An independent watchdog group told TPM that President Trump’s appointment Wednesday of Department of Veterans Affairs Chief of Staff Peter O’Rourke to temporarily run the agency is illegal. The group, Democracy Forward, had joined with the veterans’ advocacy group VoteVets to sue the Trump administration in April over its previous appointment of an acting VA secretary.
John Lewis, Democracy Forward’s lead attorney on the case, told TPM that Wednesday’s announcement that O’Rourke will lead the department on a temporary basis while Wilkie steps aside to complete the confirmation process does not alter the underlying argument of their case: that it’s illegal under the Federal Vacancies Reform Act for the president to fire a Cabinet official and hand-pick his or her replacement.
“The statutory text is very clear. The law says that an acting replacement can only be appointed if the official died, resigned or is unable to serve,” Lewis said. “Since Shulkin was fired, the the administration’s decision to select O’Rourke is another sign of how the administration is willing to break the law to get their favored people in power at the VA.”
Lewis says that under the normal order of succession at the VA, Deputy Secretary Thomas Bowman should have been made acting secretary when Shulkin was fired. Instead, the Trump administration tapped Wilkie as acting secretary and nominated his personal doctor Ronny Jackson to be confirmed to the position. When Jackson’s candidacy fell apart amid allegations that he drank on the job, handed out medication without a prescription, and created a toxic work environment for his colleagues, Trump nominated Wilkie to lead the agency on a permanent basis.
Shulkin has said publicly that he believes he was fired because of his opposition to the Trump administration’s agenda of privatizing the VA. The White House previously considered firing Bowman as a tactic to intimidate Shulkin and pressure him to go along with the pro-privatization party line.
Democracy Forward’s lawsuit cites news reports and official communications to argue that the Bowman was repeatedly passed over for the acting secretary gig for political reasons, a move that would violate the Federal Vacancies Reform Act.
“The President appears to have bypassed Deputy Secretary Bowman due to Bowman’s opposition to privatization of VA health services,” the complaint says. “In an email sent in December 2017, the President’s senior advisor on veterans affairs, Jake Leinenkugel… described Bowman as an ‘obstructionist’ opposed to the administration’s privatization agenda.”
Lewis told TPM that the Trump administration’s latest move to once again select a replacement is “a very troubling sign of the President’s treatment of the civil service.”
The Trump administration must respond to the lawsuit by early July, and a ruling from the U.S. District Court for the District of Columbia is likely sometime this fall.