David Shulkin Insists He Was Fired, That Could Be Legally Significant

The Trump Administration says David Shulkin resigned as Veterans Affairs Secretary. Shulkin says he was fired. Which one of them is right could be legally significant, but probably won't ever be heard in Court.

Former Veterans Affairs Secretary David Shulkin is pushing back on White House claims that he resigned his position when he was dismissed last week, claiming in multiple interviews over the weekend that he was fired:

Former Veterans Affairs Secretary David Shulkin pushed back on a White House statement saying he resigned from his post, telling CNN on Monday he was fired via a tweet from President Trump.

“General Kelly gave me a heads up that the President would most likely be tweeting out a message in the very near future, and I appreciated having that heads-up from General Kelly,” Shulkin told CNN’s Alisyn Camerota on “New Day.”

“So the tweet fired you?” Camerota asked Shulkin, to which he replied “Yes.” Shulkin made the rounds on Washington’s Sunday talk show circuit last weekend, maintaining that he did not tender his own resignation.

White House spokeswoman Lindsay Walters gave a different version of events in a statement to Politico last weekend.

“Secretary Shulkin resigned from his position as Secretary of the Department of Veterans Affairs,” Walters said.

The Hill reached out to the White House on Sunday to clarify the two accounts. A spokesperson said the statement from Walters regarding Shulkin ”still stands.”

As it turns out, the distinction between resigning versus being fired matters because it would have an impact on who serves in Shulkin’s place until the Senate confirms a replacement for him. Ordinarily, Shulkin leaving office would mean that the Deputy Secretary of the Department of Veterans Affairs. In this case, that would be Thomas Bowman, who has been serving as Deputy Secretary of the department since August 2017. Bowman’s ascension to the position of Acting Secretary would have been essentially automatic but for the fact that, when Shulkin left, Trump tapped Robert Wilkie, an official at the Department of Defense to serve as Acting Secretary pending confirmation of a replacement for Shulkin. This potentially makes the distinction legally important, although it’s unclear if the matter will ever end up in Court.

Under the Federal Vacancies Reform Act, the President has the authority bypass a deputy and install as the Acting Secretary any person who has been confirmed by the Senate for any position. Wilkie would be an appropriate pick under this law because he was confirmed by the Senate to be Under Secretary of Defense for Personnel and Readiness in November of last year. The text of the law, though, says that this authority applies when the Executive Branch appointee in question “dies, resigns, or is otherwise unable to perform office functions.” Some legal analysts have suggested that this provision means that the law doesn’t apply in cases where the President has fired an appointed official and that in these cases only the Deputy Secretary can fill in as Acting Secretary pending confirmation of a successor.  The White House could clear all this up by making Shulkin’s resignation letter public, which it has not done. This suggests that there is no such resignation letter and that, like Rex Tillerson, Shulkin was fired via Tweet.

Whether or not this is the case would, of course, require that someone bring a lawsuit challenging an action made by the Department of Veterans Affairs and raise the alleged lack of authority of Acting Secretary Wilkie as a defense. Alternatively, I suppose someone could try to file a lawsuit asking for a Declaratory Judgment on the issue, but it’s unlikely that they would be deemed to have standing unless they have been directly impacted by a decision that Wilkie has made as Acting Secretary. Theoretically, I suppose, Bowman himself could file a challenge to Wilkie’s appointment but given that he too is a Trump appointee that seems highly unlikely. In any case, though, it’s unlikely that any court would be able to issue a ruling on the matter before the Senate has confirmed Trump’s choice as Shulkin’s successor, thus making the entire lawsuit largely moot.

 

FILED UNDER: Donald Trump, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Mark Ivey says:

    ““General Kelly gave me a heads up that the President would most likely fire me on Twitter this weekend.”

    #MAGAing

    6
  2. CSK says:

    Firing by Twitter is a two-fer for Trump: He gets to publicly humiliate the person he’s too gutless to confront in private.

    19
  3. MarkedMan says:

    The level of incompetence of these buffoons is simply astounding. This is coupled with the modern Republican Parties disdain for government and the resultant ignorance about the basic mechanics of legislationas well as their basic laziness. To some extent that has mitigated the damage the Republicans are doing to this country, but it has only delayed it. Day by day, competent people are driven out of government, and replaced by GOP morons.

    6
  4. Daryl's other brother Darryl says:

    This guy Dennison is proving to be a coward of epic proportions.
    (yes, I’m aware of the ironical use of epic)
    I guess that’s what they mean when they say his base (eg Bunge) likes him because they think he is just like them.
    He was afraid to admit his inauguration crowd was small.
    He was afraid to confront the Mexican President on paying for the wall.
    He talked big on immigration, then got in line when the freedom Caucus told him to.
    He talked big on gun reform, then got in line when the NRA told him to.
    Comey, Tillerson, and Shulkin were all fired by proxy because he was afraid to do it.
    He is afraid of Putin.
    He is afraid of Story Daniels.
    His comb-over is so stupid looking simply because he is afraid to admit he is bald.
    It’s akin to Bunge’s MO of dropping in here, spewing nonsense, then running away.
    Cowards, the lot of them.

    11
  5. roger says:

    Maybe Trump is fearful of a lawsuit from Mark Burnett if he says “You’re fired!”?

    1
  6. Franklin says:

    @MarkedMan:

    This is coupled with the modern Republican Parties disdain for government …

    Surely it has occurred to you that Republicans assume that government is bad simply because they’re bad at governing. (It’s a vicious cycle.)

    6
  7. James Pearce says:

    Shulkin made the rounds on Washington’s Sunday talk show circuit last weekend, maintaining that he did not tender his own resignation.

    Am I the only one who has little to no interest in what former Trump administration officials have to say?

    1
  8. OzarkHillbilly says:

    @James Pearce: It depends. Does Shulkin have a clandestine video of trump… uhhhh…. errrr….. No. I don’t even want to think about that much less talk about it, and seeing it? I’d have to cut my eyes out afterwards.

    1
  9. CSK says:

    @James Pearce:

    Robert Mueller would probably disagree with you.

    5
  10. Barry says:

    @James Pearce: “Am I the only one who has little to no interest in what former Trump administration officials have to say?”

    No. This has been another episode of SATSQ.

    5
  11. James Pearce says:

    @OzarkHillbilly:

    Does Shulkin have a clandestine video of trump… uhhhh…. errrr….. No.

    Noooooooooooo.

    @CSK:

    Robert Mueller would probably disagree with you.

    Maybe…. For all I know, Mueller’s going to exonerate Trump. I’ll wait till the investigation is done before speculating on the tea leaves.

    @Barry:

    No. This has been another episode of SATSQ.

    It may be a stupid question, but this reminds me of Survivor losers getting invited onto CBS This Morning or whatever they call it to talk about what it was like to get voted off the island, like these news orgs can’t wait to get in on the he said, she said.

    1
  12. KM says:

    @James Pearce:

    Am I the only one who has little to no interest in what former Trump administration officials have to say?

    Depends on why you are uninterested. Is it because you:
    -genuinely think they have nothing of value to say or offer
    -think it’s all just pointless gossip
    -they were fired, who cares what they say?
    – or is this your “we should be DOING something” speil that never actually says what that something should be in detail?

    I agree if it’s “pointless gossip” but recent history has shown that *not* paying attention isn’t the best idea either. Trump’s playing with fire with this tweeting crap and frankly, this kinda needs to be addressed legally. There’s actual laws in place regarding employment, hiring and firing that must be considered. Do we really want “you’re fired” via Twitter to be how people get their pink slips from now on?

    6
  13. James Pearce says:

    @KM:

    -genuinely think they have nothing of value to say or offer
    -think it’s all just pointless gossip

    These, and the reality TV aspect of it. It just strikes me as really lazy and shallow journalism, too.

    Trump’s playing with fire with this tweeting crap and frankly, this kinda needs to be addressed legally.

    Everyone knows my views on the president’s tweets. They’re garbage, and they’re just tweets. I don’t care if he is the president.

    1
  14. CSK says:

    @James Pearce:

    James, you may find Trump’s tweets irrelevant, but no one else does. They constitute the official statements of the president of the United States.

    As for the conclusions Mueller draws, the fact remains that although you have no interest in what Trump’s ex-staffers say, Mueller clearly does. That was my point–not the outcome of the investigation.

    4
  15. Barry says:

    @James Pearce: “It may be a stupid question, but this reminds me of Survivor losers getting invited onto CBS This Morning or whatever they call it to talk about what it was like to get voted off the island, like these news orgs can’t wait to get in on the he said, she said.”

    Except for the whole ‘how is the federal government run’ aspect, you are 100% correct.

    2
  16. James Pearce says:

    @CSK:

    They constitute the official statements of the president of the United States.

    Oh, I know. It’s right there in Article XII of the Constitution.

    1
  17. KM says:

    @James Pearce:
    Actually my point was the firing by text. I’m not entirely sure it qualifies as legal notification of termination, especially to someone who works in the government and has more rights then an at-will worker.

    You may dismiss the tech but if this catches on with employers, it can be a big deal. Let’s say you don’t check your texts before you come into work, only to be greeted by armed guards asking to leave since you’re trespassing. Turns out you got fired via Twitter and missed it – what are your rights in this situation? What happens if your boss drunk-tweets you’re fired or texts it to the wrong person? If you meant to fire Billy but accidentally fire Bobby because you didn’t look when tweeting, what now?

    2
  18. James Pearce says:

    @KM:

    I’m not entirely sure it qualifies as legal notification of termination, especially to someone who works in the government and has more rights then an at-will worker.

    A tweet isn’t legal notification of anything. It’s a character-limited message published on the internet.

    You can announce a firing on twitter, and you can even surprise someone with that announcement, but you can’t actually fire someone with a tweet. Payroll is still going to need you to fill out the paperwork…

    1
  19. KM says:

    @James Pearce:

    you can’t actually fire someone with a tweet.

    But that’s what’s happening and why there’s an issue. Were proper legal protocols followed – normally a given but now questionable in this loosey-goosey rule following Admin? A ton of the not-so-dearly departed from the WH needed to be forceably escorted off property and are banned. You’re *assuming* someone from payroll or HR followed up but are you certain?

    Remember Office Space and Milton’s “glitch”? How much you want to bet something similar has happened?

    Well just a second there, professor. We uh, we fixed the *glitch*. So he won’t be receiving a paycheck anymore, so it will just work itself out naturally. We always like to avoid confrontation, whenever possible. Problem solved from your end.

    2
  20. James Pearce says:

    @KM:

    You’re *assuming* someone from payroll or HR followed up but are you certain?

    With apologies to Bobby Axelrod’s bag man Dollar Bill, I can say this: I am not uncertain.

    Here’s why: The White House says he resigned, which doesn’t mean he wanted to, and has used their authority to appoint another dude as Acting Secretary instead of the Deputy. So yeah, I do think there was “follow-up.”

    Do you see how things on Twitter tend to diverge from reality?

  21. KM says:

    @James Pearce:

    The White House says he resigned

    And he says he was fired so right off the bat what they say is subject to questioning. They appointed someone because they wanted to clearly replace him but does that mean it was done right? Everything checked off the list? Why in the world are you trusting people who frequently cut corners, don’t pay people and others are administrative f^ck-ups to, you know, not f^ck-up?

    Again, I’ve worked in this kind of environment where achieving the goal was more important the the minutiae and it bite everyone in the ass. I seen several prominent surgeons have their hospital rights suspended for failing to recert on basic things like first aid. I’ve seen people who were still on the active list months after they were fired since “somebody” would take care of it and guess what, they didn’t get around to it yet. Security clearances not yanked immediately and all that even after someone was frogmarched out of the building. Never assume bureaucracy does the paperwork until you can see it’s done. After all, we have people running around the WH with no security clearances handling classified info so the chance a fired person’s HR record is closed out properly isn’t all that great.

    Do you see how things on Twitter tend to diverge from reality?

    Don’t be snarky – it doesn’t make you look as smart as you think. We get it – you hate Twitter. Good for you, I’m sure it gives you the fuzzies inside every time you feel superior to the tweeting masses. That has NOTHING to do with the fact that this Administration regularly does NOT do or follow correct protocol and procedures. They have been caught time and time again so yes, we should question if it was done right.

    If he resigned, then there should be easily producible documentation – end of story, we can all move on. If he didn’t and Trump’s cutting corners to get his way, it matters as the article notes. Stop using Twitter as an excuse to go OMG NBD about things you don’t want care about.

    2
  22. James Pearce says:

    @KM:

    Why in the world are you trusting people who frequently cut corners, don’t pay people and others are administrative f^ck-ups to, you know, not f^ck-up?

    Why do you assume I’m trusting them? I’m saying the “official statements” (aka, the tweets) are garbage. I’m saying don’t trust them. I’m also saying don’t concentrate on the flibberty-flabberty that’s coming out of their mouths and focus on what they’re doing.

    And don’t have former fired Trump officials on your show and ask them dumb questions like, “So the tweet fired you?”

    We get it – you hate Twitter.

    I’m not sure you do. I don’t “hate” Twitter. I hate how it’s been elevated to this pre-eminent place in our culture to the point where we have this buffoon as our president and we’re all just bracing for the next tweet-storm.

    It seems to be a choice we’re making as a society, to allow that kind of influence into our lives. People used to rage about the consumerism promulgated on television –this was, of course, before the “golden age”– and they were right. You don’t need that gadget. Use a sharp knife and some technique instead. (Thanks, You Tube!)

    So here I am, a Twitter Luddite mewling out my Cassandran warnings. I may be wrong in the end, but this is the ground on which I will stand.

  23. An Interested Party says:

    Did not a federal judge recently cite Trump’s tweets to justify actions taken against his administration? Apparently his electronic vomiting is relevant to someone…

  24. James Pearce says:

    @An Interested Party:

    Did not a federal judge recently cite Trump’s tweets to justify actions taken against his administration?

    Not in the way you think, no.

  25. An Interested Party says:

    Not in the way you think, no.

    Oh, do tell in what way…