… to concerns of politically motivated firings at the DOJ.
In his ruling Monday, U.S. District Judge Jesse Furman, a nominee of former President Barack Obama, wrote that the Department of Justice "invented a new and expansive theory of executive power" in dismissing Maurene Comey, and violated her constitutional right to due process.
"To accept Defendants' argument would be to unsettle the very equilibrium established by this Nation's constitutional system," the judge wrote.
Grok—
U.S. District Judge Jesse Furman determined the firing violated the Civil Service Reform Act, separation of powers, and due process, granting retroactive reinstatement with back pay; the DOJ plans to appeal.
Was Comey denied due process?
Under longstanding statutory rules and Supreme Court precedent, Judge Furman was correct that Maurene Comey was denied the process the law required.
Comey was a career Assistant U.S. Attorney (AUSA) with roughly a decade of service and consistently outstanding performance ratings. The Civil Service Reform Act (CSRA) generally limits removal of covered federal employees (including AUSAs past probationary periods) to “such cause as will promote the efficiency of the service.” It also requires specific procedural protections before an adverse action: advance written notice stating the reasons, a reasonable opportunity to respond orally and in writing, the right to representation, and a written decision with specific reasons.
The Department of Justice conceded she was not removed for cause or based on performance. She received an abrupt email termination effective immediately, with the sole cited authority being “Article II of the Constitution.” No advance notice, no chance to respond, and no statement of performance-related reasons were provided. That is a clear violation of the CSRA’s requirements. Because the statute creates a protected property interest in continued employment for covered employees, the summary firing without those procedures also violated Fifth Amendment due process.
The Attorney General has statutory authority to remove AUSAs, but that authority is constrained by the CSRA’s for-cause and process rules. Furman held the firing “indisputably violated the CSRA” and was not authorized by any statute. He further rejected the government’s claim that Article II gives the President (or Attorney General) unrestricted, at-will removal power over line prosecutors because they exercise executive authority, finding that argument contrary to nearly two centuries of Supreme Court precedent allowing Congress to regulate the removal of inferior officers and employees.
AUSAs are appointed by the Attorney General and function as career civil servants (or at most inferior officers), not principal officers who turn over with administrations. Longstanding practice and case law have treated them as subject to civil-service-style protections rather than pure at-will status.
The constitutional question is the more contestable part and is likely the focus of any appeal. Strong unitary-executive theories argue the President must have broad removal authority over anyone exercising executive power. Recent Supreme Court decisions have expanded presidential removal power in some contexts (especially independent agency heads). However, existing precedent has long permitted Congress to impose limits on inferior officers and employees, and a district judge is bound by that precedent until the Supreme Court revisits it. Furman’s application of the settled law on this record was straightforward: the process required by statute was not given, so the termination was unlawful on both statutory and due-process grounds.
The ruling does not resolve any First Amendment retaliation claim about motive (family ties to James Comey or perceived politics). It focuses on the undisputed lack of for-cause basis and required procedures. The Justice Department has said it will appeal.
The Department of Justice’s core arguments on appeal will center on a strong unitary-executive reading of Article II, combined with a statutory claim under 28 U.S.C. § 542(b). These were the positions it advanced (and refined) in the district court.
1. Article II gives unrestricted removal power over AUSAsDOJ will argue that Assistant U.S. Attorneys—especially those handling criminal prosecutions—exercise the President’s “conclusive and preclusive” executive powers (investigation and prosecution). Because the entire executive power is vested in the President, officials who wield significant portions of that power must be removable at will by the President or his delegates (the Attorney General). Any for-cause or procedural limits in the Civil Service Reform Act are unconstitutional as applied to these positions. They will heavily cite recent Supreme Court decisions expanding presidential removal authority (notably Trump v. Slaughter, which strengthened control over independent-agency heads) and language from Trump v. United States (the immunity case) about core executive functions. The claim is that accountability for prosecutorial decisions must run to the elected President, not to “bureaucrats” insulated by civil-service rules.
2. Statutory authority under 28 U.S.C. § 542(b)DOJ will contend that the statute (“Each assistant United States attorney is subject to removal by the Attorney General”) authorizes at-will removal with no restrictions. In their view, this provision is not overridden or limited by the later-enacted CSRA’s for-cause and due-process requirements when applied to AUSAs. They previously argued that the Attorney General (or acting AG) could lawfully remove Comey under this authority, and that any later ratification cured procedural issues.
3. No valid due-process claimIf AUSAs are removable at will under Article II (or § 542), there is no protected property interest in continued employment, so the Fifth Amendment’s due-process requirements do not apply. Alternatively, the CSRA’s notice-and-hearing rules cannot constitutionally constrain the President’s removal power in this context.
4. Supporting pointsProsecutorial discretion is a classic executive function that demands hierarchical control.
Accepting the district court’s view would improperly impair the President’s ability to “take Care that the Laws be faithfully executed.”
The district court erred by treating longstanding precedent on inferior officers/employees as controlling in the face of more recent Supreme Court emphasis on presidential control.
DOJ has already stated it “disagrees with this decision and will appeal in due course.” The appeal will go first to the Second Circuit. The constitutional question (scope of Article II removal power over line prosecutors) is the one most likely to attract further review if the case reaches the Supreme Court.
