The Man Who Would Oversee the Mueller Probe if Trump Fired Rosenstein

The chatter about whether or not Trump will fire Deputy Attorney General Rosenstein has died down a bit. But it is important to remember that rumors about the president firing Rex Tillerson and H.R. McMaster swirled for months before they were actually shown the door.

In light of that, it is helpful to know who would take over supervision of the Mueller investigation if the president were to fire Rosenstein. As a refresher, AG Jeff Sessions recused himself, which is why the Deputy Attorney General has been in charge. Until recently, the person who would take over if he were fired would have been Associate Attorney General Rachel Brand. In February, she resigned, at least in part because she didn’t want to find herself in charge of this investigation. At this point, Brand hasn’t been replaced so the job would go to Solicitor General Noel Fransisco. Here’s a summary of what we know about him:

  • Clerked for Justice Antonin Scalia
  • Has close personal and business ties to Ted Cruz and Chuck Cooper (Jeff Sessions’ personal lawyer)
  • Worked on the Florida recount operation for George W. Bush
  • Worked for the Office of Legal Counsel in the Bush administration
  • Reviewed one of the Bush administration’s “torture memos”
  • Testified against the use of special counsels during the controversy over the firing of U.S. attorney’s during the Bush administration
  • Testified that a president can invoke executive privilege to withhold information from a congressional probe
  • Successful in getting the conviction of Virginia Governor Bob McDonnell on corruption charges overturned by the Supreme Court
  • Represented religiously affiliated organizations in Zubik vs Burwell, arguing that providing contraception services for their female employees would implicate them in sin

In addition to that history, Francisco is currently involved in a relevant case as solicitor general.

The Supreme Court is set to hear a seemingly minor case later this month on the status of administrative judges at the Securities and Exchange Commission, an issue that normally might only draw the interest of those accused of stock fraud.

But the dispute turns on the president’s power to hire and fire officials throughout the government. And it comes just as the White House is saying President Trump believes he has the power to fire special counsel Robert S. Mueller III.

Trump’s Solicitor Gen. Noel Francisco intervened in the SEC case to urge the high court to clarify the president’s constitutional power to fire all “officers of the United States” who “exercise significant authority” under the law.

“The Constitution gives the president what the framers saw as the traditional means of ensuring accountability: the power to oversee executive officers through removal,” he wrote in Lucia vs. SEC. “The president is accordingly authorized under our constitutional system to remove all principal officers, as well as all ‘inferior officers’ he has appointed.”

Betsy Woodruff summarizes what some of that tells us about Francisco.

As an appellate lawyer and a conservative, he’s studied constitutional law matters, the separation of powers, and the chain of command…So people close to both Francisco and Rosenstein said Francisco has likely put much more thought into the constitutional order than Rosenstein has. And it’s likely Francisco is quite familiar with an argument many conservative lawyers make: that Trump has the power to abolish the regulation governing the special counsel and to order the special counsel’s supervisor to fire him, and, therefore, that his doing so would not trigger a constitutional crisis.

None of that bodes well for Rosenstein’s job security.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60 .