On Tuesday, CNN published Sen. Lindsey Graham’s one-page letter to Deputy Attorney General Rod Rosenstein. He concisely asked three questions that have cast a small shadow on the Robert Mueller investigation for more than a year:
Do you consider yourself a potential witness in the Mueller investigation regarding the firing of Director [James] Comey by President Trump? If not, why not? If so, should you recuse yourself from further interactions with and oversight of the Mueller investigation?
Over the past week, a series of events and reports have cast Rosenstein’s role under a bigger shadow, giving fodder to Trump allies to attack the legitimacy of the investigation. Many of those attacks are in bad faith. But the central question is valid: How can one supervise an investigation in which one is a central witness? For those who care about protecting the investigation from interference by bad-faith actors and about the investigation maintaining an appearance of propriety, there is a balanced solution: Rosenstein should recuse from the obstruction investigation but continue the Russia investigation.
On Thursday, my friend Norm Eisen, along with Virginia Canter and Conor Shaw—all legal ethics experts—published an article in Politico explaining why ethics rules do not require Rosenstein to recuse, “Spare the Rod.” But wouldn’t that then spoil the investigation?
This is no regular DOJ case. It is an unprecedented situation facing unprecedented political scrutiny and partisan assault. Even if DOJ ethics advisers have told Rosenstein he has not technically violated any ethics rules, he should recognize that the politics, perceptions, and common sense lead to the compromise solution proposed above. The logistical complications of such a split are less challenging than the risks of ignoring these concerns—or the risks of offering Trump a pretext to fire Rosenstein.
On Monday, I suggested on Slate’s Trumpcast that Rosenstein needs to recuse from the obstruction case, but I’m hardly the first person to identify this problem. In fact, from the beginning, legal commentators like Jack Goldsmith, Benjamin Wittes, and Daniel Hemel—who argued for recusal in Slate in May 2017—suggested a strong case for recusal based on just the basic facts. To review: On May 8, 2017, Trump directed Attorney General Jeff Sessions and Rosenstein to produce memos to justify firing Comey. On May 9, Rosenstein sent his memo to Sessions with sharp criticism of Comey, concluding: “The FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.” On May 18, 2017, Rosenstein told senators that he knew Comey would be fired before he wrote his memo.
Since then, further reporting has only made this situation more problematic. First, we learn that, before Trump asked Rosenstein to write the memo, Trump had drafted a letter described in the New York Times as an “angry, meandering” “screed” with a reference to Comey telling Trump “he was not under investigation in the F.B.I.’s continuing Russia inquiry.” Trump never sent this letter to Comey, but Rosenstein was reportedly given a draft when asked for his own memo. Then last week, the New York Times reported that former FBI Deputy Director Andrew McCabe wrote a confidential memo describing a conversation with Rosenstein at the DOJ after Comey’s dismissal:
Rosenstein said Trump had originally asked him to reference Russia in his memo. Rosenstein didn’t elaborate on what Trump had wanted him to say. To McCabe, that seemed like evidence Comey’s firing was related to the FBI investigation into Trump campaign’s ties to Russia, and Rosenstein helped provide a cover story by writing about the Clinton investigation.
The story offered mixed reporting about what Trump actually may have said to Rosenstein: “One person who was briefed on Mr. Rosenstein’s conversation with the president said Mr. Trump had simply wanted Mr. Rosenstein to mention that he was not personally under investigation in the Russia inquiry.” The fact of the memo, though, raises further questions about Rosenstein’s role in the entire episode.
Moreover, the New York Times reported earlier this year that in the days before Comey’s removal, Sessions asked officials to spread dirt about Comey. From the Times: “The attorney general wanted one negative article a day in the news media about Mr. Comey, according to a person with knowledge of the meeting.” (The Justice Department has denied this.)
This raises important questions. Was Rosenstein a witness to this alleged effort? The Times noted: “Earlier that day, [Rosenstein] had pulled one of [White House Counsel Don] McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.” Jack Goldsmith wrote in Lawfare at the time that it was unthinkable for Rosenstein not to have recused at this point: “I cannot fathom how, in this light, he remains the supervisor in charge of that investigation, since a reasonable person would question his impartiality in the matter.”
These stories would be relevant to any obstruction case because the statute requires proof of corrupt intent, and Rosenstein may have witnessed acts that would illustrate such intent. It seems logical, then, that Rosenstein will inevitably be called as a witness at some stage of the case. In fact, the Trump team lawyers have focused on these events in the letter that they sent to Mueller in January. They cited Rosenstein’s memo at length in justifying Comey’s firing, and added:
As you also know, far from merely signing off on a Presidential decision or taking a weak or indirect action indicating a tacit or pressured approval, Mr. Rosenstein actually helped to edit Mr. Comey’s termination letter and actively advised the President accordingly.
They emphasize that Trump acted “on the written recommendation and with the overt participation of his Deputy Attorney General,” and that it is “unthinkable” that he could “then be accused of obstruction for doing so.” The lawyers’ message is clear: Rosenstein participated in this act that Mueller is investigating as felony obstruction, an investigation which Rosenstein is supervising. Their memo is embarrassingly wrong in many ways on both law and fact, but here, they have identified a valid concern.
What does the law require? The rules for recusal are not clear, and we certainly have no precedents for a case like this. Citing many American Bar Association rules and government regulations, Eisen, Canter, and Shaw may be right that technically, Rosenstein isn’t legally required to recuse. But they didn’t address a key rule in the recusal regulations. That rule offers guidance in disqualification arising from a “personal or political relationship” with a subject.
Under the regulation’s narrow definition of a “political relationship,” these rules might not technically apply. Even if the regulation does not formally apply to Rosenstein, though, the principles in this regulation should inform this unprecedented case and its intense political scrutiny. As a witness to the obstruction, can Rosenstein be “fully impartial,” as this rule demands? Is there “an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution,” as the rule says needs to be avoided?
Rosenstein seems to have asked DOJ ethics advisers about this conflict, and apparently they have not told him he has to recuse. He has probably addressed these concerns with good explanations. That may have been enough to satisfy these advisers, but he will be called to give these same explanations as a witness. These ethics experts might be right that the regulations do not formally require recusal. But that doesn’t address the more important question: Should he choose to recuse anyway?
Eisen, Canter, and Shaw are leading experts on the DOJ regulations and ABA guidelines, and I’m definitely not. But I’ve written about judicial independence and judicial recusal rules, and the overarching rule for judges is to avoid “the appearance of bias” and “the appearance of impropriety.” The same principles should apply here.
Let’s imagine how this might play out legally and politically. Mueller issues a report in the upcoming year on obstruction. It is up to Rosenstein whether to send the report to Congress, and he does. If the House is controlled by Democrats at that point, it would presumably hold hearings as consider the drafting of articles of impeachment. Either at these hearings, or at an eventual Senate impeachment trial, Rosenstein would then be called as a witness.
Republicans would presumably point out the hypocrisy of these charges for an act that Rosenstein recommended and would use him to highlight the hypocrisy. They would ask Rosenstein if he knew Trump had Russia in mind when he asked Rosenstein to write the memos. Let’s say Rosenstein answers yes. They would then ask whether that might indicate corrupt intent. If he says yes, they would then ask:
1. Then why did you participate and recommend firing?
2. Why didn’t you report it? Why didn’t you resign?
3. Did you participate in or know about the campaign to dig up dirt on Comey before he was fired? Was that obstruction?
4. If firing Comey is a criminal act for which Trump is getting impeached, why shouldn’t you be investigated for conspiracy to obstruct justice or aiding and abetting? Is it because you were in charge of the investigation?
5. Finally: Did you push the investigation to focus on the wrongdoing of others in order to deflect attention away from your own conduct?
What if Rosenstein says that he didn’t think the Russia comments were signs of corrupt intent? Or what if he says he doesn’t know? Won’t there be valid questions about whether Rosenstein, or a potential impeachment prosecution, has been tempted to avoid such admissions in order to protect Rosenstein and their case? Last fall, I wrote that Vice President Mike Pence and McGahn could face obstruction charges for their role in Comey’s firing. It would be hypocritical to pretend that Rosenstein doesn’t face similar questions for the same sequence of events. Let’s be honest: There are legitimate questions about Rosenstein’s role in Comey’s firing. Observers who support the rule of law may be happy that Rosenstein then appointed Mueller and has appeared to be a stalwart supporter of the investigation since then, but Trump’s defenders may see that support for Mueller as a deliberate overcorrection to avoid questions about his own aiding of obstruction.
Here’s another problem: Some have speculated that Rosenstein has not formally recused because the investigators might not be investigating obstruction. But it’s clear, based on the conversations between Trump’s team and the special counsel’s office, that Mueller is. Some have speculated that Mueller might choose to not bring any obstruction charges because of the Rosenstein problem. The fact that this is even a question is a mess.
Again, the simplest proposal is that Rosenstein recuse from the obstruction investigation, but keep the Russia investigation. Of course, the two investigations overlap significantly, but Rosenstein is not a witness and is not implicated in the Russia investigation. Some suggest that administration insiders have leaked strategically to undermine Rosenstein, and that may be true, but the underlying facts, regardless of these new leaks, were sufficient to raise these questions—and even make him vulnerable to these types of leaks in an actual trial or impeachment proceeding. Others suggest that recusal gives a perverse incentive for Trump to implicate the next prosecutors, make them witnesses and force their recusal, but the solution then would be similar to the one I’m proposing here: They could retain their original investigation, and hand off the new facts of obstruction to a new supervising prosecutor.
There would be some practical problems when Mueller wants to interview a witness who touches on both investigations, but Rosenstein can limit his approval to Russia matters, and the other acting attorney general would cover any witnesses or questions relating to obstruction. The obstruction case has progressed so far, with so much publicly available evidence, with so many public confessions by Trump, that even an unsympathetic acting attorney general could not do much to undermine the investigation itself. Unfortunately, the new acting attorney general could have the power to send the report to Congress or withhold it—which both implicates the importance of ensuring Rosenstein’s impartiality and the trustworthiness of the next acting attorney general.
And that may be one of the biggest problems with Rosenstein’s recusal: who’s next in line? It’s Solicitor General Noel Francisco. I and many other observers have serious concerns about him based on his conduct in the travel ban case and his heightened political background, compared to the career DOJ professionals. An ideal solution would be for Rosenstein to work out an agreement to partially recuse on the obstruction if Francisco agrees to recuse as well. There are other top DOJ lawyers who could supervise the obstruction case without raising questions about legitimacy from either side. Under this proposal, neither would be confessing bias, but only offering a vigilant defense against the appearances of bias. One core principle is that our justice system must avoid the appearance of bias or conflict of interest. Rosenstein’s recusal is both a matter of principle and a practical necessity given how the next steps will likely proceed.