What Rod Rosenstein’s Looming Departure Means for the Mueller Probe

Rosenstein speaking, with the DOJ logo behind him.
Deputy Attorney General Rod Rosenstein speaks during a news conference to announce a China-related national security law enforcement action on Dec. 20, 2018. Alex Wong/Getty Images

Drowned out amid news of the government shutdown and questions about whether the president will attempt to declare a national emergency to build his border wall, this week saw several small but significant developments in special counsel Robert Mueller’s Russia investigation.

First, we learned that Natalia Veselnitskaya, the Russian lawyer who attended the infamous June 2016 Trump Tower meeting with members of the Trump campaign, has much stronger connections to the Kremlin than previously known. On Tuesday, a newly unsealed federal indictment revealed that Veselnitskaya was charged with misleading investigators in 2015 about her role in drafting the Russian government’s response to a U.S. request for records in a civil money laundering case against Cyprus-based Prevezon Holdings. That alleged scheme ultimately led to the passage of the Magnitsky Act, which imposes sanctions on Russian government officials and is named after Russian lawyer Sergei Magnitsky, who died in Russian prison after investigating the alleged fraud. While this case is separate from Mueller’s investigation, the news of Veselnitskaya’s role in crafting a Russian government response indirectly draws yet another link between the Kremlin and Trump campaign. Further, Donald Trump Jr. had initially claimed that the Trump Tower meeting was itself about adoptions of Russian children—a key talking point of Magnitsky Act opponents—before eventually conceding that the meeting’s initial purpose was to discuss campaign dirt against Hillary Clinton and claiming that it ended up being about the Magnitsky Act instead.

Also on Tuesday, Paul Manafort’s lawyers accidentally revealed in what was supposed to be a redacted filing that Trump’s former campaign chairman shared polling data with Russian intelligence operative Konstantin Kilimnik in the spring of 2016. This demonstrated yet another link between the Kremlin and the Trump campaign at a time when the Kremlin was working to sway the 2016 election in Trump’s favor.

These two developments are significant but relatively small: They are data points that will help inform the ultimate findings of the investigation, two steps forward in our journey from ‘what if’ to ‘what else’?

More important than these revelations, though, it was reported that Deputy Attorney General Rod Rosenstein, the man who has been supervising the Mueller investigation and likely protecting it from political interference, will be leaving his position in the coming months. The news comes at a time when the Justice Department is headed by Trump-appointed interim Attorney General Matt Whitaker, who has been critical of the Mueller investigation and even gone on cable news to pitch methods by which the president could kill off the investigation. Meanwhile, Trump’s nominee to permanently head the department, William Barr, has also been critical of the investigation and reportedly refused to meet with Democratic senators this week to discuss, among other things, his stance on the investigation. At the same time, the White House is reported to be hiring nearly 20 new attorneys who will work to keep the president’s conversations with top advisers from being released in Mueller’s report or to House investigators.

Taken together, the news that Rosenstein is leaving, Whitaker’s and Barr’s views on the investigation, and the White House’s new legal hires have prompted some to worry that the stage is being set for the president to quash the report.

In addition to being able to fire Mueller or cut his funding—as Whitaker once suggested a new attorney general could do—Mueller’s new supervisor can, per the rules governing the special counsel’s appointment, “request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Mueller must also inform his new supervisor about any major developments in his investigation. This includes giving that person advance notice about criminal charges that he intends to file. Finally, Mueller’s supervisor is the person who will receive the report containing the findings of his investigation. This means that the new attorney general can decide whether to make the document public, share it with Congress, or keep it locked away.

But there is a good chance that it will ultimately prove impossible to keep the facts of the investigation from reaching the public and its representatives in Congress. If Mueller’s likely new boss, Barr, tries to suppress the report, the special counsel has a number of options available to him. For example, if Barr claims the document contains classified information, sealed grand jury material, or personal data that would violate the privacy interests of those named in the report, Mueller can simply withhold parts of the report containing such information, or he can publish an executive summary that presents the investigation’s key findings. As Ben Wittes points out, even if such documents are relatively sparse, they could be used by lawmakers to guide their own investigations, the results of which could then be made public.

The newly Democrat-controlled House represents the ultimate safety valve for Mueller’s findings. At the end of Mueller’s investigation, should Barr decline Mueller’s proposals for further action, such as prosecuting individuals discovered to have broken the law (including the president) or releasing the report itself, the attorney general is required to inform Congress that he is rejecting Mueller’s requests along with an explanation as to why. And the attorney general must have a good reason for overruling the special counsel. As Neal Katyal, the former Justice Department official who wrote the rules governing Mueller’s appointment, tweeted on Wednesday night:

We wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”

So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.

There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.

And in the event Mueller finds evidence that the president committed serious crimes and the Justice Department nevertheless declines to indict him, that information would be turned over to Congress, which could then move to impeach him, according to Katyal.

As for the possibility that the White House will be able to claim executive privilege in order to squelch the release of damning information, Katyal put it well:

Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court.