Jurisprudence

Noel Francisco Can’t Be Trusted

Meet the unethical Trump loyalist who’ll oversee the Mueller probe if Rod Rosenstein is ousted.

Noel Francisco and Rod Rosenstein.
Solicitor General Noel Francisco and Deputy Attorney General Rod Rosenstein.
Photo illustration by Slate. Photos by Mark Wilson/Getty Images and Brendan Smialowski/AFP/Getty Images.

On Monday, Axios reported that Deputy Attorney General Rod Rosenstein had offered his resignation in the wake of a New York Times report that Rosenstein suggested covertly recording Trump and discussed the 25th Amendment to remove the president from office. The piece set off a frenzy of speculation about Rosenstein’s fate, which continued until the White House announced that he would not be leaving his job on Monday, but would meet with Trump on Thursday at the White House. None of this bodes well for Rosenstein’s future in the Trump administration. If and when Rosenstein is ousted, his move will put Mueller’s investigation in serious jeopardy.

Rosenstein has overseen the investigation because Attorney General Jeff Sessions recused himself from the task after failing to disclose contacts with the Russian ambassador during the campaign. Rosenstein, a Republican, is widely considered to be principled and ethical, and has reportedly not hampered the special counsel in any way after appointing Robert Mueller to the job last year. Trump has repeatedly expressed his displeasure over this fact, berating Sessions for recusing himself and telling him to shut down the probe. But Rosenstein appears to have consistently resisted presidential pressure, even while acceding to unprecedented demands from congressional Republicans for documents that have been used as political cudgels against the probe. In July, these same House Republicans briefly filed articles of impeachment against Rosenstein for not acquiescing to enough of those demands.

This pressure has, by all appearances, not affected the special counsel. Mueller has secured numerous convictions and indictments, most recently obtaining a plea deal from former Trump campaign chairman Paul Manafort. He has been able to do so in large part because of the independence that Rosenstein granted him.

If Rosenstein were to depart, that progress would likely come screeching to a halt. The next person in line to supervise the special counsel is probably Solicitor General Noel Francisco. (He’d need an ethics waiver because his old law firm, Jones Day, now represents Trump—but that would be easy to obtain.) A fiercely partisan Trump loyalist, Francisco is unlikely to take Rosenstein’s hands-off approach to the probe. He shares Trump’s skepticism of the FBI and co-authored an op-ed in the Wall Street Journal shortly before the 2016 election that accused the agency of having a “double standard” with regard to Democrats and Republicans. Francisco’s piece deployed the now-familiar tactic of condemning standard FBI practice as evidence of political prejudice, decrying the prosecution of former Virginia Gov. Bob McDonnell as a witch hunt. (The Supreme Court eventually overturned McDonnell’s conviction.)

In the op-ed, Francisco condemned the FBI for conducting “ambush interviews,” “immuniz[ing] only witnesses who can help deliver convictions,” and “investigat[ing] and charg[ing] all potential crimes.” Sound familiar? The op-ed is a precursor to Trump’s anti-Mueller playbook. Francisco could insist that the special counsel is treating Trump unfairly and demand a “pause,” as Trump lawyers have urged. Francisco could also decide not to release Mueller’s final report: The Department of Justice official in charge of a special counsel investigation has final say over whether those findings go to Congress.

Equally disconcerting as his past anti-FBI rhetoric is Francisco’s breathtakingly expansive view of executive power and privilege. Earlier this year, Francisco, in his capacity as solicitor general, weighed in on a Supreme Court case, Lucia v. Securities and Exchange Commission, that revolved around the issue of who, exactly, has authority to appoint administrative law judges. Francisco attempted to turn the highly technical case into a presidential power bonanza. He went far beyond the question presented to argue that the president could remove administrative law judges, and any other “inferior” (or “subordinate”) officers, at will. As he told the court:

The president’s constitutional responsibility to faithfully execute the laws requires adequate authority to remove subordinate officers. The framers understood the close connection between the president’s ability to discharge his responsibilities as head of the executive branch and his control over its personnel. … The president’s ability to execute the law is thus inextricably linked to his authority to hold his subordinates accountable for their conduct.

Robert Mueller is an inferior officer. And Francisco’s sweeping argument appeared to lay the constitutional groundwork for the possibility that Trump might fire the special counsel or demand his termination. Recall that, under current Justice Department regulations, Trump can’t fire Mueller himself. Francisco’s startling Lucia argument seemed designed to undermine this rule. Once the solicitor general assumes responsibility over the Russia probe, the path to Mueller’s termination is straightforward: Either Trump fires him, or he instructs Francisco to fire him—and Francisco insists that he has no choice but to oblige, because the president is merely executing his inherent power “to hold his subordinates accountable.”

Skeptical that Francisco would abandon the traditional independence and integrity of the solicitor general’s office to carry out Trump’s partisan wishes? Don’t be—he already has. For decades, the solicitor general’s office has maintained a consistent position on legal issues even when a new administration takes over. That has compelled some Democratic solicitors general to defend conservative arguments, and vice versa. Francisco has totally jettisoned this tradition. During his tenure, the solicitor general’s office has flipped positions at least a dozen times, discarding a progressive stance in favor of a conservative one. That is unprecedented and astonishing. It subverts the office’s historical independence—upon which the courts typically rely—turning it into an arm of the Republican and evangelical legal movement.

In April, Francisco also misled the Supreme Court about Trump’s anti-Muslim statements, telling the justices that the president “made crystal clear on Sept. 25 that he had no intention of imposing the Muslim ban.” This statement was crucial to the case, which rested on the notion that Trump’s Islamophobic comments tainted the ban with impermissible religious animus. I was in the courtroom that day, and when Francisco made his claim that Trump had rescinded his promise of a Muslim ban, I saw a puzzled look flash across the liberal justices’ faces. What in the world was the solicitor general talking about? A few days later, Francisco attempted to correct the record, sending the court a letter explaining that he meant Jan. 25, 2017. But it turns out that the president still issued no such “crystal clear” statement on that or any other day. Francisco was simply attempting to deceive the court.

Francisco further misled the court about how the travel ban’s waiver process works. The ban ostensibly permits case-by-case exceptions, and Francisco told the court that consular officers themselves made the final decision about who received waivers. In fact, that decision was made by State Department officials and seems to be infected with bias and caprice. When the court ruled for Trump, the four dissenters noted that the majority’s reasoning relied heavily upon the government’s highly dubious assertion that the waiver process is impartial. In reality, the process appears to be a charade—and Francisco was integral in promoting that sham.

It’s pretty clear that Noel Francisco is not an institutionalist like Rod Rosenstein. He appears to be loyal to Trump above the Justice Department and the FBI, and he would likely be willing to cast aside those agencies’ customary independence in order to protect the president. That could involve impeding the special counsel’s investigation or scrapping it entirely. Put simply, Rosenstein resignation would be terrific news for Donald Trump.