• Solicitor General Noel Francisco would oversee special counsel Robert Mueller’s probe if Deputy Attorney General Rod Rosenstein departs his position.
  • Francisco was previously backed by former White House chief strategist Steve Bannon to replace Attorney General Jeff Sessions.

The man who would oversee special counsel Robert Mueller’s investigation should Deputy Attorney General Rod Rosenstein depart from his position has the full backing of President Donald Trump’s former chief strategist, Steve Bannon.

Bannon, in an interview with Business Insider last month, endorsed Solicitor General Noel Francisco to replace Attorney General Jeff Sessions when it was rumored that Trump could replace the head of the Justice Department after the November elections.

“I think the solicitor general has done a pretty extraordinary job and is someone who will clearly be in the mix, but that’s for the president to decide,” Bannon said.

Francisco now finds himself at the center of discussion about what happens should Rosenstein leave his position after a number of conflicting reports were published Monday:

  • Some said that Rosenstein had signaled that he would resign his position.
  • Others said he was not going to resign but expected to be fired on Monday.
  • Neither came to fruition Monday as anticipated, but Rosenstein instead will meet with Trump on Thursday, White House press secretary Sarah Huckabee Sanders said in a statement.

On Friday, The New York Times and other outlets reported that Rosenstein discussed invoking the 25th Amendment and removing Trump from office in the days the immediately followed the president firing FBI Director James Comey. Rosenstein also mentioned secretly recording Trump, The Times reported.

Rosenstein disputed the account, saying it was inaccurate, adding that “there is no basis to invoke the 25th Amendment.” A Justice Department spokeswoman told The Times that Rosenstein’s comment about recording Trump was made sarcastically.

If Rosenstein does ultimately vacate the post, Francisco is next in line to oversee the Mueller probe. The solicitor general served in President George W. Bush’s administration and later at the Jones Day law firm.

Francisco authored a 2016 op-ed in which he took aim at Comey for his handling of the investigation into 2016 Democratic presidential nominee Hillary Clinton’s use of a private emails server while she led the State Department. Earlier this year, Francisco raised some eyebrows when he intervened in a Supreme Court case involving the Securities and Exchange Commission to assert Trump’s ability to hire and fire all “officers of the” US.


“The Constitution gives the president what the framers saw as the traditional means of ensuring accountability: the power to oversee executive officers through removal,” Francisco wrote. “The president is accordingly authorized under our constitutional system to remove all principal officers, as well as all ‘inferior officers’ he has appointed.”

Francisco was photographed in February dining with Rosenstein and Sessions hours after Trump blasted his attorney general. The photo was interpreted by some as signaling solidarity.

“I don’t think we know enough to be confident,” Eric Columbus, a former senior official in President Barack Obama’s Justice Department, told Politico of Francisco. “I doubt he would fire Mueller but could limit him, which has always been the greater concern.”

Walter Shaub, the former director of the Office of Government Ethics under Obama and Trump, tweeted Monday that Francisco can’t oversee the Mueller probe because of his past work for Jones Day, which is representing members of the Trump campaign in the Mueller investigation.

“DOJ is saying Noel Francisco would take over the investigation,” Shaub tweeted. “DOJ is wrong unless the White House has secretly issued a waiver of Executive Order 13770, which bars Francisco from participating in the Mueller investigation due to Jones Day’s representation of the Trump campaign.”