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.

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

    • Having litigated a couple of FOIA cases, I regard Judicial Watch very highly. They are more active in creating government transparency, through effective litigation under the FOIA statute, than any other organization. Just look at the case law annotations on 5 USC 552, it is full of JW cases.

  1. The next domino to fall in the corruptocracy will be the IRS. There is surely a Sybil in the IRS that is struggling to hold their water on Trump’s tax returns. Just leak them already so that that bureaucratic weapon can be disarmed as well.

  2. It seems that there is no one who doesn’t bring some baggage from their past along. There are very few Sam Irvins around and so much that needs to be investigated. This is the condition of the oligarchy we have for a government. Everyone has kissed a little patooty on the way up, shared a few ideas, etc. One of the most interesting concepts is that which is put forth constantly by Trump, that he should vet the prospective investigators of himself and his activities.

    The only answer is to turn all cards that have nothing to do with security, face up on the table, including Trump’s tax returns, Kusher’s, and all elected and appointed officials, both sides of the aisle and then get rid of the aisle. Start at the beginning, personal advancement and then let the chips fall. This is the sort of revolution this country needs. Or, is America not strong enough to face up to its responsibilities?

    Take big bucks out of government and soon will follow: single payer health care, multiple political parties, a much higher quality of person coming forth to stand for election, a return of a wealthier middle class, common sense, democracy, etc.

    • The Dems won’t rest until they get Trump’s tax returns. Next we’ll see “leaks” coming out of the IRS because Trump hasn’t cleaned house over there yet.

      And, yes, if Trump is to reveal his tax returns, so should every member of Congress be under scrutiny and/or investigation. I’m sure we’d find some interesting information. Like this from Mark Warner’s:

      http://www.thegatewaypundit.com/2017/05/report-anti-trump-senator-mark-warner-made-6-million-2012-russian-tech-business/

      ———————

      “Hardcore anti-Trump Democrat Senator from Virginia and Russia conspiracy theorist, Mark Warner, made $6 million from Russian search engine and tech company Yandex back in 2012.

      GotNews reports that the $6 million he pocketed represents 10% of his entire net worth. This is corroborated by the Christian Science Monitor, which reported his net worth to be around $80 million.”

      ———————-

      “As far as we know, President Donald J. Trump has made 0% of his net worth from Russian companies. Maybe Warner should investigate his own ties to Russia.

      Virginia Democratic Senator Mark Warner, the ranking member of the Senate Select Committee on Intelligence, is blocking the White House from appointing a Treasury Department official to oversee financial crimes committed by terrorists.

      Warner, worth over $80 million, is one of the Senate’s richest members.”

      • Let’s think about Hillary and Bill that were”broke” when they left the White House and then trace their actions while following the money. The uranium sale to the Russians was just the tip of the iceberg. They enriched themselves on the backs of the American people and should be in jail. Trump acted within the law as far as we can see and the investigations don’t stop.

        The left is tribal and now even becoming openly violent.

  3. It’s starting to look more like an insurrection than an investigation.
    Definition of insurrection

    : an act or instance of revolting against civil authority or an established government.

  4. What a mess. Mueller has to recuse himself on anything Comey related, right? So, if Mueller opens an investigation into obstruction, then both he and Rosenstein have to step aside. So Trump is correct when he says he is not under investigation. Hasn’t Comey, (and Coats and Rogers) all testified under oath that there was no obstruction? Hasn’t it been determined that there is no ‘collusion’ (whatever that means) between Trump and Russia? So what is the special counsel investigating?

    How about instead of obstruction, they take a look at sedition?

      • 18 U.S. Code § 2384 – Seditious conspiracy

        If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

  5. Michael Aarethun – he is not going to find Diogenese in Washington, DC. I think Mueller is too close to Comey to investigate this whole thing. I know that I could not be completely fair if one of my friends was a witness. I would clearly give them more weight.

  6. I don’t like this, Mr TURLEY! Sure wish you were part of TRUMP TEAM!!!🌝🙏👨👨👨❤️🇺🇸

      • Olly – I think Iowa should give a parcel of land to the government to be used as land for a new federal complex and they move the government there. Washington DC was originally picked because it was centrally located. It no longer is and needs to be moved to the center of the country were it is accessible to everyone.

    • Back in Germany in days of old, someone with the name Rosenstein was often a funeral director. Or a gravestone builder.

    • You drunk Jack?

      Tired of your demeaning insults about folks, blue or red.

      We in Alabama are proud of our Mobile Senator now United States Attorney General for all America.

      So go live your little pathetic life on your boat without a camera either (what kind of phones are there without a camera any more?)

      Go talk to your 🐢 turtles.

      • I talked to my turtles. Only one replied when I asked where Sessions came from. Harold says that Sessions is from planet Jerome. Now where the heck that is I don’t know. Turltes know things that we do not know. So I believe this. But. If Sessions is from Mobile, Alabama then that sort of makes sense. It does not make dollars and cents but if you have been to Mobile then you will know what I mean, jelly bean.

        • My turtle friend named Constant Comment says that Sessions likes living in DC. There is a cathouse there which accepts dorks with funny ears.

  7. I find it difficult to employ the correct words to describe this situation. Here are some: apCray, horseitShay, for heavens sake!, Crime on the Reara, Jack Mehoff, Much Ado About Mudslinging.

    It is Much Ado About Mudslinging. And it is only mud and not poop. Trump is in the mud and the critics are throwing poop. But the poop is hitting he critics because they are throwing from all sides and hitting each other and not the Trumpster. Some poop is on the Wall and some is on this blog. One poop is good for the whole day usually but not in this day and age. Speaking of age: how old is Trump? How mold is Comey? Why does Mueller pronounce his name wrongly? Why do they all look so bad in their photos?

    Here is one I read on Cloud 9:

    Putin and Trump. Sitting in a tree.
    K I S S I N G.
    First came love.
    Then came marriage.
    Then came Donnie with a baby carriage.

    And some would call it ‘collusion”. Call it what it is. Sex between two males on a single branch.

  8. Rosenstein has a clear conflict of interest. Mueller probably doesn’t have a conflict of interest, but if I were in his shoes, I would hire an attorney whose sole job is to deal with conflict of interest issues and other ethical issues that are certain to come up. I would also take steps to see that this “ethics counsel” can’t be fired without approval by the (acting) Attorney General — whoever is sitting in for Sessions.

    • “If he ‘doesn’t have a conflict of interest’ it’s because lawyers have turned that phrase into a term-of-art which allows them to go about their scuzzy ways blatant partiality notwithstanding. The man who has no conflict of interest has hired four lawyers who are part of the modest minority of the public who finance Democratic Party campaigns, of which 3 have given four figure sums to Democratic campaigns. It’s not difficult to find attorneys who do not make political contributions of note. Only a single-digit minority of the public are campaign contributors. Comment dit-on Establishment stitch-up?

  9. If Rosenstein recuses himself is there any reason why Sessions could not step in or do put an ad in the classifieds for Diogenese.

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