Yeomans Work

Why Is Rod Rosenstein Still in Charge of the Mueller Investigation?

September 20, 2017

A reading of Department of Justice regulations and the purpose that animates them suggests that Rod Rosenstein should have recused himself from the Russia investigation by now.

Yet, he retains his broad power to supervise Robert Mueller’s investigation and to make the important calls about investigative steps and prosecution decisions.

Although the seeming inevitability of Rosenstein’s recusal has been apparent for months, he remains in charge of the investigation. Even as the evidence regarding his involvement in James Comey’s firing developed, there had been surprisingly little recent discussion of his recusal. That changed this week with a report in the Wall Street Journal that Mueller’s team interviewed Rosenstein in June or July regarding Comey’s dismissal. What does this report tell us?

First, it confirms how little we know about the Mueller investigation. Mueller has run an impressively tight ship. Public information has come in drips and frequently well after events have occurred.

In addition, it suggests that it is less likely than it once seemed that Rosenstein will eventually recuse himself. Apparently, nothing emerged from the questioning that made Rosenstein central to issues that Mueller is investigating.

This is surprising. Recall that Trump summoned Attorney General Sessions and Rosenstein to the Oval Office to discuss firing Comey. At Trump’s direction, Stephen Miller had drafted a letter detailing reasons for Comey’s dismissal. That letter, apparently, alarmed White House staff. It has been reported that Mueller has a draft of the letter. The following day, Rosenstein produced a scathing critique of Comey’s disastrous handling of the investigation into Hillary Clinton’s use of a private email server. Trump and the White House initially relied on the Rosenstein memo as the basis for firing Comey. Trump, however, undermined that message by telling Russians in a conversation overheard in the Oval Office that the firing relieved pressure from the Russia investigation and by telling Lester Holt in an NBC news interview that he decided to fire Comey because of the Russia investigation before receiving Rosenstein’s memo.

We know that Mueller is investigating possible obstruction of the Russia investigation and that Comey’s firing is central to that inquiry. Proving obstruction requires showing that Trump acted with corrupt intent in removing Comey. That makes the White House meeting with Sessions and Rosenstein important. What did Trump or others say in the meeting about the reasons for firing Comey and for backing away from Stephen Miller’s original draft? Did Trump or others instruct or encourage Sessions and Rosenstein to produce an alternative explanation for the firing? Did Sessions and Rosenstein become willing participants in an effort to conceal Trump’s true motivation? If so, Rosenstein would be not only an important witness, but a possible co-conspirator in obstruction.

The direst of these scenarios seem eliminated by the report that Mueller interviewed Rosenstein in June or July. Department of Justice regulations, specifically 28 C.F.R. 45.2, would require Rosenstein to recuse himself if he were “substantially involved in the conduct that is the subject of the investigation.” Plainly, Mueller does not see Rosenstein as a participant in possibly unlawful conduct, but it remains difficult to understand why Rosenstein would not be an important witness regarding the White House meeting at which he, Trump, Sessions, and others discussed Comey’s firing. While recusal now seems less likely, it may still come if Rosenstein becomes a witness in a future proceeding.

Rosenstein’s survival as supervisor of the Mueller investigation may also reflect institutional and personal sensitivities. Rosenstein is generally respected as an experienced prosecutor who has served in both Republican and Democratic administrations and is steeped in the culture of the Justice Department, including its need to maintain independence from political actors in its quest to uphold the rule of law. With Trump in the White House and Sessions as Attorney General, these qualities are more important than ever.

In addition, if Rosenstein recused himself, responsibility for supervising Mueller would fall to Rachel Brand, the Associate Attorney General. Brand has an impressive resume as a smart lawyer, who is identified with the ideological right-wing of the legal profession. She practiced with a firm headed by well-known conservatives Chuck Cooper and Mike Carvin, served as head of George W. Bush’s Office of Legal Policy where she helped select and shepherd to confirmation conservative judges, including John Roberts and Samuel Alito. Before joining the Trump administration, she worked as a lawyer for the Chamber of Commerce, advocating business-friendly positions in litigation. She does not have criminal law experience and has never worked as a prosecutor.

Recall that Mueller serves under Department of Justice regulations that give the Attorney General or whoever is acting in his place authority to veto investigative steps and prosecution decisions. 28 C.F.R. 600.7. The acting supervisor also has ultimate authority over Mueller’s budget. There should be a preference in the Department of Justice to keep these responsibilities in the hands of an experienced prosecutor who is as removed as possible from partisanship. Rosenstein’s qualifications and those of his potential replacement doubtless ease the pressure for Rosenstein’s recusal.

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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.