Below is my column in the Hill Newspaper on the growing need for Deputy Attorney General Rod Rosenstein to recuse himself from the Special Counsel investigation. Rosenstein has alluded to the possible need for his recusal but continues to participate in an investigation that could have direct bearing on his own role and decision-making. If he has material evidence on obstruction, he should not delay his recusal until he receives a formal request to appear before a grand jury. His relevance to the obstruction investigation is obvious and he should not be determined questions of scope when his own conduct could fall within the jurisdiction of the Special Counsel.
Deputy Attorney General Rod Rosenstein is back in the news this week, with a Sunday show appearance discussing the evolving scope of the special counsel’s investigation. While the subject was hardly a surprise, the person discussing the investigation was. Rosenstein is not only the ultimate authority on the scope of the investigation, he is also clearly a witness.
There are times when multitasking is a talent, but playing the roles of investigator and witness is not one of them. Rosenstein continues to resist calls for his own recusal, despite reports that a grand jury in Washington is now pursuing the obstruction allegations against President Trump.
Reports also indicate that various FBI officials now believe that they will inevitably be called as witnesses before the grand jury investigation of special counsel Robert Mueller. Deputy FBI Director Andrew McCabe is among those officials.
But on the top of this list must be the man whom the White House originally tagged with the decision to fire former FBI Director James Comey and the man who reportedly clashed with the White House over its public account: Rod Rosenstein.
Rosenstein’s involvement and importance in the underlying facts are well established. The deputy attorney general’s failure to recuse himself is a glaring ethical omission in an investigation into a president’s alleged conflicts of interest in dealing with then-FBI Director James Comey. Rosenstein is now three months overdue.
I was skeptical about the appointment of a special counsel before the firing because such an appointment should be accompanied by an articulable criminal act — something missing in the vague references to “collusion” with the Russians.
My view changed after Trump fired Comey on May 9. At that point, I believed that Rosenstein was right about the need for a special counsel to assure the public that a full and independent investigation would be conducted. However, his choice of Robert Mueller was a mistake. Mueller interviewed for Comey’s job, and Trump presumably spoke to Mueller about his reasons for firing Comey.
Moreover, Mueller and Comey have a close prior professional history. Both men were involved in a historic moment during the George W. Bush administration where they stood side by side to oppose an unlawful surveillance program. It was a moment that would define the legacies of both men — and enjoin them in history.
Rosenstein magnified that error with a mandate for Mueller that is strikingly broad. Yet this week, Rosenstein assured the public that “Bob Mueller understands and I understand the specific scope of the investigation, and so no, it’s not a fishing expedition.” If so, that understanding has remained strangely unstated.
The special counsel provision found in 28 CFR 600 states that the attorney general (or in this case, the deputy attorney general) shall establish by jurisdiction of the special counsel “a specific factual statement of the matter to be investigated.”
The statement given to Robert Mueller was anything but specific. It simply stated that Mueller was to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.”
With such a sweeping mandate, the role of the deputy attorney general in the investigation is even higher than usual. Rosenstein is performing the role of the attorney general after Jeff Sessions correctly recused himself. Under the rules, Mueller is specifically allowed to investigate “any federal crimes committed in the course of, and with intent to interfere with, the special counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
If Mueller were to seek a broader jurisdiction to investigate new matters or “to fully investigate and resolve the matters assigned,” he “shall consult with” Rosenstein, who this week referenced this power by saying that Mueller “needs to come to the acting attorney general, at this time me, for permission to expand his investigation.”
It is not clear whether Mueller had such a discussion before bringing on a team of prosecutors focused on financial fraud and foreign bribery or pursuing previous Trump transactions and business deals. If Mueller is pursuing obstruction allegations, that course will take him right over the desk of his superior: Rosenstein.
Rosenstein was consulted about firing Comey and supported the decision with a memorandum shredding the former FBI director. Moreover, when the White House initially made it sound like Rosenstein was the reason that Comey was fired (despite the fact that Trump had already decided to do so before receiving Rosenstein’s memo in support of termination), Rosenstein reportedly demanded a correction.
Rosenstein will likely be a key witness on the obstruction issue. As someone who supported the firing, he may be as important to the defense as to the prosecution in showing the independent grounds for terminating Comey. He has much at stake professionally, as shown by his adamant response to the White House spin. The grand jury might want to know why Rosenstein did not act to protect Comey or why he did not confront Trump in any suggested desire to curtail the investigation.
It is a basic rule that prosecutor should immediately recuse himself from a matter where he may be a witness. In addition to the various grounds listed in the conflicts rule, recusal is appropriate in “circumstances other than those set forth in the regulation that would cause a reasonable person with knowledge of the facts to question an employee’s impartiality.” Rosenstein, who has recognized his problem as a potential witness, should have recused himself long ago.
Rosenstein clearly agreed with the recusal of Sessions (as did most of us) to avoid even an appearance of a conflict. The deputy attorney general has more than an appearance of a conflict. Not only did Rosenstein appoint someone with close ties to the main accuser of President Trump, but he himself reportedly clashed with the White House on its post-firing account on Comey. Yet, Rosenstein is reaffirming that he will continue to make decisions on the scope and resources for the investigation.
This is a major investigation with passions running high on both sides. Citizens deserve an investigation without lingering questions of bias or personal interest. While it is too late to rethink or reverse the appointment of the special counsel, Rosenstein can remove one continuing and distracting conflict by removing himself. We are now more than 90 days and waiting.