Oops: Trump's interim VA appointee may be blocked if David Shulkin was fired rather than quit

CNN made a nice catch here. At first glance, whether VA chief David Shulkin quit or was fired is completely uninteresting. The writing’s been on the wall for weeks. Every major news outlet in the country has a carried a “Trump wants Shulkin out” story since early March. Whether POTUS dropped the axe on him or Shulkin finally tired of the humiliation and walked is immaterial to anything except bragging rights as to who got to kiss off the other first. Or so I thought.

But no, this matters legally.

The Federal Vacancies Reform Act of 1998 gives the President the authority to temporarily fill a vacancy at a federal agency if the official “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

The law, however, doesn’t explicitly say if the president still has that authority if the person is fired.

Aha. Remember what Trump said when he announced Shulkin was leaving:


That seemed strange at the time. If he wanted Ronny Jackson in charge of the VA, why bother with Robert Wilkie as an interim replacement? Just let Shulkin’s deputy run the agency for a few months until Jackson is confirmed by the Senate. But there’s a reason why Trump was leery of that:

Deputy Secretary Thomas Bowman, a Trump appointee who is the agency’s No. 2, is widely expected to leave soon, either by choice or by force. Kelly and other aides wanted Bowman gone before Shulkin left to avoid installing the deputy at the helm, even temporarily. Bowman had pushed back on broad privatization efforts, leading Trump to berate him in an Oval Office meeting for his lack of loyalty.

So Trump wanted Shulkin out and wanted someone in who’d start steering the agency immediately towards privatization. Bowman wasn’t that guy — even though he was appointed by Trump himself. Raising the question: Why the hell did POTUS staff up with people who weren’t prepared to follow the GOP’s vision for the VA?

Anyway. The Vacancies Reform Act allows officials who have already won Senate confirmation to lateral temporarily into another position requiring Senate confirmation, for roughly nine months. Trump used the same statute to appoint Mick Mulvaney, who’d already been confirmed as OMB head, to lead the Consumer Financial Protection Bureau. In order to start privatizing care ASAP, POTUS decided to use the VRA to bypass Bowman and appoint Wilkie, who had already been confirmed by the Senate for his Pentagon post last fall, as acting director of Veterans Affairs. But now the wrinkle: Can the president use the Vacancies Reform Act to fill a vacancy he himself created by firing the current person in that position? If not then whether Shulkin quit or was fired matters a lot. Quitting triggers the VRA and allows Wilkie’s appointment. Being fired arguably means Wilkie’s appointment doesn’t count and Bowman steps in as acting director. It should go without saying that if Trump insists on sticking with Wilkie here despite the legal ambiguity, the lawsuits challenging VA policy as unlawful during Wilkie’s tenure will flow like a mighty river.

So was Shulkin fired or did he quit? Here’s how Politico reported it a few days ago:

The timing of President Donald Trump’s announcement to name Rear Adm. Ronny Jackson to lead Veterans Affairs was a snap decision that surprised his own chief of staff and knocked the government’s second-largest agency, already bedeviled by scandal, deeper into disarray.

White House chief of staff John Kelly had spoken with David Shulkin by phone Wednesday morning, reassuring the now-former VA secretary that he wouldn’t be fired by tweet that afternoon. Hours later, Kelly had to phone Shulkin again telling him plans had changed.

That sure sounds like a firing. Shulkin’s account of what happened has been consistent in interviews too as far as I’m aware. He says he spoke to Trump on Wednesday morning, they had a pleasant enough conversation about progress at the agency, actually had plans to meet the following day, and a few hours later he was getting the fateful call from Kelly informing him that a tweet was forthcoming. The White House initially countered that Shulkin had resigned but even they’re not saying that anymore:

White House chief of staff John Kelly “called Shulkin and gave him the opportunity to resign,” [White House spokesman Mercedes] Schlapp said. “Obviously, the key here is that the president has made a decision. He wanted a change in the Department of Veterans Affairs. He wanted more results coming out of that particular department. … That is why he moved to make this change.”

Seems pretty cut-and-dried. Shulkin was fired. What happens now to Wilkie and Bowman? Maybe McConnell could call an up-or-down floor vote to confirm Wilkie as an interim appointee, forgoing the need for any confirmation hearing on grounds that (a) he’s only a temporary replacement and (b) he was just vetted and confirmed by the Senate for his Pentagon job six months ago. Democrats will try to slow down the privatization effort by howling that Wilkie needs a full hearing since his qualifications for the VA are very different from his qualifications from the Pentagon, but a party-line Republican vote would solve that problem. Can Trump get 51 (or just 50) Republican votes for his interim appointee?

I’m probably giving him too much credit strategically in mentioning this but I do wonder now if one of the reasons Trump’s dithered for so long on firing Sessions is because he’s worried he’ll have the the same Shulkin/Wilkie problem under the Vacancies Reform Act. If Sessions were to resign, Trump could use the VRA to appoint someone like Scott Pruitt to the position for nine months while he figures out what to do by way of a permanent replacement. If he were to fire Sessions, though, arguably the VRA wouldn’t work for the same reason it might not work in Shulkin’s case. That means the new AG would be … Rod Rosenstein, an outcome Trump would want to avoid. Maybe, then, his bizarre Twitter attacks on Sessions and the DOJ are really just a pressure campaign to get Sessions to quit. Just one obvious question: If he’s following a strategy like that with Sessions, why didn’t he also follow it with Shulkin?

Here’s Shulkin recounting his termination. Exit question: Wasn’t Rex Tillerson also fired? Does that mean Mike Pompeo can’t assume the duties of Secretary of State as an interim appointee until he’s confirmed for the position by the Senate?