WASHINGTON — As conflicting reports emerged Monday about the future of Deputy Attorney General Rod Rosenstein, three former senior officials familiar with the investigation he oversees into possible Russian collusion with 2016 Trump campaign said his departure would throw the Justice Dept. into turmoil and could raise serious new conflict-of-interest questions about oversight of the probe.
If Rosenstein is fired when he meets with President Trump Thursday, or if he resigns under pressure, the outcome is “fraught with peril with respect to the conclusion of the special counsel’s investigation — whether the investigation is allowed to continue to completion, and whether its results see the light of day,” David Laufman, the former chief of the Justice Department’s counterintelligence and export control section, said in an interview with Yahoo News. Laufman oversaw the Russia probe in its early stages in 2016 and continued to play a key role until the appointment of Robert Mueller in February 2017.
Rosenstein’s future remained unclear Monday. He reportedly met with White House chief of staff John Kelly, a meeting at which he expected he would be fired, following reports that he privately discussed invoking the 25th Amendment last year to remove Trump from office. He is now scheduled to meet directly with Trump on Thursday to discuss his fate. Rosenstein has no plans to resign, according to a source who has been briefed on discussions the deputy attorney general had with colleagues. “Although he is f***ing tired of all of this, he has no intention of resigning,” the source said.
But if Rosenstein does get fired or is dismissed, the chain of command gets murky and the Justice Department could face a new controversy about potential conflicts of interest. Under existing regulations dictating the line of succession, Solicitor General Noel Francisco would become acting attorney general for supervising the Mueller probe, according to Neal Katyal, a former solicitor general who drafted the original Justice Department regulations governing the appointment of a special counsel. With Attorney General Jeff Sessions recused from the probe, and the deputy position vacant, the next in line to take charge would be the associate attorney general. But that post too has been vacant since Rachel Brand resigned in February, so the job would fall to Francisco.
But Francisco is a former partner at Jones Day, the law firm that represented the Trump campaign throughout the 2016 presidential election. And until now, Francisco has been recusing himself from cases involving his previous firm, including one before the Supreme Court in its upcoming term involving issues of double jeopardy that might arise when a defendant is prosecuted by federal and state prosecutors for the same offense.
That raises the question of whether he would be compelled to recuse himself from overseeing a criminal investigation that directly involves a client of his former firm. Walter Shaub, the former director of the Office of Government Ethics, tweeted Monday that, unless Francisco gets a waiver from the White House, Executive Order 13770 — signed by Trump eight days after he took office — “bars Francisco from participating in the Mueller investigation” due to Jones Day’s representation of the Trump campaign.
The executive order requires all executive branch appointees to sign an ethics pledge that says, in part: “I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients.” Francisco took office as solicitor general on Sept. 19, 2017.
The language is ambiguous enough so that it might not require Francisco’s recusal, other former Justice officials say. Jones Day is not a specific party to the Mueller probe and there is no indication that Francisco personally did legal work for the Trump campaign. Still, the political pressure on him to step aside would likely be intense. “If anything, there would be more reason for him to recuse over the criminal investigation than cases as [solicitor general],” said Marty Lederman, a former senior official in the Justice Department’s Office of Legal Counsel.