Judge: ‘Article II’ firings violate separation of powers, civil service law

A federal judge on Monday ruled that the Trump administration’s 2025 firing of former Assistant U.S. Attorney Maurene Comey violated the constitutional separation of powers and federal civil service law, setting a marker ahead of other litigation challenging a rash of so-called “Article II” firings.

Comey, the daughter of former FBI Director James Comey, was fired abruptly in 2025. Though her status as a career federal employee to the civil service protections laid out in the 1978 Civil Service Reform Act and 1990 Civil Service Due Process Amendments afforded her with a rationale for her termination, as well as advance notice, the opportunity to respond and have representation through said proceedings, she was instead removed immediately, for the stated reason of “Article II” of the Constitution.

In her case, the Trump administration has asserted an expansive view of presidential removal authority, in Comey’s case arguing both that the attorney general has unfettered authority to remove federal prosecutors and that a recent Supreme Court decision opened the back door for plenary removal of inferior officers—federal workers with a high degree of power but who are supervised by presidential appointees. Opponents have criticized the latter argument as mistaking “dictum,” a term for when a judge describes something in passing, for precedent.

In a 55-page decision, U.S. District Judge Jesse Furman found that Comey’s removal “indisputably” violated federal civil service law, and ordered the government to furnish five months’ worth of back pay to make her whole for the time between when she was terminated until when she started a new job last December.

“Defendants’ argument that Article II bars Congress from regulating the removal of AUSAs flies in the face of nearly two centuries of Supreme Court precedent, rooted in the text of the Appointments Clause, holding that Congress may generally restrict the removal of ‘inferior officers,’” Furman wrote. “Defendants’ contention that recent Supreme Court decisions have fatally undermined that precedent is not one that this court, as a lower court, may accept. It is also without merit. Indeed, to accept defendants’ argument would be to unsettle the very equilibrium established by this nation’s constitutional system.”

Furman said Comey’s position as a career federal prosecutor falls well within longstanding Supreme Court precedent allowing Congress to restrict the removal of inferior officers and federal employees.

“In short, for nearly two centuries, the Supreme Court has recognized that Congress may, consistent with Article II of the Constitution, regulate and limit the removal of inferior officers,” he wrote. “In fact, the Supreme Court has never in its history found unconstitutional a congressionally imposed restriction on the removal of an inferior officer who answers, as AUSAs do, to a principal officer removable by the president at will.”

The decision in Comey’s case marks the first in a string of cases involving former Justice Department employees that have worked their way through the federal judiciary since last year. Former U.S. Pardon Attorney Liz Oyer sued last month over her own termination, following months of delays by the Merit Systems Protection Board, Jackler v. MSPB involves the removal of immigration judges, who appealed MSPB’s decision to relinquish jurisdiction over their and other Article II firing cases. Oral arguments in the latter case are scheduled for December.

In a statement, Comey’s attorneys—Ellen Blain, Nicole Gueron, Deepa Vanamali and Margaret Donovan—applauded the judge’s decision.

“This hard-earned victory belongs to Ms. Comey, to all civil servants, and to all fighting for the rule of law,” they said. “[This] decision reaffirms our bedrock system of checks and balances: the president is not above the law.”