Whatever happens to Deputy Attorney General Rod Rosenstein, he should not resign. If President Donald Trump is determined to oust him, Rosenstein should insist that he be fired rather than leave voluntarily.
That is the case, first, because Rosenstein has done nothing wrong. He has denied Friday’s bombshell allegations that he acted inimically to Trump. We know Rosenstein to be a man of integrity, and any comments about wearing a wire were likely the same sarcasm that was on display in some of his recent televised jousting with Trump’s congressional proxies. We take Rosenstein at his word that he did not seriously contemplate authorizing surveillance of the president or advocate for the president’s removal from office.
Second, by forcing Trump to fire him, Rosenstein would be daring the president to show his true colors. Rosenstein’s termination would, following that of former FBI Director James Comey, mark the second occasion on which the president has fired someone with responsibility for investigating him. Rosenstein’s standing his ground and forcing the president to act would represent the next logical step in his so-far sterling defense of the rule of law.
Third, as Rosenstein is surely aware, the manner of his departure could have a significant impact on Trump’s ability to choose his successor. The Federal Vacancies Reform Act gives the president the power to name any other Senate-confirmed person as a temporary replacement in the event that the holder of a position “dies, resigns, or is otherwise unable to perform” the functions of the office.
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 he 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 Mueller. 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.
We recognize that not everyone agrees with our view that the Vacancies Reform Act excludes firings. In 1999, the Justice Department’s Office of Legal Counsel (OLC) suggested that the legislative history of the statute implies that a firing might constitute “inability to perform the functions and duties of the office.” But the OLC is known for protecting the prerogatives of the president, and in our view, that interpretation runs counter to the language and purpose of the statute itself. The OLC’s opinions are not law, and in this case we think the OLC is wrong.
No one knows how this controversy would be resolved, but Rosenstein has nothing to lose but his pride by forcing the president to fire him. The country, by contrast, may have a great deal to gain. For that reason, Rosenstein should insist that, if he is to be removed, Trump must utter the words he is so famous for: “You’re fired.”
Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School.
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