The man in line behind Rosenstein to supervise Mueller has a potential ethics problem

Let's talk recusal.

CREDIT: Tom Williams/CQ Roll Call
CREDIT: Tom Williams/CQ Roll Call

As of this writing, Deputy Attorney General Rod Rosenstein is headed to the White House, where he “is expecting to be fired by President Trump” — at least according to the Wall Street Journal. In addition to serving as the #2 official in the Justice Department, Rosenstein also supervises Special Counsel Robert Mueller’s investigation into the Trump campaign’s ties to Russia (Attorney General Jefferson Beauregard Sessions III is recused from that investigation).

By law, authority over Mueller would normally fall to the associate attorney general if neither of DOJ’s top to officials are able to supervise the special counsel, but that position is vacant and currently occupied by an acting official. Accordingly, as the New York Times reports, the job of supervising Mueller is expected to fall on Solicitor General Noel Francisco, who will be the senior-most Justice Department official not recused from Mueller’s investigation and who was also confirmed to his job by the Senate.

But there’s a hitch in this plan as well. As Georgetown law professor Marty Lederman points out, Francisco “is probably recused from the Russia investigation (at a minimum), because Jones Day, his former firm, represents the Trump Campaign (unless there’s been a change).” According to Lederman, Francisco has thus far taken his ethical obligation to recuse himself from cases involving his former firm fairly seriously, as Francisco has stepped away from “all SCOTUS cases where Jones Day represents a party.”

If Francisco does not recuse, it is far from clear that he will allow Mueller to continue to investigate the president and Trump’s campaign without significant interference. As ThinkProgress laid out in a profile of Francisco last May, the Solicitor General is both a hardline conservative and a staunch Federalist Society loyalist. “Since Trump took office,” we explained in that profile, “the Office of the Solicitor General has rapidly transformed itself into a strong advocate for conservative legal causes, and Francisco appears to be an enthusiastic champion of this transformation.”


Should Francisco recuse, the next official in line, according to Lederman, is Assistant Attorney General for the Office of Legal Steve Engel. Engel is a former law clerk to Justice Anthony Kennedy and disgraced former federal judge Alex Kozinski. He was narrowly confirmed by a 51-47 vote to his current job, after the late Sen. John McCain (R-AZ) opposed Engel due to the lawyer’s work on a 2007 memo that “signed off on enhanced interrogation techniques.”

Trump, however, could potentially throw yet another wrench in these works. The Vacancies Reform Act ordinarily permits the president to temporarily fill a vacant Senate-confirmed job with an acting appointment. Yet it is far from clear that Trump may do so if Rosenstein refuses to resign and instead forces Trump to fire him. By its own terms, this act applies when an incumbent officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” It is not clear that the act can be triggered if an official is fired.

Moreover, a different federal statute, 28 U.S.C. § 508, lays out an order of succession for situations “when by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General.” Since the office of the deputy attorney general will be vacant if Rosenstein leaves office, it is also far from clear that an acting official has the legal authority to supervise the Mueller investigation.

So welcome to the chaos realm, everyone! If Trump does fire Rosenstein, there is a good deal of uncertainty who has legal authority over the investigation. And the most likely suspect, Mr. Francisco, may be ethically precluded from supervising this investigation.