“Completely uncharted territory.”
That’s how former Justice Department officials described the predicament of Deputy Attorney General Rod Rosenstein—the highest ranking DOJ official with jurisdiction over the Russia investigation—after President Donald Trump excoriated him in a Friday morning tweet storm.
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt
— Donald J. Trump (@realDonaldTrump) June 16, 2017
Trump’s salvo did not name Rosenstein, whom he himself appointed, but the deputy attorney general is the only person who fits both actions described in the tweet—which also appears to confirms reports that special counsel Robert Mueller is indeed investigating the president for obstruction of justice.
Peter Zeidenberg, who worked in the U.S. Department of Justice Public Integrity Section and served as the Assistant U.S. Attorney for the District of Columbia, told TPM that as Rosenstein faces pressure to step aside from the investigation, the country is headed into murky new legal territory.
“You can’t ask, ‘What normally happens when the president attacks the Deputy Attorney General in an ongoing criminal investigation where the president is a subject?'” he said. “That’s not a scenario that’s happened before.”
The sprawling federal investigation—which is looking into everything from potential obstruction of justice to shady business deals—is unique in many ways, including the vast number of potential witnesses both inside and outside of government. Rosenstein’s name is on that list, having been enmeshed in several incidents now under the investigation—from private conversations with FBI Director James Comey about Trump’s inappropriate behavior to writing the memo Trump used to justify firing Comey. For that reason, he is reportedly considering joining Attorney General Jeff Sessions in recusing himself from the case.
“We’re in uncharted waters in all kinds of ways,” said Robert Ray, who succeeded Ken Starr as independent counsel in the investigation of various Bill Clinton scandals. “There are very unusual constitutional protections afforded to a president of the United States, and this is really the first significant test of the special counsel regulations promulgated in 1999, at least with any enormously public matter. And this is an investigation that has already caused the recusal not just of any prosecutor, but of the Attorney General of the United States.”
Should Rosenstein recuse himself from the FBI investigation into Russian election interference, collusion with the Trump campaign, and obstruction of justice, his oversight duties would fall to Associate Attorney General Rachel Brand, who was sworn in just a few weeks ago.
Brand, who worked in the DOJ’s Office of Legal Policy under President George W. Bush and helped conservative Supreme Court justices John Roberts and Samuel Alito through their confirmations, did not receive a single Democratic vote during her own confirmation this year.
“It would be a particularly unfortunate result for the Attorney General and Deputy Attorney General to both recuse themselves, after the FBI Director was fired, leaving the investigation to be run by the Associate Attorney General—who is a political appointee but more importantly has never been a prosecutor,” Ray said.
Some veteran lawmakers, however, fear Rosenstein could lose his job entirely before he makes a decision on recusal. Sen. Dianne Feinstein (D-CA), a senior member of both the Intelligence and Judiciary committees known for being measured and reserved, released a fiery statement Friday.
“I’m growing increasingly concerned that the president will attempt to fire not only Robert Mueller, the special counsel investigating possible obstruction of justice, but also Deputy Attorney General Rosenstein who appointed Mueller,” she said, pointing to Trump’s most recent online screed. “The message the president is sending through his tweets is that he believes the rule of law doesn’t apply to him and that anyone who thinks otherwise will be fired.”
Rep. Adam Schiff (D-CA), the top Democrat on the House Intelligence Committee, aired similar fears on Friday. “If President Trump were to try to replicate Nixon’s Saturday Night Massacre by firing Deputy Attorney General Rod Rosenstein in addition to Mueller, Congress must unite to stop him,” he said. “We cannot allow the President to choose who will conduct this investigation or to interfere with its progress in any way.”
If the president’s goal is ultimately to fire Mueller, which White House insiders have said he has repeatedly proposed, he would have to direct Rosenstein to lower the boom. Rosenstein told the Senate that he would not obey such an order unless he saw “good cause,” and he has not seen such cause. Zeidenberg told TPM that the president would have go deep into the DOJ’s chain of command in order to achieve that goal.
“You would have a long list of people that would have to get fired before you would find somebody willing to fire Mueller,” he said. “Anybody who fires Mueller is going to have ‘partisan hack’ written next to their name for the rest of their life. And DOJ is not a place where hacks go to work. It’s not a political place. I don’t know how he’s going to find someone to do it.”