The DOJ official also pointed out the department has its own ethics rules that include prohibitions both equal to, and stronger than, the White House that could prohibit Francisco from working on matters related to Jones Day clients.
A CREW official said the group just learned about the waiver on Friday after the Justice Department responded to its request for the document. In a
blog post, CREW called the waiver “troubling” because it isn’t posted on an Office of Government Ethics website that lists 28 other Trump administration officials who have so far received waivers to work on matters related to their previous employers.
The group also took issue with the waiver appearing to be signed by then-White House counsel Don McGahn, who also worked with Francisco at Jones Day before joining the Trump administration. McGahn had similarly pledged not to participate in matters involving his former law firm.
“By authorizing Mr. Francisco to participate in the investigation, Mr. McGahn himself participated in the investigation,” CREW wrote.
Even with the White House waiver, CREW said Francisco still has other conflicts that should prevent him from taking on the Mueller oversight job, which involves signing off on the special counsel’s budget and decisions on subpoenas, indictments and the public disclosure of a final report.
The group noted that Jones Day still owes Francisco about $500,000 as part of its separation agreement when he left at the start of the Trump administration in January 2017. It also questioned his role as a lawyer on Trump’s transition team, which also has been pulled into the Mueller investigation.
A White House spokesman did not immediately respond to requests for comment about Francisco’s April waiver.
Rosenstein’s status in the Trump administration has been in limbo for months, prompting DOJ to dust off its succession plans at each whiff of a shakeup. Most recently, the deputy attorney general’s job appeared to be in jeopardy after a New York Times
story published in September described Rosenstein’s proposal to wear a wire to record the president.
People close to Rosenstein have said some of the pressure around his job has abated, at least for now. The deputy attorney general flew with Trump on Air Force One in early October, and the president later that day
said he had no plans to fire the No. 2 Justice official.
Still, it remains unclear if Rosenstein and Attorney General Jeff Sessions will remain in their jobs much beyond Tuesday’s midterm election. Sessions has drawn repeated rebukes from Trump because he recused himself from overseeing the department’s probe into Kremlin meddling in the 2016 presidential election.
Beyond Francisco, several
other DOJ officials in line to oversee the Mueller have their own conflict issues, including Steven Engel, the director of Justice’s Office of Legal Counsel, who is next up to oversee Mueller after Francisco.
Engel’s challenge centers around his time working as a lawyer on Trump’s transition team. He also has some possible ethical concerns related to his prior employment at the law firm Dechert when it was representing James Comey, whose May 2017 firing from the FBI remains part of the probe into whether Trump obstructed the Russia probe.
After Engel is John Demers, the head of Justice’s National Security Division and a former Boeing attorney who doesn’t have any apparent conflicts.
Trump could also try to create a new legal route for picking Mueller’s supervisor from among the ranks of presidential appointees or even an unconfirmed DOJ official, though the legality of such a move is unresolved.