The Trump legal world is simply bizarro. Judge Boasberg has asked for more definitive information regarding when immigration flights took off from Harlingen, Texas airport on March 15. The question is critical to whether the Trump administration deliberately violated Judge Boasberg’s orders. Judge Boasberg’s request came after a hearing on March 17 in which DOJ obfuscated that very question.

Now, Attorney General Pam Bondi has publicly stated that the Judge is seeking “immaterial” facts. See CBS news report here. “Immaterial” refers to factual matters which do not make a difference. AG Bondi is lecturing the Judge on what he thinks is important. This is the bizarro Trump legal world in which we find ourselves. The perceived needs of the Judge no longer carry any weight. It is simply bizarre that the concerns of the Judge who must decide the matter do not count. After 30 years of litigation, I have just never heard a responsible lawyer lecture a Judge on what he ought to consider important.

The Department of Justice essentially refused to provide the Judge’s requested information by the deadline on March 19. So, Judge Boasberg has given DOJ an additional day to provide that information in a sealed pleading. There is no apparent reason why the administration would refuse to provide that information. A sealed pleading is just that – sealed. No one would see it other than the Judge.

The Attorney General sounds more like a campaign spokesman than an AG. The proper recourse for disagreement with a judge is appeal. Campaign propaganda does not serve her purpose.

There are few things a lawyer can say in court more offensive than “your verbal orders” do not matter. Yet, that is essentially what a DOJ lawyer, Abhishek Kambli, told Judge Boasberg in court. On Saturday, two or more planes left the U.S. with alleged Venezuelan refugees. The planes left about 5:30 p.m. just as the hearing with Judge Boasberg was starting. (It is exceedingly rare for a Judge to hold a hearing on a Saturday). In his ruling from the bench on Saturday, March 15, the Judge specifically told DOJ that any planes in the air should turn around and come back. But, the planes that were in the air did not turn around and come back. They landed in El Salvador well after the Judge ruled from the bench. See CBS news report here for more information.

Minute Entry

So, the Judge scheduled a hearing for Monday, March 17. At that hearing, Judge Boasberg asked Mr. Kambli what happened. Apparently with a straight face, Deputy AG Kambli said the Judge’s verbal order to turn around any planes did not appear in the Judge’s written order. Incredulous, the Judge asked:

“You’re telling me your first argument is when I said those things, because I didn’t say it in a minute order that the plaintiffs didn’t have to turn around, you didn’t have to comply?” Boasberg said. “You’re saying that you felt you could disregard it because it wasn’t in a written order?”

The Judge was referring to the minute entry entered by the District Clerk. The minute entry is prepared by the Judge’s clerk. It is never anything more than the clerk’s summary of what occurred during a particular hearing. Any first year lawyer would know the minute entry is a summary and not intended to be a verbatim citation of what the judge said. Even so, if a lawyer does not understand a verbal order and how it comports with the minute entry, ignoring them is not the preferred response.

The Judge asked a good question, by about 8:00 a.m., the lawyers for both sides knew a hearing had been scheduled for later that day on March 15. Yet, DOJ scheduled these two flights for later that day at about the time of the hearing. Why?

Tense Hearing

Not surprisingly, the March 17 hearing was tense. The DOJ lawyer was clearly obfuscating. He said he could not discuss operational details about the flights. But, the Judge holds CISA hearings. He has access to a secure facility to hear classified information. Still, Mr. Kambli demurred and declined the offer. The Judge also asked whether information about the flights were classified. It does not strike me that such information ought to be classified. But, even so, the Judge has access to a secure facility.

Judge Boasberg noted, of course, that the appropriate response to a judge over-stepping his authority is an appeal. He concluded the hearing with a request for a sworn statement from a witness by noon, the next day explaining when the flights left and what happened.

Karoline Leavitt, the Press Secretary, posted on X/Twitter that there was some question whether a verbal order carried the same weight as a written order. No,. there is not. And, everyone in that courtroom on March 15 knew that a Judge’s verbal order must be obeyed.

There are few things I can think of that compare to a lawyer in court telling a Judge to his face that his verbal orders did not matter. Mr. Kambli could not have offended the Judge more if he had told Judge Boasberg to go jump in the lake. It is an unbelievable thing to say in court. That Mr. Kambli is also a Deputy Attorney General makes this series of events all the more incredible. It is fair to ask if the current Department of Justice supports the rule of law.

The Judge hearing a lawsuit filed against six Federal agencies asked specifically to hear from the head of Office of Personnel Management (OPM). Charles Ezell had submitted an affidavit and the Judge wanted to see him questioned. This all started a few weeks ago when OPM issued an email firing hundreds of probationary employees. So, on March 13, when DOJ did not produce that head of OPM for a court hearing, the Judge remarked, as he should:

“You will not bring the people in here to be cross examined. You’re afraid to do so because you know cross examination would reveal the truth.”

It is a fair conclusion that when a party to a lawsuit does not bring to court a witness previously requested, that that party is hiding something. DOJ did not bring to court a witness previously requested. Any judge in the country would be suspicious of such a failure.

So, it is not surprising that Judge Alsup then ordered that all the probationary employees – teens of thousands – be reinstated by those six agencies. See CBS news report for more information.

OPM Not in the Supervisory Chain-of-Command

The problem DOJ ran into was that OPM terminated these probationary employees. But, these probationary employees did not work for OPM. They worked for six other agencies. Pres. Elon tried to fix that issue last week by sending out another OPM email saying OPM’s original email was simply a “guideline” to those six agencies. OPM did not actually fire anyone. But, of course, the language in OPM’s original email was clear. It was firing employees at six agencies, Veterans Affairs, Department of Defense, Agriculture, Energy, Interior and Treasury. OPM almost certainly has no authority to fire non-OPM employees.

Judge Alsop was also offended by the manner in which these workers were fired. The OPM email said they all suffered from poor performance. But, in most cases, these workers all had positive reviews or no reviews. OPM used that language to avoid the requirement of a Reduction in Force (RIF). Firing these probationary employees was a clumsy effort to fire Federal workers quickly and thereby avoid the 60 day requirement for an actual RIF.

The National Labor Relations Board hears complaints regarding union members. But, it also has jurisdiction over complaints by non-union member who discuss conditions and terms of employment. Early in February, Pres. Trump fired the Chairman of the NLRB, Gwynne Wilcox. I wrote about that odd termination here. It was clearly an unlawful termination. The pertinent statute requires that board members be terminated for good cause. Well, a Judge decided that her termination violated the National Labor Relations Act. The Judge specifically pointed to Trump’s post a few weeks ago depicting himself as a king. Judge Howell said a President is not a king. See CBS news report here for more information.

In her order, Judge Howell pointed to the government’s “hyperbolic” argument that allowing checks on executive power amounted to “extraordinary intrusion” on executive power. The government’s remark is both troubling and incorrect, said the court. As the Judge rightly pointed out, the U.S. Constitution is replete with checks on executive authority. See her order here.

Prior to this termination, no president had ever terminated a member of the NLRB board. The President may be seeking to appeal this issue to the U.S. Supreme Court, so he can challenge long-time precedent regarding these semi-independent agencies.

Among co-Pres. Trump’s many firings, he also fired the Chairperson of the Merit Systems Protection Board, Cathy Harris. Ms. Harris sued and was granted a permanent injunction. The Judge wrote a lengthy opinion, finding that The President cannot fire members of the MSPB board without cause. The members of the board enjoy a prescribed term – set by statute. The President cannot change an act of Congress.

It is fortunate that Ms. Harris will return to the Board soon, because Pres. Elon has fired so many federal workers without cause that they all also enjoy appeal rights to the MSPB. See The Hill news report here. The Trump administration has lost most of the lawsuits brought against it for these unlawful firings. It makes one wonder what their plan is. The administration had to know these firings are on shaky ground. One theory is that the administration is pursuing a fringe theory known as the “Unitary Executive.” Under this view of the chief executive, the President should enjoy unfettered right to run the entire executive department as he sees fit. Congress, however, has created a great many semi-independent agencies. The MSPB is one of those semi-independent agencies. The theory is that the Trumpistas believe they can appeal these firings to the U.S. Supreme Court and prevail. We will see.

On Saturday afternoon, Pres. Musk sent an email to all or many Federal workers. His first email said all employees will receive an email soon. Failure to respond to that email will be seen as a resignation. Then came a second email asking all Federal employees to reply with a description of what they accomplished at work last week. The reply is due Monday at 11:59 p.m. Pres. Elon sent both emails Saturday afternoon. Both emails were sent short;y after co-Pres. Trump posted that Elon should become more “aggressive” with the Federal workforce.

It is exceedingly strange to send an email to all your employees on a Saturday afternoon. Too, what could Pres. Elon possibly do with that information. He will have no understanding if their stated accomplishments amount to anything or not.

Salary Employees

Most Federal workers are paid salary. So, demanding that they work on the weekend is not onerous and not necessarily violative of any laws. If your boss calls you or texts you on the weekend, he is in effect asking you to work. For hourly employees, that employee would need to be paid for that time. But, for salaried employees, this is why they are paid salary – so they can work a little extra on the weekend.

But, to email something so trivial, so amorphous to hundreds or thousands of employees on the weekend is just strange.. This sort of act suggests Pres. Elon – and by extension Co-Pres. Trump – seek to inflict some cruelty on Federal employees. Placing hundreds or thousands of employees in fear for their jobs for no apparent job need is cruel. Pres. Elon and – by extension co-Pres. Trump – really do appear to be trying to force Federal workers to quit. The is the strangest conduct. See The Hill news report here for more information.

Implied Consent

And, could an employer infer resignation from a lack of response to an email? I have been practicing some years. I have never heard of a scenario in which any agreement could ever be inferred from lack of a response. It is a truism in contract law that silence does not equal consent. It would be a strange world indeed in which we could make contracts based on silence. Could Jerry Jones tell Dak Prescott that this year, he will pay Dak only $10 for the entire year – unless he replies by 11:59 p.m.?

Indeed, can we even make agreements based on one email? What if a Federal employee emails a response to Pres. Elon, but it is not received? Not every email reaches its destination. Many workers do not check their emails over the weekend. How can Pres. Elon be sure every Federal worker will see the email in time? In the end, cruelty seems to be the point. We have never had a co-President before. And, we have never had a President or co-President who seek to deliberately cause fear and panic among his employees.

Affirmative Act

The good folks at Gilbert Employment Law say that under current MSPB precedent, an Agency cannot impose a resignation on an employee. There must be some affirmative act the employee that indicates an intent to resign. “Under precedent, a resignation requires an affirmative act by the employee expressing their desire to resign, communicated to a responsible official (that is, the employee’s supervisor).” See The Gilbert Employment blog on this same subject here.

The war on Federal workers continues. After the “Fork in the Road” email, the Musk/Trump next step has been to fire probationary employees. One estimate holds that there are 200,000 workers in their first year of Federal employment, making them probation employees. Many termination emails have been issued. A regular Federal employee can appeal any termination to the Merit Systems Protection Board. The MSPB will hear appeals for terminations that are not based on good reasons.

“Partisan Political Reasons”

But, what about probationary employees? They have some protections as well. The non-profit known as Protecting Democracy has put together a paper explaining the rights available to probationary Federal workers. Federal workers on probationary status may not be fired due to “partisan political reasons” or marital status. Such an appeal must be filed within 30 days of the firing. Many of the terminations so far are based on alleged poor performance. If that allegation can be rebutted and if the probationary employee can show partisan political reasons for the firing, they may have some success. Given the overtly political nature of all these terminations, there may be good basis for an appeal.

The challenge for the employer will be to show these terminations were due to some financial need. At least so far, no such financial or budgetary motivation has been articulated. And, many of the termination emails actually allege poor job performance, not budgetary needs.

A probationary employee can also pursue the normal complaint process with the Office of Special Counsel available to all Federal employees. S/he can also seek remedies through any collective bargaining agreement. First Amendment protections might be available if a worker was fired for perceived political expression. See the Protect Democracy website here for more information.

No lawsuit or appeal will pay the bills. But, it is important that federal workers understand their legal position.

Pres. Trump issued an executive Order which forbids “illegal DEI.” Executive orders only have binding, legal effect for the Executive branch of the U.S. government. But, EO’s often have general influence throughout American society. What is or what might be “illegal DEI”? That phrase likely stems from the U.S. Supreme Court’s decision in Students for Fair Admission v. Harvard College, 600 U.S. 181 (2023). In that decision, the Supremes found affirmative action policies at universities to violate the Equal Protection clause of the 14th Amendment to the U.S. Constitution. The Equal Protection clause forbids discrimination based on race or ethnic origin in matters of contract. Matters of contract include anything regarding written agreements such as school admissions, employment, etc.

Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment. Title VII applies to race and national origin, and also to religion, age, gender, and disability. The SFA decision followed the decision in Grutter v. Bollinger, 539 U.S. 306 (2003), by just 20 years. The Grutter decision specifically approved of racial preferences, so long as they had some time limit. That is, racial preferences could not last forever. And, cautioned Grutter, racial preferences could never become racial quotas. The Grutter decision spoke approvingly of the benefits for a racially diverse student body. The SFA decision discussed Grutter, but did not overrule it. It is still good law.

Racial Preferences

So, if SFA did not deviate from approval of racial preferences, what did it do? The SFA decision said the racial preferences used by Harvard and University North Carolina were too attenuated from its stated goal of training future leaders in society. There must be a tighter connection between racial preferences and the goals of those preferences. In layman’s language, that means if you use racial preferences, you need to have a very good and clear reason.

So, now we have a new administration that is determined to rid the world of Diversity Equity and Inclusion. DEI was the answer, sort of, to affirmative action deficiencies. Title VII still exists. The Equal Protection clause has not changed. Title VII expressly forbids hiring based on race and the other protected categories. A person cannot hire a white person based on the color of his skin, just as an employer cannot hire a black person based on the color of his skin.

DEI

DEI can be anything an employer wishes it to be. But, if DEI means hiring criteria, then that would violate Title VII. In the interests of helping disadvantaged communities, some companies have established internships, mentor programs and fellowships that expressly favor minorities. Programs such as those might violate Title VII. They very likely would violate Pres. Trump’s EO.

As Justice Thomas noted in a concurrence to SFA, merely “helping” disadvantaged minorities inevitably harms the majority population. Justice Thomas also believes that Grutter is effectively overruled by the SFA decision. Justice Gorsuch also notes that allowing preferences or a “plus” inherently means treating a minority person differently than other populations. So, concludes Gorsuch, that amounts to discrimination.

One Concurrence by One Justice

So, if Grutter is overruled, no one explicitly says so. A concurrence by one judge is not law. A “plus” for race or some other category is still lawful. But, the new EO still says what it says. Some experts say that any program that is exclusive is what the administration would say is illegal. As one such expert, Craig E. Lee, partner at the law firm, K&L Gates, described the situation. So, internships, mentorships, and fellowships that are aimed at minorities are out. Edward Blum, one of the attorneys for the plaintiff in the SFA case has now been contacting large law firms to broaden their programs which had focused on minorities. He clearly believes some DEI programs are no longer lawful. New York Times, Feb 11, 2025.

But, DEI, as practiced by the Federal government does not include fellowships and internships. DEI, as practiced by the Federal government, is strictly outreach. They market employment opportunities to minority groups, such as historically black colleges. Does that sort of DEI also violate the new EO? Perhaps. Because sometimes, the law is not what the law actually is. But, what the new administration says it is. See the SFA decision here.

The Office of Special Counsel has not done much for me or my clients in the past. But, it is always there as a backstop. The OSC receives and investigates whistleblower claims submitted by Federal workers. They are typically overwhelmed with too many complaints and not enough investigators. Which is probably why they were not helpful to my clients in the past.

But, most Federal workers are aware of the office. The office has done much to prevent fraud, waste and abuse in Federal government. But, because the office protects whistleblowers, Pres. Trump wants to protect himself from the OSC. So, he fired the person who headed the office, Hampton Dillinger. Mr. Dillinger was still in his first year of a five year term.

Merit Systems Protection Board

Like many of co-Pres. Trump’s other firings, the head of the OSC may only be fired for cause. Mr. Dillinger has solid grounds for appeal. But, Dillinger has not bothered with an appeal to the MSPB. He filed suit seeking a temporary restraining order on this unlawful termination. Good for him. But, unfortunately, this probably means a super busy office will lack direction for a good many months. Lawsuits typically last months, if not years.

When even the OSC becomes a political football, all Federal workers are in peril. See The Hill news report here for more information.

Note: late on Feb. 10, 2025, Judge Amy Herman Jackson issued a stay allowing Mr. Dellinger to remain in his position until a permanent hearing can be held.

Upon assuming office, Pres. Trump has been on a tear. He fired a member of the NLRB commission and its general counsel, both appointed by former Pres. Biden. Trunp fired Gwynne Wilcox, saying she was “far left” with a “radical record.” Long-time practice had been that the Democrat and Republican members of the Board would remain on the Board until their terms expired – even after a change in administration. That practice led to Boards that were relatively bipartisan. This is the first Board member to ever be terminated from the Board prior to expiration of their terms – since the creation of the NLRB in 1935.

Ms. Wilcox has indicated she will pursue all legal remedies after her removal. Those legal avenues likely will include re-visiting the 1935 Supreme Court decision in Humphrey’s Executor v. United States., 295 U.S. 602.

Federal Trade Commission

That decision stablished that Congress can prevent a president from removing a member of the Federal Trade Commission without cause. In effect, the decision removed the FTC from terminations based solely on politics. The National Labor Relations Act established the NLRB. That statue provides that members of the NLRB can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 

But, some conservative lawyers believe that some Supreme Court justices have indicated interest in re-visiting the decision in Humphrey’s Executor. One argument is that the statute creating the FTC requires a political balance. That same requirement is not found in the NLRA. And, in 2020, the Supreme Court ruled in Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 207, that Congress cannot impose a cause requirement for removing the head of the Consumer Financial Protection Bureau. That court distinguished Humphrey’s Executor on the basis that the CFPB was headed by a single director. While, the FTC was governed by a board.

Even so, the administration cited Seila in its letter firing Ms. Wilcox. Ms. Wilcox has filed suit to seek reinstatement. It was nice of Pres. Trump to make it so clear that she was fired due to politics. No one can say the Trump administration does not provide plenty of work for lawyers.