Sometimes Establishment is a good thing
by Tom Sullivan
Rosenstein being sworn in as Deputy Attorney General. (Public domain)
Establishment is a bad word when progressives discuss Democratic Party squabbles. But should the sitting president fire Deputy Attorney General Rod Rosenstein in coming days, the fate of Special Counsel Robert Mueller’s Russia investigation could rest on whether his replacement will defend the norms of the Department of Justice. Will the next Deputy support the establishment, be an institutionalist like Rosenstein, or be a Trump toady?
Last week’s New York Times reporting that Rosenstein suggested wiretapping the president, even if sarcastically, gives Donald Trump the opening he needs to relieve himself of his major impediment to quashing Mueller’s investigation of Russian election interference and Trump’s involvement. Rosenstein called the Times reporting “inaccurate and factually incorrect.”
David Frum worries the White House might attempt to cast Rosenstein’s departure as a resignation rather than a firing. A resignation gives Trump more flexibility in covering his back. If Trump can browbeat Rosenstein into resigning or successfully recast his firing as a resignation, under the Federal Vacancies Reform Act Trump can bypass Senate confirmation and install any previously confirmed official. The White House has played fast and loose already with whether other administration officials were fired or resigned.
DOJ sources say Rosenstein will not resign. But that might not keep Trump from buying “substantial impunity for many months” by selling a firing as a resignation.
Natasha Bertrand lays out other scenarios for what might happen to the Russia probe should Rosenstein leave:
Regardless of who would replace Rosenstein, Mueller would still have broad authority to conduct the probe as he sees fit; federal guidelines mandate that the special counsel “shall not be subject to the day-to-day supervision of any official of the department.” But his replacement would still have the power to stymie the probe by deeming certain investigative or prosecutorial steps “inappropriate or unwarranted.”
A Mueller firing could mean pieces of the investigation might be “farmed out” to other divisions, the Southern District of New York, being one.
Were Trump to fire Rosenstein for reasons related to the Russia investigation—for example, if he wanted to replace the deputy attorney general with someone willing to shut Mueller down—that, too, could constitute obstruction of justice, legal experts told me. But if Rosenstein resigns, even under some pressure, “the obstruction argument loses a lot of force,” said Jens David Ohlin, a vice dean and law professor at Cornell Law School. “By definition, a resignation involves at least some level of personal or professional choice. For myself, I find it hard to believe that Rosenstein would simply resign under these circumstances.”
But as Frum worries, the difference between firing and resigning in this administration might be a matter of who controls the narrative.
Any Rosenstein replacement would likely be less inclined to take a hands-off approach to overseeing Mueller. Solicitor General Noel Francisco could be next in line. He would require an ethics waiver, writes Slate’s Mark Joseph Stern, since his former law firm represents Trump. But since the Trump administration has watered down ethics standards, that could be easy to obtain. Francisco, Stern adds, “shares Trump’s skepticism of the FBI and co-authored an op-ed in the Wall Street Journal shortly before the 2016 election that accused the agency of having a ‘double standard’ with regard to Democrats and Republicans.” He has accused the FBI of conducting “ambush interviews” and more:
Equally disconcerting as his past anti-FBI rhetoric is Francisco’s breathtakingly expansive view of executive power and privilege. Earlier this year, Francisco, in his capacity as solicitor general, weighed in on a Supreme Court case, Lucia v. Securities and Exchange Commission, that revolved around the issue of who, exactly, has authority to appoint administrative law judges. Francisco attempted to turn the highly technical case into a presidential power bonanza. He went far beyond the question presented to argue that the president could remove administrative law judges, and any other “inferior” (or “subordinate”) officers, at will.
That would include Mueller. A Trump partisan, Francisco is also close to Rosenstein, NPR’s Carrie Johnson reports:
If he were to step aside – Noel Francisco – for any reason, that would put Steve Engel, who runs the Justice Department Office of Legal Counsel, next in line to oversee the Russia investigation. Steve Engel is a DOJ veteran, worked in the George W. Bush administration. And he’s a former Supreme Court clerk. But he doesn’t have experience as a prosecutor, and that experience could really come in handy supervising the most important criminal investigation at the Justice Department in the last generation or two.
Being a Bush veteran will not recommend Engel to Trump.
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