November 2, 2018
CREW has uncovered a previously undisclosed ethics waiver that may represent an effort to clear one of the obstacles to Solicitor General Noel Francisco replacing Deputy Attorney General Rod Rosenstein as the official overseeing the Russia investigation.
If Deputy Attorney General Rod Rosenstein either resigns or is fired, someone else will have to oversee the Special Counsel investigation. Next in line appears to be Solicitor General Noel Francisco. The problem is that Mr. Francisco has ties to the pending investigation that should preclude his participation.
For one thing, his former law firm, Jones Day, represents the Trump Presidential Campaign in the Special Counsel investigation. Also, Mr. Francisco has a continuing financial relationship with Jones Day, which owes him more than half a million dollars. In addition, he previously appeared before the Justice Department as a member of a “Landing Team” on behalf of the Presidential Transition Team.
The first of the three obstacles Mr. Francisco faces – his former employment relationship with Jones Day – raises an issue under the Trump ethics Executive Order. 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, CREW has discovered that the Trump administration issued Mr. Francisco an ethics waiver on April 24, 2018. The waiver relieves him from any obligation to honor his ethics pledge to recuse from investigations involving Jones Day. The waiver states only that he is relieved of this obligation and offers no justification whatsoever. It simply waives the obligation, thereby eliminating one of the three obstacles to his overseeing the Special Counsel investigation.
The waiver is troubling for a couple of other reasons, as well. First, the Office of Government Ethics maintains an online list of all ethics pledge waivers issued by the Trump administration to political appointees serving outside the White House. Notably absent from this list is Mr. Francisco’s waiver. At least one more recent waiver was included in the list, so it is strange that Mr. Francisco’s waiver was left off the list.
Second, the signature on Mr. Francisco’s waiver appears to match the signature of former Counsel to the President, Donald McGahn II, that appears on other waivers. Mr. McGahn’s involvement is troubling because he, too, comes from Jones Day and pledged not to participate in any investigation in which Jones Day is representing a party. By authorizing Mr. Francisco to participate in the investigation, Mr. McGahn himself participated in the investigation. Mr. McGahn himself received a limited ethics waiver as to Jones Day, but that waiver only authorizes him to participate in meetings and communications with Jones Day and does not authorize him to take other substantive legal actions like issuing a waiver to Mr. Francisco.
This is not the first time the government gave Noel Francisco an ethics waiver. The Department of Justice issued him an ethics waiver on February 7, 2017, while he was serving in a temporary position, that suspended the criminal conflict of interest statute and allowed him to participate in a case from which he would have otherwise had to recuse. That waiver is unusual in that it does not state that the Justice Department ever consulted with the Office of Government Ethics before issuing the waiver.
Notwithstanding these waivers, of course, Mr. Francisco should still recuse from the Special Counsel investigation if Mr. Rosenstein resigns or is fired. There is still the matter of the half a million dollars Jones Day owes him, and there’s his own involvement in the Trump campaign’s landing team to consider.