If Rod Rosenstein is fired, what happens to the Russia investigation?
First, U.S. Deputy Attorney General Rod Rosenstein was on his way out of the Justice Department — and then he wasn’t.
Now, all that anyone knows is that the man who oversees the Robert Mueller investigation into Russian election meddling has a meeting with U.S. President Donald Trump on Thursday.
Coverage of Rod Rosenstein on Globalnews.ca:
The meeting comes after a New York Times story in which Rosenstein reportedly talked about recording Trump secretly and using the 25th amendment to impeach him.
It’s touched off speculation on what Rosenstein’s fate will be after they meet — and, ultimately, that of the Russian investigation.
But what will happen if Rosenstein is out of his job? And what does that mean for the probe?
Reports have suggested that, if Rosenstein leaves the Justice Department, Solicitor General Noel Francisco will oversee the Mueller probe in his stead.
Normally, the job would fall to the associate attorney general, which is the number three position in the department.
Right now, that’s Jesse Panuccio — he’s fulfilling the job in an “acting” capacity, and he hasn’t been confirmed by the Senate.
Justice Department regulations state he can’t oversee a special counsel probe like this one.
There’s a hitch
Francisco might run into a conflict if he ends up overseeing the Mueller investigation.
He previously worked at Jones Day, a law firm that has represented the Trump Campaign, Georgetown University law professor and ex-deputy assistant attorney general Martin Feldman noted on Twitter.
1. A few thoughts on the Rosenstein story:
First, the Times headline and lede are surprisingly, and regrettably, far too credulous and unequivocal, asserting that RR in fact made serious suggestions about wearing a wire and moving toward use of the 25th. @adamgoldmanNYT @nytmike
— Marty Lederman (@marty_lederman) September 21, 2018
Francisco has therefore stepped back from all U.S. Supreme Court cases in which Jones Day has represented one side.
Should Francisco step back from overseeing the Mueller investigation, then the job would fall to Steve Engel, the assistant attorney general for the Justice Department’s Office of Legal Counsel (OLC).
Something else Trump can do
Trump has other options at hand for people to oversee the Mueller probe.
As Lederman noted, under the Federal Vacancies Reform Act, he could temporarily replace Attorney General Jeff Sessions with any officer from the executive branch who’s been confirmed by the Senate — people such as Mick Mulvaney, director of the Office of Management and Budget (OMB).
That individual would then oversee the Mueller investigation.
Rosenstein could similarly be replaced.
While acknowledging “unresolved legal questions” about the legality of this option, Lederman said any replacement could serve for a period of months.
This person’s ability to end the Mueller investigation would likely be limited; but the individual could nevertheless frustrate the probe by withholding or rejecting decisions that the special counsel had requested.
What happens to the Mueller probe?
If Rosenstein were out as deputy attorney general, then the Mueller probe would lose someone who has approved important moves in the investigation, even as Trump has called it a “Russian witch hunt.”
The investigation would also lose institutional memory. Rosenstein has close knowledge of the probe and it’s hard to believe anyone else would know it as well as he does.
Then there’s the matter of support for the investigation itself — whoever replaces Rosenstein might not assist Mueller as much as he has.
— With files from Reuters and The Associated Press