Rod Rosenstein’s non-recusal

Scott has already linked to the New York Times’ story on the Andrew McCabe memos. As he suggests these memos add to the evidence that Rosenstein should recuse himself from the Mueller investigation.

Even without the McCabe memos, there seemed to be a solid case for recusal. By all accounts, Mueller is investigating the firing of his good friend James Comey to determine whether, somehow, it is obstruction of justice or evidence thereof. That’s why McCabe turned over his memos to Mueller. Reportedly they pertain to the firing of Comey.

Rosenstein played what the Times calls “a key role in the dismissal” of Comey. In fact, Rosenstein wrote a memo saying Comey should be fired for the way he publicly discussed the FBI’s findings regarding the Hillary Clinton email scandal.

Standing alone, Rosenstein’s memo would likely make him a fact witness in a proper investigation of the Comey firing. I’ve litigated dozens of discharge cases in which the issue was the motivation for the firing. I can’t recall a single such case in which someone who recommended the discharge (here Rosenstein) to the ultimate decisionmaker (here President Trump) was not listed as a fact witness and, if the case progressed far enough, deposed.

But the McCabe memos take things further. Reportedly they claim that, in addition to writing the memo recommending Comey’s discharge, Rosenstein talked with McCabe about a conversation with Trump pertaining to the discharge. In that conversation, Trump allegedly asked Rosenstein to reference Russia in his recommendation memo.

So now, Rosenstein isn’t just writing a recommendation to the decisionmaker. The decisionmaker is talking to Rosenstein about what he wants in the memo. And what he wants in the memo is a reference to Russia.

Mueller, by all accounts, is investigating whether Trump fired Comey because of the Russia investigation. Rosenstein apparently has first-hand knowledge of how Trump viewed the discharge in relation to Comey’s handling of the Russia investigation. I don’t see how Rosenstein is not someone Mueller needs to examine.

I do see why Mueller wants Rosenstein to remain his supervisor. From all that appears, Rosenstein has done little or nothing to rein Mueller in, as he drives far afield from investigating alleged Russian involvement in the 2016 election.

Moreover, Rosenstein and Mueller are both longtime Justice Department prosecutors. They share a common outlook and approach to prosecution. And Mueller, the older of the two by 20 years, was always senior to Rosenstein. It’s likely that Rosenstein looks up to Mueller, as many Justice Department lawyers did and do.

Who would oversee Mueller’s investigation if Rosenstein recused himself? The number three job at the DOJ, Associate Attorney General, is unoccupied. Rachel Brand left either to take a dream job with Walmart or to avoid just the scenario I’m describing — maybe both. (Other top jobs currently vacant include head of the criminal division, head of the civil division, head of the civil rights division, and head of the environmental division. That’s a separate scandal.)

With the number three job vacant, I believe responsibility for supervising Mueller would fall to Noel Francisco, the Solicitor General. Francisco differs from Rosenstein in important ways. He’s not a prosecutor. He’s not a creature of the Justice Department, though he spent several years there during the George W. Bush presidency. He’s a movement conservative.

It disrespects neither Rosenstein nor Francisco to conclude that Mueller would much prefer to be supervised by the former.

But how can that preference prevail given the mounting evidence that Rosenstein is, or should be, a fact witness in Mueller’s investigation? Is Mueller trying to thread the needle by tailoring his potential legal theories in ways that somehow read Rosenstein out of the role of fact witness? Are the Justice Department’s ethics advisers — the ones who were so certain Jeff Sessions should recuse himself — cutting Rosenstein slack? Is Rosenstein simply determined to retain supervisory responsibility over the investigation no matter what?

I don’t know. I sure would like to.

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