Can Trump fire Fauci? Technically not

“I have a very good relationship with Dr. Fauci, I have had it for a long time,” Trump said at the White House during a round table in honor of police officers. “I think he is a very nice person. I don’t always agree with him.”

Under federal law, Trump does not have the power to directly fire Fauci, a career official, and remove him from the government. And while Trump could try to order his political representatives to remove the director of the National Institute of Allergy and Infectious Diseases, Fauci could appeal, a process that takes a long time.

CNN spoke to Max Stier, the president and CEO of the Partnership for Public Service, about the history of the federal government’s protections for public officials and what could happen if Trump tried to go ahead with that movement. The conversation, done over the phone and lightly edited for flow, is below.

CNN: The tension between the president and Fauci has increased in recent weeks and days. Could Trump fire Fauci and how would he look?

EM: TThe President could not fire Fauci without cause. There are civil service protections for federal career employees that prevent them from being removed or demoted for political reasons.

CNN: When you say political reasons, what does that mean?

em: I will give a little history because it is interesting and actually dates back to 1881 when President James Garfield was assassinated by an aspiring job seeker.

We had a loot system that had dominated the government’s employment base and it didn’t work. There were people who came to positions of public importance who were not there because of their ability, but because of their political connections and in a notable change, then Vice President Chester Arthur, who was a product of that loot system, supported the legislation: the Pendleton Civil Service Reform: That changed the rules of the game and professionalized the government employee base.

And he started a long process to make it more and more based on merit. And part of the result of that assassination was a set of rules that does not allow political leaders to remove or demote career officials without justification. And the justification has to do with poor performance or non-compliance with orders. And then there is a process that must be followed even if there are reports of performance problems or misconduct, and that process requires written notification and an opportunity to respond.

So, the President could not in this context be able to shoot Dr. Fauci in the basis of not liking what Tony Fauci had to say.

CNN: So it seems like there are quite a few protections separating you from, say, a Trump cabinet election that the president could fire through a Tweet.

EM: Exactly correct. A political representative confirmed by the Senate serves at the pleasure of the President. Therefore, the President can actually fire a designated high-ranking political official for any reason.

CNN: If Trump tried to eliminate Fauci, could you analyze what it would be like? Would I have to go through the Secretary of Health and Human Services, Alex Azar?

EM: The President of the United States could not directly fire a career official. They would have to go to someone in their chain of command. So in this case, you would have HHS Secretary Alex Azar or Director of the National Institutes of Health Francis Collins, who might add that he is an extraordinary public servant. And Fauci was one of his mentors when it started.

Therefore, it is worth noting that the NIH is not only an amazing, best-in-class scientific organization in the world, but it is almost entirely a career-led organization in government and is therefore unusual in that regard. There is hardly anyone who is a political candidate and when you have someone, they are people like Francis Collins, who is a world-class scientist.

CNN: OK And even if someone in the chain of command were willing to fire Fauci, there are channels for him to appeal?

EM: That’s right. Therefore, he would first have to be given notice of what the charge was. It would have to be misconduct or not following orders or whatever. Then you have the opportunity to respond. And if the decision to fire him was still made, he could go to the Merit Systems Protection Board and ultimately a court to claim that he was fired in violation of civil service rules.

Now obviously we’re talking about firing him. Clearly, the President, even if he cannot fire you for any reason, can put you aside. You do not have to listen to his advice, you do not have to include him in the working group or allow him to be fundamentally decisive. That is a choice that the president or other high-ranking political leaders could make.

CNN: It seems Fauci goes through a long process if removing it it’s something the White House wanted to try.

EM: Can be. And again, the individual, the employee, has to be willing to take on that process.

But there are process protections to avoid instances in which employment is politicized. And again, it goes back to the root of an acknowledgment that you want to have a merit-based civil service to make sure that Americans have the best decisions made by their government. You want to have a group of professionalized and expert people in charge of public import matters for these kinds of circumstances that we find ourselves in today when we face incredible crises.

I think a useful reminder is that Anthony Fauci has led the NIH infectious disease component since 1984. And has been serving presidents throughout that time with expert advice.

And it is one of the ways that our government is extraordinary. You don’t find Tony Faucis in many places in this country or in the world. It is considered a gem in science circles that are now quite central to our security.

CNN: It is striking how Fauci’s reputation has become a political asset to him. There are real political consequences for Trump for neglecting Fauci given the trust the American people have placed in him.

EM: It is a very important point and we must also consider it because there are many people who have the equivalent capacity in the federal government, but there are very few who have that mark of trust with the American public.

Therefore, the rules can provide a certain level of protection, but fundamentally the most important protection is the appreciation of the American public of the value of a merit-based system. And if you lose that understanding and appreciation, then you can get leaders who can work the system in ways that were not intended, or that can severely damage it.