Yeomans Work

Hang on, Rod

January 29, 2018

Reports that Trump ordered the firing of Robert Mueller in June, but relented when White House Counsel Don McGahn balked, have morphed into reports that Trump now is eager to fire Deputy Attorney General (DAG) Rod Rosenstein.

Trump, of course, built his television reputation as a firing kind of guy, but since his ouster of Jim Comey his firing skills have become suspect. He pointed his firing finger at Jeff Sessions, who remains attorney general; Robert Mueller, who remains special counsel; Andrew McCabe, who will remain number two at the FBI until his scheduled retirement; and now Rosenstein. So Rod should feel pretty secure, for now. Regardless, the threat to fire Rosenstein may be the biggest threat to the continuation of the Russia investigation.

While Mueller captures the spotlight, Rosenstein appointed and can remove Mueller. He has final control over every major investigative step Mueller takes. He can stop proposed indictments and restrict or expand the scope of Mueller’s investigation. He will have final say in whether Mueller reports his findings to Congress for impeachment proceedings. Rosenstein’s replacement with a Trump loyalist would be devastating to the investigation. While much of the investigation already has been done, the fruits of it may not emerge if the DAG objects.

Rosenstein appointed Mueller as special counsel pursuant to Department of Justice regulations promulgated under Attorney General Janet Reno following expiration of the Independent Counsel statute. Those regulations authorize the attorney general to appoint a special counsel to investigate allegations of criminal conduct when the Department of Justice would have a conflict of interest in conducting the investigation and the appointment would serve the public interest. The regulations make clear that the special counsel answers to the attorney general (DAG Rosenstein in this matter because of Sessions’ recusal). The attorney general defines the initial scope of the investigation and retains sole authority to expand its scope. We do not know whether Rosenstein has approved or denied requests to expand the investigation, but this authority could be crucial if the investigation uncovers financial wrongdoing or other suspicious activity that is not directly related to Russian interference. The attorney general can authorize investigation of such activities by the special counsel or assign those matters to another unit of the Justice Department. Fortunately, the regulations explicitly authorize the special counsel — without seeking permission — to investigate matters that arise during the course of the investigation, such as obstruction of justice.

While the AG does not supervise the day-to-day activities of the special counsel, he retains authority to reject any investigative or prosecutorial steps. That would include, for example, issuing a grand jury subpoena to anyone, including Trump, as well as deciding whether to seek indictments. Indeed, while the focus has been on whether Mueller will indict a sitting president or adhere to existing Justice Department policy against doing so, the decision ultimately rests with Rosenstein, who is likely to follow Justice policy.

Justice Department regulations require Rosenstein to inform Congress of any decision to override the special counsel, but that requirement is hardly a check, given the extremely compliant Republican majority in each chamber. It is difficult to imagine Congress objecting to any pro-Trump decision.

The regulations require the special counsel to submit a final “confidential report” to the attorney general “explaining the prosecution or declination decisions reached by the Special Counsel.” They require the attorney general to explain to Congress any instances in which he rejected an action of the special counsel because it was “inappropriate or unwarranted under established Departmental practices.” The regulations, however, do not require the attorney general to make a full report or underlying evidence available to Congress. Rosenstein alone can decide to do so.

If Trump fired Rosenstein, he could replace him pursuant to the Vacancies Reform Act with a loyalist who could serve for at least 210 days without Senate confirmation. The loyalist could, of course, fire Mueller, or, more likely, take the softer and more effective route of stifling the investigation through a thousand no’s.

The timing of the leak of Trump’s thwarted order to fire Mueller (seven months after the incident) spawned speculation that the obstruction noose was tightening and people in the White House – especially Don McGahn – were trying to save themselves, but it is also possible the leak was a trial balloon designed to take the current temperature on the firing of Mueller. Republicans adamantly opposed the move seven months ago, but have muted their opposition since. It’s also possible the leak was a bank-shot designed to elicit concern about Mueller to make the firing of Rosenstein seem less dramatic.

The question why Rosenstein remains in charge of the investigation despite an apparent conflict of interest has never been answered fully. Recall that Rosenstein and Sessions met with Trump the day before he fired Comey. By the next day, Rosenstein had written a memo severely – and appropriately – criticizing Comey for his handling of the announcement of the closing of the Clinton email investigation and its reopening. Sessions sent that memo to Trump, who initially relied on its reasoning to explain firing Comey. The rationale was bogus, as Trump later admitted. Rosenstein, therefore, is a witness to the conversation with Trump and Sessions, and has a strong interest in not being considered a participant in a scheme to obstruct justice by concocting a cover story for Comey’s firing. Mueller and Rosenstein, apparently, both are satisfied that Rosenstein can remain on the case for now, a decision that benefits us all. But don’t be surprised if the pro-Trump chorus in Congress and right-wing media eventually highlight this conflict as Trump bangs the drum against Rosenstein, his Democrat from Baltimore, who is actually a Republican from suburban Washington, D.C.

Meanwhile, The frenzy over release of the Devin Nunes memo is a transparently bogus effort to tar Rosenstein. The memo apparently (Nunes refuses to share it with any adults) alleges irregularity in the FISA warrant application – approved by Rosenstein in May or June 2017 — that continued surveillance of Carter Page. The “controversy” includes irresponsible demands from Trump and Republican leaders for its release, despite a warning from the Justice Department that its release could compromise classified information. This is the latest indication that a desperate Trump will pursue his obstruction of justice regardless of how it threatens the nation’s security, and Republican leaders will not hesitate to put party above country. So sad.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.