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The Trump administration really does not want Charles Ezell to testify in federal court on Thursday. It isn’t hard to guess why. Ezell is the acting director of the Office of Personnel Management, which allegedly ordered the illegal mass firing of federal workers. Yet he swore in a declaration that his agency did not direct these unlawful terminations—a claim contradicted by a growing mountain of evidence. Lawyers representing these workers, as well as the organizations supporting them, therefore want to cross-examine Ezell about his claims under oath. The government objected. Judge William Alsup has summoned him anyway. And it is now an open question whether he will show up.
This standoff vividly demonstrates one downside to the Trump administration’s loose relationship with the truth: Lies tend to fall apart in court. In other cases, judges have responded to the Justice Department’s misrepresentations with scolding from the bench and strongly worded orders that fall short of contempt. But Judge Alsup is now threatening sanctions, significantly ratcheting up the stakes. He appears committed to getting to the bottom of this dispute. So it is no surprise that Ezell doesn’t want to come within 100 miles of his courtroom.
Although he is at the center of a major battle over the federal workforce, Ezell himself is something of a mystery. He served as a mid-level employee at OPM—essentially the government’s HR department—for about five years, focusing on data and analytics, before Trump plucked him out of obscurity on Jan. 20 to place him at the head of the agency. He has given just one public interview during his tenure, to byFaith, “the magazine of the Presbyterian Church in America.” In it, Ezell described a life steeped in devout Christianity, and analogized his rise at OPM to how “Joseph must have felt when he found himself to be second in command in Egypt.” He also described intense public criticism of his actions at the agency, which “forced me to turn to God in ways I’ve never had to before.”
What Ezell did not mention to byFaith is that, as acting director of OPM, he is the face of Trump’s purge of the federal civil service. On Jan. 20, he sent a now-notorious letter ordering every agency to identify all their “probationary employees”—typically, individuals who’ve served less than one year in their positions, including those who were recently promoted. He directed agencies to “determine whether those employees should be retained at the agency,” with the presumption that most should be let go.
On Feb. 14, Ezell attended a call during which agency heads were allegedly instructed to terminate virtually all probationary employees. His office then sent an email to agencies describing exactly how they should go about mass layoffs, providing a template letter to send out (which agencies had limited authority to alter). Multiple agency managers later attested that OPM expressly directed them to terminate almost every “probationer,” sparing only a small number who were “mission-critical.” As one agency told its employees, “there’s no negotiation” and “no limited discretion”: OPM mandated the near-universal termination of probationers, and agencies had no power to push back. As a result, tens of thousands of these employees were unceremoniously booted from their jobs, and tens of thousands more face termination if the program continues.
The problem with this mandate is that it was almost certainly illegal. OPM simply has no authority to order layoffs at other agencies, and has never claimed such a power until now. By law, it has the far more limited role of providing HR-related services to the sprawling federal bureaucracy. So a group of unions and organizations affected by the terminations sued, demanding a halt to the layoffs and the rehiring of workers. In response, the Justice Department offered a startling claim: OPM, it alleged, had not ordered a single firing, but merely offered to help agencies that voluntarily chose to reduce their workforce. To support this assertion, the Justice Department offered a single piece of evidence: a declaration from Charles Ezell, filed under penalty of perjury, stating that “OPM did not direct agencies to terminate probationary employees.”
Judge Alsup didn’t buy it. In late February, he issued a preliminary injunction tentatively finding that OPM had unlawfully mandated the mass terminations and ordering it to stop. He also set an evidentiary hearing for March 13 to sort out the complex factual allegations—most prominently, the debate about whether OPM did, indeed, force agencies to lay off probationers. The plaintiffs, understandably, sought to call Ezell as a witness, seeking to cross-examine him over his declaration. Alsup agreed on Feb. 27, ordering Ezell to attend the March hearing, though he later offered him the option of testifying remotely. The Department of Justice did not initially object. Then, 10 days later, it asked the plaintiffs to accept another OPM employee instead of Ezell. When the plaintiffs refused, the DOJ filed a 19-page objection urging Alsup not to call Ezell. The DOJ lawyers declared that compelling Ezell to testify would “inappropriately intrude on the workings of a coordinate branch of government and pose avoidable and unnecessary separation-of-powers concerns.”
It is, in fairness, somewhat unusual for an agency head, even an acting one, to testify in a civil dispute. But it is also unusual for an agency head to file a declaration in such a case—let alone one that makes dubious factual claims that form the entire basis of the government’s defense. And as the plaintiffs pointed out, it was even more suspect for the Justice Department to proceed as if Ezell could testify, only to reverse itself days before the hearing and announce that it no longer wished to make him available. Moreover, at no point did the government’s lawyers say that he was unavailable or otherwise unable to testify. They merely decided, at the last minute, that they did not want to let the plaintiffs cross-examine him.
Alsup rejected this gambit on Monday. In a sharply worded order, he instructed Ezell to appear at the March 13 hearing. “The problem here,” he wrote, “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 “government counsel’s embrace of that very idea” just weeks ago. “If Ezell does not appear,” Alsup added, “then the Court will have to decide the sanction”—which may include striking Ezell’s declaration, or perhaps something more serious.
It is wise of Alsup to keep his options open. A cynic surveying this evidence might reasonably conclude that Ezell’s declaration did not tell the full truth, and he is now fearful of being exposed by cross-examination in open court. Indeed, ample evidence compiled by the plaintiffs strongly suggests that his prior claims were false. It is noteworthy that Ezell has since revised the notorious Jan. 20 memo to say that agencies have “ultimate decisionmaking authority” over probationers, a statement that contradicts OPM’s previous instructions to agencies. The administration is backtracking in the face of a court defeat. It presumably does not want a key player in the unlawful terminations to be grilled about his own involvement, and subsequent denials, under oath.
But it is much harder to keep the ugly details a secret when a rigorous judge like Alsup has the power to drag you onto the witness stand. Other government officials and employees have already attested that OPM was the ringleader of the purges. It is their word against Ezell’s. If he fails to show up on Thursday, Alsup has plenty of tools to punish him accordingly, including contempt of court. He is not one to take alleged perjury lightly. And in trying to keep Ezell off the witness stand, the Justice Department has only proven why his testimony is indispensable.
