Rod Rosenstein Heading To The White House To Secretly Record Getting Fired

Rosenstein looks to be on his way out.

When reports emerged that Deputy Attorney General Rod Rosenstein, the man overseeing Robert Mueller’s largely successful investigation into illicit connections between those close to the White House and Russia, had discussed the possibility of secretly recording the president and invoking the 25th Amendment, it was pretty clear he was on his out. Criminal conspiracies don’t take kindly to snitches in their midst.

In the last half hour, Rosenstein went up to the White House, but it’s unclear if he’s going to resign — under pressure — or get fired. Or maybe he can smooth talk his way out of this, though that seems unlikely. UPDATE: Rosenstein has successfully survived his meeting with John Kelly. Another meeting with Trump himself will take place on Thursday… during the next Kavanaugh hearing.

The distinction actually matters — or at least it would matter if this administration felt any pressure to adhere to the law. When an official resigns, the president is allowed to select an acting successor under the Federal Vacancies Reform Act if the current officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Conspicuously absent from that statute is “fired.” This would give textualists palpitations if textualism wasn’t just a dumb person’s fig leaf for “whatever the current GOP policy position happens to be.” It’s not dissimilar to the crisis of statutory vagueness that transpired after Trump fired Sally Yates as Acting AG and replaced her with Dana Boente even though FISA was written with the explicit understanding that any Acting AG would be selected from a defined line of succession from among a handful of officials that had already been confirmed by the Senate. You know, because the people who wrote that law were really concerned about the second coming of Tricky Dick, blissfully unaware that they were only a few decades away from the first coming of Mushroom Dick. It’s just the sort of mess that happens when powers are laid out in overlapping statutes and regulations.

Still, if Trump does fire Rosenstein and bypass the established DOJ pecking order to fill that slot with Milo Yiannopoulos, it could open up a legal challenge from someone negatively impacted by the actions of such an illegal appointee. In this case, someone like Robert Mueller, who would almost assuredly be fired by any Rosenstein successor with the Oval Office’s seal of approval.

If Trump lets the proper chain of command take its course, Rosenstein would be replaced by Solicitor General Noel Francisco, who thinks Islam is a country. So he might be able to fill Trump’s vision of the job just fine.

In the world of power politics, this is going to play out as the boldest of gambits. A month out of a crucial midterm election, Trump is kicking over a hornet’s nest by explicitly threatening the Mueller investigation and hoping that it turns out more people eager to protect him from the fallout than citizens who view this as the last straw.

Did Shulkin get fired or resign? This is why it matters. [Politico]

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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