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Rosenstein’s Fate, Future of Mueller Probe Oversight Hang in Balance

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Brendan Smialowski/AFP/Getty Images

Deputy Attorney General Rod Rosenstein’s tenure at the Justice Department (DOJ) may be coming to a close and with it his oversight of Special Counsel Robert Mueller’s Russia investigation after a series of reports Monday.

News of Rosenstein’s potentially imminent departure broke in an Axios report Monday morning that he had “verbally resigned” in a conversation with White House Chief of Staff John Kelly. This conversation took place days after a report emerged Friday alleging that Rosenstein had discussed taping his or others conversations with President Donald Trump last spring, shortly after Rosenstein took office, with an eye to helping remove the president. Rosenstein has steadfastly denied that report in public, with other sources at the Justice Department claiming the comment was really made, but was a joke or sarcastic.

The Wall Street Journal then reported that talks over Rosenstein’s departure were already taking place over the weekend.

But, by Monday afternoon, the White House was pushing back on talk of a resignation and Rosenstein was seen at a regularly scheduled meeting. The suggestion was that no decision on Rosenstein’s fate would come before President Donald Trump’s return to Washington from his trip to the United Nations in New York City.

“At the request of Deputy Attorney General Rod Rosenstein, he and President Trump had an extended conversation to discuss the recent news stories,” White House spokeswoman Sarah Huckabee Sanders responded. “Because the President is at the United Nations General Assembly and has a full schedule with leaders from around the world, they will meet on Thursday when the President returns to Washington, D.C.”

Axios’s Swan later clarified his earlier reporting as his sources confirmed that an exit statement had been drafted for Rosenstein. “Note for readers: I regret the way I wrote this morning’s version of the story. By saying Rosenstein had ‘verbally resigned’ to Kelly rather than ‘offered his resignation,’ I conveyed a certainty that this fluid situation didn’t deserve. It’s an important nuance, and I regret the wording,” he wrote.

Justice Department spokeswoman Sarah Flores told Swan that “My only statement is that Rod is the DAG.”

A DOJ official informed Breitbart News Monday evening that Rosenstein will be hosting a meeting for state attorneys general with U.S. Attorney General Jeff Sessions and the rest of DOJ’s top brass.

With Rosenstein’s professional fate in question, so too is that of his most widely publicized duty: overseeing the Special Counsel’s Office Russia investigation. Should Rosenstein depart, that sensitive and highly scrutinized duty may fall to the fourth most senior official at the Justice Department, Solicitor General Noel Francisco.

Rosenstein, the DOJ number two, has been overseeing Mueller because of Sessions’ recusal from matters involving the 2016 Trump campaign in which he served, and the number three spot, associate attorney general, has been vacant since Rachel Brand’s departure in February.

Francisco, who as solicitor general is the administration’s chief representative in court battles, is considered more closely aligned to the conservative legal movement and President Trump than Rosenstein, who is a moderate Republican appointed as a U.S. Attorney by President George W. Bush and retained in the Obama and Trump administrations. Francisco served as a clerk to late Supreme Court Justice Antonin Scalia and began his career in private practice with arch-conservative firm Cooper, Carvin, & Rosenthal (now Cooper & Kirk) before joining the Bush White House. He led the effort to secure the administration victory in the travel ban case, is defending the decision to end the Deferred Action for Childhood Arrivals (DACA) program, and is representing the administration in several other major cases bound for the Supreme Court.

Some, like former New Jersey Governor and Trump transition team leader Chris Christie, however, have expressed doubts that a switch to Francisco would solve concerns over the handling of the Special Counsel’s Office investigation. “You now do not have Rachel Brand, the number three if Rod Rosenstein were to be fired? This doesn’t solve any problems if that’s what the president is doing it for,” Christie said in April. “Who is going to be in charge? Noel Francisco? The solicitor general. A very talented lawyer. To be solicitor general, you have a specific skill set. Running a Russia collusion investigation, not one of them.”

Separate rumblings Monday indicate Francisco himself may recuse from the Russia probe, in which case the role would pass to Steven Engel, head of DOJ’s Office of Legal Counsel. Before joining the Trump administration in November 2017, Francisco was a partner at Jones Day, the prominent law firm that represented the Trump campaign during the same period as the focus of the supposed Russian collusion at the heart of the Mueller investigation.

Ethics rules surrounding recusal can become notoriously ambiguous and controversial in their application, as Sessions’ decision itself demonstrates. Francisco’s firm’s involvement with the campaign, where they may have provided legal advice on the very issues at stake in Mueller’s investigation, however, may well prove sufficient to require his recusal. Should he do so, the next man in the line of succession as acting attorney general for this purpose is Steven Engel, the head of DOJ’s Office of Legal Counsel (OLC), the office responsible for issuing what in most circumstances are the authoritative legal positions of the administration.

Engel, a Harvard, Cambridge, and Yale Law graduate, clerked for retiring Supreme Court Justice Anthony Kennedy and served in the OLC during the George W. Bush administration. Like Francisco, he has a long history with the conservative legal movement and Democrats were reportedly considering filibustering his nomination over his involvement with the conservative Federalist Society.

Rosenstein’s continued presence at DOJ, where he already was the frequent target of attacks from the political right over his handling of Mueller’s investigation and requests for documents by congressional Republicans, is a thorn in the side of some conservatives. The timing of the reports on 16-month-old allegations against Rosenstein, however, has led some conservative commentators to question if the report itself were a political machination by Trump’s enemies.

The alleged comments about taping Trump were roughly contemporaneous, in May 2017, with the first of many reports about Rosenstein’s departure. Then, reporting focused on Rosenstein’s alleged comments on resigning over his portrayal as the prime mover in the firing of FBI Director James Comey.

This year, Rosenstein repeatedly clashed with House Republicans like Rep. Jim Jordan (R-OH) and Rep. Mark Meadows (R-NC) over production of documents. Meadows, in April, threatened Rosenstein with impeachment over the matter and speculation that the White House would dismiss Rosenstein again flared up.

Whether the “wearing a wire” controversy proves to be Rosenstein’s last, and whether Robert Mueller will find himself with a new overseer, awaits President Trump’s return from New York.

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