Tomorrow Rod Rosenstein and Donald Trump will meet to decide Rosenstein’s future, if any, in Trump’s administration. One compelling interest, which Rosenstein has undoubtedly contemplated, is that while it might hurt his pride to be fired, it is probably in the best interests of the country that he has so well served, to handle the matter that way. Constitutional law scholar Laurence Tribe and ethics lawyer Norm Eisen argue that the manner of Rosenstein’s departure impacts significantly on how Trump can replace him. They argue that the Federal Vacancies Reform Act gives a president the power to name another Senate-confirmed person as a temporary replacement in the event that someone “dies, resigns, or is otherwise unable to perform” the functions of the office to which s/he was appointed — but not if s/he was fired. Washington Post:
Trump has already shown his proclivity for using the law, replacing departed Consumer Financial Protection Bureau director Richard Cordray with loyalist Mick Mulvaney, notwithstanding Mulvaney’s day job as the director of the Office of Management and Budget. We do not doubt that Trump would be even more tempted to do the same at the Justice Department in order to take hold of it, a centerpiece of his complaints about the “corruption” of the “deep state.”
But the statute says nothing about the president’s ability to name a replacement in the event of a firing. Congress certainly could have included the word “termination” in the list of triggers — but it did not, and for good reason. Allowing the president to fire people at will and replace them with whomever he chooses is contrary to the purpose of the statute: to give the president the power to fill vacancies, not to encourage him to create them. Trump intentionally ousting someone confirmed by the Senate for a particular job with someone chosen by his White House also flies in the face of the legislature’s constitutional “advice and consent” role.
Trump might even go so far as to push his new appointee to try to oversee the investigation by special counsel Robert S. Mueller III. Fortunately, that is contrary to department practice of prohibiting “double acting” appointees — that is, an appointee who is both acting attorney general for purposes of the Russia investigation (because Attorney General Jeff Sessions is recused) and acting deputy (because of the Trump appointment to that role). That practice is rooted in Justice’s application of the law that gives the attorney general the authority to set the line of succession within the department.
Tribe and Eisen note that the Justice Department’s Office of Legal Counsel suggested in 1999 that a firing might be construed as an “inability to perform” but it is their legal opinion that it does not. They note that 1. the OLC is known for protecting the prerogatives of the president and 2. more importantly, that that interpretation of the statute runs counter to the language and purpose of the statute itself. Therefore, they think that the OLC is wrong.
This is no small decision to be made tomorrow. But for the bombardment of news generated by the Kavanaugh nomination morphing from squall to tsunami, this meeting with Rosenstein would be the lead story on all media outlets. Do not forget, this issue of firing Rosenstein may have been solely generated for the purpose of deflecting attention from Kavanaugh. It’s been speculated from the beginning that the White House leaked the story to the New York Times for that very purpose. Also remember that Trump had previously said that he would use the revocation of yet another security clearance in the event of a bad news cycle, as a mechanism to direct attention away from where he didn’t want it. That plan appears to have fallen by the wayside because, unfortunately, to the overwrought and overstimulated sensibility of Jane Q. Public these days, a topic which was outrageous to contemplate a month ago now seems trivial, if not downright insignificant.
It will be interesting to see exactly what Trump does in this situation Thursday, with his “very very large brain,” which is so capacious that the Chinese, we are told, not only see fit to comment on it’s size, but they have “total respect” for it. Okay. Business as usual, another belly laugh for Beijing, meanwhile in Washington, our bacon is still burning. And try not to think about the fact that the madman at the stove has the nuclear codes.
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Postponed until next week.