Federal Judge Enjoins Trump
From Firing U.S. Special Counsel

     A federal judge in Washington on Saturday blocked the firing of the head of a federal watchdog agency, saying President Donald Trump exceeded his presidential authority by trying to get rid of him. 
     Judge Amy Berman Jackson granted a permanent injunction that allows Hampton Dellinger to keep his job leading the U.S. Office of Special Counsel.
     The office is supposed to be an independent agency that enforces ethics standards and oversees whistleblower complaints within the federal government.
     Allowing Trump to fire Dellinger would give the president “a constitutional license to bully officials in the executive branch into doing his will,” Jackson wrote in her 67-page opinion.
     It also “would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence,” the judge wrote.
     The Trump administration is preparing an appeal that is likely to end at the Supreme Court.
     After Dellinger publicly opposed mass firings the Trump administration is using to reorganize the federal government, the president notified Dellinger that he was fired.
     Hampton sued in U.S. District Court, which led Jackson to grant a temporary restraining order against firing him. She described the dispute as "an extraordinarily difficult constitutional issue."
     Dellinger’s attorneys argued the constitutional separation of governmental powers meant that the special counsel’s authorization from Congress gives the president no authority to fire him without proof of misconduct.
     The implications of the judge’s ruling extend far beyond Dellinger to include any federal agency that is supposed to act independently to monitor ethics and corruption in the government.
     The congressional mandates for Independent counsels typically say they could only be fired from their five-year appointments for performance issues, such as neglect of duty or malfeasance.
     The one-sentence email terminating his job did not allege any misconduct. It said, “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.”
     Dozens of lawsuits challenging firings of federal employees also say the president is acting without constitutional authority in getting rid of workers without cause.
     The latest example of the struggle between the Office of Special Counsel and the president was last week, when an independent federal employment board halted the firings of six probationary employees.
     Dellinger had told the Merit Systems Protection Board (MSPB) they were probably illegal. He also asked for time to complete an investigation of why the employees were fired.
     The MSPB granted a 45-day stay of the job terminations “while OSC further investigates their complaints.”
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Justice Dept. Says it Won’t Defend
Jobs of Administrative Law Judges

     The Justice Department is serving notice to Congress that it no longer will protect administrative law judges from being fired at the discretion of the president.
     The jobs of administrative law judges are supposed to be protected by federal statutes to avoid the risk of political reprisal for controversial decisions.
     The statutes allow administrative law judges to be fired only for misconduct, such as “inefficiency, neglect of duty, or malfeasance in office.”
     Justice Department officials are now calling the statutes unconstitutional.
     Administrative law judges preside over hearings on issues handled by government agencies, such as the Environmental Protection Agency and the National Labor Relations Board.
     The Justice Department says the statutes protecting the judges violate Article II of the Constitution, which established the executive branch of government and lists presidential powers.
     “In Free Enterprise Fund v. PCAOB [Public Company Accounting Oversight Board] … the Supreme Court determined that granting ‘multilayer protection from removal’ to executive officers’ is contrary to Article II's vesting of the executive power in the President," says a Justice Department letter to Senator Charles Grassley, R-Iowa, chairman of the Senate Judiciary Committee.
     The statutes that protect the judges from being fired “violate Article II by restricting the President's ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers,” the letter signed by acting solicitor general Sarah M. Harris says.
     The notice appears to be part of a larger Trump administration move to consolidate more power in the presidency.
     Removing protections for the administrative law judges undermines the power of agencies to enforce their regulations.
     It also continues a trend among the Supreme Court’s majority of conservative justices to try to rein in expansive authority by regulatory agencies.
     Last year, the Supreme Court declared the Securities and Exchange Commission's use of its own administrative law judges unconstitutional as they sought to enforce regulations protecting investors from securities fraud.
     The Supreme Court said civil penalties the agency’s judges imposed for fraud violated the Seventh Amendment, which protects the right of citizens to jury trials in civil cases.
     Some business groups argued successfully in a lawsuit that the Securities and Exchange Commission had a conflict of interest because of the advantage it gave itself in litigating cases before its own judges.
     The Social Security Administration has more than 1,400 administrative law judges, more than any other U.S. government agency. Their union is the Association of Administrative Law Judges, which so far has declined to comment on the Justice Department’s letter to Congress.
     The Justice Department said in a separate statement, "Unelected and constitutionally unaccountable [administrative law judges] have exercised immense power for far too long. In accordance with [U.S.] Supreme Court precedent, the department is restoring constitutional accountability so that executive branch officials answer to the president and to the people."
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Kash Patel Begins Overhaul
Of FBI’s HQ and Operations

     Kash Patel is spending his first week as the new FBI director making good on his promise to revamp the agency.
     One of his first moves was to tell his staff that he plans to relocate about 1,500 employees out of the Washington, D.C., headquarters to field offices nationwide.
     About 1,000 would be sent to any of the FBI’s 55 field offices. Another 500 would be sent to a large satellite office in Huntsville, Ala.
     An FBI press statement said, “Director Patel has made clear his promise to the American public that FBI agents will be in communities focused on combating violent crime. He has directed FBI leadership to implement a plan to put this promise into action.”
     The move continues controversy that surrounded his Senate confirmation last week.
     Dozens of senior FBI officials were fired in the first few weeks of the Trump administration. At the same time, thousands of agents who investigated the Jan. 6, 2021 riot at the Capitol face the possibility of layoffs.
     Hours before the confirmation vote, top Senate Democrats held a press conference outside the FBI headquarters to warn against Patel.
     “He is a yes-man for President Trump,” said Sen. Chris Coons, D-Del.
     Patel has served as a public defender, a Justice Department counterterrorism prosecutor and a House Intelligence Committee staff member. During Trump’s first presidential term, he was a National Security Council counterterrorism official and chief of staff to the defense secretary.
     He told the Senate that he would try to return the FBI to traditional crime-fighting, particularly against drug cartels. He planned to de-emphasize the intelligence-gathering and national security investigations that marked much of the FBI’s efforts in the past two decades.
     The vote to confirm him split sharply along party lines with all but two Republicans voting for him. The vote was 51-to-49 to confirm.
     During the confirmation hearing, Patel said he would not fire any FBI agents who were only doing their jobs while investigating allegations Trump incited the Jan. 6 riot. Only agents who used their authority in a way that Republicans say was “weaponized” against conservatives are at risk, he told the Senate Judiciary Committee.
     "There will be no politicization at the FBI," Patel said. "There will be no retributive action."
     Opposition to Patel was fueled largely by his previous inflammatory remarks on social media, in podcasts and in media interviews.
     At one point, he said he would shut down the FBI’s Washington, D.C., headquarters and turn it into a museum demonstrating the evils of politicized law enforcement.
     Patel has promoted conspiracy theories about 2020 presidential election fraud, COVID-19 vaccines and allegations the FBI instigated the Jan. 6 attack on the Capitol.
     His business ventures have included selling pro-Trump merchandise, producing an anthem titled “Justice for All” that supported Jan. 6 rioters and authored a children’s book called “The Plot Against The King” that portrays himself as a wizard defending “King Donald [Trump].”
     Patel is being appointed to a 10-year term. He replaces Christopher Wray, who resigned after seven years as FBI director.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Virginia Examines New Regulations
To Control Data Center Development

     Virginia is in a regulatory tug-of-war that pits the economic development data centers can bring to communities against the potentially harmful effect on some state residents.
     Virginia has the largest concentration of data centers in the United States, particularly in the Northern Virginia suburbs. Their nearness to Washington, D.C., gives the data centers access to the top-tier fiber cabling of the nation’s capital.
     Data centers also generate about $9 billion a year for Virginia. Their revenue is increasing as the growth of artificial intelligence requires more data centers to handle the complex web of digital information.
     They also require huge amounts of electrical energy. So far, the state’s energy resources are straining to keep pace.
     A recent study by the non-partisan Joint Legislative Audit and Review Commission concluded that building the electrical generators that meet data centers’ demand could cost Virginia as much as $18 billion. For homeowners, it means their utility bills would go up an average of $37 a month.
     Data centers also are noisy and encourage automobile traffic, raising concerns by residents of Fauquier, Loudoun and Prince William counties.
     One bill pending in the General Assembly would require data centers to be located at least a quarter mile from homes and parks.
     Another bill would empower the State Corporation Commission to regulate data centers in a way that forces them to pay any additional utility costs rather than putting the expense on consumers.
     Gov. Glenn Younkin is urging the General Assembly to go lightly on data centers to avoid discouraging the industry from locating in Virginia.
     “We should continue to be the data center capital of the world,” Youngkin said during his State of the Commonwealth Address this month.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Lawsuit Settled After Teen Suicide
That Tested School Liabilities

     Recent settlement of a wrongful death lawsuit against a Bethesda, Md., prep school only touched on questions of when a school is negligent in teen suicides.
     It left open allegations by the 16-year-old boy’s parents that Landon School officials ignored warning signs of a mental health problem and took inadequate steps to stop bullying by classmates.
     Maryland courts have tried repeatedly to define a school’s responsibilities since the landmark 1991 ruling in Eisel vs. Board of Education of Montgomery County. It involved the death of a 13-year-old female student in an apparent murder-suicide pact with another student.
     In general, public schools have limited immunity from liability but they lose the protection when their actions are reckless or deliberately indifferent to possible harm.
     In Eisel, the court said schools lose their immunity if a student suicide was forseeable by the school staff and it might have been avoided by warning the parents.
     School officials must take preventive measures if “the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty,” the court ruling said. (Eisel vs. Board of Education of Montgomery County, 1991).
     In the case of Landon School student Charlie Schnell, the problems allegedly reached a crisis point after accusations he drew an image directing violence at Black people and showed it to a Black classmate.
     He was then bullied by classmates, compelling his parents to withdraw him from the school, according to the lawsuit. He committed suicide less than two weeks later.
     His parents said the bullying, along with a journal Charlie wrote that was viewed by a teacher, should have alerted school officials of the need to intervene.
     Attorneys for the school responded by saying, “A plain reading of the statements in [Charlie’s] classroom journal reveals understandable feelings of concern but at no point does [he] state, or even imply, that he was contemplating suicide or self-harm.” They also said the school’s duties ended when the boy left the school.
     At a pretrial hearing, Circuit Judge Louis Leibowitz dismissed the Schnells’ claims of intentional infliction of emotional distress and a violation of Maryland’s Consumer Protection Act. He left intact the claim of negligence, which was headed for a trial in May.
     “To the extent that schools can mitigate youth self-harm, they should,” Leibowitz wrote in his order after the hearing.
     The lawsuit ended with the settlement for an undisclosed amount but did not resolve the latest test of school negligence in teen suicides.
     The case is Schnell v. Landon School Corp.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.