Rosenstein's Manic Monday: What Happens Next?

News  |  Sep 25, 2018

For much of Monday morning, speculation swirled as to whether Deputy Attorney General Rod Rosenstein was planning to resign or preparing to get fired.

A trip to the White House for a national security council principals meeting did not help matters, lending alleged visual confirmation to the rumor something was up. 

However, Rosenstein left the White House, job intact, and the White House issued a statement saying President Trump would meet with the deputy AG when he is back from New York on Thursday. Thursday also happens to be the day Dr. Christine Blasey Ford will testify before the Senate Judiciary Committee about Supreme Court nominee Judge Brett Kavanaugh's alleged sexual assault. 

Vanity Fair:

For all the morning’s madness, there may have been an underlying logic. Over the weekend, as Brett Kavanaugh’s prospects appeared increasingly imperiled, Trump faced two tactical options, both of them fraught. One was to cut Kavanaugh loose. But he was also looking for ways to dramatically shift the news cycle away from his embattled Supreme Court nominee. According to a source briefed on Trump’s thinking, Trump decided that firing Rosenstein would knock Kavanaugh out of the news, potentially saving his nomination and Republicans’ chances for keeping the Senate. “The strategy was to try and do something really big,” the source said. The leak about Rosenstein’s resignation could have been the result, and it certainly had the desired effect of driving Kavanaugh out of the news for a few hours.

Whether or not the White House used Rosenstein as an intentional distraction, questions about his job security still sit front and center and will emerge in full force when Thursday's meeting happens. 

Politico:

"We'll be determining what's going on," Trump said, adding that the meeting will take place at the White House. "We want to have transparency. We want to have openness. And I look forward to meeting with Rod at that time."

If he is fired or quits, his exit under pressure would send shockwaves through the Justice Department and raise questions about the supervision of special counsel Robert Mueller's probe into Russia's interference in the 2016 election and whether any Trump aides helped. Rosenstein has overseen Mueller's investigation. Mueller’s office declined to comment Monday.

Rosenstein's next-closest subordinate, associate Attorney General Rachel Brand, departed the Justice Department earlier this year and has yet to be replaced. That leaves Solicitor General Noel Francisco as the next in line to supervise the Mueller probe.

Reuters spells out how a transition at the DOJ might unfold. 

WHO WOULD SUCCEED ROSENSTEIN IN OVERSEEING THE MUELLER PROBE? 

If Rosenstein left his job, the task of overseeing Mueller’s investigation would typically fall to the associate attorney general, the No. 3 official at the Department of Justice behind Sessions and Rosenstein. 

The current holder of that position, Jesse Panuccio, does so in an acting capacity and has not been confirmed by the Senate. That means under Justice Department rules he would not be able to succeed Rosenstein in taking charge of the special counsel probe.

Instead, it would fall to U.S. Solicitor General Noel Francisco, according to an internal Justice Department memo on succession from November 2016 that is still in effect. 

Some legal experts have said Francisco would have to recuse himself because his former law firm, Jones Day, represented the Trump campaign. If that were to happen, the next in line to oversee the special counsel would be Steven Engel, the assistant attorney general in charge of the Justice Department’s Office of Legal Counsel.

COULD TRUMP PICK A REPLACEMENT FOR ROSENSTEIN? 

President Trump could potentially bypass the Justice Department’s succession order by invoking the Vacancies Reform Act of 1998 (VRA), which lays out general rules for temporarily filling vacant executive branch positions when the prior holder “dies, resigns, or is otherwise unable to perform” their duties. 

If Rosenstein resigned, the VRA would allow the president to replace him on an interim basis with another official who has already been confirmed by the Senate. That person could be from any part of the executive branch, not necessarily the Justice Department. 

Some legal experts argue that such a replacement would not be able to oversee the Mueller probe because Rosenstein is doing so as acting attorney general. A Justice Department guideline holds that an official cannot be both acting attorney general and acting deputy attorney general but experts differ on whether that rule would have to be followed. 

It is also not clear whether the law, intended to address vacancies created by deaths or resignations, would apply if such a vacancy were created by an official being fired by the president. Such an appointment could be challenged in court on that ground. 

Rosenstein’s future uncertain ahead of meeting with Trump (Politico)

Factbox: Who would oversee the Mueller investigation after Rosenstein? (Reuters)

“THE STRATEGY WAS TO TRY AND DO SOMETHING REALLY BIG”: TRUMP WANTED TO NUKE ROSENSTEIN TO SAVE KAVANAUGH’S BACON (Vanity Fair)