Special counsel Robert Mueller could see significant changes to the way his Russia investigation operates if President Trump were to fire Deputy Attorney General Rod Rosenstein or if he were to resign, according to close observers of the Justice Department.
The question suddenly became relevant this week after it became clear that Rosenstein offered to resign following a report said he was mulling a coup against Trump. The two men are expected to meet Thursday to clear the air about the reports that Rosenstein might be dismissed, but the possibility he might still be let go has some worried that the change could prove to be significant for Mueller’s investigation.
Rosenstein oversees the Mueller investigation into whether President Trump’s campaign colluded with Russia to defeat Hillary Clinton. And while Mueller’s work would continue without Rosenstein, some say it has the potential to be altered, depending on who takes over.
The next person in line for that job is Solicitor General Noel Francisco, a Trump appointee confirmed last year in the Senate by a party vote. Francisco is a known conservative lawyer that worked in the George W. Bush administration, as well as in the private sector.
Jeffrey Cramer, a former federal prosecutor, told the Washington Examiner that Francisco “is a not a fan of independent counsel type investigations,” and could find ways to limit Mueller’s work.
“At the end of his efforts, Mueller could produce a report” to Francisco, said Cramer. “Legally, the [person overseeing Mueller] could do anything he wants with the report. There would be tremendous political pressure to make the report public to some level.”
Francisco or anyone else overseeing Mueller would also continue to exert power of decisions such as indictments and search warrants, Cramer explained, so decisions to approve or not approve those actions could change.
Federal guidelines make it clear that whoever replaces Rosenstein could find ways to adjust the way Mueller works. Those guidelines say the special counsel “shall not be subject to the day-to-day supervision of any official of the department.”
But those same guidelines also say his replacement “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued.”
The replacement can also rein in the investigation by disciplinary action for “misconduct and breach of ethical duties under the same standards and to the same extent as are other employees” of the Justice Department, according to the guidelines.
If Francisco recuses himself from the Mueller investigation, Steve Engel, who heads the department’s Office of Legal Counsel, is the next in line. Engel served in the Justice Department during the George W. Bush administration and clerked for Judge Alex Kozinski, who stepped down from his post in December amid sexual misconduct allegations.
If it’s Engel, he would have the same flexibility as Francisco to alter Mueller’s work.
One observer said the nature of Rosenstein’s dismissal could affect how Mueller’s investigation proceeds.
Jens David Ohlin, vice dean and law professor at Cornell Law School, said a decision by Trump to fire Rosenstein could lead to deeper questions about whether Trump is trying to obstruct justice, while a decision by Rosenstein to step down would be a less dramatic event.
“If Rosenstein simply resigns, the obstruction of justice problems will be far less severe, since a resignation by definition involves at least some element of personal choice,” Ohlin said.
A former Justice Department spokesperson under the Obama administration, Matthew Miller, said another possible scenario is that Trump doesn’t fire Rosenstein at all, but tries to use him as “leverage” over the Russia investigation.
“The biggest threat to Mueller is probably not that a new supervising official fires him, but that they more quietly harm the investigation by refusing to approve new lines of inquiry, quashing potential indictments, or declining to make any final report public,” Miller told the Washington Examiner. “That said, I think it will be difficult for Trump to really pull that off.”
Speculation about a replacement for Rosenstein kicked off Monday when reports surfaced that Rosenstein was either fired or had already resigned. But it later became clear he was willing to resign if the White House wanted that outcome after a report said he mulled organizing Trump’s removal from office under the 25th Amendment, a process that many legal experts say can’t be used against a president unless he is physically incapacitated.
Monday afternoon, Rostenstein was still the No. 2 at the department, though he had plans to meet with Trump Thursday to talk more about the report that he quickly dismissed as inaccurate.
“We’ll be determining what’s going on,” Trump said Monday during an appearance at the United Nations General Assembly. “We want to have transparency. We want to have openness. And I look forward to meeting with Rod at that time.”
