Rosenstein Must Go, So Mueller Can Stay

(Bloomberg Opinion) -- The revelation on Friday that the deputy attorney general, Rod Rosenstein, considered wearing a wire to record President Donald Trump and discussed trying to get the cabinet to invoke the 25th Amendment to remove him is more than merely astonishing. It has consequences.

In the first place, it could give Trump an excuse to fire Rosenstein, which would possibly precipitate a crisis regarding the fate of special counsel Robert Mueller’s investigation into Russian interference in Trump’s election.

In the second place, it once again raises a serious problem for Rosenstein himself: that he has not recused himself from supervising Mueller’s investigation. Before today’s news, first told by the New York Times, there was already good reason for that recusal: Rosenstein was involved in the firing of FBI Director James Comey through a memo he drafted for Trump that justified the firing.

Now, the reasons for Rosenstein to recuse himself are even greater: He was apparently so troubled by Trump’s erratic behavior in replacing Comey that he was contemplating radical steps. That makes it easy for critics of the Mueller investigation to say that Rosenstein is biased against the president.

Start with the possibility that Rosenstein will be fired. Under ordinary circumstances, you would expect a president to fire a senior Justice Department official who either considered taping him without his knowledge or seriously contemplated having him found unfit for office. In other words, Rosenstein’s reported conduct, if true, legitimately counts as a firing offense.

Given Trump’s personality, however, it may be tricky for him to fire Rosenstein now. The official’s comments go directly to Trump’s most vulnerable spot, namely his own fitness for office.

If Trump does fire Rosenstein, Democrats will surely say that he is doing so only to replace Rosenstein in his supervision of the Mueller investigation. They will warn of a possible echo of President Richard Nixon’s “Saturday night massacre,” in which firing the deputy attorney general is a prelude to firing the special counsel. To be sure, firing Rosenstein need not necessarily create a crisis if Trump at the same time promises to retain Mueller. But such a promise would not be considered credible by Democrats.

If Rosenstein were to go, who would then supervise Mueller? This turns out to be a tricky question. Attorney General Jeff Sessions is already recused. Next in line would ordinarily be the associate attorney general. But Rachel Brand, the previous occupant of that job resigned in February, after just nine months in office. The new occupant has not been confirmed by the Senate and so is merely the acting associate general, which takes him out of the line of succession. (In case you wondered, as I did, his name is Jesse Panuccio. Before coming to the Justice Department, he was general counsel to the governor of Florida and the director of Florida’s Department of Economic Opportunity.)

After the associate attorney general would come the solicitor general of the U.S., Noel Francisco. He is Senate confirmed. The basic problem with his occupying the role is that his job does not ordinarily have anything to do with criminal prosecution. And, to make matters more complicated, Francisco used to be a partner at the law firm of Jones Day, which has represented the Trump campaign. Francisco might still be able to do the job with supervision. If he isn’t, the next in line would presumably be Steven Engel, who is the assistant attorney general in charge of the office of legal counsel.

But assume for the moment that Trump does not fire Rosenstein. Should Rosenstein now recuse himself from supervising Mueller, given that he did not do so before? On the one hand, his capacity for objectivity seems to be even more comprised. Before, he was vulnerable to critics of the administration saying he was too close to the events being investigated. Now, the vulnerability comes from the other side. Trump loyalists could say, with some reason, that Rosenstein is too strongly opposed to Trump to be objective.

On the other hand, the main reason that Rosenstein has been able to avoid recusal while preserving his legitimacy is that no one actually wants to see what would happen if he were no longer Mueller’s direct supervisor. The other possibilities are simply too uncertain. For the most part, the left has accepted Rosenstein. The right might choose to do the same, just because they think that the best outcome for Trump, and their party, is to keep the Mueller investigation out of the news and to avoid any potential crisis.

I expect that Rosenstein’s supporters in the centrist criminal-justice community will be quick to weigh in and say that he should not recuse himself. In any rational world, this wouldn’t make sense. But we are not living in a rational world right now, at least not when it comes to this president and this investigation. If Rosenstein doesn’t recuse himself, the Mueller investigation will be more vulnerable than it was before. But that may just be better than the alternative.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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