(WASHINGTON) — The Trump administration could be sanctioned by a federal judge later this week after lawyers with the Department of Justice advised a federal judge Tuesday evening that they will not make a top administration official available for sworn testimony.
U.S. District Judge Charles Alsup had sought to have the acting head of the Office of Personnel Management (OPM), Charles Ezell, testify on Thursday about the mass firing of probationary employees.
But the DOJ said Tuesday that they would not make Ezell available for testimony.
By making Ezell unavailable, DOJ attorneys also withdrew his sworn affidavit, a move that Judge Charles Alsup suggested would heavily increase the odds that the Trump administration loses the case, which involves the legality of firing thousands of probationary employees.
“Live testimony of Mr. Ezell is also not necessary, as a factual matter, because existing documentary evidence and briefing demonstrates that OPM is not directing agencies to terminate probationary employees,” DOJ lawyers argued.
A group of federal unions has alleged that Ezell lied in a sworn declaration that his office did not order the firing of probationary employees based on “performance or misconduct,” prompting Judge Alsup to order Ezell to testify in person and under oath in San Francisco on Thursday.
The Trump administration attempted to push back on the order — arguing in a filing Monday that the testimony raises “fundamental constitutional concerns.”
Judge Alsup late Monday denied their request to cancel the hearing.
“The problem here is that Acting Director Ezell submitted a sworn declaration in support of the defendant’s position but now refuses to appear to be cross examined or to be deposed,” Judge Alsup wrote in an order Monday night.
The plaintiffs allege that on Feb. 13, Ezell convened a phone call with the heads of federal agencies to direct them to terminate thousands of federal employees and “falsely state that the terminations are for performance reasons.”
In a sworn declaration last month, Ezell denied directing the terminations based on performance reasons, instead arguing that OPM only issued guidance to individual agencies about the need for probationary workers to “demonstrate why it is in the public interest” for the government to continue to employ them.
“OPM did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program,’ as the plaintiffs in this matter described it,” Ezell wrote.
The groups challenging the firings in court say that was a lie, and Judge Alsup appeared inclined to agree during a court hearing last month.
“How could so much of the work force be amputated suddenly overnight? It’s so irregular and so widespread and so aberrant from the history of our country,” Judge Alsup said. “How could that all happen with each agency deciding on its own to do something so aberrational?”
“I don’t believe it,” said the judge. “I believe they were directed or ordered to do so by OPM in that telephone call. That’s the way the evidence points.”
The allegations about the mass firings comes as the Trump administration faces increased scrutiny about the role of the Department of Government Efficiency in reducing the size of the federal government. During a cabinet meeting last week, Trump told the heads of the federal agencies that they are in charge of making cuts to their own departments, rather than Elon Musk and DOGE.
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