Op-Ed: With or without Rod Rosenstein, the Russia probe will survive

Deputy Attorney General Rod Rosenstein arrives for Brett Kavanaugh’s confirmation hearing in the Hart Senate Office Building in Washington on Sept. 4.
(Michael Reynolds / EPA-EFE / REX / Shutterstock)

Deputy Atty. Gen. Rod Rosenstein takes a highly publicized three-quarter-mile drive to the White House for a sit-down with President Trump on Thursday. It will be their first face-to-face meeting since the explosive report that Rosenstein once mused about wearing a wire in talks with the president and about invoking the 25th Amendment to remove him from office.

The meeting has been billed as Rosenstein’s last stand, a “conversation” (as Sarah Huckabee Sanders told the media ) in which the deputy attorney general must offer his boss a satisfactory explanation for his actions, or else. That story line, however, doesn’t comport with Trump’s personality or the political calculus the White House swiftly adopted in the wake of the report of Rosenstein’s disloyalty.

First, Trump is hardly the “conversation” type: That’s too touchy-feely for the reality TV star who made “you’re fired” his tag line. And, by all reports, the White House has already concluded that sacking Rosenstein would be, at the least, fodder for the Democrats in the upcoming midterms.

After Nov. 6, however, it seems very likely there will be a changing of the guard at the Department of Justice, and one that will involve not just Rosenstein but also Atty. Gen. Jeff Sessions. What would a change augur for special counsel Robert S. Mueller III and the investigation he heads?


As it turns out, there’s no longer an easy path for Trump to break free of the Russia probe.

If the president sacks Sessions and nominates a new attorney general, that person, once confirmed, would assume oversight of the probe. But it’s a good bet that Trump would face pressure even in a majority-Republican Senate to pick a nominee who would provide assurances that Mueller could complete his work. And if the Senate (or the House) changes hands in November, those assurances would have to be airtight.

There’s no longer an easy path for Trump to break free of the Russia probe.

Trump is almost as constrained if he sets his sights on Rosenstein, unless the deputy attorney general agrees to resign. In that case, under the Vacancies Reform Act, the president is entitled to install any Senate-confirmed officer in the vacated slot. In other words, he would have his choice of toadies and deep-state haters.


Trump’s prerogative is far less clear in the event of a firing. The Vacancies Act provides for citizens to sue over an appointment they think violates its terms. The courts could reject the president’s choice, and depending on whom he might tap, an avalanche of lawsuits is almost guaranteed.

The president has another option. He could discharge Rosenstein and rely on the Department of Justice’s automatic devolution of oversight responsibility. That would transfer responsibility of the probe to Solicitor General Noel Francisco or Steven Engel, the head of the Office of Legal Counsel. Engel is the more likely choice because Francisco’s firm represented Trump during the campaign; he would probably have to recuse himself.

Objectively, the result would be a trade down from Rosenstein. Neither Francisco nor Engel has prosecutorial experience, and both men are more ideological than career prosecutor Rosenstein. But they are also likely to want to have a professional future in Washington once the Trump train finally rolls out of town. They will almost certainly calculate that pulling the plug on the Mueller probe would not be a good career credential.

So let’s posit that, in the event of Rosenstein’s departure, whoever assumes oversight of the probe won’t kill it outright. There would still be plenty of ways to try to weaken it.


One would be by ordering Mueller to no longer pursue any offenses other than those directly related to a conspiracy with Russia during the campaign. So far, the probe’s most fruitful achievements trace to Mueller’s authority, established by Rosenstein, to go after any matters that arise directly from his investigation.

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A hostile supervisor could also put Mueller on a tight deadline to finish the probe, adopting the Trump line that the probe has dragged on way too long. The evidence, of course, is directly contrary: Mueller has achieved far more in far less time than any other special or independent counsel.

The most worrisome outcome of a change at the top of the DOJ is what would happen when Mueller finishes his report. The regulation that governs special counsels requires Mueller to deliver his findings to his boss in “confidential” form. It then falls to that official to provide an explanation of the findings — contours undefined — to the House and Senate Judiciary Committees. That official also decides whether it is “in the public interest” to release the explanation to the public.


Trump’s lawyer Rudolph W. Giuliani has already indicated that the White House will do what it can to bury the report. That would be the ultimate constitutional affront and public disservice. More than that, it would surely be a political nonstarter. Some way, somehow, Mueller’s findings would be made public.

Which brings us back to Rule No. 1 of the Mueller probe: The public, Congress and the White House know only a fraction of what the special counsel has uncovered. It wouldn’t be surprising if there are already contingency plans in place to counteract any change of oversight. One hugely effective measure Mueller has taken is farming out spinoff investigations to different DOJ offices, including the notoriously independent Southern District of New York.

Whatever measures a new overlord could take, it’s a good bet that Mueller and his team will be ready to parry them, if not fully then at least sufficiently to complete the basic work of the probe and bring their findings to light. That makes it very unlikely that Trump will find a way to avert Mueller’s eventual harsh judgment, and all that flows from it.

Harry Litman, a former deputy assistant attorney general, teaches constitutional law at UC San Diego and UCLA and practices law at Constantine Cannon.


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