Mueller’s fate without the Rosenstein shield

The possible departure of Rod Rosenstein from the Department of Justice would be a disaster for the rule of law and democracy. 

Rosenstein started Robert Mueller’s probe into Russian attacks on our elections, and he has effectively stood in the way of Mueller’s firing, which President Trump has been itching to do for months now. If Mueller were to close up shop, we’d likely see the last of the only serious probe into Russia’s well-documented assault on our democracy — an effort aimed at putting Trump in office in 2016 — compromising freedom for generations.

{mosads}Since day one, Trump has possessed the power under Article II of the Constitution to fire Attorney General Jeff Sessions — who famously recused himself from the Russia probe — in the hopes of putting someone in his place to stop Mueller.

After all, Rosenstein became acting attorney general for Russia precisely because Sessions recused himself. This means that without Sessions, Trump could appoint someone who would execute his agenda as the next “regular” attorney general. Presumably, the reason this hasn’t happened to date is a political one: Trump has been convinced — for now at least — that firing Sessions would hurt him on Capitol Hill, or in the polls, or both. 

If Rosenstein is out, what’s next? Presumably, his de facto replacement on the Russia probe — U.S. Solicitor General Noel Francisco — could simply withdraw the referral. Rosenstein started the probe with a letter, after all, as he was authorized to do under Department of Justice regulations. The problem with this option is the same one that Trump has faced to date: if Francisco does this, the political backlash might take its toll.

Another route could be to take internal steps that will stymie the investigation such that it effectively goes nowhere, avoiding much of the politics.

Francisco could, for example, require Mueller to provide an explanation for every move he makes. Under the special counsel regulations, the person in Francisco’s role “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” This would slow down the process, to be sure, but the regulations would allow him to go even further, and “after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

The regulations also state that the person in Francisco’s shoes must give “great weight to the views of special counsel” in deciding whether to abide his decisions. But there is no judicial review of that determination. In other words, if Francisco were to ignore Mueller’s views altogether — as well as the mountain of incriminating evidence he has no doubt collected to date — there would be no legal penalty for doing so. In fact, the regulations themselves could be repealed by Sessions with not much more than the stroke of a pen. Unlike other federal regulations, they were not promulgated pursuant to the “notice and comment” process that is normally required by law.

If Francisco were to use either of these blocking methods to slow down the investigation (i.e., requiring Mueller to explain every move he makes and then deciding that Mueller’s decisions are not necessary or appropriate), Francisco would then have to “notify Congress” under the regulations. This notification need not be made public, however. It would thus require the Democrats to wage a political battle over the information’s release, in which we could expect the Republican-led Congress to cry foul.

Alternatively, Francisco could just fire Mueller. But this can only be done for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of Departmental policies.” And again, such a move must reported and explained to Judiciary committee leaders of each chamber of Congress. (Again, a new acting attorney general would be politically suspect in doing this, given that Rosenstein has given testimony on multiple occasions in support of the way Mueller has conducted the investigation).

Finally, the regulations mandate that Mueller report the status of the investigation to the acting attorney general 90 days prior the end of each fiscal year. He must also prepare a budget request. In turn, Francisco will have to decide whether the investigation should continue and, if so, establish its budget for the next year. Hypothetically, he could stop the money flow and refuse to continue the investigation — killing it softly, so to speak. 

All in all, without a principled public servant in Rosenstein’s place, the new acting attorney general could “sit on things” by stalling-and-reporting, and ultimately squeeze Mueller out by killing his budget. We can only hope that Francisco does his job according to the rule of law and the interests of the American people, as Rosenstein has done.

Barring that, what’s the answer to the impending prospect of an unaccountable presidency? Congress. It has the legislative power to establish procedures governing the special counsel that give less leeway for political manipulation. This would mean siding with the rule of law and the American people. Let’s hope there are more heroes in the halls of Congress than in the White House these days.

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. University of Baltimore School of Law student Clarissa Lindsey contributed to this piece.