When Deputy Attorney General Rod Rosenstein named former FBI Director Robert Mueller as a special prosecutor to handle the Trump-Russia investigation, the No. 2 Justice Department official won widespread praise for handing the politically sensitive probe off to a lawman with a reputation for independence.
However, Rosenstein isn’t completely removed from the case. In fact, department rules call for him to continue to play an ongoing role in overseeing Mueller and to review significant moves he may make, like interviewing witnesses or convening a grand jury.
That arrangement is troubling to some lawyers and ethics experts who say it puts Rosenstein in the awkward and arguably conflicted position of overseeing an investigation where he could be an important witness.
Rosenstein met with President Donald Trump the day before he fired former FBI Director James Comey. The veteran prosecutor also drafted a memo that was used by the White House to justify the dismissal, although Trump later suggested the firing had more to do with Comey’s handling of the Russia probe and less to do with Rosenstein’s stated concerns.
If Mueller decides to explore whether Comey’s firing was part of an effort or scheme to obstruct justice, Rosenstein might be called in as someone with first-hand knowledge material to the probe.
“If the investigation encompasses Comey’s firing, it would seem Rosenstein was involved in that and he’d be a witness,” said Kathleen Clark, a law professor at Washington University in St. Louis and a prominent expert on government ethics rules. “If it is the case that the investigation reaches the dismissal of Comey, then I think it would be inappropriate for Rosenstein to have any substantive involvement in the investigation other than as a witness.”
Clark added that given Trump’s statement in an NBC interview that he had the Russia probe on his mind when he decided to dismiss Comey, it seems inevitable Mueller will have to dig into what happened.
“After President Trump’s admission, I don’t know how examining what happened there could not be a part of the investigation,” she said.
A Justice Department spokeswoman declined to comment for this article. However, a Justice Department official noted that Mueller enjoys “a large amount of independent authority.”
Indeed, the regulations used to appoint Mueller specify: “The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”
During his confirmation hearings, Rosenstein was asked about his ability to oversee the FBI’s Russia probe.
"I would need to consult with experts in the department. We have a complex set of rules and statutes that govern recusals," Rosenstein said at the time. "As a Department of Justice official, I’d have to rely on the advice I got from the career staff, we have folks who are trained to do just that."
But University of Chicago law professor Daniel Hemel argues that Rosenstein is too wrapped up in the matter to oversee it.
“The underlying principle is you shouldn’t be a prosecutor in your own case, that not only does a conflict of interest matter but the appearance of a conflict of interest matters,” Hemel said. “It’s hard to say there’s no appearance of a conflict here. He told the House that the letter he wrote and who asked him to write it was a subject of the special counsel investigation.”
Some Democratic senators made similar suggestions in the days leading up to Rosenstein’s May 17 announcement of Mueller’s appointment.
“The attorney general and deputy attorney general should recuse themselves from the appointment, selection and reporting of a special counsel,” Sen. Dianne Feinstein (D-Calif.) said on May 11. “This issue should be handled by the most senior career attorney at the Justice Department.”
A spokeswoman for Feinstein had no comment on whether she still takes the view that the special counsel should not report either to Rosenstein or his boss, Attorney General Jeff Sessions.
Senate Minority Leader Chuck Schumer in a May 10 statement said he shared Feinstein’s concerns and described Rosenstein as having “played a central role in all of these events.”
“The decision to appoint a special prosecutor should go to the highest-ranking career civil servant at the Department of Justice,” Schumer said. “Mr. Rosenstein and other political appointees should not be the ones making the call on a special prosecutor, lest that decision be seen as influenced, or worse, made at the direction of the Administration.”
Asked about Schumer’s current view, a spokesman for the senator said Rosenstein’s decision to pick Mueller “should give the American people some confidence because he is a man of great integrity and experience.”
The rules governing special counsels seem to call for a significant flow of information from Mueller to Rosenstein—as the senior official overseeing the probe following Sessions’ March recusal from the Trump-Russia investigation.
In particular, the regulations say a special counsel has to file the department’s standard “urgent reports”—defined elsewhere as three days advance notice of “major developments” in an inquiry. That includes the filing of criminal charges, but also interviews and grand jury testimony of significant witnesses.
The official overseeing the investigation then has the option to veto any such step, although such a veto would eventually be reported to Congress.
“This definition of ‘major development’ is unbelievably expansive,” Hemel noted. “So, 72 hours in advance of interviewing Rosenstein, Mueller would have to say, ‘I’m going to interview you’? That undermines the whole idea of an independent investigation.”
The only direct precedent for the Trump-Russia special counsel investigation was set two decades ago when Attorney General Janet Reno used the same Justice Department regulations to appoint an esteemed figure—former Sen. John Danforth (R-Mo.)—to investigate the FBI’s role in the deadly inferno at the Branch Davidian complex in Waco, Texas.
Often forgotten is what Reno did next: recuse herself from overseeing the probe.
“I think it’s important that this be an independent investigation,” Reno told reporters at a September 1999 Justice Department press conference with Danforth at her side. “I will, obviously, be a witness. And I think it’s important that it be conducted without influence of those who have been involved,” she said.
Former Justice Department official Neal Katyal, who drafted the regulations as an aide to Reno in the late 1990s, declined to comment on whether Rosenstein should continue to be involved in overseeing the probe, despite his involvement in the Comey firing and the sequence of events that led up to it.
However, Katyal confirmed that the special prosecutor is supposed to check in with his or her boss at main Justice before taking major steps.
“The driving force behind that particular provision was the idea that a special counsel could develop tunnel vision and pursue a case at all costs, even against established department positions,” Katyal said. “Several independent counsels had taken very aggressive legal positions and lost in the courts (including the Supreme Court), and made the law worse off for DOJ’s interests overall. So, we wanted to make sure that there was a way to ensure that special counsels would follow the established practices of the department.”
The special prosecutor probes that irritated some Justice Department officials included that of Whitewater Independent Counsel Ken Starr, who litigated several high-profile battles over attorney-client privilege and access to Secret Service records. An independent counsel investigating Agriculture Secretary Mike Espy, Donald Smaltz, also took heat for a prosecution that led to a Supreme Court ruling narrowing what could be considered an illegal gratuity.
The Justice Department’s rules on handling of criminal investigations say that a prosecutor or investigator should disqualify himself “if he has a personal or political relationship with…any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.”
Oddly, those rules are silent on how to proceed if the employee him or herself took part in the matter being investigated. There are separate rules and a federal law against self-serving financial conflicts of interest. There are, however, executive branch-wide standards of conduct calling for federal officials to “act impartially and not give preferential treatment to any private organization or individual” and avoid even appearances of an ethical violation.
Some ethics experts said it was simply too soon to say whether Rosenstein would need to recuse, although they didn’t rule out that might be a necessity.
“We don’t yet know enough to say that Rosenstein cannot perform these functions in light of his role in the Comey firing,” said New York University law professor Stephen Gillers. “If that role was essentially a ‘walk on’ within the scope of the Mueller investigation, there would be no problem. But if as events unfold, it appears that the Mueller investigation could embarrass Rosenstein or suggest his wrongdoing or unlawfulness, or if Rosenstein were simply to become an important witness, Rosenstein, like [Attorney General Jeff] Sessions, would have to step aside.”
Danforth, the man Reno picked for the Branch Davidian assignment 18 years ago, remembers that Reno stepped aside at the outset of that investigation and left oversight of the probe to then-Deputy Attorney General Eric Holder.
“I think she had given the order to the FBI that it was OK for the FBI to assault the compound. I think it was her call to do that and since she was involved in the actual decision, she [said] get someone totally not involved in that and that was Holder,” the former senator told POLITICO Tuesday.
Danforth, who said he did not recall any regular reporting to Holder, viewed the investigation as essentially independent of the department.
“If there were problems getting material from DOJ, if there was any kind of difficulty, I’m sure we dealt with them then clearing the way, but it wasn’t as though I was on a string being pulled by the deputy attorney general,” Danforth said. “I didn’t think anyone was supervising my investigation.”
One unusual feature of Danforth’s investigation: the probe was conducted largely by the U.S. Postal Inspection Service, after he decided that the entire FBI was too conflicted to be involved.
Some of the perceptions of who will be running the new probe appear to be colored by Mueller’s reputation for independence and rectitude.
“I can’t imagine that Rosenstein or anyone at DOJ would be supervising Mueller,” Danforth said. “Mueller is not going to say, ‘Here’s my opinion but what’s yours, Rosenstein?…’ For all practical purposes, I think Rosenstein is just totally out of it.”
Hemel said it’s possible Rosenstein did not recuse himself in the days after the Comey firing because there were virtually no other political appointees in the department. However, Associate Attorney General Rachel Brand was confirmed on May 18. She would inherit oversight of the investigation if Rosenstein were to bow out.
The University of Chicago professor said that would be a better option than the current arrangement. “My concern comes from the fact that the Reno rules give him the power to influence the investigation in ways that will not be immediately transparent,” Hemel said. “I’d like to think that Rosenstein will do what he thinks is right and recuse himself here.”