Think Progress has an interesting story out about a lobbying waiver that was previously granted to Solicitor General Noel Francisco which would come into place if the Solicitor General were involved with the Mueller investigation:
Citizens for Ethics and Responsibility (CREW) revealed on Friday that Trump signed a secret waiver to prevent Solicitor General Noel Francisco, the man who “built his law practice as if his primary goal was to troll the libs” and is poised to oversee Mueller’s probe if Trump fires Deputy Attorney General Rod Rosenstein, from having to recuse himself from the Russia investigation.
Trump’s campaign is represented by Francisco’s former law firm, Jones Day, in Mueller’s investigation, which has racked up more than 100 criminal charges against dozens of people, including guilty pleas from Trump’s former national security adviser, former campaign manager, and multiple former campaign advisers.
The president signed an Executive Order shortly after taking office in 2017 that he claimed would strengthen ethics rules in government. CREW explained why that should have caused Francisco to recuse himself from the Russia probe.
As required by that Executive Order, Mr. Francisco signed an ethics pledge in which he promised that, for two years after joining the government, he would not participate in any investigation in which Jones Day represents a client. That promise means he must stay out of the Special Counsel investigation until at least late January 2019.
However, Trump’s waiver, signed by former White House Counsel Don McGahn in April, now means the man next in line to supervise Mueller is free to be involved with the investigation that involves his former employer.
What makes this story interesting is the question of why the Solicitor General Noel Francisco was granted this waiver. The Solicitor General is not involved with the Mueller investigation right now, nor was he involved when the waiver was granted. The only reason why the waiver would have been granted is because the Trump administration was seriously thinking about firing Rod Rosenstein and having the Solicitor General Noel Francisco be placed in charge of the Mueller investigation.
Why is this important? Because the most effective way for Trump to stop the Mueller investigation’s findings from being made public would be to fire Robert Mueller. How do you fire Robert Mueller? Well, first you would have to fire Rod Rosenstein, as he has made it clear he will not fire Robert Mueller, having of course been the person who hired Robert Mueller in the first place. Then, the Mueller investigation would be put under the control of the Solicitor General. Trump could then argue that he has the right to fire Mueller, if, of course, the new person in charge of the Mueller investigation were to go along with Trump’s wishes. It just so happens that Noel Francisco has, in the past, made it known that he believes the President can fire anyone.
If he does not name a replacement for Rod Rosenstein, oversight of the Mueller investigation would go to the solicitor general, Noel Francisco, who, while not making known if he would fire Robert Mueller himself, has argued in the past that the President can fire anyone in his administration and may use that argument to deem it is within Trump’s right to fire Robert Mueller.
It seems to be quite clear that the Trump administration has been planning for months to start shutting down the Mueller investigation. So, why haven’t they shut it down yet? The answer is political. The public is not in favor of the President shutting down an active investigation, and Republicans in the Senate have made it known that they would not allow the President to shut down the investigation. But, there is a high likelihood that the Republicans in the Senate who have warned the President not to shut down the Mueller investigation had this warning in mind only so far as the 2018 midterm elections. If it was a permanent warning, the Republicans in the Senate could have passed bipartisanship legislation to protect the investigation. Yet, Mitch McConnell has steadfastly refused to allow any such legislation to be put up for a vote.
This is not the first time Trump or allies of Trump have come close to taking action to derail the Mueller investigation, nor is it the first time Democrats have urged the Senate to vote on a bill to pass legislation to protect the Mueller investigation.
Yet, a vote has never taken place on this bill, because Mitch McConnell has repeatedly refused to put the bill up for a vote.
The reason why Mitch McConnell hasn’t allowed a vote to protect the Mueller investigation could very well be because after the 2018 elections are in the rear view mirror, Mitch McConnell and other Republicans in the Senate have agreed to allow Trump to shut down the investigation. Other evidence of this possible course of action by Trump and the Republicans in the Senate can be found by their change in rhetoric regarding the possible firing of Jeff Sessions:
Sen. Lindsey O. Graham (R-S.C.) once said there would be “holy hell” to pay if Trump fired his attorney general; now he says Trump is entitled to an attorney general he trusts. Others on the Senate Judiciary Committee also have given their tacit approval to a change — as long as it’s after the midterm elections. This could be actually happening now.
But, here’s the kicker: Trump’s possible plan to shut down the Mueller investigation only works if the Republicans win the midterm election and maintain control over the Senate and House investigations. If Democrats win, and Trump shuts down the Mueller investigation, the Democrats in charge of the Senate and/or House investigations can just rehire Mueller themselves, or simply subpoena all of the evidence that has been obtained by the investigation. On the other hand, if Republicans win, they could let the Mueller investigation be shut down by Trump, then refuse to subpoena anything, letting the battle go to the courts instead. Oh, and about the courts, guess what Brett Kavanaugh previously stated about his opinion of a President firing a special counsel:
In a 1998 article in the Georgetown Law Journal, Kavanaugh wrote that Congress should give the president the ability to fire special counsels, an opinion that Democrats have highlighted in the hours since he was nominated Monday evening.
For the Mueller investigation, this election could likely be a case of life or death.