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Solicitor general could take over Mueller probe if Rosenstein exits
The conservative Supreme Court litigator is the Department of Justice's (DOJ) No. 4 official. However, he would take over the Russia probe since Attorney General Jeff Sessions recused himself from the matter last year and there is no No. 3, following the February resignation of former Associate Attorney General Rachel Brand.
Francisco is seen as more of a Trump loyalist than Rosenstein, but he could come under pressure to recuse himself given the law firm he previously worked for represents Trump.
Reports of Rosenstein's potential departure from the department circulated Monday morning, with some outlets reporting that Rosenstein had already offered his resignation after a bombshell New York Times story last week that he discussed wearing a wire around Trump and considered invoking the 25th Amendment. Rosenstein has fully denied the report.
The White House said later Monday that Rosenstein, who became responsible for overseeing the probe in March 2017, would meet with Trump on Thursday.
Some Democrats were quick to oppose the prospect of Francisco overseeing the probe.
"If Rosenstein departs, Noel Francisco should not oversee the Special Counsel investigation. His previous firm Jones Day represents the @realDonaldTrump campaign in the Special Counsel investigation," Rep. Ted Lieu (D-Calif.) tweeted. "This is a huge conflict of interest."
Francisco, who served as associate counsel to President George W. Bush and later held a position in the DOJ's Office of Legal Counsel, worked for the Washington firm from 2005 to 2017.
Under Trump's own executive order, government appointees pledge not to participate in any matter directly related to their former employer or clients for a period of two years after taking office. Francisco recently hit his first anniversary on the job.
Walter Shaub, who oversaw government ethics during the Trump and Obama administrations, told The Hill that the DOJ's ethics office would have to ask the White House for a waiver of that requirement.
Shaub, who has been highly critical of the Trump administration and resigned from the ethics job last year, said Francisco's involvement could also cast doubts on the validity of Mueller's probe.
He said that if the probe were to shut down without releasing any major findings or pressing further charges, some might wonder if Francisco's ties to his old employer hindered the investigation.
"And so, it would probably hurt [the Trump administration] more than anybody else if they were to pick him," Shaub said.
Marty Lederman, a Georgetown University Law Center professor and former deputy assistant attorney general in the DOJ's Office of Legal Counsel from 2009 to 2010, noted on Twitter that Francisco has already recused himself from cases before the Supreme Court where Jones Day represents a party, including those coming up this term.
Until the extent of Francisco's work at Jones Day is known, experts say it's unclear whether a conflict exists.
Robert Mintz, a former federal prosecutor, said Francisco shouldn't face any legal hurdles unless he worked directly with any of the firm's clients who are implicated in the investigation.
He added that while it's unusual for the chain of command to dip as low as Francisco's position, he believed the solicitor general has more than enough experience to conduct oversight of the investigation.
"I think anybody frankly who steps into that position is going to be subject to some close scrutiny," Mintz said.
If Francisco recuses himself from the role, next in line is Assistant Attorney General Steven Engel, who heads the DOJ's Office of Legal Counsel. But Engel, 44, could also have a conflict of interest, having worked as a lawyer for President Trump's transition team.
If Trump fires Rosenstein, the process becomes more complicated. Experts say the Trump administration could try to appoint someone who's already been confirmed by the Senate to replace him under the Vacancies Reform Act, but it's debatable whether that person would have the power to oversee Mueller's investigation.
If Sessions, who's not expected to remain in the job after November's midterm elections, does leave, oversight of the probe would likely shoot back up the chain of command to the new attorney general.
Some have raised the alarm over the possibility of Rosenstein's departure from the department, arguing that removing the only official who appears to have the direct power to fire Mueller is putting the investigation itself in harm's way. Legal expert Jeffrey Toobin wrote in a column for The New Yorker on Thursday that there "is little doubt that the President could ultimately find a compliant Justice Department official" to fire Mueller.
Trump has repeatedly attacked Sessions for recusing himself from the probe last year, a decision Sessions made amid mounting pressure after failing to disclose during his confirmation that he had met with Russia's ambassador during the campaign.
Trump has repeatedly said he never would have chosen Sessions if he had known he would step aside.
"I think anyone who takes that job wants to be very careful they don't get into a situation where they are obstructing justice," said Richard Painter, who served as chief White House ethics lawyer under Bush from 2005 to 2007.
But, given his reputation, legal experts say Francisco isn't likely to thwart Mueller's work.
"It's unlikely that this would make a huge difference in the fate of the Mueller investigation given how far along the investigation appears to be," said Eric Columbus, who served as senior counsel to the deputy attorney general during the Obama administration.
"And it seems unlikely that Francisco would want his legacy and his role in the process to be torpedoing it," he said.
As solicitor general, Francisco is charged with supervising the litigating positions of the federal government, a role that puts him before the Supreme Court arguing on behalf of the administration. Last term, he successfully fought back a challenge to Trump's travel ban.
But former federal prosecutor John Lauro said the position is "nonpolitical" and "has the utmost respect in the department."
"The solicitor general is never viewed as sort of adhering to any White House influence or political influence but is really viewed in many respects as an independent ethical lodestar within the department," he said.