Robert Mueller
Credit: The White House/Wikimedia Commons

No one is surprised by the fact that Robert Mueller has gone almost completely silent for the last couple of months. Unlike former FBI Director James Comey, he seems to be abiding by the Justice Department protocol on not releasing information about probes during an election season.

But after all the votes are counted, it is very possible that a whole new race will resume. That is the contest over whether the release of findings from the Mueller investigation will beat out attempts by Donald Trump to stop it.

We’re already hearing about major exits from the Trump administration that will happen once the midterm elections are over. It has become obvious that Jeff Sessions’ days as Attorney General are numbered. The president has made it very clear that his exit will be based on the fact that Sessions recused himself from the Russia investigation. But the question becomes whether Trump can get a replacement nominee confirmed at all—much less in time to scuttle the Mueller investigation.

That leaves Deputy Attorney General Rod Rosenstein, who currently supervises the probe and has the authority to determine what, if any, reports are released, as the person most likely to join Sessions on the chopping block. You might remember that back in late September there was a flurry of rumors about Rosenstein being either fired or forced to resign. It didn’t happen back then, but most people assumed that the stay would only last until the midterm elections had been completed.

While we’ve all been focused on what the outcomes will be on Tuesday, the organization Citizens for Responsibility and Ethics in Washington (CREW) made an interesting discovery.

If Deputy Attorney General Rod Rosenstein either resigns or is fired, someone else will have to oversee the Special Counsel investigation. Next in line appears to be Solicitor General Noel Francisco. The problem is that Mr. Francisco has ties to the pending investigation that should preclude his participation.

For one thing, his former law firm, Jones Day, represents the Trump Presidential Campaign in the Special Counsel investigation. Also, Mr. Francisco has a continuing financial relationship with Jones Day, which owes him more than half a million dollars. In addition, he previously appeared before the Justice Department as a member of a “Landing Team” on behalf of the Presidential Transition Team.

The first of the three obstacles Mr. Francisco faces – his former employment relationship with Jones Day – raises an issue under the Trump ethics Executive Order. As required by that Executive Order, Mr. Francisco signed an ethics pledge in which he promised that, for two years after joining the government, he would not participate in any investigation in which Jones Day represents a client…

However, CREW has discovered that the Trump administration issued Mr. Francisco an ethics waiver on April 24, 2018. The waiver relieves him from any obligation to honor his ethics pledge to recuse from investigations involving Jones Day. The waiver states only that he is relieved of this obligation and offers no justification whatsoever.

CREW goes on to point out that the waiver was signed by Don McGahn, who himself has a history of working for Jones Day, and would therefore violate Trump’s ethics Executive Order by involving himself in giving Francisco a waiver. This tangled web is what some of us think of when people talk about the so-called “swamp.”

In any case, the administration seems to have done the legwork for Francisco to take over supervision of the Mueller probe when/if Rosenstein is fired. We can all be very certain that the conversation over loyalty between the president and Fransisco has also taken place. Depending on how fearful Trump is about the potential findings of the investigation, a race could be on over whether the president sets off a constitutional crisis by firing Rosenstein in an attempt to obstruct justice, or Mueller’s findings see the light of day.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.