On February 20, nearly 7,000 probationary employees at the Internal Revenue Service (IRS) received an unsigned letter informing them of their termination due to alleged poor performance. Trump administration lawyers have maintained that federal agencies, including the IRS, acted within their authority when mass terminations were ordered since Trump assumed office. However, emails obtained by ProPublica reveal that an IRS lawyer had warned that the performance-related language used in the termination letter was false, constituting fraud if retained.
The emails highlight a dispute at the upper echelons of the IRS shortly before the February 20 mass terminations. Joseph Rillotta, a senior IRS lawyer, pointed out that the agency hadn’t evaluated the performance of the probationary employees slated for termination. He urged the removal of erroneous language from the letter, warning that its inclusion would lead to a report being filed with the IRS inspector general.
Despite Rillotta’s concerns, initially unaddressed, he continued to stress that the statement was designed to falsely improve the government’s litigation stance, negatively affecting the terminated employees. He accused the agency of committing anticipatory fraud by including the untrue performance rationale, which ultimately remained in the termination notices sent to the employees. Several recipients, having received positive performance reviews, shared their notices with ProPublica.
Following the terminations, the IRS inspector general began a preliminary investigation. A source familiar with the matter confirmed Rillotta’s assertion that the performance rationale was incorrect. Michelle Bercovici, a lawyer defending federal workers, suggested that these ignored warnings could help plaintiffs prove the terminations were arbitrary and capricious, a necessary legal standard to overturn the actions of a federal agency.
Neither the Treasury Department nor the IRS responded to requests for comment. The Office of Personnel Management (OPM) referred to a memo clarifying it did not direct agencies to make performance-based employment decisions regarding probationary workers. The mass terminations were part of broader federal agency cutbacks overseen by the Trump administration.
Several federal lawsuits have challenged these actions. Recently, federal judges temporarily blocked some terminations. Central to these lawsuits is the legitimacy of the performance rationale. One lawsuit in California alleges an historic fraud perpetrated by OPM regarding the terminations. Administration lawyers have denied that OPM directed performance-based terminations, stating instead that it emphasized the importance of probationary periods for evaluating employees.
Court documents have begun to reveal the administration’s decision-making process. In one affidavit, Traci DiMartini, a senior IRS personnel employee, confirmed that no performance evaluations were conducted for the terminated employees. Furthermore, she noted that the mass-termination letter originated with OPM, and that IRS personnel were not permitted to modify it.
Douglas O’Donnell, the then-acting IRS commissioner, along with DiMartini, declined to sign the termination letter. Consequently, the letter was sent from an anonymous email account, with no official signatures included.
