//  2/1/18  //  Commentary

As Republicans in the House prepare to “release the memo” about allegedly improper conduct in the Justice Department, there has been speculation that President Trump intends to use the memo as an excuse to fire Rod Rosenstein, the deputy attorney general overseeing special counsel Robert Mueller. After firing Rosenstein, the theory goes, the president could temporarily replace him with a more sycophantic ally, who in turn could restrict or stop the Mueller probe.

But what if the president has no power to replace Rosenstein after firing him—at least not without help from the Senate?

Under the Constitution, the president ordinarily has three options for filling a vacancy in the executive branch: he can fill it with someone confirmed by the Senate, he can fill it while the Senate is in recess, or he can fill it according to the rules of a statute.

One year ago, when President Trump fired deputy attorney general Sally Yates, he replaced her using the third option: a statute called the Federal Vacancies Reform Act. That law says that when a Senate-confirmable officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the president can appoint a replacement on an “acting” basis.

Since Yates didn’t die or resign and since the president replaced her anyway, the president must have believed that Yates was “otherwise unable to perform the functions and duties of the office.”

But it may be a misreading of the statute to say that a person who was fired is “unable to perform” and therefore able to be replaced at will.

To see why, first consider that to be “fired” is not the same thing as to be “unable.” A person can be fired for all sorts of reasons: she might show up to work late, or her boss might not like her attitude. But just because she loses her job doesn’t mean she lacks the ability to do it.

Next consider a related statute, the Presidential Succession Act. That law explains who gets to be president when the office is empty because of “death, resignation, removal from office, inability, or failure to qualify.” Here, “removal from office” is a completely different category from “inability.” It’s also only a few words that Congress could have inserted into the Vacancies Act if it had wanted to.

Finally, consider the Twenty-Fifth Amendment to the Constitution, which makes the same distinction between removal and inability. After the “removal,” “death,” or “resignation” of the president, the vice president automatically gets to be in charge. But if the president is “unable to discharge the powers and duties of his office,” the vice president has to start collecting written declarations first.

Returning to the Vacancies Act, there are a few reasons why Congress may not have wanted to allow the president to unilaterally replace someone he fired. The law was passed in 1998 by a Republican Congress worried that President Bill Clinton, who the same Congress later impeached, was abusing his appointments power. Withholding the power to replace someone who the president fires prevents the president from purposefully bypassing the Senate.

Today offers the best example for why this matters. Rod Rosenstein was confirmed by the Senate only after he pledged to keep an open mind about whether to appoint a special counsel. If the president fired Rosenstein, the Senate would likely expect his replacement to offer similar assurances that he or she would keep the investigation going.

To be sure, the president’s lawyers would almost certainly respond to this reading of the statute by arguing that a person who has been fired has been rendered “unable to perform the functions and duties of the office” by virtue of, you know, no longer having the office. But one might wonder, in that case, why the statute bothers to include the words “dies” or “resigns,” both of which also leave the office unoccupied. A simpler statue would simply say that when an office is vacant, the president can appoint a temporary replacement. 

At the very least, it is not obvious that the president has the power to both fire Rosenstein and replace him at will. He may have to live with Rosenstein—or live with a hearing for his replacement.

Versus Trump: On Flynn, Bolton, and Mary Trump

7/5/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the D.C. Circuit's extraordinary intervention in the Michael Flynn case, and then move on to two lawsuits seeking to block publication of books: John Bolton's and Mary Trump's. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: What Will Happen To Michael Flynn?

5/24/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the extraordinary motion to dismiss Michael Flynn's criminal case. Does the DOJ's logic make sense? And what can Judge Sullivan do if he chooses not to dismiss the case? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Trump vs. The Mainstream Media

4/2/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss cases by the Trump campaign against the New York Times, CNN, and the Washington Post accusing each of these media organizations with defamation (sometimes also called libel). They have a bit of a laugh in explaining why the suits are frivolous, discuss whether the complaints are sanctionable, and debate whether the cases will have a major intimidating effect. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP