Do Rosenstein and Mueller Have Conflicts of Interest in the Trump Investigation?

Rod_Rosenstein_US_Attorney440px-Director_Robert_S._Mueller-_III-1For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime.   I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime.  However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point.  Nevertheless, I continue to support the need for an independent investigation.

The investigation of a sitting American president however must itself be beyond question as to any bias or influence.  For that reason, I have been questioning the propriety of Rod Rosenstein to continue in his current position vis-a-vis the Russian investigation.  From the outset, Rosenstein seemed to me to be an inevitable and important witness.  Ironically, the recent leak magnified this problem.  The leak seemed calculated to protect Mueller from being terminated by publicly identifying Trump as a possible target. However, whatever benefit the leak brought Mueller, it undermined Rosenstein.  If Mueller is investigation Trump for obstruction, Rosenstein should immediately recuse himself.

It is not clear if Mueller has an equal conflict of interest. There is reason to be concerned.  If Mueller discussed the Comey’s termination with Trump as a candidate for the next FBI Director, he might also be considered a witness in any obstruction investigation. It would seem highly material to the investigation to learn of how Trump described his decision and what he said (if anything) to Mueller about the ongoing Russian investigation.  At a minimum, the Special Counsel should address what is a reasonable question about his own knowledge of (and participation in) any meetings with Trump on the Comey termination and the Russian investigation.  I do not agree with the campaign to discredit Mueller and strongly object to attacks on his character.  I believe Mueller to be a person of integrity and I hope that he recognizes that such a meeting raises some legitimate questions that should be addressed.

Here is the column:

A news report today sent Washington into another spasm when it appeared that ABC and other news outlets reported that Deputy Attorney General Rod Rosenstein confirmed that he might have to recuse himself from any further involvement in the Russian investigation.

Like invading Russia in winter, it appears that participating in the Russian investigation is a prospect fraught with peril for those on the front lines. While the news account has not been verified, there is actually very good reason for Rosenstein’s recusal. Moreover, any recusal by Rosenstein would add questions about the status of Special Counsel Robert Mueller himself.

Rosenstein reportedly told his colleagues that he is now considering his own recusal in the Russian investigation, though it is not clear why he has reached this conclusion. The implications of the decision may magnify questions over Mueller’s own status.

The most obvious reason for Rosenstein to recuse himself would be the prospect of his being a potential witness in the obstruction of justice investigation against President Trump. Recently a leak from the special counsel investigation revealed that Trump is now a potential target — a leak clearly calculated to deter Trump from his reported consideration of firing Mueller.

440px-Comey-FBI-Portraitdonald_trump_president-elect_portrait_croppedIf this account is false and Rosenstein is not thinking of recusing himself, he should be. He recommended that Comey be fired. That made him a critical player and potential witness to the events underlying the obstruction allegations. On this point, Trump had a point in the tweet today when he objected that he is “being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” It is assumed that Trump was referring to Rosenstein. While Rosenstein is not the one investigating Turmp, given the appointment of a special counsel, he does have an ongoing (albeit limited) supervisory role in the investigation.

In fairness to Rosenstein, recusal is not as much of a pressing question for him as it was for Attorney General Jeff Sessions. The appointment of a special counsel is itself a type of recusal for the entire department. However, Rosenstein continues to hold some authority in being able to countermand decisions of the special counsel (though such decisions are reported to Congress).

He also holds the final word on whether Mueller can continue as special counsel. That gives him a modicum of influence over a Special Prosecutor who could be investigating Rosenstein’s own role in the firing of Comey. Rosenstein could also be a witness on the narrative put out by the White House after the firing — citing Rosenstein as the moving force behind the termination (an account Rosenstein reportedly objected to as false or misleading).

Mueller could have his own conflict issue now that obstruction is confirmed as a focus of the investigation. There has been a growing campaign to discredit Mueller as special counsel due to his past connections to former FBI Director Comey. For the record, I stated at the time of his appointment that Mueller is a person known for the greatest integrity and accomplishment. I also felt that his reputation brought a calming effect on the scandal, an image of professionalism and objectivity.

He is the ideal person for a special counsel position, but not necessarily this special counsel position. As I stated previously, Mueller could not be viewed as a neutral choice by anyone on Trump’s side due to his history with Comey. I noted earlier that aspects of Mueller’s background are troubling, and I believe that Rosenstein used poor judgment in his selection.

My earlier reservations over Mueller were due to the long-standing and close relationship between Mueller and Comey. Both men share deep professional and institutional history and values. They have shared DNA. In comparison, Mueller has about as much in common with Trump as a wombat.

225px-alberto_gonzales_-_official_doj_photograph225px-John_AshcroftMueller and Comey joined in a historical moment that defined both men in a deeply personal way. In March 2004, Comey, who was deputy attorney general, went to hospital bed of Attorney General John Ashcroft to keep him from relenting to demands from White House counsel Alberto Gonzales and others to sign papers reauthorizing the unconstitutional domestic surveillance program.

The man Comey called upon was Robert Mueller, who ordered the security detail protecting Ashcroft to not allow White House staff to eject Comey from Ashcroft’s hospital room. The two men backed one another in a moment etched into legend in both the Justice Department and FBI. It is the type of defining moment that leaves a deep personal and professional bond.

The Mueller and Comey history in the Bush administration would have been enough for me to scratch off his name from the list of possible special counsels. As the obstruction allegations grew against Trump, so did the discomfort over Mueller’s connections to Comey. The White House has said that Mueller interviewed with Trump for the FBI position to replace Comey. The day before he was made special counsel. Presumably, if this conversation occurred, Trump may have explained why he fired Comey and what he was looking for in his replacement. With obstruction now confirmed as a focus of the special counsel investigation, that makes Mueller a possible witness. It certainly raises the issue of whether Trump shared any thoughts material to his firing of Comey.

Mueller was appointed under 28 CFR 600.7, which states that “[t]he Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” If Mueller is a potential witness, recusal or termination would be warranted under that standard as a conflict.

None of this is meant to cast aspersions on Mueller. No one has questioned his integrity. However, this investigation is already being discussed as the possible basis for the indictment or impeachment of a president. There should be no questions of motivation or bias as part of such an investigation. There are roughly 1.2 million lawyers in this country. Indeed, in Washington, you can throw a stick on any corner and hit ten out of the over 50,000 lawyers in the city.

Few are distinguished to the degree of a Robert Mueller, but even if you take the top one percent of lawyers in this country you are left with a pool of 12,000 candidates. Even if you took half of the top one percent, you still have 6,000 candidates. Certainly, one has the resume to serve as special counsel without the shared history with one of the key potential witnesses or interactions with a possible target.

If Rosenstein recuses himself, Mueller’s continuation as special counsel would fall to Associate Attorney General Rachel Brand who is the third most senior official at the Justice Department. However, the decision also rests with Mueller on whether, like Rosenstein, there is reason to step aside. In the very least, Mueller should confirm whether he discussed the Comey firing with Trump and sought Comey’s job from Trump. In legal ethics, the appearance of a conflict is grounds for recusal. It is incumbent on Mueller to remove any such appearance or to remove himself as special counsel.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

76 thoughts on “Do Rosenstein and Mueller Have Conflicts of Interest in the Trump Investigation?”

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  2. Mueller, Rosenstein, their staff of Clinton donors et al.

    must be impeached and convicted

    for abuse of the power of government against the People,

    as a conspiracy to conduct a coup d’etat in America,

    through execution of a scheme to falsely accuse and

    illegally remove a duly elected President of the United States.

    1. I, along with many of my circle of influence, agree. Rosentein needs to recuse himself, Mueller also, and if any refuse, Sessions should fire Mueller on grounds of conflict of interest and Rosenstein can be disciplined and demoted. We the people are getting tired of the circus of corruption.

  3. Prof Turley should listen to about the first 1 1/2 hour of lawyer Mark Levin explains why any obstruction of justice charge of Pres Trump will go nowhere:

  4. This is getting so ridiculous! Let’s have everyone recuse themselves and get down to the work of running the country! Who the hell cares if it was the Russians who hacked DNC emails that proved their hypocrisy, mendacity and the corruption of the media? Why aren’t we “investigating” the DNC? Answer: because our “media” has been weaponized by them against it’s “enemies.” Putin is an enemy because he didn’t take kindly to Clinton’s political weaponizing the press in it’s sphere of influence. Can’t say I blame him. If the CIA can’t hack Putin, and the U.S. is helpless to prevent further hacking, then we have a much bigger problem. Trump’s ham-fisted attempts to get actual government officials to “go public” to reduce the media heat he feels, is much ado about nothing. I wish he didn’t care about the publicity, but then – if he didn’t – he wouldn’t be President now.

  5. Check this article or Zero Hedge. Huge conflict of interest:

    Hillary Clinton Told FBI’s Mueller To Deliver Uranium To Russians In 2009 “Secret Plane-Side Tarmac Meeting”

  6. G.R. headline:
    “Special Prosecutor Robert Mueller Is a “Political Hack” — note what JT said:

    Unsure About Assassination of U.S. Citizens Living On U.S. Soil

    Rather than saying “of course not!”, Mueller said that he wasn’t sure whether Obama had the right to assassinate Americans living on American soil.

    Constitutional expert Jonathan Turley commented at the time:

    One would hope that the FBI Director would have a handle on a few details guiding his responsibilities, including whether he can kill citizens without a charge or court order.


    He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: “Of course, I do not have that power under the Constitution.”

    Mueller participated in one of the greatest expansions of mass surveillance in human history. As we noted in 2013:
    FBI special agent Colleen Rowley points out:

    Mueller was even okay with the CIA conducting torture programs after his own agents warned against participation. Agents were simply instructed not to document such torture, and any “war crimes files” were made to disappear. Not only did “collect it all” surveillance and torture programs continue, but Mueller’s (and then Comey’s) FBI later worked to prosecute NSA and CIA whistleblowers who revealed these illegalities.

    There’s much more about Mueller which makes it clear he’s no friend of democracy.

  7. Is not this enough reason to fire the person who appointed this special person ? Why in the world we have idiots working at the doj who have such poor judgment ?

  8. All parties involved swore a supreme loyalty oath to the U.S. Constitution, which includes fidelity to our Bill of Rights. All ignored the torture, illegal spying and abusing the Espionage Act but they did lock up those that had fidelity to their oath (i.e.: John Kiriakou).

    Why has the Press lost interest in that disloyalty by most, not all, DOJ employees – they swore to protect Americans’ constitutional rights.

    1. Thanks, Ms. Fromm.

      Whenever a member or supporter of the !% tells us that Mr. X is highly respected etc., you can be certain that Mr. X will not act contrary to the beliefs and aspirations of the established order.

      Mr. Mueller is Mr.X.

      1. You are exactly right! Mueller is an Apparatchik. Which wiki says is:

        Apparatchik /ˌɑːpəˈrɑːtʃɪk/ (Russian: аппара́тчик [ɐpɐˈratɕɪk]) is a Russian colloquial term for a full-time, professional functionary of the Communist Party or government “apparat” (apparatus) that held any position of bureaucratic or political responsibility, with the exception of the higher ranks of management called “Nomenklatura”. James Billington describes one as “a man not of grand plans, but of a hundred carefully executed details.”[1] It is often considered a derogatory term, with negative connotations in terms of the quality, competence, and attitude of a person thus described.[2]

        Members of the “apparat” were frequently transferred between different areas of responsibility, usually with little or no actual training for their new areas of responsibility. Thus, the term apparatchik, or “agent of the apparatus” was usually the best possible description of the person’s profession and occupation.[3]

        Not all apparatchiks held lifelong positions. Many only entered such positions in middle age.[4]

        Today apparatchik is also used in contexts other than that of the Soviet Union or communist countries. According to Collins English Dictionary the word can mean “an official or bureaucrat in any organization”.[5]

        According to Douglas Harper’s Online Etymology Dictionary, the term was also used in the meaning “Communist agent or spy”, originating in the writings of Arthur Koestler, c. 1941.[6]

        In Australia, the term is often used to describe people who have made their career as factional operatives and leaders in political parties, and who are therefore perceived to have little ‘real-world’ experience outside politics.

        Squeeky Fromm
        Girl Reporter

    2. Every time I say the name Mueller, I can’t help but think of Ferris Bueller. Mueller? Mueller? Anyone? Anyone find a crime yet?

      1. Rosenstein and Mueller’s Excellent Adventure.

        Mr. Mueller’s Day Off.

        Sorry, it is hard to take this unconstitutional special counsel in search of a crime seriously.

              1. Squeeky – Shakespeare has Hamlet set them up for death and they are dead by the end of the play. Not sure how Stoppard abuses them. 😉

                1. Stoppard makes them engage in inane rambling conversations and pointless actions, and then charges people to watch! Someone should czech on them. . . oh wait. . . 🙂

                  Squeeky Fromm
                  Girl Reporter

                  1. Squeeky – that was the same plot of the only Stoppard play I have ever seen. He needs new material. 😉

                    1. Squeeky – well, Stoppard is a favorite of colleges and universities. He is a great wordsmith. 😉 Not good on wire-fu though.

  9. When Comey testified that AG Loretta Lynch ordered him to call the criminal investigation of Hillary Clinton’s violations of email-protocols on a private server & ignoring securityclassifications, putting our National Security at risk– why didn’t the Senate Intelligence Committee subpoena Ms. Lynch to testify regarding:

    1/ Why did she advise Comey to call the investigation a “matter”? Why was she pressuring him to back-off and not indict Hillary? To what degree was POTUS Obama involved in Hillary’s e-mail gate? What was in the 30,000 emails that Hillary deleted?

    2/ What took place between Bill Clinton and Loretta Lynch on the airplane during Tarmac-gate in AZ? They didn’t talk about their “grandkids” alone, did they… ergo, did Bill Clinton promise that if AG Lynch & Comey refused to recommend an indictment that Hillary would recommend her to be nominated for the US Supreme Court? What, if any other, quid-pro-quos were offered by Bill on behalf of Hillary in order to obstruct justice?

    3/ Why did AG Loretta Lynch refuse to demand that the FBI put Hillary under oath & also record their questioning of her during Emailgate? Why was Hillary accorded special privileges in violation of FBI-protocols–that citizens would never be accorded? What was Obama-Lynch’s role in aiding-and-abetting Hillary to avoid prosecution of crimes that other US citizens would endure for lesser crimes?

    Let’s be honest please: It wasn’t Trump or the Russians who obstructed justice– attempted to rig our elections– who perverted the course of justice:– It was Obama, Bill & Hillary Clinton, AG Loretta Lynch and Comey– all of whom thought that Hillary would be POTUS and were happy to help her out–and whom were willing to turn a blind-eye- to her crimes in order to enjoy the perks that she would provide in return for ignoring her blatant, willful & criminal activities.

    Mueller is close to the Clintons–he is close to Comey. In my opinion, a man of integrity would not have accepted the role of Special Counsel in this trumped-up coup d’etat. Shame on him.

    1. The best one I’ve hear so far is………..An FBI employee telling Comey after the meeting with Lynch was now lets call it the FEDERAL BUREAU OF MATTER

      1. Yes! But, as long as the moronic brain-washed idiots on Broadway continue to give Hillary standing ovations just because she “tried” to break the glass ceiling….you know, the participation trophy…..then she will keep on thinking she is actually someone worth admiring. She is not. She is incompetent. She is corrupt. She is a criminal. She is unethical. She is, and always will be Crooked Hillary. A failed politician who should be in prison for the rest of her life. The idiots on the left who continue to venerate her are true ‘sycophants’ — emphasis on ‘sick.’

      2. From Comey’s statements regarding Hillary Clinton, I believe that should be reopened, especially regarding Bill Clinton’s meeting with then Attorney General Lynch. Is Lynch so stupid not to think the public would see that for what it was, a cover-up. The Russia thing is a cloak to cover the Clinton/Lynch meeting. It’s a sham that DOJ has let go. My main complaint is — how much is this going to cost the taxpayer? It has no basis in fact from anyone, so why are we here? Well, because the Dems are afraid of Donald Trump! Sessions should tell his Deputy to end this by terminating the whole thing. Hopefully Dems will,pay for this in 2018. We will not let Americans forget!

    2. STOP!…you are all starting to sound like an…Apparatchik. Get back to reality

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