The plaintiffs from the case argue that will because Shulkin did not resign, or die, or become ill — he says he was fired — Trump did not develop the authority to choose whomever he wanted to temporarily fill Shulkin’s spot. According to the succession plan of the VA, they argue, Trump was required to name Thomas Bowman, deputy secretary of the VA, as acting secretary until another VA secretary could be fully confirmed by the Senate.
In Rosenstein’s case, the stakes are much higher, given thatSessions has recused himself coming from the Russia probe. Trump has effectively gone to war against his own Justice Department, primarily over the Russia probe, which can be run by former FBI director Robert Mueller, nevertheless also for what the president sees as a failure by the department to pursue his political enemies.
If Rosenstein were to resign, then the Vacancies Act might give Trump broad leeway in appointing Rosenstein’s temporary successor, along with some fear the president might install a political ally willing to cripple the Mueller probe.
If, however, Rosenstein can be fired, then the argument that will Trump must follow the federal order of succession becomes significantly stronger.