The deluge of political news from the past week has continued on Friday with reports about the fate of Rod Rosenstein, the White House’s attempt to push back against an FBI raid on Trump attorney Michael Cohen, the excerpts from James Comey’s memoir…the list goes on.
And in the latest update regarding Rosenstein, CNN reported Friday afternoon that the deputy attorney general has consulted with an ethics official at the DOJ about whether he should recuse himself from supervising the Mueller probe. And although CNN neglected to say exactly what this ethics advisor told Rosenstein, it did report that the deputy AG has followed their advice – which presupposes that the advisor gave him the all-clear to stay on.
But CNN has now learned that Rosenstein has consulted with the ethics adviser over the course of the investigation on whether he needs to recuse himself, and he has followed that individual’s advice — a fact which has not been previously reported and offers a more fulsome explanation for how he has continued to oversee Mueller’s work. The source did not specify the number of conversations, timing, or the details of the advice.
To date, Rosenstein has offered little by way of explanation publicly, but he made clear last year that if he were to become a subject of Mueller’s investigation, he would recuse himself.
“I’ve talked with Director Mueller about this,” Rosenstein told the Associated Press. “He’s going to make the appropriate decisions, and if anything that I did winds up being relevant to his investigation then, as Director Mueller and I discussed, if there’s a need from me to recuse, I will.”
The crux of the issue dates back to last May, when Rosenstein wrote a memo outlining ways Comey had flouted Justice Department protocols leading up to the 2016 election. Trump used the memo to justify firing Comey, but later told NBC “this Russia thing” was on his mind when he fired Comey, and he would have done it regardless of Rosenstein’s memo.
Rosenstein’s role in the episode has continually raised questions about how he has been able to oversee Mueller’s investigation if it delves into potential issues of obstruction of justice.
Trump raised the issue early on, tweeting in June: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt.”
Apparently, legal experts believe the fact that Rosenstein consulted with an ethics advisor lends some legitimacy to his decision to continue supervising the Mueller probe.
But legal experts say the fact that Rosenstein consulted with an ethics adviser adds more legitimacy to his decision to stay on.
It “indicates that he is intent on doing things the right way,” said CNN legal analyst Carrie Cordero, who served as senior associate general counsel at the Office of the Director of National Intelligence and an attorney adviser at the Justice Department.
“Based on how he has overseen the special counsel to date, and the fact that Attorney General Jeff Sessions recused himself on the advice of DOJ’s ethics advisers, I’m inclined to think that if Rosenstein was advised by career officials that he needed to recuse himself from certain matters, he would do so,” Cordero added.
While CNN doesn’t directly come out and say that this was the ethics counsel’s argument, it appears their reasoning went something like this: Since Mueller’s investigation into obstruction is focused on Trump’s mindset when he fired FBI Director James Comey, Rosenstein’s role in drafting the infamous memo explaining the rationale for firing Comey is inconsequential.
“The dismissal itself is a matter of public record,” Georgetown Law Professor Marty Lederman wrote for the Just Security law blog. “And in light of Trump’s own admissions about his desire to put a crimp in the Russia inquiry, it’s not obvious that Mueller would have much to do in investigating that question other than to question Trump himself, something that apparently has not yet happened.
Joe diGeneva, Alan Dershowitz and a handful of other lawyers have taken to cable news recently to demand that Rosenstein recuse himself, portraying him as hopelessly compromised. However, this is a relatively new strategy by Trump’s defenders. Previously, the White House had been reluctant to even mention Rosenstein’s role in Comey’s firing because that would entail an admission that Trump is, in fact, under investigation for obstruction.
But with Rosenstein reportedly telling friends that he’s ready to be fired, we wonder if he might reconsider his decision not to recuse himself in a last-ditch attempt to save his job?