Below is my column in the Hill newspaper on an overlooked issue from the letter of Attorney General Bill Barr to Congress on the Special Counsel report. Whatever happens to the allegations and evidence facing President Trump, there remains the question of what to do with Deputy Attorney General Rod Rosenstein.
Here is the column:
President Trump was understandably elated by the finding of special counsel Robert Mueller that the evidence did not establish a crime related to Russian collusion, as well as the subsequent decision by Attorney General William Barr that there was no basis for an obstruction charge. While Trump has described these conclusions as “total exoneration,” most believe the measure of presidential conduct is not found exclusively in the criminal code. Nevertheless, if it was not exoneration, it was to some degree vindication. There was, however, one person implicated in the letter Barr sent to Congress: Deputy Attorney General Rod Rosenstein.
Soon after Mueller was appointed, I wrote a column detailing what I considered a conflict of interest for both him and Rosenstein. Mueller interviewed for the FBI director job left by James Comey and met with Trump soon after Comey was fired by Trump. That made him a possible witness to the events that he was appointed to investigate. But the more serious conflict, and most glaring ethical anomaly of the special counsel investigation, was presented by the direct involvement of Rosenstein.
Before Mueller was appointed, former Attorney General Jeff Sessionscorrectly recused himself from the Russian investigation due to his involvement in the Trump campaign. However, the investigation was then headed by not just a witness to alleged obstruction by Trump but a key witness. The first major task for Rosenstein as deputy attorney general under Trump was reviewing Comey’s record and writing a memorandum that concluded Comey’s tenure was marred by “serious mistakes.”
The memorandum cited a long list of former attorneys general, federal judges, and leading prosecutors from both parties who believed that Comey “violated his obligation to ‘preserve, protect and defend’ the traditions of the department and the FBI.” Rosenstein also found that Comey “violated long standing Justice Department policies and traditions” and “refused to admit his errors.” The review of how Comey conducted himself and the sharing of those findings with Trump made Rosenstein a key witness on alleged obstruction. That position was magnified after the White House claimed Comey was fired on the basis of the memorandum. That led to a rare public rebuke by the recently appointed deputy attorney general in which his displeasure was leaked and he reportedly confronted the White House to demand a retraction.
When Mueller was appointed, Rosenstein was a witness to events before and after Comey was fired. He was central to the alleged false statement put out by the White House on the firing. For those of us who opposed the appointment of a special counsel because of the lack of a cognizable crime in the collusion theories, those circumstances shifted the equation entirely and prompted many of us to call for the appointment. Once Mueller was appointed, Rosenstein would be one of the first witnesses who would have to be called by the special counsel. Yet Rosenstein was technically Mueller’s boss and supervisor at the Justice Department.
To make matters worse, Justice Department officials later said Rosenstein participated in meetings that not only raised the possible need to remove Trump as an incompetent president under the 25th Amendment but reportedly discussed wearing a wire to implicate Trump in crimes, a suggestion that Rosenstein said was a jest but others insisted was serious. Rosenstein is also a key player in some of the secret Foreign Intelligence Surveillance Act warrants targeting Trump campaign aides in the Russia investigation. The conclusions of the special counsel report would have direct bearing on Rosenstein’s professional standing and record.
All of that would seem a clear basis for recusal. After all, Mueller could ultimately question the judgment or conduct of Rosenstein during those critical days. Mueller had to inquire into those actions and subsequent accounts if he was to do an objective investigation. Yet Rosenstein oversaw the investigation over two years, despite being a material witness, making decisions to expand its scope and resources.
It turned out that I was not the only one raising the conflict question after Mueller was appointed. A later report indicated Rosenstein ignored demands within the Justice Department to remove himself in 2017. It details a heated argument about his apparent conflict with then Acting FBI Director Andrew McCabe, who objected to Rosenstein demanding that McCabe recuse when Rosenstein had an equally glaring conflict.
Over the course of writing numerous columns, I could arrive at only one compelling reason from an ethical standpoint for Rosenstein’s decision, which is that Mueller had made an early determination that there was not a likely basis for obstruction. This seemed possible because Trump had independent compelling grounds to fire Comey. I remain skeptical about any real basis for an obstruction charge for precisely that reason.
However, it now turns out that Mueller not only did not dismiss the obstruction allegations but was unable to reach a conclusion on possible criminal violations. He left it to others to decide. That takes us to this fateful line in the letter Barr sent to Congress: “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the special counsel’s investigation is not sufficient to establish that the president committed an obstruction of justice offense.” Rosenstein was therefore one of two officials who made the final call on obstruction.
The timing also is concerning. Rosenstein was scheduled to leave the Justice Department weeks earlier but surprised many by announcing that he would stick around. Reports indicate that the Justice Department was told Mueller would not reach a conclusion of obstruction around that time. It would have been wise to avoid any role in the final report, given his personal and professional interests. Instead, he stayed in his position and, according to Barr, played a critical role in rejecting the basis for an obstruction of justice charge despite his potential conflict.
Rosenstein had opportunities to avoid making these decisions, including the final decision on the merits, and went out of his way to stay involved. He also reportedly is involved in redacting the report, including any material to protect the “reputational interests of peripheral third parties.” Of course, Rosenstein was not a “peripheral third party,” which is why he should not have appointed Mueller, overseen the investigation, defined its scope, ruled on the merits of obstruction, or now work on the redactions. To put it simply, the report implicates Rosenstein as much as it vindicates Trump. It also tarnishes the final decision on obstruction in a way that undermines both the investigation and the Justice Department.
The public report is likely to be issued in a matter of weeks. Americans have every right to review that report and gauge not just the alleged crimes but the conduct of the president before “exoneration” can be claimed. However, Trump is not the only person who may have much to answer for in the aftermath of the public special counsel report.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.