A Rosenstein departure could raise new conflict-of-interest issues for Justice Dept.

U.S. Deputy Attorney General Rod Rosenstein during Judge Brett Kavanaugh’s Senate confirmation hearing for the Supreme Court, on Sept. 4. (Photo: Michael Reynolds/EPA-EFE/REX/Shutterstock)
U.S. Deputy Attorney General Rod Rosenstein during Judge Brett Kavanaugh’s Senate confirmation hearing for the Supreme Court, on Sept. 4. (Photo: Michael Reynolds/EPA-EFE/REX/Shutterstock)

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.

Solicitor General nominee Noel Francisco testifies at the Senate Judiciary Committee’s hearing on his nomination, Wednesday, May 10, 2017. (Photo: Cliff Owen/AP)
Solicitor General nominee Noel Francisco testifies at the Senate Judiciary Committee’s hearing on his nomination, Wednesday, May 10, 2017. (Photo: Cliff Owen/AP)

If Francisco does step aside from overseeing the Mueller probe, the next in the chain of command is Steven Engel, the assistant attorney general in charge of the Office of Legal Counsel. He is a former deputy in charge of the same office during the Bush administration, and Engel’s confirmation was strongly opposed late last year by human rights groups and then-Sen. John McCain, R-Ariz., after Engel acknowledged he had “reviewed and commented” on a controversial July 2007 memo that authorized “enhanced interrogation” of terror suspects, a practice that has been described by opponents as torture. He was confirmed by a vote of 51-47 last November.

If Rosenstein resigns — as opposed to being fired — the White House could designate any other Senate-confirmed Justice Dept. official it chooses to oversee the probe. But at least one of the logical candidates, Brian Benczkowski, the assistant attorney general in charge of the criminal division, has his own potential problems: As a private lawyer, he previously represented Alpha Bank, one of Russia’s largest financial institutions, which is prominently mentioned in the so-called Steele dossier that was written by former British spy Christopher Steele alleging ties between the Trump campaign and Russia. (The bank has denied the allegations. The bank has denied it had any connection to the Trump campaign.) When Benczkowski was confirmed last July on a narrow 51-48 vote, Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Senate Judiciary Committee, said his appointment represented “glaring conflicts of interest.”

The questions about the supervision of the Russia probe come at a critical moment when a number of legal analysts believe Mueller is entering the fourth quarter of his investigation. He has recently obtained the cooperation of two key players — former Trump campaign manager Paul Manafort and Trump’s former personal lawyer Michael Cohen — and last week scheduled the sentencing of another major cooperating witness, former White House national security adviser Michael Flynn, for Dec. 18. That has led some to speculate that Mueller may be building up to an end-of-the-year finale in which he brings his final indictments — longtime Trump political adviser Roger Stone is squarely in his sights — and delivers a report on whether Trump himself engaged in obstruction of justice resulting from the probe. What happens to that report — whether it is publicly released or forwarded to Congress — will be at the discretion of whoever is serving as acting attorney general in charge of the investigation, either Rosenstein or somebody named to replace him.

Assistant Attorney General/Office of Legal Counsel nominee Steven Engel testifies before the Senate Judiciary Committee’s hearing on his nomination, May 10, 2017. (Photo: Cliff Owen/AP)
Assistant Attorney General/Office of Legal Counsel nominee Steven Engel testifies before the Senate Judiciary Committee’s hearing on his nomination, May 10, 2017. (Photo: Cliff Owen/AP)

Rosenstein has been a stalwart defender of the Mueller investigation, fending off demands from Republicans in Congress to release documents that could reveal sources and other details of the probe. He also played a role supporting and overseeing the Russia investigation in its early days before Mueller’s appointment, according to one source directly familiar with the matter. During those early days, “we didn’t do anything of consequence without checking with Rod,” said the source. “He paid close attention to it. There was never a time when we asked for something that he didn’t give us the authority to do it.”

But his tenure is now in doubt as a result of the explosive New York Times story last week revealing that in the days after Trump fired FBI director James Comey, Rosenstein discussed secretly recording the president and recruiting Cabinet members to invoke the 25th Amendment to remove him from office.

Rosenstein disputed the story in a statement to the Times, calling it “inaccurate and factually incorrect,” and based on “anonymous sources” who were “advancing their own personal agenda.” He added: “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.”

The comments attributed to Rosenstein that were the basis for the Times story were made in two meetings on May 16, 2017, and memorialized in two memos, one by then-acting FBI director Andrew McCabe, who attended one of the meetings, and another by Lisa Page, an FBI lawyer who was assigned to the Russia probe and attended the other meeting the same day. At the first meeting, attended only by McCabe, Rosenstein, rattled by the turmoil within the Justice Dept. over the Comey firing, mentioned secretly recording the president and raised the 25th Amendment option, said one source familiar with the matter. McCabe memorialized that in his memo. In a second larger meeting that same day, attended by both McCabe and Page, Rosenstein raised the issue of secretly recording the president, but did not raise the 25th Amendment issue. Page wrote the FBI memo on that session and noted the comment about recording the president, the source said.

Some Justice Dept. officials have since insisted that Rosenstein made the comments sarcastically, as a joke. But a source familiar with the memos disputes this. “There is no question he was not being sarcastic,” the source said. “If it was a joke, it would not have been in the memos.”

In his own statement Monday, McCabe, who has since been fired by Sessions and is reportedly facing a criminal investigation over lying to the Justice Dept. inspector general, said: “There is nothing more important to the integrity of law enforcement and the rule of law than protecting the investigation of Special Counsel Mueller. I sacrificed personally and professionally to help put the investigation on a proper course and subsequently made every effort to protect it. To be clear, I had no role in providing information of any kind to the media stories about events following Director Comey’s firing. If the rumors of Deputy AG’s Rosenstein’s departure are true, I am deeply concerned that it puts that investigation at risk.”


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