Chris Truax

Opinion contributor

President Donald Trump is thinking of firing Deputy Attorney General Rod Rosenstein based on leaked memos about two tense meetings he had in 2017 with Andrew McCabe, then acting Director of the FBI. During those meetings, McCabe alleges in the leaked memos, Rosenstein made comments about invoking the 25th Amendment and wearing a wire when speaking with President Donald Trump.

The next day, Rosenstein signed an order appointing Robert Mueller as a special counsel to investigate Russian interference in the 2016 election. This removed the investigation from the FBI and the influence of McCabe, a man extremely unpopular with Trump and the White House.

Rosenstein has denied that he ever pursued or authorized recording or removing the president. One Justice Department official claimed that Rosenstein’s exact comment, made in the midst of an argument with McCabe, was, "Well, what do you want me to do, Andy, wear a wire?"

This is obvious sarcasm, and one would hope that Trump, of all people, would be willing to overlook even the most unfortunate comments made in what the participants thought was a private setting.

Firing Rosenstein would endanger Mueller

In this case, there is plenty of reason to do so.

Rosenstein was a U.S. attorney under Presidents George W. Bush and Barack Obama, and the Senate confirmed him 94-6 as deputy attorney general. He has been a stellar public servant and a steady, meticulous and ethical second-in-command for Attorney General Jeff Sessions.

It's true Rosenstein has infuriated Trump by his refusal to interfere with Mueller’s investigation — but this is a feature, not a bug. It is thoroughly inappropriate for the White House to interfere with an ongoing criminal investigation, and Rosenstein has been completely correct to resist Trump’s efforts to do so.

There’s another reason to keep Rosenstein at his post. Firing him would cause absolute chaos.

First, it is unclear who would assume control of the Russia investigation. Normally, the solicitor general would assume Rosenstein’s duties until a new deputy attorney general can be confirmed. But the current solicitor general, Noel Francisco, has his own potential conflict. The law firm at which he worked, Jones Day, represented the Trump campaign, and his friend and partner, Don McGahn, is White House counsel.

It is more likely that Trump would invoke The Vacancies Act, which gives the president wide discretion to appoint an officer to a position in an “acting capacity” for up to 420 days even though that position normally requires Senate confirmation.

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Usually, the “first assistant” to the vacant office takes over. But the president may also appoint any other officer — even one from another department — who has already been confirmed by the Senate. This is what Trump did when he installed Robert Wilkie, an undersecretary at the Department of Defense, as acting secretary of the Department of Veterans Affairs.

The president can also appoint any senior executive already working at the agency in question — in this case, the Justice Department. Rosenstein would have to be replaced by another lawyer, but there are thousands at Justice.

The problem is that Trump has disqualified himself from making such an appointment. He has repeatedly demanded that Sessions and Rosenstein shut down Mueller’s investigation. He calls it a “witch hunt” — despite dozens of indictments and even several convictions — and has claimed that the whole idea of Russian interference in the 2016 election is a “hoax” intended only to make him look bad.

Worse, Trump has attacked the attorney general for prosecuting “popular” Republicans because those prosecutions might affect the Republican Party’s chances in the midterm elections. Trump clearly doesn’t understand that the Justice Department cannot be employed for his political benefit.

Normally, the Senate confirmation process would provide a check on his power to install unfit appointees in the Justice Department. But using The Vacancies Act, there seems little doubt that among the thousands of potential choices, Trump could find at least one willing to politicize the department and shut down the Mueller investigation.

Congress must protect Rosenstein and Mueller

It is in everyone’s interest — not the least that of Congress — to step up to defend Rosenstein and the rule of law before it’s too late. Not only has he done nothing meriting dismissal, firing him would force the very legal and political crisis congressional Republicans have been desperately hoping to avoid.

The best solution is to ensure that Rosenstein remains deputy attorney general. But if he is fired, Congress has the tools to take immediate action. The Senate should pass the Special Counsel Independence and Integrity Act, which ensures that any special counsel appointed by the attorney general could not be removed for political reasons. A Senate committee has already approved the bill on a bipartisan 14-7 vote.

This is a "Profiles in Courage" moment in American history. The Mueller investigation must be protected and if Rosenstein is removed, it will be up to Congress to protect it, regardless of the political cost. The investigation into Russian interference in the 2016 election isn’t just about Trump. It’s not even mostly about Trump. It’s about a very well-documented attack on our democracy that has already resulted in indictments or guilty pleas from 35 people and companies.

Fair and free elections are the basis of the American political experiment. Nothing can be allowed to interfere with them. They must be protected against Russia and, if necessary, the president. Senate Majority Leader Mitch McConnell, House Speaker Paul Ryan, history is watching.

Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of Republicans for the Rule of Law.