ‘Friday Night Massacre’ Probably Legal, Says Law Prof — But His Power to Replace Fired IGs Is Limited

AP Photo/Evan Vucci

When President Donald Trump fired 17 inspectors general late last Friday night, many commentators pointed to a 1978 federal law that requires the president to give at least 30 days written notice to Congress of the “substantive rationale, including detailed and case-specific reasons” before removing an inspector general.

One Harvard Law School professor, Jack Goldsmith, was skeptical that the removal of the inspectors general was not legally allowed — but he did point to other provisions of the Inspector General Act that would constrain Trump’s ability to replace those inspectors general.

The fired inspectors general represented the watchdog role in their respective federal agencies, and have employment protections enshrined in the Inspector General Act, first passed in 1978 as part of the post-Watergate reforms and then amended several times — including after Trump fired five inspectors general in April and May 2020 during his first term.

As The New York Times’ legal policy reporter Charlie Savage wrote, “the norm has been” for IGs to “remain in place when new presidents take office, underscoring their role as nonpartisan officials.”

Mark Greenblatt, who was appointed as the IG for the Interior Department by Trump in his first term, spoke out sharply condemning his termination and that of his colleagues in the other agencies, arguing that Trump’s actions represented an “existential threat with respect to the primary independent oversight function in the federal government.” Greenblatt credited his fellow inspectors general as having “preserved the independence of inspectors general by making them not swing with every change in political party,” and warned against condoning Trump installing “lackeys that are rubber-stamping his programs and exonerating allegations for his own people willy-nilly.” According to Greenblatt, the firings were a blow to the credibility of the inspectors general, and incentivized the next Democratic president to conduct a mass firing as well, resulting in “a never-ending cycle of politicization” corrupting this watchdog role.

Objections to the mass firings that cited the 30-day notice and “substantive rationale” requirements were made both by IGs protesting their termination and members of Congress, including both Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) and Sen. Dick Durbin (D-IL), the ranking Democrat on the committee.

But Professor Goldsmith, who was a lawyer for the Department of Justice during the George W. Bush administration, poured cold water on this objection in a column he published for Lawfare, the legal website he co-founded. Sharp observers may find Goldsmith’s discussion of a president’s power to fire IGs echoes that of the recent Supreme Court ruling in Trump v. United States, in which the Court found that a president has broad immunity for actions taken while in office, subject only to very narrow and defined exceptions.

“Trump probably acted lawfully, I think, because the notice requirement is probably unconstitutional,” wrote Goldsmith, explaining that the White House had “a pretty strong argument” based on how the Supreme Court “has recognized the president’s ‘unrestricted removal power’ over executive branch officials” to have only “two exceptions.”

The only exception here relevant to the firing of the IGs, Goldsmith continued, was from a “shriveled and maybe-dead precedent” from a 1998 case, Morrison v. Olson, that was on increasingly shaky ground due to precedent set in subsequent cases. In Morrison, the nation’s highest court upheld a law passed by Congress that imposed removal protections restricting a president’s power to fire the old position of independent counsel. The Court’s rationale found that these restrictions were not an improper interference with the Executive Branch’s operations because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.”

The inspectors general would probably be classified as “inferior officers,” wrote Goldsmith. He pointed to the 2019 Seila Law case, which clarified the interpretation of the Morrison ruling to find that the president can remove any “inferior officer” unless the officer has “limited duties and no policymaking or administrative authority.” The various IG roles across the agencies encompass some powers that “can be seen as broader” than the previous independent counsel role, and their duties “cannot plausibly be described as ‘limited.'”

Seila Law and other subsequent Supreme Court decisions have moved “in the direction of an expanded presidential removal power,” wrote Goldsmith. The current conservative majority of the Court — including three justices nominated by Trump himself — seem highly unlikely to reverse this trend. Citing the Trump decision, Goldsmith observed that the Court “has been highly formalistic in its recent removal decisions,” and expressed his belief that it would be likely to rule that “the president’s exclusive removal power controls the issue,” so “any type of congressional constraint must give way.”

Regardless, the 30-day notice and “substantive rationale” requirements were only minor obstacles for the president, the professor argued, because he could chose to comply with them at any point and get what he wanted with only a month’s delay.

Still, wrote Goldsmith, hope remains for those who sought to thwart Trump’s efforts to install lackeys in these vacant inspectors general roles to rubber stamp his edicts, because of the “real bite” in the 2022 amendments to the law that came from “the limitations it places on Trump’s power to replace the terminated IGs.”

Goldsmith believes these limitations on how the IGs can be replaced are constitutional, and “will make it hard, but not impossible, for Trump to put loyalists atop the dozens of vacant IG offices around the executive branch.” The 2022 law established that a removed IG can only be replaced by “another Senate-confirmed IG” or an acting AG who must be a GS-15 grade (the highest level for civilian white-collar federal employees) “who was in office for more than 90 days during the year prior to the vacancy.”

Nominating new IGs and getting them through the Senate confirmation process would be expected to take a long time — probably even into the next year — especially with so many initial administration roles to fill, Goldsmith wrote. Decades of case law means that Congress’ replacement restrictions are “much more likely to stick in court” than the notice requirements, he continued, voicing his doubt that even the Trump ruling would undermine “the longstanding understanding between the branches that congressional constraints on actings are binding on the president.”

As for what happens next, Goldsmith predicted that Trump would find it “hard” to find “congenial replacement” IGs among the current qualified staff, incentivizing him to aggressively push against this part of the law, which, on its own “cannot save IG independence from an aggressively threatening president.”

Only Congress could serve as a bulwark against Trump’s efforts to reshape the civil service into compliant minions, but Goldsmith was highly skeptical that the Republican majority would do so, especially in light of the tepid reaction to the firings by traditional IG defenders in Congress”:

“There may be good reason the IGs were fired,” said  longtime IG protector, Senator Chuck Grassley, on Saturday. “We need to know that if so. I’d like further explanation from President Trump. Regardless, the 30 day detailed notice of removal that the law demands was not provided to Congress.” Senator Rand Paul is another staunch IG advocate, and he chairs the Senate Committee with jurisdiction over the operation of IGs across the government. According to ABC news, Paul “said he believes many of the inspectors general do need to be replaced and that Trump ultimately has the power to do so. But he noted there may be a process that needs to be followed.”

Weak stuff from congressional IG champions following Trump’s Friday night purge.

Read the full column here.