Opinion What could happen if Trump fired Rosenstein

As President Donald Trump continued to seethe over FBI raids this week on the office and hotel room of his longtime personal lawyer, Michael D. Cohen...

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Deputy U.S. Attorney General Rod Rosenstein testifies to the House Judiciary Committee hearing on oversight of the Justice Department on Capitol Hill in Washington, U.S., December 13, 2017. play

Deputy U.S. Attorney General Rod Rosenstein testifies to the House Judiciary Committee hearing on oversight of the Justice Department on Capitol Hill in Washington, U.S., December 13, 2017.

(REUTERS/Joshua Roberts)
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The clear idea behind the suggestion — which Trump is also said to be weighing — is that ousting Rosenstein would enable the White House to put the criminal investigations encircling the president’s associates on a tighter leash, or even to shut them down.

Here is a look at some of the issues at stake.

— Why is Trump angry at Rosenstein?

A longtime Justice Department official, Rosenstein was not part of Trump’s inner circle before Attorney General Jeff Sessions persuaded the president to designate him as deputy.

After Sessions recused himself from investigations related to the 2016 election, Rosenstein became acting attorney general for those matters. He appointed Robert Mueller, the special counsel, to scrutinize ties between the Trump campaign and Russia’s interference in the election. He signed off as Mueller’s focus expanded to whether Trump committed obstruction of justice and whether Trump’s onetime campaign manager, Paul Manafort, committed crimes related to his work for Ukraine’s pro-Russian government. Rosenstein also approved the decision to get search warrants for Cohen’s files.

Trump has bitterly denounced Sessions’ recusal, saying he needs an attorney general who will protect him.

— How has the investigation evolved?

Cohen’s lawyer has said the investigation that led to the search warrants stemmed from a referral made by Mueller’s office. But it was carried out by prosecutors in the public integrity section of the office of the U.S. attorney for the Southern District of New York. Geoffrey S. Berman, the interim U.S. attorney, recused himself, so his deputy, Robert S. Khuzami, a former head of enforcement at the Securities and Exchange Commission, leads that case. It appears to focus on allegations of bank fraud and campaign-finance violations related to efforts to pay off women who said they had had affairs with Trump.

Rosenstein could have expanded Mueller’s jurisdiction to include that matter, but instead he apparently handed it to a different office. As a result, there is now a separate prosecutorial team that has seen evidence about matters close to the president that it — and the federal magistrate judge who issued the search warrant — found worth investigating.

“This is effectively a blockchain prosecution strategy in which the files appear to be dispersed,” said Neal Katyal, a former Justice Department official in the Clinton and Obama administrations who drafted the department’s special counsel statute.

— What about state prosecutors?

Critics of Trump who fear that he may try to derail the investigation, such as by pardoning everyone involved, have taken comfort in a Politico report in August that suggested that Mueller was teaming up with New York’s attorney general, Eric T. Schneiderman, and sharing evidence about Manafort. Schneiderman can pursue financial and other offenses that are crimes under state law, and Trump cannot pardon state offenses.

However, the impression created by that article appears to have been somewhat overstated. Schneiderman has no clear jurisdiction to file charges in some of the potential crimes at issue in the core Justice Department investigations, like federal election law offenses. Law enforcement officials familiar with the talks cautioned that neither side was routinely sharing investigative materials.

— What would firing Rosenstein accomplish?

It might make it easier to constrain the investigations or even to fire Mueller — and now, perhaps, Khuzami, too. Rosenstein has said he will refuse any order to fire Mueller if he did not believe the special counsel committed misconduct, citing a Justice Department regulation that says a special counsel may be removed only by the attorney general and only for good cause.

A successor who is more of a loyalist to Trump might be more amenable to interpreting Mueller’s jurisdiction narrowly or to firing him, either by declaring that Mueller has overstepped or by removing the regulation that protects him from arbitrary removal.

— Does firing a prosecutor end an investigation?

No. In and of itself, the removal of Rosenstein — or Mueller and Khuzami — would not stop the law enforcement officials working for them from continuing to pursue those cases.

— Could a successor to Rosenstein shut down the cases?

Yes — the federal ones. Federal statutes give the attorney general authority over federal legal proceedings and the power to direct the actions of special counsels and U.S. attorneys, including the authority to decide not to pursue a matter for reasons like prosecutorial discretion.

— Could Trump install someone like Scott Pruitt in Rosenstein’s place?

Yes, but that person apparently would not become acting attorney general for the Russia investigation by virtue of being the acting deputy.

If a top Justice Department official leaves, that person’s acting replacement would normally be the next-ranking person in the department’s normal order of succession. But Trump could instead invoke the Vacancies Reform Act to install someone else who has received Senate confirmation for another position.

As Trump has flirted with firing Sessions, there has been repeated discussion of whether he might then use that mechanism to install a loyalist atop the department who is not recused from the Russia case, like Scott Pruitt, the Environmental Protection Agency administrator and former attorney general of Oklahoma.

But the Justice Department has long applied the law as forbidding a “double acting” official, said Martin Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel during the Obama administration.

Under that doctrine, Rosenstein’s acting successor would not also get to wield acting attorney general powers when Sessions is recused. Instead, acting attorney general powers would pass to the next-ranking person in the department who has been confirmed by the Senate.

— What is the department’s order of succession?

It is presently set by a statute, a memo issued by former Attorney General Loretta E. Lynch and an executive order Trump issued last year, although Sessions or Trump could issue replacement directives to reshuffle the sequence. Currently, the line of Senate-confirmed officials includes Noel J. Francisco, the solicitor general; Steven A. Engel, head of the Office of Legal Counsel; and then John Demers, head of the National Security Division.

This article originally appeared in The New York Times.

CHARLIE SAVAGE © 2018 The New York Times

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