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Reports that Rod Rosenstein would resign or be fired as deputy attorney general have fueled several hours of intense speculation on cable television about what his departure could mean for the investigation of the company. special advocate under his supervision.
Journalists and experts calmed down after the White House announced that Rosenstein would meet President Donald Trump later this week, suggesting that his ouster was not imminent.
However, following a New York Times report that Rosenstein in 2017 had speculated about recording conversations with Trump and was considering invoking the 25th amendment to remove him from office, Rosenstein's status in the US Department of Justice justice remains an open question. (Rosenstein denied the accusations.)
Here we will answer some questions about what could happen if Rosenstein leaves the Department of Justice.
Chain of authority and investigation of Mueller
The law is vague about whether a chair can directly refer a special council, as we have explained. But the rules of the Department of Justice are clear about the law enforcement official who exercises this power.
In this case, this authority belongs to Rosenstein, who acts as Attorney General in place of Attorney General Jeff Sessions. (The sessions have recused themselves from the investigation in Russia.)
Rosenstein appointed Mueller in May 2017 and oversaw the investigation of the special adviser on Russian electoral interference and contacts of the Trump campaign with Moscow. Since his appointment, Rosenstein has shown no sign of willingness to prevent or terminate Mueller's investigation.
"Of all that I know, there is no chance Rosenstein executes an order to fire Mueller, at least in the current state of things," said Louis Seidman, a professor of constitutional law at Georgetown University. .
Rosenstein's apparent reluctance to interfere with Mueller's investigation has long fueled suspicions that Trump might attempt to delegate his authority over the investigation to a more flexible subordinate – a scenario that has gained momentum with rumors of a imminent departure of Rosenstein.
The Saturday night massacre is redone?
The possibility of Rosenstein's ouster drew parallels with President Richard Nixon's "Saturday Night Massacre".
In 1973, Nixon dismissed Watergate's special prosecutor, Archibald Cox, as his two senior Justice officials, Elliott Richardson and Bill Ruckelshaus, resigned in protest rather than execute Nixon's order. .
The law is clear on the line of succession of the Attorney General in case of vacancy. It is addressed first to the Deputy Attorney General, then to the Associate Attorney General, then to the Solicitor General, and then to the Deputy Attorneys General.
During the Saturday night massacre, then Solicitor General Robert Bork finally followed Nixon's orders and fired Cox.
James Robenalt, a lawyer and Watergate expert, said that while many of the variables surrounding Rosenstein have not yet come to fruition, there is a constant.
"If Trump tries to close the investigation, it will provoke a constitutional crisis," Robenalt said. "Nixon did it in 1973 by shooting Cox (and calling him a witch hunt) .Trump could repeat that story."
Rosenstein's successor
If Rosenstein was deported, the line of authority would slip away from the Associate Attorney General (acting in the interim after Rachel Brand's departure earlier this year) and turn to Solicitor General Noël Francisco.
But legal experts have stated that the fact that Francisco fulfills this role could be problematic. Jones Day, the law firm Francisco left when he became Attorney General in 2017, represented the Trump campaign.
according to Matthew Miller, a former spokesman for the Justice Department in the Obama administration, the next online after Francisco would be Steven Engel's Office of Legal Counsel.
To oversee the Mueller investigation, Francisco should first obtain a waiver, said Walter Shaub, who headed the US Office of Government Ethics until his resignation in July 2017.
"He has a two-year challenge for any particular issue in which Jones Day represents a party," said Shaub. Twitter.
Some legal experts have noted that Francisco tends to view the presidency as holding extensive powers, although it is unclear how this could translate into his oversight of the Mueller inquiry.
"It is a little worrying that a person with such extreme views on the privilege of the executive oversees the investigation in Russia," said Jens David Ohlin, a professor at Cornell Law School. "But I think we should be careful here, we do not know how Francisco would oversee the investigation in Russia.
"It is difficult to predict, based on the public record, how a person could perform such critical functions at the time of a major national import," he added. "Many people are rising to defend the rule of law and I hope Francisco will be one of them."
It is important to note that Department of Justice regulations set a high enough level to refer a special council. This requires a good cause, such as "misconduct, breach of duty, incapacity, conflict of interest or any other valid cause, including breach of departmental policies".
"My view is that Mr. Francisco will be cautious and will not attempt to invoke any of these provisions, especially before the mid-term," Robenalt said. "He believes in executive power, but is also known as a careful lawyer.
"It will be different if the President orders him to dismiss Mueller.If this happens, Mr. Francisco will have to make the same decision as that of Elliot Richardson during Watergate – that it's all right." to obey or resign, "he added. "Since the regulations require at least a" good cause "to trigger, it seems to me that if there is no justification, Mr. Francisco should resign."
Fired versus resigned
In the end, if Rosenstein were to leave his post, the circumstances of his departure could be very important, according to experts.
Trump's shooting against Rosenstein could be evidence in a case of obstruction of justice, if it were done so that Trump had more control over Mueller.
"This would certainly open a line of inquiry into the investigation of the obstruction of justice," Ohlin said. "It could even trigger a constitutional crisis."
If Rosenstein resigned, however, the problem of obstruction became "much less acute," said Mr. Ohlin, because the resignation involves "at least some level of personal choice", even if it occurs under pressure. intense.
Yet other legal experts have stated that the New York Times reported that Rosenstein sought to register or withdraw Trump, which gave the president good reason to dismiss him without undermining a case of obstruction.
"It no longer seems likely that the act of dismissing Rosenstein, if it happens rather than resigning, would constitute a plausible obstruction to justice," said Joshua Dressler, a law professor at Ohio State University. . "Due to the New York Times article, President Trump can reasonably argue that someone who has suggested carrying a thread and potentially invoking the 25th Amendment constitutes grounds for dismissal."
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