Why Hampton Dellinger Ended His Legal Battle Against President Trump

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Hampton Dellinger was on his way back to Washington from his Durham home on a Sunday night, making the same interstate commute he had many times while serving as head of the U.S. Office of Special Counsel.

This trip was different, though. Just two days earlier, the Trump administration had informed him in a two-sentence email that he had been terminated “effective immediately,” putting him at the crest of the tsunami of firings, layoffs, and job cuts crashing through the federal government.

As Dellinger drove north on Interstate 85 and then I-95 on February 9, he was weighing an unsettling decision. If he had any chance of keeping his job leading the office that investigates whistleblower complaints about federal agencies and offices, he would have to sue President Donald Trump. “He gave no reason for firing me and the law says the president must have a very good reason, but it’s still daunting, at least for me, to consider suing the president,” Dellinger told The Assembly. “But I knew that if I folded, it wasn’t going to be just about me, it was the end of the independence of my agency.”

With the help of lawyers who had volunteered to help him pro bono, he filed the lawsuit, and U.S. District Judge Amy Berman Jackson found in early March that Trump had exceeded his authority by firing Dellinger. But the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling taking him back off the job. Dellinger ended his legal battle against Trump on March 6. 

Last week, the U.S. Supreme Court handed Trump another victory, allowing the firing of 16,000 probationary employees in six agencies to go ahead while one of several lawsuits challenging that action moves through the courts.

Dellinger, 57, spoke with The Assembly about his time in Washington, his battles with the Trump administration, what’s next for him and more. 

This Q&A has been edited for length and clarity.

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In February 21, you went to the Merit Systems Protection Board, an independent agency that adjudicates employee appeals, and asked that the firings of six probationary employees be halted for 45 days. If successful, you thought you might be able to expand that to challenge thousands more firings. How did you go about that?

We very quickly went before the board on behalf of six federal employees at six different agencies and made our legal argument that they’d been fired unlawfully, and the board agreed with us at least enough to grant a stay to put them back in the job while our investigation continued…I wanted to take a step-by-step approach to bring a couple of cases in front of the board and establish the principle that a few of the firings were unlawful. I knew that these were not unique cases, or atypical factually. So then as soon as we got the first order in our favor, I went back and I went from six to 6,000.

Were you worried about retaliation from the administration?

You know, this takes place over a week or two. I decided to sign the filings by myself with one other senior official because I didn’t want anyone on my staff if I was ousted to be retaliated against for doing their job. And then, the next thing that I was going to do probably the day after…was to go in on behalf of all the probationary employees, which was going to be up to 200,000.

What was it like fighting the president in court while also tending to the duties of your office?

I just want to be able to do my job. I’m always happy for attention to be paid to the work.

But it was like having two full time jobs.

Litigation, even as a client, can be all consuming. And really, all I wanted to spend time on was my official position. So we’re going through and watching these mass layoffs, and so we were doing other things. But I thought the most important thing that we were doing was trying to get people back on the job.

On the one hand, my office had never sought to get thousands of federal employees back in their job. On the other hand, we had never faced a situation where thousands were being fired unlawfully.

You decided to end your legal battle with the president on March 6. Were you worried about losing at the U.S. Supreme Court?

I’m always worried about Supreme Court precedent that could hurt others. I think each case that I’m aware of is unique. These are different laws that have some commonality in language…Each case is different, but when the Supreme Court will decide something, they often speak broadly. And I have enough experience to know that if I cannot win in front of this panel, in front of the three judges I was before in the D.C. Circuit—it’s a panel that ideologically looked like the Supreme Court—I’m an optimist, but I’m also a realist.

Any regrets about dropping your challenge?

Even if I could have imagined winning—and I could, I feel like I should have won—but it was going to be six months, it was going to be a year, and as soon as any judge agrees with the president, for any amount of time, then the independence is lost. I was willing to keep going as long as I could be in office. But once I was put on the sideline I felt like, well, that’s the end of the independence of the agency.

You didn’t get to continue building the case for the probationary employees who lost their jobs. Is the case something that someone else can pick up on?

The legal case was there, I believe it’s still there to be made. 

Is it time sensitive?

Well, I think it is because these are folks who are out of their positions. You know it’s close to 200,000. Many of them do not live in D.C. Federal employees are spread across the country. The vast majority of federal employees—you know there are 2.2 million federal employees in the executive branch—the vast majority of them are not based in the D.C. area. We’ve got more than 50,000 here in North Carolina.

They’re at the [Department of Veterans Affairs]. A huge number work at the VA and for [the Transportation Security Administration] at the Raleigh-Durham airport and the Charlotte airport. They’re working for the [Federal Bureau of Investigation], the U.S. attorneys office. I think we have a Social Security office here. And that’s how it is across the country.

Your dad is the late Walter Dellinger, a former acting U.S. solicitor general. Your mom is the late Anne Dellinger, also a lawyer who spent three decades at the UNC-Chapel Hill School of Government. How do you think they would have reacted to you challenging the president?

My dad would have kept me laughing. He was very funny. My mom, she would have been nervous. It would have been wonderful to have them both, particularly if the case had gone to arguments. Nothing I would have liked more than to have my dad arguing it.

You had several jobs with President Joe Biden’s administration, in the U.S. Justice Department as head of the Office of Legal Policy before leading the agency that investigates whistleblower complaints. How did it all come about?

I had some interest in being a U.S. attorney in North Carolina, but there were other great candidates. I was volunteering for the Biden transition team, and they said at some point, ‘Would you be interested in heading up the Office of Legal Policy?’ Which I decided yes, even though it was a little different because I had always been a litigator and that’s a position where you don’t litigate.

One of the things the Office of Legal Policy does is recommend candidates for federal judgeships. While you were there, the Biden administration put forward the nomination of Ketanji Brown Jackson, the most recent Supreme Court justice. What was that like?

Well, the key is not to miss anything. She had been vetted once for the District Court before I got there. I didn’t start until October 2021. So I wasn’t involved in her initial vet, but I did assist along with many others involved with the vetting for the Supreme Court. And she appeared as she has been, just a brilliant jurist.

Ryan Y. Park, North Carolina’s solicitor general, was one of the former president’s nominations to the U.S. Fourth Circuit Court of Appeals. Republican Sen. Thom Tillis blocked that nomination. Any thoughts on that?

Well, that is frustrating. I think it was a mistake for Sen. Tillis to oppose Ryan Park.

I know Ryan Park’s work firsthand…I think he’s arguably the best lawyer in his generation in North Carolina, and there was no reason for Sen. Tillis to deny him a seat on the Fourth Circuit.

What’s the vetting process like?

You need to find everything. And I did make a commitment to the judiciary committee that there’s no litmus test and I would look to find everything. My office coordinated the FBI background checks and everything we found we made available to the White House and the Senate Judiciary Committee. 

…So what that means, as a practical matter, is you’ve got to find and read everything they’ve ever published, including social media. And we did have an incredible group of both young attorneys and law students who I found particularly adept at finding judicial candidates’ social media footprints.

…The other thing that it is important for people to know is we would call 20, 25, 30 different attorneys and judges about the candidate. So we would speak to their co-counsel. We would speak to their opposing counsel. In a number of cases, we would try to speak to the judges that they appeared before…Ultimately, this was the president’s decision and he had a White House team, but I was able to weigh in on occasion, which I appreciated.

After Biden’s performance in the debate against Trump last summer, questions arose about his mental fitness. Did you see evidence of any decline?

I had so little contact with him. I spoke to him once after my father passed, but I didn’t have a sense of that.

I do think, as a parent, I think every parent worries about their kids a lot. I don’t really know Hunter Biden either. But I’m sure as the years went by and his son had his thing, it’s got to take a toll on him.

Has the judicial system become too politicized?

I can’t say whether or not it’s political. I just disagree with this idea that the president is king. I’m not a constitutional scholar, but my understanding of the framers of our Constitution is they were reacting against a king, and I think the last thing they would have intended was to have a king with a different name and to call him president. So what I have seen is a long-term movement of deference toward the executive branch that I don’t think is compelled by the Constitution. And I don’t think it’s serving our country well.

You’ve had a varied career. You also have written articles for various magazines and news publications. Is there a book in the works? What’s next for you?

I do not know…What I know best is practicing law. 

Do you think you might want to try your hand at politics again?

I do not know.

So you’re not ruling it out? Has anybody asked if you want to run against Tillis in 2026?

I just see what other people see.