President Donald Trump may think he’s getting rid of a problem if he pushes Rod Rosenstein out of the Justice Department.
But cleaning house at DOJ will hardly end the president’s headaches from special counsel Robert Mueller’s investigation into Russian election meddling and whether the Trump campaign coordinated with Moscow on its efforts.
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Several Trump administration appointees in line for Rosenstein’s role overseeing Mueller’s probe come with their own baggage, from direct involvement in the probe to recent work at law firms with clients mired in the investigation.
While Trump said Wednesday night that he would “prefer not” to fire Rosenstein — and even indicated he might delay a highly anticipated Thursday meeting at the White House with the deputy attorney general — it’s widely believed that Rosenstein will be out in the near future. The expectation has led the Trump administration to start searching for conflict-free officials who can take over Rosenstein’s myriad and politically charged responsibilities.
They haven’t found many obvious takers.
“I suspect they are all kind of looking up and down the hallways trying to figure out how to find someone who has the detachment and credibility that Rosenstein has had,” said Victoria Bassetti, a fellow with the Brennan Center for Justice and a former top Democratic aide to the Senate Judiciary Committee.
“They’re going to be opening a lot of doors saying, ‘Can you do this?’”
Trump’s leading candidate to become the acting No. 2 at the Justice Department can expect significant scrutiny from Democrats for openly siding with the president that the Mueller investigation would be crossing a “red line” if it started examining the finances of the president and his family. And that’s just the start of a long list of potential candidates with ethical and political liabilities.
“You’re going to see an enormous national outcry if you have conflicted individuals replacing a deputy attorney general who has demonstrated in my view one of the great independent streaks in American legal history,” said Norm Eisen, the former Obama White House ethics official and a frequent Trump critic.
Whoever ends up in Rosenstein’s position is hardly landing a dream job. They must deal with a president who has no filter in publicly calling out his own DOJ leadership team when they don’t protect his interests, as well as emboldened Democrats eager to point out any perceived shenanigans.
“I’m not sure who’s excited to take this on,” a senior Justice official told POLITICO.
For now, the next phase of DOJ leadership under Trump remains in flux. Attorney General Jeff Sessions is also expected to depart after the midterms, and any temporary or permanent replacement for him would likely become the ultimate decision-maker in the Mueller probe. But until Sessions exits — voluntarily or otherwise — someone else will continue to hold the reins of power over the Mueller investigation.
Rosenstein’s fate — whether he makes it beyond Thursday is very much an open question — has taken on new uncertainty after The New York Times published a story last week detailing conversations in which he floated wearing a wire to record the president in the midst of chaos in the new Republican administration. Rosenstein has insisted the remarks were made in jest, but the incident has still led to speculation that he may leave DOJ soon.
Succession plans are ready to roll in the short term in the event of vacancies in either the Sessions or Rosenstein positions, though any stopgap moves also hinge on whether Trump fires the DOJ appointees or whether they resign on their own accord. And while Trump may have full-time replacements in mind, he also must consider the fallout if Democrats win the Senate majority in November and gain control of the confirmation process.
The immediate front-runner to replace Rosenstein in an acting capacity is Matthew Whitaker, a former federal prosecutor from Iowa who has been serving for the last year as Sessions’ chief of staff.
Before joining the administration, Whitaker frequently appeared on CNN as a legal commentator critical of the Russia probe. In one appearance last summer, he suggested Rosenstein could squeeze the Mueller budget as a way to placate the president. Whitaker also sided with Trump in an August 2017 CNN op-ed to argue that Rosenstein should rule as off-limits to federal investigators any examination of the Trump Organization or the president’s personal finances.
“The President is absolutely correct. Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing,” Whitaker wrote.
However, if Whitaker lands the acting deputy attorney general job, he would not inherit ultimate authority over the Mueller investigation. The Justice Department’s regulations allow for only a Senate-confirmed official to have that job, which comes with authority to approve the special counsel’s budgets, subpoenas, indictments and other major decisions.
Still, legal experts say that, even as DOJ’s acting No. 2, Whitaker would still have an important perch to oversee the Mueller probe, both behind the scenes managing the daily workload of the Justice Department and as a public face for the administration who frequently testifies before Congress.
“He would have substantial visibility into what’s happening. He’d have the right to see the reports and know what’s going on and speak to people about everything,” said Bassetti, the Brennan Center for Justice fellow. “He’d have that sort of soft power, but he wouldn’t technically exercise the actual power.”
First up on the list of Trump officials who would formally assume Rosenstein’s role overseeing Mueller’s work is Noel Francisco, the 49-year-old solicitor general who since last fall has dutifully defended Trump’s policies before the Supreme Court. But the conservative lawyer would also face a conflict of interest if he’s handed the Mueller portfolio: Prior to joining the administration, Francisco was a partner at Jones Day, the law firm that represents the Trump presidential campaign in various matters, including a lawsuit the Democratic National Committee filed accusing the campaign of conspiring with the Russians to hack DNC servers and another suit stemming from the ouster of protesters from Trump campaign rallies.
Francisco himself didn’t list the 2016 political operation as a major client in the financial disclosure forms he submitted when nominated last year to his current post. But legal experts say conflict issues have dogged Francisco since he arrived in the new administration, arguing he’d require a waiver from the White House to circumvent a Trump executive order that requires employees to recuse themselves from work on any matters involving previous employers going back two years.
Walter Shaub, the former head of the Office of Government Ethics and a senior adviser to the watchdog group Citizens for Responsibility and Ethics in Washington, said Francisco should be prohibited from overseeing the Russia probe at DOJ because Jones Day is representing “the most central party in this investigation.”
“They can get away with issuing a waiver, but it should cost them dearly,” Shaub said of the Trump White House. “The optics will be so terrible.”
However, Justice Department leaders are unaware of any impediment to Francisco taking over responsibility for managing the Mueller probe, a top DOJ official said.
Several of the Trump officials after Francisco who are in line to be tapped for the Mueller oversight job have their own potential conflicts, too. Next up would be Steven Engel, the assistant attorney general heading Justice’s Office of Legal Counsel. But he worked at the law firm Dechert during a period when the firm was representing James Comey, whose May 2017 ouster as FBI director is at the center of the Mueller investigation into whether Trump tried to obstruct the Russia probe.
Engel’s conflicts also include a stint as a lawyer on the Trump transition team. While details of what he did there are unclear, legal experts warn that some of the issues central to the Mueller probe took place during the transition period between the November 2016 election and the presidential inauguration. In particular, investigators have been interested in contacts between Trump officials and their future Russian counterparts.
“If anyone on our transition had gotten any whiff of these kinds of foreign entanglements, they’d have gone running to a lawyer. Who’s to say someone didn’t go running to Steve Engel?” said Eisen, who worked on the 2008 Obama transition.
Behind Engel is John Demers, an assistant attorney general in charge of DOJ’s National Security Division. The former Boeing attorney doesn’t have any apparent conflicts in his background tied to his previous work. In fact, his office has been coordinating closely with the Mueller probe and Demers even joined Rosenstein at a July news conference rolling out indictments of a dozen Russian military officials accused of hacking into Democratic Party computer systems as part of a plot to influence the 2016 presidential election.
Demers’ work in the trenches of the Mueller investigation could put him in the same cross hairs with the president that Rosenstein faced.
“I can’t imagine for the life of me Trump would be happy with that,” Bassetti said.
The Justice officials immediately after Demers have their own conflicts. Next after Demers is Brian Benczkowski, the assistant attorney general for DOJ’s Criminal Division.
Benczkowski narrowly made it through his Senate confirmation after Democrats raised questions about his previous work at a law firm representing Alfa Bank, a major Moscow-based financial institution. The bank achieved notoriety in the U.S. after it was named in the controversial “Steele dossier” detailing alleged ties between the Trump campaign and Russian officials. Alfa Bank, which has denied the allegations, tapped Benczkowski in early 2017 to represent it in a lawsuit against media outlets that published the dossier.
The connection caused Senate Minority Whip Dick Durbin (D-Ill.) and a group of Democrats to call on the president to withdraw the nomination. They also pressed Benczkowski during his confirmation to commit to recusals on Russia and Mueller matters.
But Benczkowski would pledge only to “review the law and the specific facts, consult with career ethics officials at the department, and recuse myself from any matter where such a recusal is appropriate.”
Eisen said that’s not enough. “He’s got conflicts up the wazoo,” he said. “If he ends up taking ahold of this, that’s going to end up raising a constitutional crisis.”
Next on the DOJ succession list after Benczkowski is Jody Hunt, who leads the agency’s Civil Division. But Hunt, a former chief of staff to Sessions who drafted the attorney general’s recusal plans on the Russia probe, has already promised senators he won’t play any role in the Mueller probe.
“I was recused when I was in the office of the attorney general, I maintained that after I left his office, and I would continue my recusal if I were fortunate enough to be confirmed,” Hunt told senators during his nomination hearing.
Because of an ongoing vacancy in the final Senate-confirmed Justice Department post on the agency’s own succession list — assistant attorney general for the Environmental and Natural Resources Division — the list of potential stand-ins to oversee the Mueller probe would next go to federal prosecutors scattered around the country.
First would be G. Zachary Terwilliger, the U.S. attorney for the Eastern District of Virginia. But like Demers, Terwilliger could draw Trump’s ire because he’s close to Rosenstein and recently served as the deputy attorney general’s chief of staff.
Controversy could also follow if the job goes to Robert Higdon, the U.S. attorney in the Eastern District of North Carolina who recently played a role in subpoenaing voter records from North Carolina as part of an administration inquiry into voter fraud.
Last on the list is Erin Nealy Cox, the U.S. attorney based in Dallas who has a background in cybersecurity and prosecuting white collar crime.
Seeing this litany of issues on the horizon, Trump could chose to shake up the order of who gets tapped to lead the Russia probe — the current list is part of an executive order he issued in March 2017. But the baggage that so many Trump DOJ officials already bring to their positions suggests the search won’t be easy.
“Even if they do eventually find someone who can do it,” Bassetti said, “it’s not a good fact pattern that you literally have to go rummaging around the hallways to find someone who can manage this investigation with integrity.”