Under pressure from a Trump tweet, is Rod Rosenstein now obliged to recuse himself?

Noah Feldman writes: Is President Donald Trump trying to fire Deputy Attorney General Rod Rosenstein without actually firing him? That’s the logical inference from the president’s tweet Friday morning asserting that he’s being investigated for firing FBI Director James Comey by the person who told him to fire Comey, namely Rosenstein. The immediate effect of the tweet is to pressure Rosenstein to recuse himself from special counsel Robert Mueller’s investigation. Rosenstein will now have to do so — soon.


Whether Trump has thought it through or not, that will leave Rosenstein’s supervisory obligations in the hands of Associate Attorney General Rachel Brand. She’s a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller. Brand is more like Trump Supreme Court appointee Neil Gorsuch: a high-powered conservative appellate lawyer who clerked for the U.S. Supreme Court, worked in the George W. Bush administration, and is prominent in Federalist Society circles. Her attitude toward the investigation is likely to be a bit different from Rosenstein’s, more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence.

Even before Trump commenced his assault on Rosenstein for conflict of interest, it was becoming conceivable that the deputy attorney general would have to recuse himself from supervising Mueller. If Mueller is focused on the Comey firing as a potential obstruction of justice, he would want or maybe need to know the details of how Trump interacted with Rosenstein around that decision.

The facts of whether Trump had already decided to fire Comey before getting Rosenstein to write the memo justifying the firing are unclear and at least partially contested. That would make Rosenstein into an important witness for the Mueller investigation — which would in turn make it difficult for him to be the figure to whom Mueller is supposed to report. Rosenstein acknowledged something like this in a recent meeting, according to reporting by ABC News.

Nonetheless, without Trump’s Twitter barrage, Rosenstein could potentially have refused to recuse himself by saying that Mueller, not he, is doing the investigating. The Department of Justice regulations do after all say that “the Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”

Rosenstein could have asserted that although the regulations allow the attorney general (here Rosenstein because of Jeff Sessions’s recusal) to ask for explanations of the special counsel’s investigative process, and require periodic reports from the special counsel to the attorney general, he wasn’t going to be supervising Mueller’s investigation.

After Trump’s tweet, that course of action isn’t really available to Rosenstein. Trump not only made a concrete argument that Rosenstein has a conflict of interest, but also deepened that conflict by asserting that firing Comey was Rosenstein’s idea. If firing Comey was indeed obstruction of justice, then, according to Trump’s implicit logic, Rosenstein could be guilty of a crime of obstruction.

So Rosenstein will have to recuse himself. And that leaves Brand as the next highest Senate-confirmed official in the Department of Justice. [Continue reading…]

Before Trump’s tweet, I can see why Rosenstein might have felt he needed to recuse himself, but it seems like Trump has now provided a strong justification for Rosenstein to stay put.

By recusing himself, he would appear to be acceding to Trump’s pressure.

Trump has zero interest in the completion of an investigation whose outcome is determined by the facts. On the contrary, he wants an investigation that gets wrapped up as swiftly as possible and exonerates him fully. In other words, Trump is sparing no effort to rig the investigation.

Trump’s pressure on Rosenstein is nothing less than the latest example of Trump’s relentless effort to obstruct justice. So rather than bowing to such pressure, Rosenstein should resist it.

Rosenstein effectively recused himself by appointing Mueller. So why should he need to recuse himself twice?

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1 thought on “Under pressure from a Trump tweet, is Rod Rosenstein now obliged to recuse himself?

  1. hquain

    You are, of course, absolutely right: this is “the latest example of Trump’s relentless effort to obstruct justice.” It’s hard to view Feldman’s line of ‘reasoning’ as anything but absurd:

    “After Trump’s tweet, that course of action isn’t really available to Rosenstein. Trump not only made a concrete argument that Rosenstein has a conflict of interest, but also deepened that conflict by asserting that firing Comey was Rosenstein’s idea. ”

    Trump made a fallacious argument; then contradicted his own public statement about the origin of Comey’s firing; and conveyed this bogus bluster not under oath (or anything resembling that) but through a throw-away ‘tweet’, a medium in which he made a large number of unreliable, contradictory statements. What is wrong with Feldman? He’s making Trump look like some kind of comic-book mind-control villain.

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