Rosenstein’s departure is a national emergency.
Solicitor General Noel Francisco, who has expressed skepticism of special-counsel investigations in the past and has a relatively expansive view of executive privilege, would take Rosenstein’s place. A law passed in 1998 would allow Trump to appoint anyone who has already been confirmed by the Senate to the post of deputy attorney general, but only if Rosenstein resigns. If he’s fired, the president’s legal authority to make appointments unilaterally is much murkier.
Rosenstein’s tumultuous tenure as deputy attorney general has been punctuated by attacks from the president—who has called him “conflicted” and “weak”—and spats with GOP lawmakers. House Freedom Caucus Chairman Mark Meadows went as far as to file articles of impeachment against Rosenstein in July.
After Attorney General Jeff Sessions recused himself from the Russia probe, Rosenstein became the one person capable of firing Special Counsel Robert Mueller directly. However, far from entertaining Trump’s characterization of the Mueller probe as a “witch hunt,” Rosenstein quietly defended the special counsel and pushed back on requests from Trump’s allies in Congress for sensitive, Russia-related documents, making him an unlikely hero among the president’s critics. Among the documents that GOP lawmakers wanted, but never obtained, were notes from former Deputy FBI Director Andrew McCabe, who, according to the Times story, had memorialized Rosenstein’s alleged comments.
Firing Rosenstein won’t save Trump.
Regardless of who would replace Rosenstein, Mueller would still have broad authority to conduct the probe as he sees fit; federal guidelines mandate that the special counsel “shall not be subject to the day-to-day supervision of any official of the department.” But his replacement would still have the power to stymie the probe by deeming certain investigative or prosecutorial steps “inappropriate or unwarranted.”
Even if Mueller were fired, he could be replaced, as Paul Rosenzweig, the former senior counsel on the Whitewater investigation, noted recently. Pieces of the investigation could also get farmed out to various legal divisions. The Southern District of New York, for example, brought charges last month against Trump’s former personal attorney Michael Cohen that were based in part on a referral from Mueller’s team.
Mueller recently secured a guilty plea from Trump’s former campaign chairman Paul Manafort, and is debriefing Cohen on all things Russia, according to ABC News. He is also writing a report that details circumstances in which Trump may have attempted to obstruct justice, including Comey’s firing.
Were Trump to fire Rosenstein for reasons related to the Russia investigation—for example, if he wanted to replace the deputy attorney general with someone willing to shut Mueller down—that, too, could constitute obstruction of justice, legal experts told me. But if Rosenstein resigns, even under some pressure, “the obstruction argument loses a lot of force,” said Jens David Ohlin, a vice dean and law professor at Cornell Law School. “By definition, a resignation involves at least some level of personal or professional choice. For myself, I find it hard to believe that Rosenstein would simply resign under these circumstances.”
With the Times story, Trump was handed a justification for firing that, on its face, is unrelated to Rosenstein’s handling of the Mueller probe. That’s despite reporting from The Washington Post that Rosenstein’s comment about recording Trump was made in jest, in response to McCabe’s suggestion that the Justice Department investigate Trump after he dismissed Comey.
