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Solicitor General Noel Francisco is a familiar face in conservative legal circles. But he could be about to enter a new and uncomfortable period in the national spotlight if he becomes the chief overseer of the special counsel investigation into Russian interference in the 2016 presidential election.
Francisco, 48, has been the Trump administration’s top representative at the Supreme Court since September of 2017, when a divided Senate voted 50 to 47 to confirm him to the post.
He’s the third-ranking Senate-confirmed officer inside the Justice Department. Attorney General Jeff Sessions has recused himself from the Russia investigation. If Deputy Attorney General Rod Rosenstein, who oversees it, were removed from his position, that responsibility would fall to Francisco.
President Trump has said he’s holding open his options for dealing with the Justice Department.
He has joined Republicans in Congress in complaining about the “bias” of people inside federal law enforcement, about the frame job they say is being perpetuated, and what they call Rosenstein’s slowness in producing documents to lawmakers.
Rosenstein said this week he would not be “extorted” but eventually, Trump warned, he may act on his own.
“Why such unequal ‘justice?'” he wrote on Twitter. “At some point I will have no choice but to use the powers granted to the presidency and get involved!”
A Rigged System – They don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!
— Donald J. Trump (@realDonaldTrump) May 2, 2018
If that means Rosenstein could be dismissed, that would set up Francisco to take his place.
The “dream job”
Francisco launched his career with clerkships for the late Justice Antonin Scalia and the retired appeals court judge J. Michael Luttig.
Two of his mentors told NPR the solicitor general spot is a “dream job” for Francisco, who was a law partner at the Jones Day firm with White House counsel Don McGahn and several other attorneys who assumed top legal positions in the Trump administration.
Even so, the idea of Francisco taking over responsibility for the Russia probe makes little sense to Chris Christie, the former New Jersey governor who also served as U.S. attorney for that state.
“I can tell you, Noel Francisco, very talented lawyer, but to be Solicitor General, you have a specific skill set and running a Russia collusion investigation is probably not one of them,” Christie told ABC News in April.
In fact, Francisco is on record expressing doubts about the role and reach of special counsels.
In 2007, he told a House panel, “my own personal belief is that when you hand these issues off to career prosecutors in the public integrity sections in the U.S. attorneys’ offices in the Department of Justice, those attorneys are generally better able to assess whether a case should be pursued.”
Francisco may be best known for arguing, and winning, the case of former Virginia Gov. Bob McDonnell, who was convicted of bribery and public corruption offenses. The Supreme Court ultimately threw out the conviction.
Francisco also won a case invalidating the Obama administration’s use of recess appointments at the National Labor Relations Board.
“I have total confidence in his integrity, I think he’s a great person, he’s been a great friend, and he’s been a fantastic lawyer,” said Hank Asbill, who worked with him on the McDonnell case.
Asbill said his former law partner would be “totally equipped” to oversee the Russia probe.
“I’m sure if Noel is asked to make any decisions in that regard that he’ll evaluate the relevant facts and the legal issues on the merits … and he’ll make whatever decision he thinks is the most appropriate,” Asbill added.
Francisco served as a junior lawyer in President George W. Bush’s White House and worked in the Justice Department’s elite Office of Legal Counsel in the Bush years. He was part of the team of attorneys who helped Bush, working around the clock during the recount process in Florida during the 2000 election.
“It was exhausting but extremely important, obviously,” said Chuck Cooper, who hired Francisco to work at his law firm during that period. “The potential that we saw in him as a very young lawyer … is something others have seen in every stage of his career.”
More recently, he endeared himself to conservatives by defending the Bush administration’s firing of U.S. attorneys. In 2016, Francisco wrote an opinion piece in the Wall Street Journal titled, “The FBI Treated Clinton with Kid Gloves.”
None of those things came up during his Senate confirmation hearing in May 2017, which took place the morning after President Trump fired FBI Director James Comey.
Comey’s dismissal was what helped prompt Rosenstein to appoint a special counsel to investigate allegations of Russian election interference.
At the hearing, Francisco spoke with emotion about his late father, who spent his childhood in the Philippines, ravaged during World War II.
“He once told me as a young boy, he was forced to live in the remnants of a bombed-out tank,” Francisco recalled. “Whenever I face the joys or difficulties of life, I think of that little boy.”
Later in the hearing, Francisco told Senators he knew he would have a responsibility beyond simply winning or losing in court.
“After all,” he said, “the Department of Justice’s goal is not just to win, but to ensure that justice is served.”
It’s too soon to assess Francisco’s record as solicitor general. The office has reversed course many times from stances the Obama administration took. But Cooper, a mentor to Francisco, said that’s to be expected given the substantial policy shifts between the two White Houses.
But one move from the office drew bipartisan outcry. The solicitor general filed court papers suggesting opposing lawyers at the American Civil Liberties Union should face discipline in a case involving an undocumented immigrant seeking an abortion.
Two sources told NPR that people had urged the solicitor general not to file the document, but he went ahead.
The ACLU later said the brief was “baseless, irregular, and alarming.”