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:
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.” 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.
The opinion traces a long line of cases that accepted for-cause protection for inferior officers who answer to an at-will principal officer.
In the Court’s reading, the Trump v. Slaughter decision did not change that, as it was limited to principal officers. Nor did Trump v. United States justify the government’s actions. The case referred to the president’s authority being “conclusive and preclusive” in certain domains, but, according to Judge Furman, even the broadest reading of that language would apply to decisions made by the President – not ones made by his appointee, the Attorney General. And the immunity opinion itself did not suggest it was upending centuries of precedent:
[N]owhere in the Trump v. United States opinion did the Supreme Court suggest, let alone hold, that it was overruling two centuries of jurisprudence regarding Congress’s authority to restrict the removal of inferior officers. To the contrary, when the Court referred to the President’s “unrestricted power of removal” — as it did repeatedly — it made clear that it was referring specifically to the President’s power to remove principal officers, such as the Attorney General himself.
Finally, the government raised a concern that, if AUSAs were not removable at will, they could “bind the President and the entire Executive Branch to positions that the President disagrees with through in-court statements or filings.” But Judge Furman noted that “because AUSAs are removable for insubordination, that is a remedy in search of a problem.”
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