Who Might Replace Rod Rosenstein and What Would it Mean for the Mueller and SDNY Investigations?: A Deep Dive

There’s now a widespread assumption that President Donald Trump will remove Deputy Attorney General (DAG) Rod Rosenstein, or ask for Rosenstein’s resignation, either later this week or shortly after the November 6 elections.

Perhaps that’ll happen–but perhaps not. If Trump is principally motivated by a desire to stymie the Mueller and related investigations, it’s possible that those advising the president might persuade him that removing Rosenstein might not do the trick, and that he’s better off “merely” continuing his campaign to try to discredit Mueller in the eyes of his base (and Republicans in Congress) . In this regard it’s worth recalling that when President Richard Nixon effected the removal of the Attorney General, the Deputy AG and the Watergate Special Prosecutor, not only did it ignite a political firestorm that grievously weakened Nixon, but it also resulted–less than two weeks later–in the appointment of a new Watergate Counsel, Leon Jaworski, who had far greater legal and practical independence than Archibald Cox ever did. Perhaps that explains why, as Jack Goldsmith has recounted, that although Trump has appeared to be on the verge of doing something drastic at DOJ several times since he removed Jim Comey as FBI Director, he has yet to bite the bullet.

So let’s not be too hasty to assume Trump will remove Rosenstein.

But what if he does? Who would replace Rosenstein as DAG in the event Trump fires him or he resigns under pressure? And who would supervise the Russia and related investigations? The answers to these questions ought to be straightforward–and they would be, if the President hewed to past practice–but it turns out to be quite a bit more complicated to describe the array of possibilities.  This post reflects my best view, as of now, of the various legal questions.  Please keep in mind, however, that I haven’t been privy to internal DOJ analysis, and there’s not a lot of case law on these questions, so these views are necessarily tentative.  If and when I learn more, I’ll update the post.  [Where I have made substantive edits, I will note that at the end of the relevant paragraph.]

I’ll assume for purposes of most of this analysis that Jeff Sessions remains in office as the Attorney General but remains recused “from any existing or future investigations of any matters related in any way to the campaigns for president of the United States.” Of course, if Trump also removes Sessions–or attempts to appoint an “acting AG” for the discrete purpose of supervising investigations from which Sessions is recused–the outlook would change considerably. I’ll discuss that prospect briefly at the end of the post.  Until we get there, though, let’s assume a scenario in which Sessions is in office, but not Rosenstein.

If and when the Senate confirms a nominee to replace Rosenstein, of course that person would then become the DAG and, assuming Sessions remains in office, he or she would supervise the Mueller and other campaign-related investigations.

But that could take months, or longer. What happens in the meantime?

Here’s the most important thing to understand: Rosenstein is now exercising (at least) two roles, and he would not necessarily be replaced by the same person in both of them.

Who Would Be the New “Acting DAG”?

On the one hand, Rosenstein is, of course, performing all of the functions of the important office to which he was appointed, i.e., as Deputy Attorney General. Among other things, a regulation provides that the DAG has general responsibility to “direct the activities of [DOJ] organizational units as assigned,” subject to the AG’s “general supervision.”  And currently the AG has assigned the DAG to direct the activities of virtually all the organizational units in the agency, including specifically the Criminal Division, the U.S. Attorneys, and the FBI.  (As we will see, that direction does not include supervision of a Special Counsel, however.) [This paragraph has been updated.]

If Rosenstein leaves office, the default rule under the Vacancies Reform Act of 1998 (VRA) is that the “first assistant to the office” would perform these nondelegable “functions and duties of the office [of Deputy AG] . . . in an acting capacity,” at least for the time being (which could last for many months). That person is Ed O’Callaghan, the Principal Associate Deputy Attorney General (known as the “PADAG” OR “Pay-DAG”). (O’Callaghan was named the acting PADAG back in April, presumably because his predecessor, Robert Hur, who had been nominated as U.S. Attorney for Maryland, technically still held the office. I assume, however, that once Hur was sworn in as U.S. Attorney, O’Callaghan became the (non-Acting) PADAG.)

According to Axios‘ Jonathan Swan, however, if Trump had fired Rosenstein on Monday, Sessions planned to introduce not O’Callaghan but instead Matt Whitaker, currently Sessions’s Chief of Staff, as the “Acting DAG.”  [UPDATE:  Katie Benner and Maggie Haberman confirm this account, in greater detail.  They report that White House Chief of Staff John Kelly “has privately described [Whitaker] as the West Wing’s ‘eyes and ears’ in a department the president has long considered at war with him.”]

The appointment of Whitaker to perform the DAG’s duties and functions would be a lawful option, because the VRA includes two alternatives to the “first assistant to the office” default rule.  Assuming Whitaker has been paid at a salary of least $105,123 per year for the past three months (which is virtually certain), then pursuant to section 3345(a)(3) of the VRA, the President (not Sessions) could appoint Whitaker to perform the functions and duties of the DAG “temporarily in an acting capacity”–which, as I explain below, could be for seven months or considerably longer.  Alternatively, pursuant to section 3345(a)(2) of the VRA, Trump would also be authorized to name any Senate-confirmed officer, either from within DOJ or from another agency, to temporarily perform the duties and functions of the Deputy Attorney General.

If Trump’s appointment of someone such as Whitaker as “acting” DAG meant that that person supervised the Special Counsel, it wouldn’t bode well for the Mueller investigation.  Whitaker has been a harsh critic of Mueller, arguing (wrongly), for example, that the Counsel is not authorized to inquire into Trump’s and his family’s finances.  He has also demonstrated, in the context of the Clinton email investigation, a willingness to disregard consensus norms and legal views held throughout the Department.*

An “Acting” DAG such as Whitaker, however, would not be the officer who supervises Mueller, because an Attorney General regulation provides that the Attorney General, not the DAG, is to be the officer with the power to “request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and . . . after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” and the officer with authority to discipline or remove the Special Counsel. The AG has not assigned those functions to the DAG, in contrast to the direction of much of the rest of DOJ’s criminal justice functions.  [This paragraph slightly edited.]

Of course, the Attorney General, Jeff Sessions, is recused “from any existing or future investigations of any matters related in any way to the campaigns for president of the United States,” and therefore he can’t perform those supervisory functions with respect to the Special Counsel.  Nor, presumably, can he supervise and direct other campaign-related investigations, such as those that might be undertaken by the U.S. Attorney’s Office for the Southern District of New York.

Which then leads to the next question: If not Sessions, who would supervise Mueller–and other campaign-related investigations–if, say, Trump appoints Whitaker to be “acting” DAG?

Who Would Supervise the Russia and Other Campaign-related Investigations?

Because the direction of the U.S. Attorney for the Southern District of New York is a duty assigned to the DAG, I believe it is the case (as Katie Benner and Maggie Haberman also conclude) that an officer assigned as “Acting DAG,” such as (possibly) Matt Whitaker, would take over the supervision of the SDNY investigations from which Sessions is recused.  [This paragraph is new, and it’s an important clarification.]

By contrast, as noted above, Trump’s appointment of Matt Whitaker–or anyone else–as Acting DAG would not determine who would supervise the Special Counsel investigation in lieu of Rosenstein. That’s because the oversight of a Special Counsel is a function specifically assigned to the Attorney General, not the DAG. It’s only because AG Sessions is recused that DAG Rosenstein has been supervising Mueller, performing the functions of the Attorney General. He is doing so pursuant to what we might call the “AG Succession Act,” 28 U.S.C. 508, a statute Congress enacted many decades ago to specifically address who should perform the duties and functions of the Attorney General in particular when that office is vacant or the AG is absent or disabled (whereas the rules for “acting” appointments to many other offices, such as Deputy Attorney General, are determined exclusively by the VRA). 

The AG Succession Act provides that “[i]n case of a vacancy in the office of Attorney General” or in the “absence or disability” of the AG (something that DOJ has construed to cover cases of recusal, as reflected in Sessions’ recusal announcement), “the Deputy Attorney General may exercise all the duties of that office [i.e., the office of the Attorney General].”

Importantly, DOJ past practice (to my knowledge) reflects the Department’s understanding that the references to the DAG and other DOJ officers in the AG Succession Act do not refer to “acting” officers such as someone appointed to perform the functions and duties of the DAG when that office is vacant.  The “line of succession” under the Act, in other words, includes only Senate-confirmed officers holding the designated DOJ offices. (For reasons I won’t go into here at length–this post is already long enough!–I think this reading of the AG Succession statute must be correct. Subsection 508(b) and its implementing regulations wouldn’t make much sense–indeed, they might rarely or never apply–if the “Acting DAG” could perform the AG’s functions under subsection 508(a).)

And so if Rod Rosenstein is fired or resigns, there will be no DAG in place to perform the AG’s functions under the AG Succession Act, including the functions relating to the Special Counsel.

Fortunately, the Act itself addresses such a scenario. It provides that “[w]hen by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General,” then the Associate Attorney General, the third-highest official in the Justice Department, “shall act as Attorney General.” But there isn’t any Associate AG in place either right now, and hasn’t been since Rachel Brand’s resignation in February. So who’s next?

The statute provides that the AG “may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General” where the DAG and Associate AG are not available. And the AG has done just that: The current AG Order, signed by Attorney General Loretta Lynch in November 2016, provides that the Solicitor General is next in line to perform the functions and duties of, and to “act as,” the Attorney General when the top three DOJ officers are “unavailable.”**

The Solicitor General (SG) is Noel Francisco. Thus, in the ordinary course Francisco would perform the duties and functions of the AG in supervising the Russia investigation if Rosenstein is removed, regardless of whether Trump appoints someone else, such as Whitaker, as the “acting” DAG.

And that’s exactly what DOJ appears to have been contemplating on Monday: According to Swan’s report, if Trump had fired Rosenstein, Sessions planned to  announce that “Noel Francisco will oversee the Special Counsel.”

So that’s likely what would happen–Francisco would supervise Mueller’s investigation.  [This paragraph edited.]

But although that’s the most likely scenario, I should note two other possibilities, as well.

First, there’s at least some chance that Francisco himself would be recused from supervising the Russia investigation because he was, until recently, a partner at Jones Day, and Jones Day represents the Trump Presidential Campaign.

If Fransisco was a “principal adviser” to the Trump Campaign, then he, like Sessions, would presumably be disqualified from any involvement in the Russia investigation pursuant to 28 CFR 45.2(a)(1) & (c)(1). As far as I know, however, he was not a principal adviser to Trump’s campaign.

Even so, Francisco’s employment by Jones Day until the start of the Trump administration might itself require recusal until some time in 2019, pursuant to Executive Order 13770. Notably, Francisco has been recused from participating in Supreme Court cases in which Jones Day represents one of the parties (see, for example, the government’s briefs in LozmanGambleDawson (filed Sept. 4, 2018) and Merck, Sharpe and Dohme (filed Sept. 20, 2018))–presumably in accordance with Section 1(6) of the Executive Order, which prohibits an appointee from participating in “any particular matter involving specific parties that is directly and substantially related to [his] former employer” for two years from the date of his appointment. (The E.O. defines a matter “[d]irectly and substantially related to my former employer or former clients” to mean, among other things, a matter “in which the appointee’s former employer . . . represents a party,” which would appear to include the Russia investigation.)  I assume that such a recusal would last until at least January 23, 2019, two years after Francisco was appointed to be Principal Deputy Solicitor General. Francisco abandoned that office in March 2017, however, when Trump nominated him to be SG. If his employment in the SG’s Office was terminated between March and September 19, 2017, when he was appointed to be SG, then according to Section 4(d) of E.O. 13770 the two-year bar would run until September 2019.

If Francisco were recused, then the governing AG Order would assign the responsibility to perform the AG’s functions respecting the Russia investigation to Steven Engel, the assistant attorney general for the Office of Legal Counsel (OLC).  [UPDATE: Darren Samuelsohn and Josh Gerstein report that Engel and several of the next DOJ officers in the line of succession might also have conflicts or related issues of their own.  I have not looked into those questions.]

Section 3 of the Executive Order, however, expressly provides that the President or his designee “may grant to any person a waiver of any restrictions contained in the pledge signed by such person.” The President’s designee, the Deputy Counsel to the President, issued a waiver to some former Jones Day lawyers in the White House Counsel’s office in April 2017 to permit them to work on the Russia matter.  In that case, however, the designee determined that it was “in the public interest” to grant a limited waiver to those lawyer to ensure that the interests of the President in his official capacity would be protected.  In theory, the President or his designee might likewise grant Francisco a waiver from the operation of Section 1(6) of the E.O., in which case he would supervise the Mueller investigation.  [November 2, 2018 UPDATE:  It now appears that on April 24, 2018, a presidential designee–perhaps White House Counsel McGahn–granted a waiver to Francisco to participate in, inter alia, matters in which Jones Day represents a party.  The document does not explain why the waiver was granted (see my next paragraph below), nor does it explain why Francisco continues to recuse from Supreme Court cases in which Jones Day represents a party.]

Whether the President should grant a waiver to Francisco, however, is much more questionable, for several reasons:  Francisco’s role in supervising the Special Counsel would as a practical matter be adversarial to the interests of Jones Day’s client; Francisco’s involvement is not as critical to the interests of the government as was the involvement of the White House Counsel lawyers in 2017, given that Steven Engel or another DOJ officer in the regulatory line of succession could perform the AG’s functions if Francisco remains recused; thus the “need” for Francisco’s services does not obviously “outweigh[] the reasonable concern that a reasonable person may question the integrity” of Francisco’s supervision of the investigation, as the President’s designee found was the case for the White House attorneys in 2017; and it will be difficult, to say the least, to explain why it is appropriate for Francisco to recuse from representation of the United States in Supreme Court cases where Jones Day represents a party but simultaneously not to recuse from supervising a (partly) criminal investigation in which the same firm represents an important party under investigation (indeed, if anything, recusal appears more important in the latter context).  The President may have the legal authority to grant Francisco a waiver, but it remains to be seen how he might justify doing so.

Second, there’s a distinct possibility DOJ has advised the President that, notwithstanding the AG Succession Law and the AG Order implementing it, he may use the Vacancies Reform Act of 1998 (VRA) to appoint someone else, including someone from outside DOJ, not only to be “acting AG” if he fires Sessions, but even, and more narrowly, to perform the discrete function of supervising the Special Counsel while Sessions remains in office but is recused from performing that role.

An argument could be made–indeed, John Bies has begun to make it–that Congress’ office-specific instructions in the AG Succession statute about what should happen when the AG is unable to perform his or her functions (or when the AG office is vacant) should supersede the more general provisions of the VRA. But that’s not the Office of Legal Counsel’s view. OLC has opined that the two statutes provide alternative means of filling such roles in the interim period between confirmed Attorneys General. That’s why, when AG Alberto Gonzales resigned in 2007, President George W. Bush was able to name the assistant AG for the Civil Division, Peter Keisler, to be the Acting Attorney General, when the AG Succession Order would have assigned those functions to the Solicitor General, then Paul Clement.

If OLC is right–a big “if,” to be sure, but one that Trump might be willing to test–what would that mean if, for example, Trump removes Sessions as well as Rosenstein?

Under the Succession Act, Noel Francisco would then perform all the (nondelegable) duties and functions of the AG. But what if Trump were to use the VRA instead? Who could the President appoint, pursuant to that statute, to perform the AG’s functions (including, but not limited to, supervision of the Russia investigation)?

The VRA would, for one thing, authorize him to appoint any DOJ officer or employee who’s worked in the department for at least 90 days in the past year and whose salary is at or greater than $105,123–such as Matt Whitaker (and many others)–even if he or she has never appeared before the Senate for confirmation. More alarmingly still, the VRA would also authorize Trump to appoint any other executive branch officer who has been confirmed by the Senate, from any department or executive entity—a universe that includes more than 300 Trump appointees throughout the executive branch–as the Acting AG. Think, for example, of Mick Mulvaney, or Kirstjen Nielsen, or some low-ranking military officer who shares Trump’s views about the Russia investigation . . . or Betsy DeVos.

The Senate wouldn’t have any opportunity to pass on the propriety of such a “temporary” AG, and that officer could perform the AG’s functions and duties for up to seven months even before Trump nominates someone else to be AG, and for many months or years after that until the Senate finally confirms a new Attorney General.  (On the length of appointments under the VRA, see the answers to Questions 23, 25 and 28-37 of this OLC memorandum. and pages 11-13 of this Congressional Research Service Report.)  (At this point you might be wondering:  “Why on earth did Congress give the president such unbounded, unilateral discretion to fill important offices for such long periods with officers from outside the agency?!”  Well, Congress presumably included this option in the VRA to deal with cases of small agencies where there were no plausible internal appointees. Its language, however, is not limited to that scenario.)

To be sure, there are at least three significant, unresolved legal questions about whether such a VRA appointment of an Acting AG would be lawful:

1. Is OLC right that the president can use the VRA to supersede the more specific AG Succession statute?

2. Does the VRA apply–and can the president invoke it in lieu of the AG Succession statute–where the president himself creates the “vacancy” by firing the AG? (The Act applies when “an officer” “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”) Relying in part on a single floor comment by Sen. Fred Thompson (R-Tenn.) in 1998, OLC has opined (see Question 3) that a removal triggers the VRA because in that case the former officer is, indeed, “unable to perform the functions and duties of the office,” just as if he had resigned–a view that DOJ adopted in recent litigation challenging a VRA appointment of an acting secretary of Veteran’s Affairs. (The court had no occasion to consider the question.)

3. Does the use of the VRA to replace a principal officer (such as the AG) violate the Appointments Clause of Article II of the Constitution, which provides that such principal officers must be appointed by the President by and with the advice and consent of the Senate? In a recent concurring opinion, Justice Clarence Thomas argued that such a temporary appointment would be unconstitutional. Thomas overlooked an 1898 decision, United States v. Eaton, in which the Supreme Court held that a temporary appointment to a principal office was constitutional because a contrary holding “would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.” Although the current Court almost certainly would not overrule Eaton, the appointment there was exceedingly reasonable–“for a limited time, and under special and temporary conditions”–and at least some Justices might be deeply troubled by a “temporary” appointment that lasts for many months or years, following a presidential removal that created the “exigency,” where the temporary appointee comes from outside the department (and thus the duties of the new office are in no way germane to the office for which she was confirmed by the Senate), and where the manifest purpose of the removal and VRA appointment is to circumvent the Senate’s constitutional role.

This isn’t the place to analyze each of these legal questions in depth. I’ll simply say that of the three grounds for challenging the appointment, the second is almost certainly the weakest, at least as a stand-alone argument (as opposed to a factor in the analysis of the third question). Suffice it to say, however, that although Trump would be taking some legal risk by making such a move, it might be several months, if ever, before a court adjudicates those questions; it’s far from certain that any such challenge would be successful; and in the meantime the “temporary” appointee could shave a significant impact at DOJ, and on the Mueller investigation.

OK, but what if Trump doesn’t want to be so bold?: What if, instead of firing Sessions (or even Rosenstein), he “merely” opts to use the VRA to appoint an “acting AG” to perform the discrete AG function of supervising the Russia investigation while Sessions remains in office but is recused from performing that role?

It is, I think, an open question whether the VRA–which applies, recall, when an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office”–is operative in a case, such as this one, where the sitting officeholder (Sessions) is generally able to perform the functions and duties of the office but is “unable” to perform particular functions because of recusal or disqualification. A district court and court of appeals in one case assumed that the VRA does apply in such a case, see Muffley ex rel. N.L.R.B. v. Massey Energy Co., 547 F. Supp. 2d 536 (S.D. W. Va. 2008), aff’d in pertinent part, 570 F.3d 534, 539 n.1 (4th Cir. 2009); and OLC’s recent opinion regarding the use of the VRA to appoint Mick Mulvaney to be Acting Director of the CFPB assumed likewise (see p.4), although it did not examine the question in any detail because there was no issue of recusal there.

Whatever the right answer to that question might be (I can’t say for sure because I haven’t studied it carefully), it’s likely DOJ has advised the President that he can appoint someone else to superintend the Russia investigation–including a Senate-confirmed officer from outside DOJ–regardless of who the DAG might be or what the AG Succession Order might provide.

And take note: If this theory is correct–i.e., if the President can use the VRA in lieu of the AG Succession Act, and if the VRA applies to the case of a discrete, recusal-based officer disability–then the President would be able to replace Rosenstein as “acting AG for the Russia Investigation” even if he did not remove either Sessions or Rosenstein from office.

What Are the Implications if Trump Appoints a Loyalist (or Two) to Supervise the Mueller And/Or SDNY Investigations in an “Acting” Capacity?

If Trump uses any of the methods described in this post to appoint someone else, in lieu of Rosenstein, to supervise the Mueller and/or SDNY investigations, and that appointee is a Trump loyalist, more in tune than Rosenstein with the President’s own view of the investigations, what might he or she do?

Let’s start with the Mueller investigation.  As I wrote a while back, I’d be very surprised if a new “acting” AG, no matter how loyal to Trump, tried to fire Mueller. For one thing, the regulations that currently apply to Mueller (by virtue of Rosenstein’s memorandum of appointment) permit the AG (and only the AG) to remove Mueller only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”  If “good cause” is given its proper restrictive reading (see, e.g., Free Enterprise Fund v. PCAOB, 561 U.S. at 502), any Acting AG would be very hard-pressed to conclude that Mueller has satisfied that condition for removal, and such a conclusion would widely be viewed as implausible and pretextual.***

If I’m right about that [UPDATE: and if the new Acting AG did not adopt a much broader (and in my view inappropriate) reading of the regulatory removal standards, see n.***, supra], then in order to fire Mueller the acting AG would have to first rescind–that is to say, renege on–the commitment Rosenstein made to apply that regulatory removal standard when he appointed Mueller, and thereafter remove Mueller without good cause. (Contrary to what many have assumed (see, e.g., Judge Friedrich’s recent decision at pp. 22-25), I believe it would not be necessary for the Acting AG to rescind the regulations themselves, because technically Mueller was not appointed pursuant to those regulations:  Rosenstein appointed him to continue a counterintelligence investigation, which goes beyond the regulations’ own grounds for appointment, and thus (I think) Mueller is subject to the regulations’ independence and removal protections only by virtue of paragraph (d) of Rosenstein’s appointment memorandum itself.  [UPDATE: Thus, even if the Acting AG (or Sessions, for that matter) were to rescind or amend the removal provisions of the regulations, in the manner described by the Special Counsel at pages 22-26 of his new brief filed in the D.C. Circuit on Friday, September 28, I believe the Acting AG would also have to rescind or amend the appointment memorandum in order to alter the removal standard respecting Mueller.])

Such a rescission should be unthinkable, if for no other reason than that it could result in a massive institutional revolt and trigger a political firestorm that would make the Saturday Night Massacre look like a Sunday afternoon picnic. We simply don’t know, however, whether a new Acting AG–one more amenable than Rosenstein to doing Trump’s bidding–would be willing to make such a bold move.  (To be sure, removing Mueller might not end the investigation, which presumably would be carried out in part by FBI Director Wray, who would likely endeavor to continue the investigation vigorously. The Acting DAG, however (such as Matt Whitaker), would have directory authority over the FBI and the DOJ prosecutors involved in the case, and therefore would have substantial ability to control its scope and direction.  The Acting DAG might even choose to close the investigation altogether at the end of a fiscal year, see § 600.8(a)(2), which would automatically close the Special Counsel’s office–although I assume such a move would be (or should be, anyway) politically and institutionally untenable at present.)

The greater risk is that Trump’s new “acting” appointee would attempt to significantly clamp down on certain important actions, such as subpoenaing evidence, seeking particular indictments, and/or issuing reports, that Mueller plans to take.

[UPDATE: I’ve moved around the pieces in next few paragraphs in light of the Special Counsel’s newly filed brief in Andrew Miller’s constitutional challenge to Mueller’s appointment in the D.C. Circuit (No. 18-3052).]

There’s a bit of uncertainty, under the governing regulations, whether and under what circumstances the acting Attorney General could actually countermand the Special Counsel’s specific investigatory and prosecutorial decisions. There hasn’t yet been any occasion to test that questions because, by  Rosenstein’s own account, the two officers have been working closely together and (apparently) have not come to loggerheads:  Rosenstein testified before the House Judiciary Committee in December that he is “accountable” and “responsible for” the scope of the Special Counsel’s investigation, has ensured that Mueller “is conducting himself consistently with [the Acting Attorney General’s] understanding about the scope of his investigation,” and that if he believed Mueller “was doing something inappropriate,” he’d “take action.”

The key regulatory provision reads:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

In her recent opinion in the Concord Mgmt. & Consulting case, Judge Friedrich questioned whether the Acting AG could direct the Special Counsel not to take a proposed action if the Acting AG concludes that it would be (in the words of the regulation) “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”  In a brief filed in the D.C. Circuit on Friday, September 28, however, the Special Counsel represented his view that he “may not take any action that the Attorney General finds ‘is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.’”

On the other hand, at least so long as Mueller is subject to this regulation, the Acting AG may not countermand any of his discretionary decisions that are not “inappropriate or unwarranted under established Departmental practices”–a view I read the Special Counsel’s new brief to confirm.  Even so, and as the Special Counsel elaborates, he “is subject to . . . ‘pervasive’ administrative supervision and oversight” by the Acting AG, including “ongoing control over personnel and budgetary matters,” and control over the scope of the Counsel’s jurisdiction.  [UPDATE:  Susan Hennessey and Ben Wittes add that a new Acting AG might also leak information to the White House and Congress–something that I’d hope no serious officer would do, but that of course is not outside the realm of possibility here.]

Moreover, the Acting AG has considerable authority to determine what to do with the Special Counsel’s “confidential report” at the end of the investigation, “explaining the prosecution or declination decisions reached by the Special Counsel”–including whether its “public release . . . would be in the public interest.”  Perhaps of greatest importance, the Acting AG might also have the authority to decide whether and to what extent Congress and/or the public should have access to any counterintelligence investigation report(s) (or “letterhead memos”) Mueller might write concerning the the Russian threat to the U.S. electoral system and whether President Trump is in any way compromised in his ability to deal with that threat.

As for the SDNY investigations from which Sessions is not recused, although there is an historical norm that the U.S. Attorney in Manhattan has considerable “independence” from Main Justice micromanagement, there’s little doubt that the new Acting DAG (i.e., probably Whitaker) would have the legal authority to direct the U.S. Attorney in SDNY what to do and what not to do–an authority that a loyal Trump appointee might well choose to exercise.  [This paragraph has been updated.]

In sum, although it’s difficult to assess in advance how much a newly appointed “acting” AG and/or “acting” DAG could and would do to stymie the ongoing investigations, the risks are considerable.

______________________________

* Whitaker opined in 2016 that he would have indicted Hillary Clinton for having classified materials on her nonsecure email server. As the recent DOJ Inspector General Report explains at great length, however (see, e.g., pages 29-34, 163-167 and 253-263), there was a consensus view among virtually everyone involved in the investigation, both at the FBI and in DOJ, that there was no evidence (let alone proof beyond a reasonable doubt) that Clinton had the state of mind required for criminal culpability.  In particular,“[t]here was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information,” . . . “no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her,” and no “evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.”  An indictment of Clinton would thus have been deeply inconsistent with longstanding DOJ practices, including declinations even in some cases (such as that involving former Attorney General Gonzales) where the subjects, unlike Clinton, were aware of the classified nature of the information that they had retained in a nonsecure fashion. If Whitaker believes that prosecution was appropriate in that case, he might be the sort of Acting DAG who finds himself at sharp odds with many of the career prosecutors throughout DOJ.

** When Sessions originally recused back on March 2, 2017, none of the officers listed in the AG Order had yet been confirmed. Therefore it was then necessary to resort to a presidential Executive Order, which continues the line of succession in such cases, and which President Trump had recently amended to designate the U.S. Attorney for the Eastern District of Virginia–then Dana Boente–to be next in line. Boente thus supervised the Russia investigation until the Senate confirmed Rosenstein as DAG. The Executive Order is inapposite now because there are confirmed officers in some of the offices listed in the AG Order.

*** Unfortunately, Solicitor General Francisco himself has recently argued that a statutory “good cause” should be construed extremely broadly, perhaps even to include removal on the ground that the officer has not “on the whole” exercised his discretion “intelligently or wisely.”  (See Point 6 of my post on the Lucia case, criticizing this argument.)  Such a reading would be inconsistent with the Supreme Court’s longstanding view of the scope of “good cause” removal protections in cases such as Humphrey’s ExecutorMorrison v. Olson and FEF v. PCAOB, and, I’d argue, it’d be inconsistent with the type of independence that Congress has intended to confer when it enacts such protections.  Be that as it may, there is of course the possibility that an Acting AG such as Francisco might aggressively construe the regulatory “good cause” standard for Special Counsel removal more broadly than Attorney General Reno presumably contemplated when she promulgated the regulation in 1999.  [UPDATE:  In his brief in the D.C. Circuit filed on September 28, the Special Counsel explains that his “failure to follow an order from the Attorney General that is lawful under the regulation” would be “misconduct” that could justify removal, and that such an Acting AG order would be lawful if he (the AG) concludes that the Counsel’s action violates DOJ policies or is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”  That narrower (but not toothless) formulation is, I think, a more accurate reflection of the scope of the removal standard than that suggested by Francisco in the Lucia brief.  The Special Counsel then proceeds, however, to explain that “good cause” is also “susceptible to broad readings” that would impose “only minimal restrictions” on removal.  “Given the intent of the regulation to preserve the Attorney General’s ‘ultimate responsibility’ for the Special Counsel’s actions,” he writes (citing the regulatory preamble, 64 Fed. Reg. at 37,038), such a broad reading of the regulation (in distinction to to a statutory “good cause” provision) would be entitled to Auer deference were a new Acting AG to adopt it.  I’m not so sure that’s right, in light of the other indicia in the regs that the Special Counsel is guaranteed a wide berth of independence with respect to discretionary decisions that are not inappropriate or unwarranted under established Departmental practices.  Nevertheless, it’s of course possible that a new Acting AG might adopt such a robust reading of the removal provision, in which case the threat of removal would, of course, considerably increase that officer’s de facto power to countermand the granular decisions of the Special Counsel, even though the Counsel would formally remain immune from the “day-to-day supervision” of the Acting AG.] 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).