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University of Kansas law professor explains who may be next if Rosenstein leaves after Trump meeting

Nick Gosnell
Wednesday, September 26, 2018

As President Donald Trump and Deputy Attorney General Rod Rosenstein prepare to meet on Thursday, a University of Kansas law professor goes over what would happen if a vacancy occurs in his position.

“Rod Rosenstein’s position is one that ordinarily requires a nomination by the President and then approval or confirmation by the Senate,” said Richard Levy, J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas.

While the job is vacant, someone still has to mind the store, and there is law for that.

“There’s a statute that specifies what happens as you essentially, go down the list of officers in the Department of Justice,” Levy said. “Rosenstein is overseeing the Mueller investigation, because the Attorney General had to recuse himself from that investigation. Rosenstein is the second in line. If Rosenstein goes, normally you would name the third in line, which is an Associate Attorney General, but that position is also vacant. Under the succession statute, the person who would take over for Rosenstein temporarily would be the Solicitor General, Noel Francisco.”

President Trump could also fill the job using the Federal Vacancies Reform Act.

“That act allows the President also to name temporary or interim replacements when a vacancy arises,” said Levy. “Under that statute, if the President was unhappy with the natural order of succession in the Department of Justice, he would have the option of naming another person, if that person had previously been approved by the Senate for a different position.”

That’s the statute by which Mick Mulvaney got his job at the Consumer Financial Protection Bureau. However, there has been talk that the President may keep Rosenstein around through the midterm elections, so as to not give the Democrats any more ammunition prior to that time.

Faculty name: 
Richard Levy