A question mark has long hung over Rod Rosenstein’s job. The US deputy attorney-general is not only the man who oversees the Russia investigation that Donald Trump calls a “witch-hunt”, but he also appointed Robert Mueller, the special counsel who leads the inquiry.
The questions have now grown to a fever pitch after reports that Mr Rosenstein offered to resign or was about to be fired on Monday. The trigger was a New York Times article last week that said Mr Rosenstein discussed invoking the 25th amendment to the US constitution and wearing a wire to record Mr Trump last year. Mr Rosenstein called the story “inaccurate”.
On Thursday Mr Trump and Mr Rosenstein will meet in Washington in what could be a make-or-break moment for the deputy attorney-general. If he exits the Department of Justice, his departure will create uncertainty over the Mueller investigation, which recently achieved a breakthrough when Paul Manafort, the former Trump campaign chairman, agreed to co-operate.
“The concern is what happens to the Mueller probe. Rod was a staunch defender of it. The question is whether the next person will be too,” said Matthew Axelrod, a former top justice department official in the Obama administration, now at Linklaters.
Mr Rosenstein’s importance in the Russia investigation stems from the recusal of Jeff Sessions, the attorney-general, from matters involving the 2016 election.
In May 2017, after Mr Trump fired James Comey as FBI director, Mr Rosenstein took the dramatic step of appointing Mr Mueller as special counsel to head the investigation into Russian interference in the 2016 election. In other matters, the power to appoint and oversee a special counsel rests with Mr Sessions. Here, Mr Rosenstein wields it as the acting attorney general.
Since last year Mr Rosenstein has stood watch over Mr Mueller and his prosecutors as they have steadily won guilty pleas from four former Trump aides and advisers, and indicted 25 Russian nationals.
He has determined the boundaries of the investigation as Mr Mueller has referred some matters to other parts of the justice department, including the case of Michael Cohen, Mr Trump’s former personal attorney, who said the president ordered him to commit campaign finance violations.
Any successor to Mr Rosenstein will take over those responsibilities and with them, the power to shape the outcome of the investigation. “He or she will have complete control over the Mueller probe in terms of what direction it goes, what major decisions they make when they wrap up and whether a report goes to Congress or not,” said Joseph Moreno, a former federal prosecutor and partner at Cadwalader.
Noel Francisco, the solicitor general, who was appointed by Mr Trump last year, would be expected to take over Mr Rosenstein’s duties overseeing the Russia investigation.
Ordinarily, the associate attorney general, the number three position at the justice department, would be the next in line. But that post is not currently filled by a Senate-confirmed appointee, and under an executive order signed by Mr Trump last year, non-confirmed officials are excluded from the order of succession.
However, Mr Francisco may have to recuse himself because his former law firm, Jones Day, represents the Trump campaign. In that case, Steven Engel, the head of the office of legal counsel, would be in charge, according to a document issued in 2016 by Loretta Lynch, then the attorney-general.
Another potential curveball that could upset this sequence is the Vacancies Reform Act, which allows Mr Trump to fill administration positions on a temporary basis.
It is unclear if the act could be applied when an official is fired rather than resigns, but Mr Trump could try to use it to replace Mr Rosenstein with any Senate-confirmed official he wished, including from outside the justice department.
In 2007 the Office of Legal Counsel said the president had the authority to use the VRA to sidestep the order of succession to appoint an acting attorney-general. However, such a move in the case of the Russia investigation would likely spark a political furore, as well as legal challenges.
“Whether someone he appointed under the Vacancies Reform Act could fill the role of acting attorney-general for the purpose of the Russia investigation starts to come down to what challenges there might be and who would have standing to bring those challenges,” said Mary McCord, a former acting head of the DoJ’s national security division.
