Judge Lamberth to Kari Lake: No, You’re Fired!

Until the current administration, there were laws in place that protected federal workers’ tenure in office. The upside of such laws is that the country has a cadre of trained specialists who cannot be deprived of their jobs for political reasons. The nation as a whole benefits from federal agencies with institutional memories and a commitment to stability and consistency in the delivery of government services and the enforcement of federal law.

There are downsides, of course. Tenure can encourage complacency and resistance to change. It can make it difficult to steer the ship of state in a new direction. The Federal Vacancies Act is a congressional act that attempts to preserve the power of new administrations to appoint temporary heads of agencies to carry out the new administration’s policies while also limiting executive authority to appoint such temporary agency heads so as to assure some stability within the agencies. After all, the appointment of agency heads is subject to Senate confirmation, and if a President could simply name any person to fill a vacancy, that would violate our constitutional system of checks and balances.

On March 17th, Judge Royce Lamberth ordered that employees of the U.S. Agency for Global Media (USAGM), including Voice of America (VoA) be restored to their positions after they were wrongfully terminated. Over 1000 federal employees placed on administrative leave were to return to work by March 23rd. On March 20th, Judge Lamberth denied the government’s motion to stay his order pending appeal but vacated the March 23rd deadline, accepting the government’s representations that workers could be reinstated at a rate of seventy per week.

As Judge Lamberth explained in his memorandum opinion in the case, Wikakuswara v. Lake, earlier this month, the President announced his intention in December 2024 to appoint Kari Lake (below) as head of VoA. That is not quite what occurred. This administration is as messy as a reality television program. The President removed six of the seven members of the International Broadcasting Advisory Board, which is empowered to name the director of VoA. There was thus no body with the legal authority to appoint Ms. Lake as the director.

On January 20, 2025, Amanda Bennett resigned as the CEO of the USAGM, which oversees VoA. She was replaced by an acting CEO Victor Morales, but Mr. Morales named Ms Lake as his deputy and purportedly empowered her to perform 95% of the CEO’s duties. In just the kind of stranger-than-fiction twist at which this administration excels, it appears that USAGM employees learned of Mr. Morales’ appointment through an email from Ms. Lake. Eventually, Ms. Lake assumed the position of acting CEO, in which she purported to serve from July until November 19th, two days after plaintiffs filed their motion for summary judgment on their claim that Ms. Lake was acting as CEO of USAGM in violation of the Appointments Clause and the Federal Vacancies Act. The government represents that Ms. Lake returned to her role as Deputy CEO on November 19th. The government has not identified the current Acting CEO.

On the merits, Judge Lamberth carefully walked through the Federal Vacancies Act. The Act creates three mechanisms by which a government official can hold a vacant office in an acting capacity without separate advice and consent. First, by default, the “first assistant” of the vacant office automatically becomes the acting principal under 5 U.S.C. § 3345(a)(1). Second, the President may direct a person who serves in an office for which Presidential appointment is required, with Senate confirmation, under § 3345(a)(2). Third, “‘the President may direct an officer or employee of’ the agency experiencing the vacancy ‘to perform the functions and duties of the vacant office,’ but only if that individual served in a senior position in that agency for at least 90 days ‘during the 365-day period preceding’ the occurrence of the vacancy” under § 3345(a)(3).

Ms. Lake had no plausible claims under §§ 3345(a)(2) or (a)(3). However, she claimed that her appointment was legitimate under § 3345(a)(1) because she was Mr. Morales Acting Deputy CEO at the time that he was removed. Judge Lamberth would not allow that reading of the Act. Rather, the Act is best read to permit only the person who was “first assistant” at the time that the vacancy arose to become the acting principal. Ms. Lake was not the first assistant at the time Amanda Bennett resigned.

As a fallback, Ms. Lake contended that she was lawfully empowered to perform duties delegated to her by Mr. Morales, the Acting CEO of USAGM. However, the statute on which she relies empowers the Secretary of State, not the Acting CEO of the USAGM to make such delegations. Again, the Real Housewives of Pennsylvania Avenue just can’t resist plot complications. Marco Rubio could easily have taken some time out from his positions as U.S. Secretary of State, Acting National Security Adviser, Acting Archivist of the United States, and Acting Administrator of USAID to make some delegations of authority at USAGM. But even that would not have been enough, on Judge Lamberth’s reading of the Act, which prohibits the use of general vesting and delegation statutes to ‘temporarily authoriz[e] an acting official to perform the functions and duties’” of a vacant office.

As a result, Judge Lamberth invalidated all of Ms. Lakes actions taken in her purported role as Acting CEO of USAGM, including but not limited to the reduction in force that she implemented in August 2025. On that basis, Judge Lamberth ordered an end to the administrative leave of the VoA employees, who should now be returning to work at a rate of 70 employees a week.

With an utterly supine Congress that has consented to the nominations of people with no discernible qualifications to head agencies, one wonders why the current administration finds it inconvenient to comply with the Federal Vacancies Act. My current pet theory is that it comes down to bullying. The bully lie is a cornerstone of this administration. The point of the bully lie is not to deceive but to control and to demand obeisance. As far back as 2023, the GOP created a new litmus test for political leadership: candidates for leadership positions had to embrace the lie that the 2020 election was stolen. Each new nominee for a position in the current administration, in their confirmation hearings, has refused to acknowledge that Joe Biden was not only sworn into office as the 46th President but was elected to that office. Markwayne Mullin took his turn last week. It takes some special attributes to convey toughness while groveling. Kudos Secretary Mullin.

Most if not all of the people who engage in such election denial in order to gain office know the truth. Joe Biden won the election in 2020. All attempts to prove otherwise have failed. But the bully doubles down if not resisted. He is attempting to bully members of Congress to pass the SAVE Act, also fueled by the bully lie. Members of a party built on laissez faire policies, including free trade, refuse to act to prevent their Dear Leader from imposing new, illegal tariffs. He has started an illegal war and is now forcing members of his America First party in Congress to pretend that they support a war that hurts the U.S. economy and American consumers, in addition to all the carnage abroad. The alternative would have been to seek congressional authorization, which even George W. Bush was able to get twice. But bullies don’t fight when they might lose, and this President does not want to face the consequence of his own unpopularity. A vote on war might well have resulted in a vote for peace.

The bully lie takes many forms. We see it in every White House press conference. We see it in cabinet meetings as the secretaries engage in sycophancy as competitive sport. We see it when Google maps misidentifies the Gulf of Mexico and when media organizations pay bribes in the form of fines or “settlements” and tailor their editorial policies to curry favor with the administration. We see it in university administrations that abandon policies and programs that the administration deems discriminatory. We see it when members of the administration claim that the President has clearly articulated the aims of a war that he has described as, among other things, intended to destroy the nuclear capacity of a foe whose nuclear capacity the President falsely claimed to have completely obliterated less than nine months ago. One amusing form has been the parade of cabinet members wearing ill-fitting shoes chosen for them by the President. The maker of those shoes is somehow beyond the reach of the bully lie. That company is suing the administration for imposing illegal tariffs.

Fortunately, one branch of the federal government is not completely supine. Not all federal courts will recite the bully lie. That’s why election denial failed in court and why election deniers have avoided litigation since courts put their theories to the test and rejected pathetic and unsubstantiated fantasies of election fraud.

Judge Royce Lamberth (above) is a Reagan appointee. he was Chief Judge of the D.C. District Court and President Judge of the Foreign Intelligence Surveillance Court. He is no liberal squish. He is a conservative judge who follows the law. He and myriad lower-court judges in the federal judiciary have served as the unelected guardians of our Constitution and of our democracy. Let’s hope that they can hold out until the GOP gives up on the bully and his bully lies.