Multiple news outlets on Monday morning reported that Rod Rosenstein, the second ranking official in the Justice Department, was soon to be on his way out of the Trump administration. Although White House Press Secretary Sarah Sanders tamped down speculation that Rosentstein's departure was imminent, she said in a tweet soon after the news broke that the deputy attorney general would meet with President Trump on Thursday in Washington. It was not immediately clear whether Rosenstein's job was safe, whether he planned to resign or if he would force President Trump to fire him.
The difference between resigning and being fired is more than a matter of semantics, and could make all the difference in who Trump selects to immediately succeed the outgoing deputy attorney general.
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If Rosenstein were to resign, under the 1988 Federal Vacancies Reform Act, Trump could select any Senate-confirmed appointee across government to serve in the vacant position on an acting basis. The law allows the president to make such a move when an individual “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The law does not specifically dictate what happens when an appointee is fired.
Earlier this year, the administration faced a lawsuit when it appointed Robert Wilkie, then an undersecretary at the Defense Department, to serve as acting secretary at the Veterans Affairs Department. Wilkie’s appointment followed the departure of David Shulkin, who said he was fired despite the White House saying he resigned. VoteVets and Democracy Forward, the advocacy groups that brought the suit, argued that because Trump fired Shulkin, the temporary replacement had to be then-Deputy VA Secretary Thomas Bowman. The parties agreed to dismiss the case after Trump named Wilkie to permanently serve as VA secretary and the Senate confirmed him.
In the case of Rosenstein's departure, the next in line would typically be the associate attorney general. Rachel Brand resigned from that position in February, however, and Trump has yet to name a replacement. That leaves Solicitor General Noel Francisco as the next highest-ranking official, according to guidance issued by then-Attorney General Loretta Lynch in the waning days of the Obama administration. Trump in February of 2017 issued an executive order to change the line of succession at Justice, but it only made adjustments further down the pecking order.
Critics have argued that if Trump bypasses the line of succession after a firing by installing his preferred nominee without the advice and consent of the Senate, he would have violated the Appointments Clause of the Constitution.
When debating the vacancies bill on the Senate floor in 1998, the legislation’s author, Sen. Fred Thompson, R-Tenn., acknowledged the firing contingency. He noted that a court had previously found that the president did not have the wider discretion in appointing a temporary official when he had dismissed the predecessor before suggesting his bill would change that.
“To make the law cover all situations when the officer cannot perform his duties,” Thompson said, “the ‘unable to perform the functions and duties of the office’ language was selected.”
The late Sen. Robert Byrd, D-W.Va., who co-sponsored the measure, offered less clarity. Byrd said the “unable to perform” clause referred to “inter alia” (or, “among other things”) sickness, absence, or expiration of a term.
Max Stier, president of the Partnership for Public Service, told Government Executive when the issue arose at VA that the bill was not written clearly.
“It doesn’t say. That’s the problem,” Stier said. “The language is not specific as to firing, and it raises a doubt.” He added Congress may have been concerned about enabling a president to fire someone as a means to circumvent its advice and consent authority.
The Congressional Research Service said in a report last year that the provisions of the Vacancies Act would be best enforced through a lawsuit.
“Arguably, the most direct means to enforce the Vacancies Act is through private suits in which courts may nullify noncompliant agency actions,” CRS said. “Violations of the Vacancies Act are generally enforced only if a third party with standing (such as a regulated entity that has been injured by agency action) successfully challenges the action as void in court.”
Lawmakers and watchdogs are paying particular attention to how any departure by Rosenstein shakes out, as it could impact who has jurisdiction over Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election. After Attorney General Jeff Sessions recused himself from the probe, Rosenstein took over and named Mueller as special counsel. Democrats on Monday appeared aware of the firing-versus-resignation distinction, asking Rosenstein to hold his ground.
Under no circumstances should Rod Rosenstein resign. This would place the Mueller investigation in even greater jeopardy. Rosenstein should continue to do his job, protect the independence of the DOJ, and if the President intends to obstruct justice, force Trump to fire him.— Adam Schiff (@RepAdamSchiff) September 24, 2018
Enforcement of the vacancies law has come under increased scrutiny in recent years. In 2016, the Office of Personnel Management’s inspector general said President Obama’s acting OPM Director Beth Cobert was serving illegitimately under the FVRA and her decisions were null and subject to court challenge. The Supreme Court brought into question actions taken at the National Labor Relations Board when it ruled in 2017 that Obama had improperly installed as acting general counsel at the agency the same individual he nominated for the position.