Asha Rangappa writes: Although under the Special Counsel regulations Mueller does not have to report to Rosenstein day to day, he does need to check in with the DAG three months before the end of the fiscal year with a status report on the progress of the investigation, and Rosenstein has the power to “determine whether the investigation should continue.” Separately, Rosenstein has the power to require Mueller to “provide an explanation for any investigative or prosecutorial step,” and can prevent Mueller from pursuing any action if, in his view, he believes that it is “inappropriate or unwarranted” under departmental practices. If he does so, he must report this decision to both the Senate and House Judiciary Committees. The fact that, six months into Mueller’s appointment, no such report has been made and Mueller continues to take significant investigative and prosecutorial steps (including, most recently, obtaining tens of thousands of transition team emails from the General Services Administration) suggests that Rosenstein is on board with the breadth, scope, and direction in which Mueller is taking the investigation.
Removing Rosenstein and replacing him with a DAG who is at the very least more sympathetic to Trump could have drastic repercussions on the investigation. The new DAG could burden the Special Counsel with a requirement to provide an explanation for every move he makes, and then decide that they aren’t necessary or appropriate. In fact, since Mueller is required to provide the DAG with at least three days’ notice in advance of any “significant event” in the investigation, she would have plenty of time to intervene and challenge Mueller’s actions (and a less scrupulous DAG could even leak Mueller’s plans to the White House or others). A new DAG would even have the ultimate—er, trump card: she could decide at some point that the investigation should not even continue at all.
Of course, any attempt to override a decision by Mueller would need to be reported and justified to Congress. However, given the increased clamor of some GOP members and right-leaning media outlets against the Mueller investigation, a DAG’s rationale for pushing back on Mueller’s investigation would find a receptive audience in some circles, including on the Hill. The situation is delicate, and a DAG has a powerful platform to shift the balance of power against the investigation. Imagine the next DAG simply expressing doubts about Mueller in testifying before the Congress, instead of the level of confidence Rosenstein expressed last week before the House Judiciary Committee. Those are important moments in the life of this investigation, and a DAG not fully committed to the rule of law but to insulating the president and the White House from political and legal accountability could wreak havoc. [Continue reading…]