Analysis: Firing Rosenstein Won’t Save Trump

Let’s be blunt. Given what we know about President Trump’s impulsive nature, there are good odds that sometime soon he will fire the special counsel, Robert Mueller, or perhaps the deputy attorney general, Rod Rosenstein (who, because Attorney General Jeff Sessions is recused, is currently supervising the Mueller investigation as acting attorney general). No doubt some of his advisers will convince him that this will help avoid scrutiny of his conduct. But that’s mostly wrong.

First, think about the situation in which Trump orders that Mueller be fired. Someone has to do it—and probably Rosenstein would refuse and be fired too. Eventually, though, some senior Trump loyalist in the department would pull the trigger and Mueller would be gone.

What happens then?

Well, actually, there are three possibilities: First, whoever fires Mueller might eventually just replace him with someone to finish the investigation. After all, there are several indictments outstanding that need to be tried; plea agreements that need to be finalized; and open investigative leads. In the “normal” course of business, if the lead prosecutor leaves an investigation, he just gets replaced. That might happen here—especially since the political pressure to replace Mueller would be fairly intense. This, after all, is what happened after President Richard Nixon fired special prosecutor Archibald Cox—Leon Jaworski was appointed.

Second, since the investigation would still be open, we might see the investigation continue but without a special counsel. That’s partially what has already happened with respect to the investigation of Trump’s attorney, Michael Cohen. That investigation is now being handled by the U.S. Attorney’s Office in the Southern District of New York—a regular unit of the Department of Justice. If Mueller were fired, the ongoing pieces of his investigation (into Manafort, Russian social-media interference, etc.) could also get farmed out to various U.S. attorneys’, or a Department of Justice, litigating division to pursue. If that happened, the investigations might lose some coordination, but they would continue apace.

Finally, and most problematically, whoever fired Mueller could also order that the investigation be closed out. On the merits, this would be a dubious act, in the sense that there is no actual basis in fact for shutting the investigation down. In “real life,” investigations are closed only when their original predication is disproved or when they’ve reached an investigative dead end and can go no further; or, sometimes, when the resources necessary to continue exceed the apparent significance of the crimes under investigation. Whoever obeyed Trump’s order to fire Mueller might also pull the political trigger and shut down the investigation and brave the political storm that would follow.

But even that would not end the matter—at least not necessarily.

The U.S. government may properly share information collected during an investigation when authorized by statute or by a court. It is quite possible (indeed, if public reports are to be credited, highly likely) that the special counsel has already shared relevant investigative information regarding possible criminal violations of New York State law with the attorney general of New York. No action by the federal government could limit that state official, nor could any action prevent him from continuing the investigation. To be sure, not all of the matters under investigation by the special counsel are also potential violations of state law—but many of them appear to be.

And what about Rosenstein? What if he is fired, but Mueller is not? The idea here, of course, is that someone who replaced Rosenstein and is more loyal to Trump might limit the special counsel’s investigation—might, for example, tell him that he could no longer look at the financial records of the Trump Organization or might order him to stop all inquiries into the Trump Tower meeting between the Trump campaign and purported agents of the Russian government. This would be an effort to control the Mueller investigation indirectly, without actually firing him—and it might be that some would judge firing Rosenstein less politically tumultuous than firing Mueller himself.

But even this is not likely to be as effective as the president would think. To see why, we have to unpack the situation a bit. It is complicated by the fact that today Rosenstein is actually wearing two hats—one as deputy attorney general and one as acting attorney general.

As the deputy, Rosenstein has certain institutional powers over all criminal investigations (for instance, the deputy can approve searches of an attorney’s office). Those institutional powers would go to whomever became acting deputy attorney general. If Trump did not appoint someone to replace Rosenstein on an acting basis, that role would fall to Rosenstein’s principal associate (a man named Edward O’Callaghan). Or, the president could name his own acting deputy if he wished.

But … and this is important … even if Trump were to appoint a loyalist to replace Rosenstein as acting deputy attorney general, until that person were confirmed by the Senate, he or she would not actually be the deputy. As a result, he or she could not be the acting attorney general for purposes of supervising the Mueller investigation. The acting attorney general can only be someone who has been appointed to and confirmed in a position of leadership by the Senate. To put it colloquially, there are no “double acting” appointments allowed.

And so, if Rosenstein were to be fired, the job of acting attorney general, and supervision over the Mueller investigation, would fall to the next in line of senatorially confirmed DOJ appointees. Normally that would be the Justice Department’s number three—the associate attorney general—but that post is currently vacant because the incumbent, Rachel Brand, left earlier this year. So the acting attorney general would be the number four in the Justice Department—the solicitor general, Noel Francisco. And there is no reason to think that Francisco (whom, full disclosure, I know slightly) would do the job any differently than Rosenstein has been doing it—with integrity and to the best of his ability. Thus, the firing of Rosenstein would appear to have little or no prospect of affecting Mueller in the slightest.

In short, firing Rosenstein or Mueller would be a mistake (larger probably than that of firing then-FBI Director James Comey). It would come at severe political cost to the president and, quite likely, have relatively little actual effect on the current investigation. That prospect would dissuade any rational