For 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.
If 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.
Mueller 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.