More than Deputy Attorney General Rod Rosenstein’s job will be on the line when he meets with President Donald Trump at the White House on Thursday. Also in the balance will be the fate of special counsel Robert Mueller’s Russia probe.
The ouster of Rosenstein — who serves as Mueller’s direct supervisor — would subject the special counsel’s probe to new uncertainty and, critics fear, new restrictions on Mueller’s investigation into ties between Russia and the 2016 Trump campaign.
Because Attorney General Jeff Sessions has recused himself from the Russia investigation, it is his deputy who approves everything from Mueller’s budgets to his subpoenas and the scope of his probe. And if Mueller produces a written report about his work, he will file it to Rosenstein or his successor, who will then decide what action to take in making the much-anticipated document public.
Even if a Rosenstein replacement did not fire Mueller or place new restrictions on his work, he would have to quickly get up to speed on the Russia inquiry and to sign off on imminent decisions, such as whether to seek new indictments, according to current and former Justice Department officials.
That could slow Mueller’s progress at a time when the White House and Republican lawmakers on Capitol Hill have urged him to wrap up his probe soon.
“Any disciple moved into Rosenstein’s role, even for a year, could have a major impact on Mueller’s investigation, such as by squeezing resources or suppressing a Mueller report about the president,” said Philip Lacovara, an attorney who served as a prosecutor on the Watergate special counsel team.
For Trump to oust Mueller would be an entirely different scenario, a constitutional crisis and an opening that could lead to impeachment proceedings if Democrats win control of one or both chambers of Congress this November. Mueller’s firing also has its own set of important questions, including what happens to all the cases the special counsel has built, not to mention the evidence he’s gathered.
The prospect of big changes atop the Justice Department follow a New York Times story published Friday that Rosenstein had floated wearing a wire to record Trump in the midst of what he perceived as chaos in the administration. The publication also reported that the deputy attorney general had discussed invoking the 25th Amendment to remove Trump from office. Rosenstein and his allies have fiercely disputed the account.
If Rosenstein leaves DOJ, his replacement would either come from the natural DOJ line of succession or via presidential appointment. If Trump names Rosenstein’s replacement, however, that person would only take control of the Mueller probe if they had been previously confirmed by the Senate.
Either way, a new Mueller boss would exercise substantial authority over the investigation, which is moving along at a speedy clip as it enters a critical phase that former FBI Director James Comey recently described as the “fourth quarter.”
Mueller’s lawyers are still negotiating with the president’s lawyers for an interview with Trump, a drawn-out back-and-forth that could result in a Supreme Court showdown over a potential Mueller subpoena to try and get the president to testify. Mueller’s team is also now getting debriefs from former Trump campaign chairman Paul Manafort as part of a cooperation agreement included in his recent guilty plea.
Other key moments are approaching. Mueller has an important legal brief to file in federal appeals court — due by Friday — defending his right to subpoena an associate of Roger Stone, the former Trump aide who himself remains the subject of questioning of multiple grand jury witnesses in recent weeks.
The special counsel has a busy calendar right after the midterm elections, too. There are several reports due in quick succession from Mueller or federal prosecutors as they move to sentence Manafort, former Trump national security adviser Michael Flynn and former Trump personal attorney Michael Cohen.
Mueller’s third budget report is also scheduled for release in early December.
David Weinstein, a former federal prosecutor, wondered whether the DOJ tumult sparks Mueller to try and swiftly complete his work “before all of the moves take place.”
Sam Buell, a former federal prosecutor and Duke University law professor, said he expects the special counsel and his team will spend the next month “working quietly and very hard to document every fact they’ve got and can get their hands on, and should be continuing to spread responsibility for aspects of the various related probes across offices and regular career personnel of both the DOJ and FBI.”
If Rosenstein leaves, a leading candidate for the job is Noel Francisco, the 49-year old solicitor general. While Francisco is technically fourth on the DOJ succession list, he is actually next in line to oversee the Mueller probe because there is still an acting official in the No. 3 role, which Rachel Brand vacated in February when she stepped down as associate attorney general.
Buell predicted Francisco — whose background may offer some clues as to what he thinks a special counsel’s authority — “can be expected to be professional, and respectful of Mueller, and the administration can be expected not to want to create more major waves on all this before election day.”
But Buell warned that “all bets are off” after the November midterms if Republicans hold onto a Senate majority that would allow the president to install his hand-picked replacements for attorney general and deputy attorney general.
Under the Vacancies Reform Act, Trump can temporarily put into the deputy attorney general role another presidential appointee who has gotten Senate confirmation, like he did when he slotted OMB Director Mick Mulvaney into the acting position atop the Consumer Financial Protection Bureau. He can also select a confirmed U.S. attorney or someone who has served at Justice in a senior role for more than three months in the past year.
If Trump gets to put in someone of his choosing, “Mueller could face severe interference and roadblocks, or even termination,” Buell said.
Still, Buell added, “a post-election Trump might be able to shut down Mueller, but he can’t shut down the whole FBI and every U.S. attorney’s office.”
Law enforcement veterans acknowledged, though, that they can only speculate as to how the loaded Rosenstein situation will all play out for Mueller.
Former federal prosecutor Gene Rossi predicted Trump would wait for more public reaction, especially from his base, before making a full-throttled move on the special counsel.
“He will either stand down on further firings, or, he will be greatly emboldened and go for the jugular by firing Attorney General Jeff Sessions and the special counsel. Anyone’s guess,” Rossi said. “So just go ahead and flip a coin as to what will happen in the next episodes of this sad Justice Department reality show.”
“I just don’t think Trump’s got what it takes to completely derail Mueller,” added a defense lawyer with a senior Trump official as a client in the Russia probe.
Georgetown law professor Marty Lederman, a former senior official in the DOJ Office of Legal Counsel, said “it will matter a whole lot” if Trump goes for the jugular and fires Sessions.
An acting attorney general appointed to replace Sessions could oversee the Mueller probe. But Lederman warned that if Sessions was fired outright — as opposed to resigning under pressure — there’d be court challenges over whether Trump has the power to appoint a temporary replacement in the same way he would in the event of a resignation or an official dying in office.
“Those cases will have to play out and Trump might well be proven right,” but there would be uncertainty in the meantime, Lederman said. “By the time they do, it might be quite a while.”
The DOJ tumult, conceded Weinstein, the former federal prosecutor, raises “more questions than answers”
For instance, a Rosenstein firing would renew questions about the scope of Sessions’ recusal from the probe if the attorney general is not pushed out at the same time as Rosenstein.
Mueller has handed off various issues to local U.S. attorneys’ offices, such as the prosecution of Cohen. But while Cohen’s case is being handled by federal prosecutors in Manhattan, the special counsel’s office has also met with Cohen, who confirmed on Twitter last week that he’s met with Mueller even though his plea didn’t specifically call for cooperation.
Because of those meetings, Sessions’ vow to avoid all matters relating to the 2016 election suggests a new official would take over that case.
However, other matters linked to the Mueller investigation but not formally overseen by his office — such as the prosecution of GOP consultant Sam Patten for acting as an unregistered foreign agent — might still be under Sessions’ remit and subject to the DOJ’s normal chain of command. Justice Department spokespeople have refused to say how far Sessions’ recusal extends beyond the Mueller probe.
Regardless, a Rosenstein firing is likely to embolden Trump’s enemies and allies alike.
Trump’s critics will likely paint the firing as yet another attempt by the president to obstruct justice and impede the Mueller probe, launching a debate over whether or not Rosenstein’s reported comments constituted “an act of insubordination that would allow the president to fire him,” Weinstein said.
Trump backers, however, see the potential for big changes at DOJ as a chance to launch investigations into both the current deputy attorney general and Mueller himself. Trump and his partisans have argued that both officials are too ethically compromised to oversee the Russia probe.
During his Monday radio show, Trump personal lawyer Jay Sekulow called for the Mueller probe to take a “time out” if Rosenstein leaves so that a more exhaustive investigation into the origins of the Russia probe can take place.
“In light of all this I think it’s really important that there be a step back taken here, and a review. And I think it’s a review that has to be thorough and complete and a review that has to include an investigation of what has transpired with all of these statements and all of these allegations,” Sekulow said.
“Rosenstein is going to need a lawyer and Mueller is going to need a lawyer, and so are a number of other people,” added Joe diGenova, an ally to the president who nearly joined his personal legal team earlier this spring.