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If Rod Rosenstein is on his way out, exactly how it goes down could have major consequences for how Trump can proceed

Matt Linden

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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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