Below is my column in The Hill newspaper on recent stories indicating that top Justice Department officials raised the recusal of Deputy Attorney General Rod Rosenstein back in June 2017. I first raised Rosenstein’s recusal in June and August of that year when the Mueller investigation began based on his role in the firing of James Comey and I have repeatedly called for the recusal since then (here and here and here). Unless Mueller has told Rosenstein that he does not consider obstruction to be a serious matter for criminal investigation in this context, it is difficult to see how Rosenstein can continue. Indeed, even if Mueller rejects obstruction theories, Rosenstein should not have continued as his superior in the investigation while that matter was explored in compliance with the mandate given Mueller.
Here is the column:
One of the most glaring irregularities in the special counsel investigation has been the conflicted ethical position of top officials at the Justice Department. President Trump has long borne a deep resentment over the recusal of Attorney General Jeff Sessions, which many of us viewed as a necessary ethical step. The problem was not the recusal of Sessions but the fact that it was not immediately followed by the recusal of Deputy Attorney General Rod Rosenstein. The precarious ethical position of Rosenstein just became far more acute with a new report that he ignored demands within the Justice Department to remove himself in 2017.
The report alleges that a heated argument over his conflicts arose soon after the appointment of special counsel Robert Mueller within the Justice Department. Rosenstein rejected the demands of then acting FBI Director Andrew McCabe that his supervision of Mueller was a glaring conflict, while he demanded McCabe’s recusal on different conflicts. The confrontation of Rosenstein over his dubious ethical position is no surprise. In 2017, I argued that both Mueller and Rosenstein had serious conflicts in performing any role in a special counsel investigation.
Mueller had interviewed for James Comey’s job after the latter was fired as FBI director, and reportedly spoke directly with Trump in the aftermath of the firing. That makes him an obvious witness to the very matter that he is investigating. Mueller should not have been on the list of possible special counsels, let alone selected by Rosenstein. Yet, that glaring conflict is now being overlooked, given the national interest in having this investigation completed fully and independently.
Rosenstein is a different matter. From the appointment of Mueller, Rosenstein’s more serious conflict has undermined the investigation. Rosenstein is not just a witness to Mueller’s obstruction investigation, he is one of the key witnesses. Trump consulted Rosenstein before firing Comey, and Rosenstein wrote a memorandum effectively calling for his removal. Initially, the White House suggested that Comey was fired due to that memorandum, and Rosenstein reportedly was irate. The White House then had to walk back the statements after Rosenstein demanded a correction. That puts him at ground zero of the obstruction allegations.
Despite the fact that he is a key witness in Mueller’s investigation, Rosenstein has continued as Mueller’s boss, approving any expansions of his mandate and other issues. The investigation could have a pronounced impact on Rosenstein’s professional standing. Rosenstein has portrayed himself as above the fray, a bulwark against Trump’s reported desire to lay waste to the investigation. He is Mueller’s primary line of defense. Yet, Mueller has to question Rosenstein’s own conduct and subsequent accounts if he is to do a complete investigation of Comey’s firing. Rosenstein also is a key player in some of the secret FISA warrants targeting Trump’s campaign aides in the Russian investigation.
The new report reaffirms just how serious this ethical conflict is for Rosenstein. According to a source briefed on the matter, Rosenstein and McCabe mutually accused each other of insurmountable conflicts in a meeting with other Justice Department officials and, most notably, Mueller. Rosenstein raised a photo showing McCabe wearing a campaign shirt for his wife’s bid as a Democratic candidate for the Virginia state senate. Her campaign became controversial due to massive funding from Virginia Governor Terry McAuliffe, who is a Clinton ally and Trump critic. McCabe was said to respond by raising Rosenstein’s obvious conflict as a witness in the events surrounding Comey’s firing.
It is important to note that McCabe’s conflict was indirect and a matter of perception. Justice Department officials are supposed to avoid even the appearance of a conflict, and McCabe was correctly removed on this and other grounds. Conversely, Rosenstein had a direct conflict as a witness overseeing an investigation of not only the president’s conduct but his own. What is most striking is that McCabe already had been warned by Justice Department ethicists about his potential conflicts and followed the recommended steps to mitigate any conflict. Rosenstein did comparably nothing on his direct conflict except make it worse.
Rosenstein’s past response to these objections, which he acknowledged to Congress are “serious” issues, is strikingly inappropriate. He threw the issue into the lap of his subordinate, Mueller, to ask for his recusal. In 2017, Rosenstein told the Senate Intelligence Committee, “I think that Director Mueller ought to review that and make a determination of whether or not he believes it is within the scope of his investigation.”
There are a host of problems with this approach, but let’s deal with just three. First, it is Rosenstein’s obligation to make this ethical decision for himself, regardless of any judgment or rationalization of a subordinate. As lawyers, we are not allowed to play an ethical Blanche DuBois, relying on the kindness of strangers, let alone subordinates, to avoid recusal.
Second, Rosenstein was tying his continued oversight of the special counsel investigation to how aggressively or broadly Mueller might want to pursue the allegations. That can create a conflict for Mueller. Rosenstein plays a critical role in the scope of that investigation. Indeed, Mueller may be influenced in tailoring the investigation to effectively safeguard his principle defender from recusal or scrutiny.
Finally, Rosenstein never mentioned that, in fact, high level Justice Department officials, including the acting FBI director, believed he did have a conflict, according to the new report this week. That level of conflict would leave most legal ethicists clutching the bar rules in a tight fetal position in their offices. However, it does not end there.
There have been reports that other Justice Department officials did not believe that Rosenstein was joking about wearing a wire to secretly tape Trump to get evidence for his removal. In addition to the prior sources contradicting Rosenstein, former FBI general counsel James Baker is now referenced as one of those who believed Rosenstein was serious, but that the idea was ruled out as implausible. That would stand in direct contradiction to what Rosenstein has reportedly maintained to Trump, as well as the public account put out by the Justice Department.
This leaves Rosenstein highly vulnerable to being fired for cause by the man that he and Mueller are investigating. Trump was expected to fire Rosenstein but, this week, met with him on Air Force One and said they now have a “very good relationship” that is a sudden change for a man Trump previously denounced as first advising him to fire Comey and then ordering a “witch hunt” to investigate him for following his advice.
Rosenstein is a key witness to the obstruction and other allegations being investigated by Mueller while he oversees Mueller and approves any expansion of his investigation. Mueller has been protected by Rosenstein from being fired and can continue to rely on Rosenstein so long as he does not request recusal or allow the investigation to get too close to Rosenstein. Trump is being investigated by Mueller, and by extension Rosenstein, but has information that could be used to fire Rosenstein.
Rosenstein has an obvious conflict now crosshatched into conflicts extending both vertically and horizontally in the government. Rosenstein has allowed himself to become the issue, to the detriment of the Justice Department and its investigation. As I said when Mueller was appointed last year, Rosenstein must recuse himself. He is now 15 months overdue.