The Trump Administration has been on a firing spree inside the Department of Justice. On January 20th, immediately after President Donald Trump took office, the administration fired four career officials in the Executive Office of Immigration Review (EIOR), including the Chief Immigration Judge and the EOIR’s acting Director. James McHenry, the acting Attorney General at the time, then fired more than a dozen Justice Department lawyers who had assisted in bringing two criminal cases against Trump, concluding that “they ‘could not be trusted to faithfully implement the President’s agenda because of their significant role in prosecuting the President.” In addition to firing career attorneys outright, McHenry also reassigned veteran deputy assistant attorney generals who previously headed DOJ sections to work instead on the new administration’s investigation of “sanctuary cities.” Four days later, Emil Bove, the acting Deputy Attorney General, fired all six FBI Executive Assistant Directors and ordered the top federal prosecutors in each state to compile a list of all prosecutors and FBI agents who worked on the investigation of the Capitol riot, apparently with the aim of taking some sort of adverse employment action against them (the memo was titled “Terminations”).
The firing of career civil servants in apparent retaliation for their investigation and prosecution of the newly elected President and his supporters has provoked alarm. Ten Democratic Senators demanded information about the apparent purge from the Department of Justice. The FBI Agents Association along with two groups of anonymous FBI officers filed two lawsuits (a class action complaint available here and second lawsuit available here) alleging retaliation based on perceived political affiliation in violation of freedom of association protected by First Amendment, loss of reputation in violation of the Fifth Amendment’s Due Process clause, and potential disclosure of personal information in violation of the Privacy Act of 1974.
The big guns of the Congress and Constitution, however, are not the only way in which the law protects the civil service from partisan or personal retribution. Federal employees also enjoy basic statutory civil service protections, dating back to the Pendleton Civil Service Act of 1883, from arbitrary, personal, or partisan supervision. The current statutory version of such protections are found primarily in Chapters 23, 43, and 75 of the Civil Service Reform Act of 1978 (CSRA).
This article provides a brief summary of whether and how these civil service provisions protect DOJ attorneys and, to a lesser extent, DOJ’s Senior Executive Service supervisors but exclude FBI agents, forcing them to rely on the Constitution.
1. Who is covered by the CSRA?
The CSRA’s protections against arbitrary adverse employment actions cover most “career” employees in the federal government who have completed their probationary two-year period of employment. This coverage includes both members of the “competitive service” (those hired according to competitive examination) and those “excepted” from such examination. (A 2018 OPM report provides an overview of the fundamental distinction between the competitive and excepted service). Within the Department of Justice, most attorneys are part of the “excepted” service pursuant to a variety of statutes and regulations, including OPM’s Schedule A, a regulatory waiver of competitive examination where an agency requires hiring criteria more carefully tailored to its particular mission (e.g., graduation from law school and passing a bar exam). Those lawyers are protected nonetheless by statutory “merit system principles” “against arbitrary action, personal favoritism, or coercion for partisan political purposes.”
The highest level of the civil service that interacts directly with political appointees is the Senior Executive Service, seven thousand or so employees specially selected to staff the upper echelons of the bureaucracy. Because their managerial power might thwart a president’s Article II authority to direct policy, the CSRA gives the SES only a very stripped down set of protections from removal or suspension. Nonetheless, even these top-level bureaucrats cannot be removed or suspended for more than two weeks absent proof of “misconduct, neglect of duty, malfeasance, or failure to accept [a transfer or reassignment].”
Like other agencies concerned with intelligence-gathering, however, the FBI is excluded from all such protections by the CSRA’s definitions of “covered employees” or “agency” in Chapters 23, 43, and 75. (See, e.g., 5 U.S.C. §2302(a)(2)(C)(ii)). Because of these limits, those FBI agents at risk from DOJ’s effort to disclose their identities relied on their First and Fifth Amendment constitutional rights to their reputation, due process and free association as well as their entitlement to privacy under the 1974 Privacy Act. Such constitutional and statutory protections are far less extensive than those provided by the CSRA. In particular, the Supreme Court has long held that the First Amendment’s free speech clause protects only governmental employees’ off-duty speech as private citizens, not their choices about how they perform their governmental duties.
2. Are there other protections against arbitrary dismissal aside from the CSRA and the Constitution?
The FBI and other federal employees who fall outside the CSRA’s scope need not rely exclusively on the Constitution or specialized statutes like the Privacy Act. Under Accardi v. Shaughnessy (1954), every agency must abide by its own rules, if those rules have the force of law. Under Vitarelli v. Seaton (1959), this obligation applies to agencies’ binding rules that regulate the discipline and evaluation of agencies’ employees. As Vitarelli noted in reviewing the Department of the Interior’s attempt to fire an employee who fell outside civil service statutory protections, “the Secretary here … was bound by the regulations which he himself had promulgated for dealing with such cases, even though, without such regulations, he could have discharged petitioner summarily.”
The FBI’s personnel system consists of formal rules with obviously binding force of law and detailed guidance that are not codified in the Code of Federal Regulations. Both of these non-statutory rules provide protection to the FBI’s personnel.
Consider, first, the FBI’s formal rules. Pursuant to 5 U.S.C. § 3151, the DOJ promulgated a rule in 1992 (5 C.F.R. § 0.157) creating a personnel system for FBI officials who are members of the SES. By statute, that rule-based system must provide the FBI SES with the same protections from arbitrary dismissal provided by Chapter 75 to other members of the SES. The highest ranking civil servants within the FBI, therefore, cannot be fired absent proof of “misconduct, neglect of duty, malfeasance, or failure to accept [a transfer or reassignment].”
Even without any formal rule, however, the FBI’s own internal policies likely provide rank-and-file FBI agents with protection from arbitrary discipline or evaluations. The FBI has guidance documents that define procedures and standards for the discipline and evaluation of its personnel. (For an overview of the FBI’s internal discipline procedures, see this 2021 DOJ Inspector General report; for the FBI’s evaluation procedures, see this 2020 FBI HR Guide). If these guidance documents’ discipline and evaluation procedures have binding force of law, then under Accardi-Vitarelli, the FBI must follow them in firing or disciplining their agents.
There is likely a plausible argument that the FBI’s internal personnel procedures count as such binding rules. Ordinarily, binding rules must be issued using notice and comment procedures contained in section 553(c) of the Administrative Procedure Act, but matters relating to agency management or personnel are exempt from this requirement under APA section 553(a)(2). The question of whether these procedures constitute binding rules of law, therefore, turns on a mushy multi-factor inquiry, conveniently summarized here by the Congressional Research Service, which has vexed generations of law students. Important among these factors is whether the agency treats the guidance as binding itself.
If the FBI has consistently followed its own written personnel procedures and intended its employees to rely on those procedures as assurances of fair treatment, then those procedures start to look like binding rules that the FBI cannot arbitrarily waive or ignore. Although one cannot determine how consistently the FBI has used its internal personnel procedures simply by reading them, it seems likely that the FBI, like other federal agencies, has regarded its personnel procedures as binding internal agency actors to ensure consistent and transparent internal administration on which employees can rely. If so, then aggrieved employees could likely challenge any firings that violated these internal procedures as arbitrary and capricious action pursuant to section 706 of the Administrative Procedure Act.
But could the FBI’s leadership simply repeal personnel manuals with the stroke of a pen (or keyboard), given that they are not noticed rules but mere guidance? As illustrated by the SCOTUS’s decision in Trump v Regents, agencies must provide reasons for any change of policy, even if that policy takes the form of guidance. Kash Patel, quite possibly the next Director of the FBI, could not simply delete personnel policies without risking a challenge to such a change as arbitrary and capricious under APA section 706. The courts might not be demanding in assessing the reasons for changing the FBI’s personnel policies, but Patel would likely have to give some sort of reason better than simply the desire to retaliate against agents who did their job in investigating the Capitol riot. (As an aside: Patel himself testified at his nomination hearing that he opposed pardons for defendants convicted for assaulting law enforcement officers that day).
3. What sort of protection does the CSRA provide?
For those DOJ lawyers who have satisfied their probationary period of employment and are neither FBI agents nor SES managers, the CSRA provides powerful limits on how President Trump’s political appointees can discipline them. At the risk of over-simplifying, those protections can be divided roughly into three parts.
First, Chapter 23 provides broad, over-arching principles limiting power to fire, suspend, or demote protected employees, listing nine general “merit system principles” and fourteen “prohibited personnel practices” that the political leadership must not violate. Most relevant to then-Acting Attorney General McHenry and Deputy Attorney General Bove’s attempted purge of the DOJ is the eighth “principle”: “(8) Employees should be … protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.” Firing attorneys because they helped investigate alleged crimes committed by their past or future boss in the White House would clearly violate this principle. Perhaps because he knew that he could not engage in blatant retaliation, Bove sent out a memo on February 2nd assuring DOJ employees that “[t]he only individuals who should be concerned about the process initiated by my January 31, 2025 memo are those who acted with corrupt or partisan intent, who blatantly defied orders from Department leadership, or who exercised discretion in weaponizing the FBI.”
Making allegations of “corrupt or partisan intent,” however, does not suffice to comply with Chapters 43 and 75 of the CSRA, the other two major components of the CSRA’s protections for government employees. Those allegations have to be proven with specific evidence produced according to procedural rules that give employees notice and opportunity to rebut the charges. As the Merit Systems Protection Board has acknowledged, the distinction between Chapters 43 and 75 is subtle (see this 2009 MSPB Report for an overview). Roughly speaking, Chapter 43 deals with performance assessment, while Chapter 75 deals with discipline for misconduct. With either poor performance appraisals or disciplinary sanctions, however, the proof procedures required for either (outlined here) are time-consuming: Removing a DOJ attorney is a far cry from Trump’s yelling “you’re fired!” on The Apprentice.
Even SES managers are protected by Chapters 43 and 75, albeit to a lesser extent than lower-level government employees. (See these sections of Chapter 75 and these of Chapter 43). Bove cannot, therefore, simply sack veteran DOJ section chiefs, even if he can transfer them to unfamiliar duties with the same rank and pay grade.
Moreover, the Trump Administration must make the case for removing or demoting employees before the Merit Systems Protection Board, a tribunal whose three members were all appointed by former President Joe Biden. The MSPB is an independent administrative tribunal whose three adjudicators serve seven-year terms cannot be removed without cause. Their decisions, therefore, are unlikely to be slanted in favor of the Trump Administration because of any partisan bias.
4. Will the Trump Administration try to subvert the civil service system with Article II?
Given the procedural and substantive limits imposed by the CSRA on a quick, wholesale purge of DOJ’s personnel, the question naturally arises: will the Trump Administration simply try to subvert the entire civil service system by declaring it unconstitutional?
The roadmap for doing so has been laid out by the Supreme Court for decades. As Noah Rosenblum and I argue in this working paper, the Roberts Court has built up a doctrine founded on the principle that Article II requires everyone in the executive branch to be accountable to a democratically elected President. Exactly what that accountability requires has not been spelled out with precision. United States v. Arthrex (2021) suggests, however, that the President or his politically accountable appointees must be able either to fire or to “direct” each member of the executive branch. On one reading of Arthrex, politically accountable chiefs of agencies must be able to fire any civil servant who exercises discretion that is difficult for those superiors to control through specific instructions or ex post oversight.
President Trump’s revival of Schedule F seems to be an effort to realize this vision of a bureaucracy that is subservient to the President. As initially proposed in Trump’s first administration, Schedule F would greatly enlarge the definition of federal positions that are deemed to have “a confidential, policy-determining, policy-making or policy-advocating character.” The President has the statutory power to exempt all such positions from the CSRA, and the Office of Personnel Management under presidential direction has exercised that power to except a small (roughly 1,200) positions with Schedule C. Schedule C positions are created at the beginning of each presidential administration and expire at the administration’s end, encompassing people who work on policy-making and political duties in close collaboration with politically appointed agency chiefs – personnel like press secretaries, chiefs of staff, and general counsels.
President Trump’s proposed Schedule F would vastly expand this category to include anyone whose duties include “substantive participation in the development or drafting of regulations,” “the supervision of attorneys,” or “viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege.” Such an expansion would cover all SES managers and any employee who exercised their power to disclose internal agency documents to members of Congress. Such disclosure is, however, a statutorily guaranteed right, one that scientists in the EPA exercised to challenge the President’s environmental policies in 2020.
Schedule F looks like an effort to muzzle anyone in the bureaucracy who leaks information to Congress with the threat of removal unconstrained by the CSRA. But can the Trump Administration so easily waive the CSRA with a presidentially created exception?
Two barriers, one regulatory and one statutory, stand in the way.
First, former President Biden’s OPM promulgated a rule through notice and comment requiring that re-scheduled civil servants retain the civil service protections of the CSRA. President Trump cannot, therefore, deprive current civil servants via a new Schedule F without repealing this rule, a process that could take significant time, invites a lot of public scrutiny, and permits judicial review under section 706 for arbitrary and capricious decision-making.
Second, President Trump’s proposed elimination of the CSRA’s civil service protections is unprecedented, and an unprecedented exercise of statutory powers might inspire judicial pushback under the so-called “major questions doctrine.” As Dan Deacon and Leah Litman have recently observed, on one reading, that doctrine maintains that courts should be skeptical about agencies’ reading general terms in statutes in novel ways to do stuff that the agency has never before attempted. That version of the major questions doctrine presents a bit of a challenge to President Trump’s proposed reading of his admittedly capacious power to make “exceptions” to CSRA protections: No president has ever before attempted to strip civil service protections from bureaucrats whose duties are apolitical and technical rather than duties to serve as confidential, policy-making advisers.
Against these barriers, however, stands the opposite possibility that the Roberts Court will declare that some of the protections afforded to civil servants by the CSRA are unconstitutional. It is possible but not likely that a majority of the Court would launch a frontal assault on the civil service system by declaring that Article II entitles the President to fire any civil servant covered, or envisioned to be covered, by Schedule F. But the Roberts Court might undermine the civil service system more indirectly by attacking the independence of the MSPB, the administrative tribunal responsible for enforcing those civil service protections. In particular, the insulation of the MSPB members themselves from dismissal except for cause depends on the Supreme Court’s sticking with the beleaguered precedent of Humphrey’s Executor. The Roberts Court has given numerous signs that it is dissatisfied with that precedent and might overrule it. On February 12th, the acting Solicitor General notified Senator Richard Durbin, ranking member of the Senate Judiciary Committee, that the DOJ regards for-cause removal conditions for multi-member commissions that are appointed by the President with Senate confirmation as unconstitutional. If the Roberts Court agrees and overrules Humphrey’s Executor, then Trump can simply fire and replace the members of the MSPB, seriously eroding all civil service protections by politicizing their watchdog. One of the post January 20th lawsuits raises this very question with respect to a member of the MSPB itself.
In sum, both the FBI agents and DOJ attorneys have statutory, constitutional, or regulatory protections from arbitrary dismissal. The strength of those defenses might, however, turn critically on the Roberts Court’s attitude toward our civil service system. If the Court regards that system as a necessary and proper mechanism by which Congress can ensure impartial, apolitical, and expert administration of statutory standards, then the MSPB and the courts might end up stopping (or reversing) the Trump Administration’s purge of the DOJ and FBI. If the Roberts Court regards such limits on presidential power as an unconstitutional legislative incursion into Article II prerogatives, then not only DOJ’s personnel but also the entire civil service system stands under threat of politicization.
(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)