#8: Faithfully Fire the Unfaithful?

Blog Post #8

Since before the beginning of the Trump presidency, the FBI has been investigation whether and how the Russian government interfered in the 2016 election. For some background, make sure to read this timeline from factcheck.org. Part of the task of this investigation is to determine whether there was collusion between the Russian government and the Trump campaign.

Early on, Attorney General Jeff Sessions recused himself from the investigation. For the purposes of this investigation, then, Deputy Attorney General Rod Rosenstein became the point person. Soon after, Rosenstein appointed Robert Mueller as special counsel to carry out the investigation, which as of this writing is still ongoing.

In late September of 2018, the New York Times reported that Rod Rosenstein had acted in ways that contradicted President Trump’s wishes. In the aftermath of this report, the question of whether President Trump could (or should) fire Rosenstein or force him to resign. If Rosenstein is ousted, the person to take his place is likely to be Solicitor General Noel Francisco. Read this article from Slate that explains Francisco’s take on the executive’s power to remove government officials.

Among the specific powers and duties of the president, the Constitution specifies that:

“… he shall take Care that the Laws be faithfully excecuted.” (Art. I § 3).

The constitutionally-mandated oath of office makes a similar command:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—’I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'” (Art. I, §1).

One of the key powers of the president is contained in the appointments clause. Here, the president is given the power to nominate people for appointment for certain government positions, including positions in the executive branch. This is important, of course, because the leaders of the major bureaucratic entities in the executive branch are the key to the president’s ability to faithfully execute the law.

However, in the context of the “Russia investigation,” these questions take on some important new meaning. Because Rosenstein oversees the special counsel’s investigation, replacing him with a “Trump loyalist” could shut down the investigation completely, or at least hinder its progress substantially. This article from vox.com helps to explain the ways in which the Justice Department and the Muller investigation are linked.

Paper Topic #8: In this current situation, does President Trump have the authority to fire Rosenstein (or force him to resign)? What does the existing case law say, and how might this situation be significantly different from the case facts at play in the prior cases? 

Suggested Reading: Breker-Cooper, Steven. 1992. “The Appointments Clause and the Removal Power: Theory and Seance.” Tennessee Law Review 60:841-904.

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