Separation of Powers

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In an opinion yesterday, Judge Furman held that the summary firing of former AUSA Maurene Comey was unlawful. He rejected the government’s argument that Article II bars Congress from protecting federal prosecutors against at-will removal (see our prior coverage here).

Comey was terminated in July 2025 by a one-page memo citing only “Article II of the United States Constitution and the laws of the United States.” She received no notice, no reasons and no hearing. The decision was made by then Attorney General Pam Bondi.

The government conceded that the Civil Service Reform Act’s for-cause and procedural protections cover AUSAs and were not followed. Its defense was that those protections are unconstitutional as applied to criminal AUSAs. In its view, Trump v. United States (the presidential immunity decision) places criminal prosecution within the President’s “conclusive and preclusive” power, and Trump v. Slaughter (which held that the President could replace agency heads and other “principal officers”) allows for no constraint on executive branch officials like Ms. Bondi exercising that power.

Judge Furman disagreed:

Continue Reading Judge Furman: Article II Does Not Allow AUSAs To Be Fired At Will

In an opinion yesterday, Judge Furman allowed former AUSA Maurene Comey to pursue her wrongful termination claims in federal court, denying DOJ’s argument that the claim belonged exclusively before the MSRB. Comey’s main allegation is that she was fired because her father is former FBI Director James Comey, a political foe of President Trump. Comey was told that she was being fired under Article II of the Constitution, without further explanation.

Judge Furman ruled that the governing statute does not channel all disputes over civil servant firings before the MSRB but only those “taken ‘for such cause as will promote the efficiency of the service.’” 5 U.S.C. § 7701(a). Comey “was not removed ‘for such cause as will promote the efficiency of the service,’” but, “[i]nstead, Defendants cited one and only one reason for her removal: Article II of the Constitution.”

Judge Furman noted that this result may or may not be consistent with the underlying Congressional purpose to create uniformity for personnel actions. But, he added, this “gap” may be explained by the fact that Article II firings were not, until recently, “a thing”:

Continue Reading Judge Furman: New Practice Of “Article II” Firings Can Be Challenged In Federal Court Instead Of Before MSRB

The Supreme Court yesterday granted certiorari in a case raising the question of whether Congress’ passage of a law pertaining to the seizure of Iranian assets violated separation-of-powers principles by effectively directing a particular result in a single Southern District case.  Judge Forrest cited the law in ordering the seizure of $1.75 billion in Iranian…