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If Rod Rosenstein resigns or fired could have consequences for Trump, Mueller

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Rod Rosenstein
Rod Rosenstein.
Drew
Angerer/Getty Images


  • Monday featured a number of reports suggesting Deputy
    Attorney General Rod Rosenstein could soon resign or be fired.
  • If he is to depart, the manner with which he leaves his post
    could have big implications for how President Donald Trump is
    able to replace him.
  • That’s because of wording in the Federal Vacancies Reform Act
    of 1998.

A whirlwind Monday featured multiple reports suggested that
Deputy Attorney General Rod Rosenstein would soon either resign
or be fired from his position.

Although neither of those possibilities came to fruition, the
White House announced that Rosenstein and President Donald Trump
will meet on Thursday.

If Rosenstein does soon depart his position, the distinction of
whether it is by his own resignation or Trump firing him could be
crucial to how the president can replace him.

That’s because of how the Federal Vacancies Reform Act — the
statute by which Trump could replace Rosenstein with a
Senate-confirmed official — is written. 

If Rosenstein were to resign, Trump would likely be able to
replace him with anyone who has been confirmed by the Senate. If
Rosenstein were fired, however, it becomes much more debatable.

As it stands, Solicitor General Noel Francisco
is next in line to replace
Rosenstein and oversee special
counsel Robert Mueller and his investigation. If Trump prefers
Francisco to oversee the probe, then debate may stall over the
Vacancies Act. But if he’s not, the wording of the statute will
likely be contested.

The law allows for a president to override the line of succession
when a Senate-confirmed executive branch officer “dies, resigns,
or is otherwise unable to perform the functions and duties of the
office.” The president is able to choose any Senate-confirmed
executive branch official or even some senior staffers at the
specific agency who were not confirmed by the Senate to fill the
void for up to roughly seven months or until the Senate confirms
a nominee to replace the official.

Stephen Vladeck, a professor at the University of Texas School of
Law, wrote in Lawfare that
“although the text of the statute could be read to encompass all
vacancies … there are strong prudential and contextual
arguments militating in the other direction — including that the
purpose of the FVRA is to give the president flexibility to deal
with unexpected vacancies, not to create vacancies himself and
then sidestep existing succession schemes.”

If firings were to apply to the statute, Vladeck wrote that the
president “would have the power not only to create vacancies in
every executive branch office, but to fill them on a temporary
basis with individuals who were never confirmed by the Senate
either to that specific position, or, in some cases, at
all.”

The debate was broached in March after
Veterans Affairs Secretary David Shulkin
departed the agency.
The White House said he resigned. Shulkin made it clear he was
fired.  

The Department of Justice offered guidance on the
Vacancies Act in 1999
that left the door open to a firing
being a valid “vacancy” that could prompt the president to
employ the statute. The Justice Department cited debate on the
Senate floor in which senators said an officer “would be
‘otherwise unable to perform the functions and duties of the
office’ if he or she were fired, imprisoned, or sick.”

News of a possible Rosenstein departure came
after The New York
Times
 and other
outlets
 reported Friday that he
discussed invoking the 25th
Amendment
 and removing Trump from office
in the days the immediately followed the president firing FBI
Director James Comey. Rosenstein also mentioned secretly
recording Trump, The Times reported.

Rosenstein disputed the account, saying it was inaccurate,
adding that “there is no basis to invoke the 25th Amendment.”
A Justice Department spokeswoman told The Times that
Rosenstein’s comment about recording Trump was made
sarcastically.

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