Why Trump won’t fire Rod Rosenstein

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Rod Rosenstein, 53, a Republican, is the rat-face whom President Trump, on February 1, 2017, nominated to be the Justice Department’s Deputy Attorney General, and whom the Senate quickly confirmed on April 25, 2017.

The next month, in May 2017, Rosenstein authored a memo which President Trump said was the basis of his decision to dismiss FBI Director James Comey. Rosenstein then appointed special counsel Robert Mueller to investigate alleged ties between the Trump campaign and Russia during the 2016 election and related matters. Rosenstein also approved the raids on the home, office and hotel room of Trump attorney Michael Cohen.

The Deputy Attorney General is a political appointee of the President of the United States and takes office after confirmation by the Senate. According to the DOJ website:

The Deputy Attorney General advises and assists the Attorney General in formulating and implementing Departmental policies and programs and in providing overall supervision and direction to all organizational units of the Department. The Deputy Attorney General is authorized to exercise all the power and authority of the Attorney General, except where such power or authority is prohibited by law from delegation or has been delegated to another official. In the absence of the Attorney General, the Deputy Attorney General acts as the Attorney General.

Five days ago on Sept. 21, The New York Times reported that shortly after the dismissal of Comey, Rosenstein grew concerned about Trump’s fitness for office. Rosenstein suggested he could wear a wire to secretly tape conversations between himself and Trump, then use those recordings against the President by  invoking the 25th Amendment to remove Trump from office. The 25th Amendment provides for the removal of a sitting president if he or she is judged unfit to carry out the duties of the office.

Rosenstein strongly denied it, saying he was just being sarcastic in his reference to taping Trump. In response, Trump said he wasn’t sure what the deputy AG’s fate would be.

Two days ago, conservatives got all elated by talk of Rosenstein having resigned or being fired:

  • Citing sources, Axios reported that Rosenstein had anticipated being fired by President Trump, so he told White House chief of staff John Kelly he was resigning.
  • Bloomberg said Rosenstein actually had resigned and that his resignation had been accepted.
  • Pete Williams of NBC News, however, said Rosenstein was not going to resign but was on his way to the White House for a showdown to force Team Trump to fire him.

But the chatter all came to nothing. We are told that Rosenstein had not resigned and that he will meet with President Trump tomorrow.

That Rosenstein still has a job despite his plotting against Trump adds to conservatives’ frustration. Many of us repeatedly have asked why Trump hasn’t  and seemingly won’t fire swamp creatures like Rosenstein.

Bob Fredericks of the New York Post briefly explained why:

Under the Federal Vacancies Reform Act, Trump has the power to appoint an acting AG if it’s a resignation. If he is fired, the process is murkier and governed by federal employment laws.

So I looked into this. Here is what I found.

To begin, firing federal workers is very difficult.

In an article for Politifact, Angie Drobnic Holan describes the process for firing or even disciplining federal government workers as “cumbersome” and “difficult”.

Paul Light, a professor of public service at New York University, said that out of a federal workforce of 1.86 million, “Very few federal employees — in the hundreds, not the thousands — are ever fired on the basis of poor performance. If you want to fire an employee, you’re taking on a task that is very intense and difficult, and biased in favor of protecting employees, and it can take a year or more to complete.

Don Kettl, a professor at the University of Pennsylvania, agreed that it’s too hard to fire poor performers and that few experts who study the issue would disagree: “The federal civil service is hamstrung by antiquated rules. We need to make it easier to fire poor performers.”

John Palguta of the Partnership for Public Service, a nonprofit that advocates for an improved federal workforce, said that when an employee is fired, there are a number of appeals processes available to fight a termination. Some of those processes probably could be streamlined, while keeping in place rules designed to protect employees from partisan politics because “It’s not supposed to be easy to fire federal workers for the wrong reasons.”

In 1999, when the U.S. Office of Personnel Management (OPM) undertook a study of poor-performing federal employees, the researchers had a difficult time even finding a statistically-significant sample of supervisors who had attempted to take action against a poor performer. The 42 supervisors whom the researchers found said it was hard to fire workers because of a lack of support from upper management, varying quality in technical guidance for completing the process, and reluctance to devote the time and energy needed to complete the cumbersome process. Many bosses got discouraged and gave up. The OPM report said:

Interviewees found the investment of time and energy required over an extremely long period to be daunting. This was compounded by the stress resulting from the employee’s counter-charges, grievances, accusations, appeals, general hostility and attempts to subvert the supervisor. One described the documentation required as ‘horrendous.’

In contrast, if a federal employee who is a presidential appointee resigns or quits, the President immediately can appoint a person to the vacated office “in an acting capacity” until a replacement candidate is nominated and confirmed.

According to the Federal Vacancies Reform Act of 1998, if an officer of an executive government agency that requires presidential appointment with Senate confirmation (such as deputy attorney general of the Justice Department) dies, resigns, or is otherwise unable to perform office functions, the President is authorized to appoint a person temporarily to serve in the vacated office in an acting capacity for a period of 150 days, during which time the President is expected to nominate a replacement, with the advice and consent of the Senate.

The Federal Vacancies Reform Act makes no mention of what happens when an officer of an executive government agency that requires presidential appointment with Senate confirmation is fired. But common sense says that the very fact that Congress enacted this Act, to address cases when the federal appointee resigns, presumes that the procedure would be different if the appointee is fired.

According to The Wall Street Journal, Trump had to be warned by aides back in April not to fire Rosenstein. Others, such as Sean Hannity, also advised Trump against firing Rosenstein, claiming that such a move would open Trump to being impeached. Whatever the reason, despite, as NewsMax puts it, Rosenstein being “a frequent target of the president’s wrath,” the Federal Vacancies Reform Act makes clear why Rosenstein’s resignation would be preferable to him being fired.


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22 responses to “Why Trump won’t fire Rod Rosenstein

  1. The protections for federal workers are for civil servants, not appointed officials. Rosenstein is appointed; he’s no longer civil service. He was civil service earlier in his career, but he’s appointed now. Ergo, Pres. Trump can fire him at any time. Sundance, over at Conservative Treehouse, has a good explanation as to why RR is still around.

  2. I believe if DT fired Rod the dems would use that as an excuse to invoke that 25th amendment. Trump is always two steps ahead, thank God.

  3. I always thought Rosenstein was a holdover from Obama?!

    If Trump appointed this obvious RatFink then he kinda deserves the results so far.

    For the most part, Trump has chosen the WORST people…

    • Pres. Trump appointed RR because his purported AG, Jeff Sessions, wanted him. When DJT came in to the White House, he brought his executive mentality with him; that is, he let his direct subordinates, i.e. cabinet officers, pick their own people. Jeff Sessions wanted Rod Rosenstein as his DAG, so Prs. Trump appointed him.

  4. Do it anyway! No one in the office is better than a swamp creature who “jokes” about getting rid of you!

  5. I read that Jeff Sessions appointed Rosie the Rat, not Trump. At the time, he apparently believed Sessions was on his team. I have also read that, at the last moment, Obozo the Clown changed the status of all his “holdover underlings” to “civil servants” so they could not be fired, but stay in place and gum up the works. Could he arbitrarily do this with an EO?

  6. This thing is such a tangled up mess. I do not put it past Jeff Sessions to gum up the works by requesting Rosenstein be brought in. I must admit, I did not realize that Rosenstein was a Republican. He is however, a Deep State operative. If he has in any way, shape or form offered “his resignation,” our POTUS should accept it and have this fool clean out his office and be denied access to the premises again.

    Both Rosenstein, and Sessions need to GO! GO! GO! They are a detriment to our country.

    Dr Eowyn . . . Excellent article! I love the fact that you are able to concisely let us know the “skinny” on so many of these puzzling problems! God Bless you for your righteous endeavors, and for keeping the rest of us up to speed.

  7. From what I have heard whatever the case with Trump, the congress could still impeach Rosenstein.

  8. While we may disagree about Trump’s motives and methods, I personally find no reason to believe that this is due to “civil servants being difficult to fire”. I was one. I was a manager and fired a few. It is not “easy” but it is far from impossible as most, who have not been civil servants themselves, believe.

    Secondly, he serves at Trump’s pleasure. It his “probably” a non-competitive appointee. I don’t know this for sure. To me it doesn’t matter. There is absolutely no bar to the President firing him or anyone else for that matter.

    He may have access to appeals if he is in the Competitive Service, but again, I doubt that he is. There are some who “burrow in” when administrations change. That means that they get their “Non-Competitive” positions changed to “Competitive”. This effectively changes their status from political appointment to merit appointment.

    Either way, the act of firing him or anyone else in the Executive Branch is entirely at the President’s discretion. There is no situation that would result in one of his terminations being reinstated in his direct supervision.

    So, Rosenstein (forthwith referred to as “Ratso”), can and should be fired immediately. I can think of a few scenarios whereby Trump is reluctant and none of them are legitimate. Ratso must go.

  9. The author totally lost me when he said that Rosenstein was subject to civil service employment protections, which as a presidential appointee he is not. To make such an egregious error shows an ignorance that makes anything Dr. Ewoyn writes not worth reading.

    • Gosh, aren’t you smug.
      Nowhere in my post did I say “Rosenstein was subject to civil service employment protections”. In fact, I explicitly quoted Bob Fredericks of the New York Post, who wrote: “Under the Federal Vacancies Reform Act, Trump has the power to appoint an acting AG if it’s a resignation. If he [Rosenstein] is fired, the process is murkier and governed by federal employment laws.

      What I did was to do the research on the two matters referred to by Fredericks:

      1. The Federal Vacancies Reform Act
      2. The “murky” process governing the firing of federal employees.

      • You did not make that claim. Many do. I know that you know the difference. I don’t want to do a tutorial for those not familiar with federal civil service peculiarities. I know that most wouldn’t want to read it anyway.

        I am just emphasizing that there is no legal impediment to Trump firing Ratso. Beyond that, the reason (s) he does not are mysterious. Besides the sedition, his insubordination is astounding.

        So, as usual for me, I’ll try to give him credit where I think its due and fight my urge to scream. Sometimes it isn’t easy. In fact its harder than firing a federal employee.

        • Thanks, Lophatt.

          What puzzles me is this:

          The Federal Vacancies Reform Act makes no mention of what happens when an officer of an executive government agency that requires presidential appointment with Senate confirmation is fired. But common sense says that the very fact that Congress enacted this Act, to address cases when the federal appointee resigns, presumes that the procedure would be different if the appointee is fired.

          • I can only say what I know. There are two types of appointments, “Competitive” (which are merit-based) and “Non-Competitive” (which are usually political appointments) and not merit-based.

            Competitive appointments are considered to be “career” appointments after three years of uninterrupted service. Those are subject to rules administered by the ‘Merit Systems Protection Board”. This is the outfit that replaced the old Civil Service Board during the Carter Administration.

            If the question is, “can he fire Rosenstein?”, the answer is YES. Even if Congress must approve an appointment, they do not have the power to make someone’s boss accept his or her employee’s performance or conduct.

            Can they scream? Sure! Who cares? I don’t know. Congress does not have the authority to impose employees of the Executive Branch onto a President against his or her will.

            • “Congress does not have the authority to impose employees of the Executive Branch onto a President against his or her will.”

              While it is supposed to be so, constitutionally and in accordance with the Separation of Powers, all the warnings to Trump against firing Rosenstein or Mueller imply the exact opposite, which is that if he fires them, he would be impeached by Congress. That implies that the President (or specifically Pres. Trump) cannot fire political appointees at will. When did this happen?

              So much for the much-ballyhooed and much-criticized “Imperial Presidency”.

              • I understand what you’re saying. Please try to understand what I am trying to say. They can certainly threaten, and maybe get away with it. If they do, they will have completely altered the dynamic and the rules that government operates by.

                Just like anybody can sue anybody, it is so for Congress. If you believe that they can pass a law that makes the President’s power to hire and fire employees subject to Congress’ approval fine. I don’t think that’s the case.

                In the same way, by this standard, Congress could decide to fire the President’s staff. Why not?

                We know that they can impeach. It’s been done. They have not convicted. Like they say, they can indict a ham sandwich.

                In fact, it is the Constitution that is at the root of this whole thing. If the net effect of this rule was that Congress now supplants the authority of the President, then it would require a Constitutional amendment to make it so.

                THAT is really what the role of SCOTUS is. We’ve really traveled afar from the original intent of SCOTUS. Things like this are it.

                Lastly, just think of all the decades of presidents expanding on their authority and, because it went unchallenged, establishing precedent. NOW, because its Trump, they want to scale back presidential authority to a point where it never was before.

    • Odd, I assumed you were lost due to a lack of critical reading comprehension skills.

  10. I believe that Congress cannot legislate the procedure by which the president can terminate a political appointee, who’s employment is not subject to the Civil Service Laws. That would be a violation of the principle of the separation of powers by and between Congress, the Judiciary and the Executive branch.

    If the President appoints, the president can unappoint (You’re Fired!). And there’s no constitutional authority requiring the Senate’s advice and consent as to terminating a presidential appointee.

  11. Sure, Trump can fire Rosenstein … and probably will if the GOP retains the House in November.

    A better course of action would be for Trump to call Sessions in to his office and direct Session to get a report from the DOJ’s IG on the status of his investigation into Rosenstein’s official acts and then DEMOTE Rosenstein from Deputy AG to an Assistant AG. The Democrats in Congress will go nuts but their bark is no worse than a minor nuisance.

  12. Rosenstein directed Mueller to go after Manafort and gave him the leads to do it. Which means Rosenstein was passed that info from the DNC & DemoCrap operative Alexandra Chalupa, who started the fake Trump/Russia collusion disinfo campaign with allot of help from the lying Bolshevik DemoCrap MSM. The DNC “Colluded’ & “Election meddled” with a foreign nation Ukraine!

    Politico’s real story from January was that the DNC, the Hillary campaign, Alexandra Chalupa, Rep. Marcy Kaptur, journalists, government officials and intelligence operatives all colluded with Ukraine to take out Manafort and disrupt Trump’s campaign

  13. No one understands making ironic comments to make a point more than Trump. He probably identifies with being excoriated for making a sarcastic joke.


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