Justice Department says key Trump admin official won’t testify about probationary firings

(CNN) — The Justice Department told a federal judge on Tuesday that the acting head of the Office of Personnel Management won’t testify at a hearing later this week in a major case challenging the government’s efforts to cull the federal workforce, after the judge had rejected a DOJ request to cancel the hearing.

DOJ attorneys said that in order to avoid acting OPM director Charles Ezell from testifying at the Thursday hearing in San Francisco, they are withdrawing a declaration he submitted last month that had served as their only evidence in the case.

“Because the Court’s stated purpose of bringing Mr. Ezell to the hearing was to obtain testimony from him regarding the contentions made in his declaration, Defendants therefore submit that his presence is no longer necessary at any hearing given that this declaration is now withdrawn,” they wrote in court papers.

The declaration from Ezell said that OPM did not “direct” other agencies to terminate probationary employees — the central issue in the case brought by labor unions and others. But the judge in the case repeatedly said that in order for the declaration to remain in the record, attorneys for the plaintiffs would need to have the opportunity to cross-examine Ezell.

The department’s decision to withdraw the declaration comes a day after US District Judge William Alsup rebuffed a request from the government to cancel the hearing – which he previously said he would not do – and quash the subpoenas issued to Ezell and a slew of other officials for either depositions or courtroom testimony this week.

Last month, Alsup ordered Ezell to appear at the hearing. But on Monday, Justice Department attorneys representing the administration took the extraordinary step of asking the judge to cancel the hearing.

“The problem here is that Acting Director Ezell submitted a sworn declaration in support of defendants’ position, but now refuses to appear to be cross examined, or to be deposed (despite, it should be added, government counsel’s embrace of that very idea during the TRO hearing),” Alsup, who sits in the federal courthouse in San Francisco, wrote in a two-page order late Monday.

The situation is the first effort the administration has made to formally try to block its officials from providing sworn testimony. And the case is an important one, testing the ability of the Trump administration to drive its policy for cutting the federal workforce through its central management agency. The judge in the case previously said it would be illegal for OPM to direct agencies to cut their number of federal civil servants with mass firings based on their performance.

The Justice Department had argued, among other things, that compelling Ezell to testify “would pose major separation-of-powers concerns, especially at this early stage of litigation,” and claimed he has “scant evidentiary value” concerning the central issue in the case: whether his agency ordered others to fire probationary employees en masse.

“At bottom, the interests of justice, party resources, and judicial economy do not warrant the creation of an inter-branch constitutional controversy by compelling the acting head of an executive agency to testify in this posture; nor do they warrant a full-blown evidentiary hearing on the existing record,” they wrote in court papers.

The DOJ attorneys told Alsup they would be willing to convert a temporary restraining order the judge issued last month to a preliminary injunction to “allow for a more orderly resolution of the claims and defenses presented in this litigation.”

Such a move would also allow the preliminary injunction to be appealed to the 9th Circuit Court of Appeals. Alsup’s temporary order last month required OPM to inform certain federal agencies that it had no authority to order the firings of probationary employees, meaning those who have been in their positions about a year or less.

Attorneys for the labor groups quickly pushed back on the administration’s Monday request after it was made, writing in their own filing that the government had manufactured a crisis over Ezell’s potential testimony days after Alsup first said he would need to appear at the hearing.

“The Government cannot rely on its own delays to argue that it lacks time to prepare for this hearing,” they wrote. “Nor should it be allowed to relitigate whether the hearing should go forward at all, where the Court made clear that this hearing is necessary to settle the fact dispute that the Government itself injected into this case.”

This story and headline have been updated with additional developments.

CNN’s Katelyn Polantz contributed to this report.

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