To Recuse Or Not To Recuse? Former DOJ Hands Say Rosenstein’s Path Is Murky

Deputy Attorney General Rod Rosenstein, testifies during a Senate Intelligence Committee hearing about the Foreign Intelligence Surveillance Act, on Capitol Hill, Wednesday, June 7, 2017, in Washington. (AP Photo/Carolyn Kaster)
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Whether Deputy Attorney General Rod Rosenstein will continue to have ultimate oversight of the multi-pronged federal investigation into Russia’s interference in the 2016 election is currently something of an open question.

At issue is whether special counsel Robert Mueller, who Rosenstein appointed and who reportedly is investigating whether President Donald Trump attempted to obstruct justice last month by abruptly firing James Comey, will call Rosenstein as a witness. Given Rosenstein’s own role in Comey’s dismissal, some legal experts say he can no longer have anything to do with the case.

Others argue the lines are not nearly so clean-cut. Federal investigators are in uncharted legal territory, working on a probe that touches sitting government officials and that has already prompted the recusal of an attorney general considered overly close to the current administration. With a lack of precedent to point to, a degree of separation between the DOJ and the office of special counsel and no formal, public confirmation of the obstruction investigation, some former federal prosecutors who spoke to TPM say it’s premature to anticipate Rosenstein’s recusal.

“These are fact-intensive questions that are different in every case,” Steve Dettelbach, a former U.S. attorney in Ohio under the Obama administration, said in a phone interview.

On Friday, Trump fired off a tweet that appeared to blame Rosenstein for the appointment of a special counsel and ABC News reported that the deputy attorney general had privately discussed the prospect of a recusal with colleagues. But no steps have been taken in that direction.

“As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will,” agency spokesman Ian Prior said in a Friday statement. “However, nothing has changed.”

Arguments in favor of recusal focus on the cutting memo Rosenstein wrote—reportedly at Trump’s request—that paved the way for Comey’s dismissal. The White House initially pointed to that memo and another written by Attorney General Jeff Sessions to justify the firing, before Trump admitted in a network television interview that his decision actually was motivated by Comey’s oversight of the “Russia thing.”

The ousted FBI director also recently testified that he spoke to Rosenstein about his “serious concern” regarding Trump’s interactions with the FBI, which Comey said included requests to “lift the cloud” created by the Russia probe. Rosenstein declined to comment on the substance of his conversations with Comey in a separate congressional hearing, saying he did not want “people talking publicly about” matters that could fall under Mueller’s purview.

Rosenstein’s involvement in some of the events Mueller likely would investigate renders his continued oversight of that probe “just not tenable,” according to Peter Zeidenberg, a former assistant U.S. attorney for the District of Colombia who previously worked in the DOJ’s Public Integrity Section.

“He can’t supervise a case if he’s a witness in the case,” he said. “And he’s a central witness. He had conversations with Sessions. He had conversations with the President. He had conversations with Comey. He could corroborate Comey’s testimony about their conversation after Comey’s one-on-one with Trump.”

“I think it’s really inevitable that he’ll have to recuse himself,” Kenneth McCallion, a former assistant U.S. attorney for New York during the Carter and Reagan administrations, concurred.

When a recusal would come would “depend on what signals, if any, he’s getting from the special counsel’s office,” McCallion added.

“I think he might be in the process of confirming that his testimony will be sought by special counsel Mueller,” he speculated. “Once they confirm that, he would have to recuse.”

There is no reason to assume that Mueller would prioritize an obstruction of justice inquiry, other legal experts say. The obstruction investigation, which the Washington Post first reported was underway late last week, is just one of a whole host of pressing issues reportedly on the docket for Mueller’s team. The special counsel also is said to be looking into Russian cyberhacking, potential collusion between Russian operatives and Trump campaign associates and possible financial crimes committed by those same associates.

Pushing forward quickly on a high-profile investigation into the President’s actions, especially one that could prompt Rosenstein’s recusal, could bring even more unwanted attention to a probe that Trump and his allies have branded a “witch hunt.”

Then there is the degree of independence afforded the special counsel’s office. While Mueller is ultimately accountable to Rosenstein and must run requests for resources and significant moves, like convening a grand jury or filing criminal charges, past him, Rosenstein is largely divorced from the day-to-day proceedings of the investigation.

“I have seen nothing that would justify his recusal,” Walter Mack, a former assistant U.S. attorney for the Southern District of New York, told TPM.

“The standard generally is: would a reasonable person question the impartiality of the decision-maker if he fails to recuse? And I don’t see the fact that the deputy attorney general had conversations with the President regarding the firing of the FBI Director as in and of itself warranting recusal,” former independent counsel Robert Ray told TPM. He noted that recusal decisions depend on advice from the DOJ’s ethical advisers, but ultimately come down to personal judgment.

“Rod’s a professional. If he thinks he has to recuse, he’ll recuse,” Ray added. “But from the overall perspective of the country’s best interest, this would not be a desirable result. He’s a 27-year veteran prosecutor, confirmed overwhelmingly by the Senate. I mean who else but him would you want in this position? There’s not too many other people who would fit the bill.”

Associate Attorney General Rachel Brand, the No. 3 official at DOJ, would take over for Rosenstein in the case of his recusal. Despite her own sterling credentials, other former DOJ officials agree with Ray’s assessment that it would be “unfortunate” if Rosenstein did so.

“If you’re steeped in how to proceed, how to be fair, you should try to avoid recusing yourself,” Mack said. “Frequently, recusal is sort of an escape from your responsibilities, and if you have every confidence that you can do your job appropriately, you should hang in there and do what’s necessary.”

ABOUT THE AUTHOR

Allegra Kirkland is a New York-based reporter for Talking Points Memo. She previously worked on The Nation’s web team and as the associate managing editor for AlterNet. Follow her on Twitter @allegrakirkland.

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