Donald Trump probably can’t fire special counsel Robert Mueller himself. So if he wants to end or limit Mueller’s Russia probe, he’ll need to find someone who will.
He may have his man in Solicitor General Noel Francisco, a little-known Trump appointee who happens to have an ax to grind against the FBI — and who could become Mueller’s boss through one angry presidential impulse.
Francisco even has a specific grudge against former FBI Director James Comey, whom — much like Trump — he has accused of partisan bias. That has compounded prior concerns among Democrats about Francisco’s political independence and whether he might obey an order to either sack Mueller or constrain his investigation.
“I don’t think we know enough to be confident,” said Eric Columbus, a former senior Obama Justice Department official. “I doubt he would fire Mueller but could limit him, which has always been the greater concern."
Most legal experts believe Trump lacks the constitutional power to fire Mueller, who reports to the Justice Department. With Attorney General Jeff Sessions recused from the Russia probe, Mueller’s supervisor is Deputy Attorney General Rod Rosenstein, who has told Congress he would fire Mueller only for clear misconduct. Rosenstein has also granted Mueller wide latitude to pursue his investigation — infuriating Trump, who is reportedly considering Rosenstein's ouster.
Under Justice Department rules, Rosenstein’s successor should be the department's third-ranking official, the associate attorney general. But the last occupant of that job, Rachel Brand, departed in February and has not been replaced.
Next in line is Francisco, 48, a former George W. Bush White House and Justice Department lawyer whom Trump last year named to be U.S. solicitor general, representing his administration and the U.S. government before the Supreme Court.
He would not be the first U.S. solicitor general placed in such a high-pressure position. The Watergate scandal’s 1973 “Saturday Night Massacre” culminated in the firing of special counsel Archibald Cox by President Richard Nixon’s solicitor general, Robert Bork, after Nixon sacked the two Justice Department officials above Bork for refusing to follow his order.
And while Francisco’s views of the Russia probe are not publicly known, as a private lawyer in 2016, he accused Comey’s FBI of overreaching in high-profile political investigations and overstepping its investigative authority — arguments similar to those voiced by Mueller’s conservative critics.
Then a lawyer at the Washington firm of Jones Day, Francisco successfully argued that the Supreme Court should throw out the corruption conviction of his client, former Virginia Republican Gov. Bob McDonnell. He argued that McDonnell had not taken any official action on behalf of a businessman who lavished him with gifts, and that corruption laws were “not meant to be comprehensive codes of ethical conduct.”
Writing a unanimous opinion for the court, Chief Justice John Roberts agreed that the government adopted an overly broad definition of corruption and imposed higher standards for the prosecution of public officials.
A month before the 2016 election, Francisco co-wrote a Wall Street Journal op-ed railing against the FBI, which he accused of using “ambush interviews” and other “heavy-handed” tactics to find whatever it could against McDonnell. Writing with a fellow Jones Day lawyer, he also zeroed in on Comey personally, suggesting that the FBI chief had used “kid gloves” in a successful effort to whitewash its investigation into possible criminal violations by President Barack Obama’s secretary of state, Hillary Clinton.
In Clinton’s case, they said, the FBI immunized only witnesses who could help deliver convictions, failed to investigate and charge all potential crimes and only construed “corruption” broadly when it came to McDonnell, and not Clinton.
Those past positions raise the question of whether Francisco might consider Mueller’s Russia probe another example of prosecutorial overreach, and whether he might share the view of Trump loyalists that Comey helped to launch the FBI’s Russia investigation for supposed partisan reasons.
The son of a Filipino immigrant father, Francisco was raised in Oswego, New York, got a bachelor‘s and law degree from the University of Chicago and then clerked for Supreme Court Justice Antonin Scalia. Bush tapped him for his 2000 Florida election recount team, then as associate legal counsel in his White House and as deputy assistant attorney general. In 2005, he joined Jones Day, which has sent several lawyers into senior Trump posts, including White House Counsel Don McGahn.
Francisco’s allies call him mild-mannered, studious and principled and say he would judge any requests from Trump on their proper legal merits.
“I don’t think Francisco would fire [Mueller],” said Paul Rosenzweig, a former senior counsel for the Clinton Whitewater special prosecutor who has known Francisco for years and called him “a straight shooter” with a stellar reputation.
“You don’t get to be a guy like that by being somebody’s tool,” added Rosenzweig, now a senior fellow at the nonprofit R Street Institute.
But many Democrats aren’t so sure.
During his June confirmation hearing, Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, noted with concern that Francisco had signed legal briefs supporting Trump’s controversial January 2017 executive order — later rejected by federal judges — imposing a ban on citizens from several Muslim-majority nations from entering the U.S.
Feinstein called that a worrisome sign that Francisco, who was narrowly confirmed in September by a 50-47 vote, might serve Trump’s political interests rather than act as an “independent voice.” Last month, she sent a letter to Francisco and several other Justice Department officials urging them to “publicly commit to refuse any order or request — whether express or implied — to interfere in the Special Counsel’s investigation."
As the Justice Department authority overseeing the investigation, Francisco could narrow its parameters or deny specific requests to prevent Mueller from looking into Trump’s personal and business affairs. He would also assume control of Mueller’s budget.
Feinstein described her concern as "including but not limited to firing Mr. Mueller, cutting off funding or resources, limiting staffing, or inhibiting his ability to follow the facts wherever they may lead and hold those accountable who may have broken the law.”
Should Francisco refuse to follow any orders from Trump or resign rather than replace a fired Rosenstein, Justice Department regulations dictate a long line of succession beyond him, although some believe Trump can override that plan and appoint any Senate-confirmed official in the government to the deputy attorney general position.
One hopeful sign for defenders of Mueller and Rosenstein: In late February, Francisco was photographed dining at a Washington restaurant with Rosenstein and Sessions, hours after Trump had attacked Sessions on Twitter for not taking stronger action against alleged misconduct by Justice Department officials involved in the Russia probe. The dinner was interpreted as a public show of solidarity, though it is not clear whether that was the three officials’ intent.
On the flip side, some legal experts have noted Francisco’s intervention in an obscure Supreme Court case involving Securities and Exchange Commission staffing. Francisco urged the court to clarify the president’s power to fire all “officers of the United States” and stressed that the U.S. Constitution “gives the president what the framers saw as the traditional means of ensuring accountability: the power to oversee executive officers through removal."
“In your role as Solicitor General, you have taken an oath to uphold the rule of law and protect the Constitution,” Feinstein's letter said. “This includes refusing to take part in any effort to deny the American public access to the truth and refusing to participate in any attempt by the president to interfere with a legitimate and critical investigation of national importance. This is a solemn responsibility that must be undertaken apolitically.”
A spokesman for Feinstein said Francisco has not responded.