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Does Rod Rosenstein also need to recuse himself?

Does Rod Rosenstein also need to recuse himself?

Prof. Jonathan Turley argues that Rosenstein is a witness, and should not be supervising Special Counsel Robert Mueller (who himself has a conflict)

Jeff Sessions, in what so far is the defining event of the Trump administration, recused himself from involvement in the investigation of Russian meddling in the election because of a potential conflict.

That recusal set in motion a series of steps that eventually led to the appointment by Deputy Attorney General Rod Rosenstein, of Robert Mueller as Special Counsel.

Trump, his family and associates, are caught in an ever expanding inquisition, and There’s no good way out for Trump from Special Counsel quicksand:

When people look back upon the history of the Trump administration, I think Jeff Sessions recusing himself is going to be, at least as of this point in time, the single biggest influencer of how the administration went. Now obviously we still got time, other things could happen. But as of now, that has probably been the single most significant event of the administration because it put into motion this seemingly endless, wide-ranging attempt to find a crime by the Mueller team. And that, I think, is the defining moment in the administration.

But Sessions was not the only person with a conflict. I previously have expressed the position that Robert Mueller should not be involved investigation into Russian meddling in the election if any part of the investigation involves communications between Trump and James Comey.

If the centrality of the Trump-Comey conversation was not known at the time of appointment, it is now and Mueller should recuse himself. That’s because Comey is Mueller’s friend, and Friends shouldn’t be investigating friends:

Whether they were just close professional friends, or consider themselves personally friendly, the fact is that they are not at arms length. This relationship, at least as reported, appears to be much more than the routine interactions you might expect two law enforcement officers to have had in the regular course of business.

Something doesn’t seem right here. Comey manipulated the system into getting his friend appointed Special Counsel, and now that friend will be investigating matters in which Comey is a key witness. More than that, Comey’s own actions in leaking government property raise legal issues as to whether Comey himself violated the law.

Even assuming Mueller is able to separate his past with Comey from his present investigation, that relationship damages the whole purpose of having a Special Counsel who is completely independent in fact and appearance.

In a truly independent investigation, friends shouldn’t be investigating friends. Mueller should step aside to remove the taint on the Special Counsel investigation created by friend and witness James Comey.

Jonathan Turley makes the point in an article in The Hill today, that Rod Rosenstein also is conflicted and should recuse himself because he was involved in firing Comey, and Comey’s firing appears to be part of the investigation into obstruction of justice. Because Rosenstein is a witness, Turley writes that It’s high time Rod Rosenstein recuse himself.

Deputy Attorney General Rod Rosenstein is back in the news this week, with a Sunday show appearance discussing the evolving scope of the special counsel’s investigation. While the subject was hardly a surprise, the person discussing the investigation was. Rosenstein is not only the ultimate authority on the scope of the investigation, he is also clearly a witness.

There are times when multitasking is a talent, but playing the roles of investigator and witness is not one of them. Rosenstein continues to resist calls for his own recusal, despite reports that a grand jury in Washington is now pursuing the obstruction allegations against President Trump.

Reports also indicate that various FBI officials now believe that they will inevitably be called as witnesses before the grand jury investigation of special counsel Robert Mueller. Deputy FBI Director Andrew McCabe is among those officials.

But on the top of this list must be the man whom the White House originally tagged with the decision to fire former FBI Director James Comey and the man who reportedly clashed with the White House over its public account: Rod Rosenstein.

Rosenstein’s involvement and importance in the underlying facts are well established. The deputy attorney general’s failure to recuse himself is a glaring ethical omission in an investigation into a president’s alleged conflicts of interest in dealing with then-FBI Director James Comey. Rosenstein is now three months overdue.

Turley goes on to discuss the specifics of why Rosenstein is a witness:

Rosenstein was consulted about firing Comey and supported the decision with a memorandum shredding the former FBI director. Moreover, when the White House initially made it sound like Rosenstein was the reason that Comey was fired (despite the fact that Trump had already decided to do so before receiving Rosenstein’s memo in support of termination), Rosenstein reportedly demanded a correction.

Rosenstein will likely be a key witness on the obstruction issue. As someone who supported the firing, he may be as important to the defense as to the prosecution in showing the independent grounds for terminating Comey. He has much at stake professionally, as shown by his adamant response to the White House spin. The grand jury might want to know why Rosenstein did not act to protect Comey or why he did not confront Trump in any suggested desire to curtail the investigation.

It is a basic rule that prosecutor should immediately recuse himself from a matter where he may be a witness. In addition to the various grounds listed in the conflicts rule, recusal is appropriate in “circumstances other than those set forth in the regulation that would cause a reasonable person with knowledge of the facts to question an employee’s impartiality.” Rosenstein, who has recognized his problem as a potential witness, should have recused himself long ago.

This may be one of the most conflicted investigations in memory. The Special Counsel and the person to whom the Special Counsel reports both have conflicts.

If the purpose of appointing a Special Counsel was to create both the fact and the appearance of independence and neutrality, it’s not happening. Not, at least, if the firing of James Comey is in any way part of the investigation.


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Completely conflicted. Any truth that Rosenstein used to work for Mueller years ago? And really, assembling a grand jury in DC of all places…. total political hack-job.

Someone in authority should demand this case be moved, for fairness, to at least 500 miles from DC.

The entire thing stinks to high heaven. What concerns me is that there is not an arm’s length relationship between any of these three clowns — Rosenstein, Mueller, and Comey. Whether they are in cahoots or not, it looks like they are in cahoots. If it looks like a duck …

Can someone explain how they can get away with such shenanigans? Shouldn’t a Special Council appointed by the damn DOJ be impeccable and unimpeachable? Looks like to me there is no way out.

Quis custodiet ipsos custodes?

    JOHN B in reply to tiger66. | August 7, 2017 at 8:41 pm

    And if you want to see real conflicts, and someone who has no business in the FBI at all – look up Deputy FBI Director Andrew McCabe.

    Makes the others look almost clean – which is very hard to do..

    For you trolls visiting this blog, “Quis custodiet ipsos custodes” means, “Who watches the watchmen.”

    (And no, this doesn’t have anything to do with wrist-watches or the like.)

They should bring in Kevin Costner; he’ll find a way out.

One would think, given Mueller’s apparent conflict(s) of interest, he would go above and beyond to appoint independent prosecutors to his ever-growing staff. Instead, he has hand-picked overtly pro-Democrat “investigators”, including donors and even a former Clinton Foundation lawyer (with questionable ethics, no less). Why Rosenstein wasn’t asked/pressed about this on Fox News Sunday is beyond me. (Mueller’s law firm, btw, gave something like 99% of its political donations to Clinton/DNC during the 2016 election cycle.)

Other than these things, it’s all squeaky clean!

    Edward in reply to Bill S.. | August 10, 2017 at 8:29 am

    You believe the failure to ask a question about conflict of interest in the investigation of “Russia” is beyond your understanding? You know the answer, it is not in the interest of the Left/press (repetition) to ask such questions when (they at least believe) things are going exactly as they hoped. They are hoping that this leads to another “Watergate” situation where Trump either resigns the office or after they win back the House for the Democrats the House passes Articles of Impeachment based on this mess.

The entire investigation is a sham. The only thing more disgraceful than the investigation is the GOP establishment’s support of it.

The fundamental flaw is this vague concept of “obstruction of justice”. A criminal defendant entering a plea of “not guilty” could be accused of obstruction of justice, at least by someone who just knows he’s guilty.

The concept is an open invitation to judicial and prosecutorial abuse.

    Ragspierre in reply to tom swift. | August 7, 2017 at 9:11 pm

    Of the many and varied stupid things you’ve said, THAT is a topper.

      Tom Swift is correct in his logic.

        Ragspierre in reply to | August 7, 2017 at 11:01 pm

        No. He is NOT.

        He’s NOT correct about obstruction of justice being “vague”.

        He’s a complete idiot (voluntary) in asserting that a “not guilty” plea is “obstruction”.

        And you’re an idiot for supporting this idiocy.

          Edward in reply to Ragspierre. | August 10, 2017 at 8:34 am

          On a legal definition of Obstruction basis, the comment is ludicrous. Personally I think it is purely hyperbolic with an intent to address the average person’s thoughts about the issue. IOW, I don’t believe he actually believes that is the law, he believes John and Jane Q. Public would tend to see the situation in those terms more easily than a dispassionate discussion of the statute describing the crime.

Rod can recuse himself right after Mueller does.

Is anyone familiar with the term “a fixer”? Everyone involved in this whole fiasco is a card carrying member of the political and financial Establishment, except Trump. And, they are all out to “fix” Trump.

Unsupported assumption in the article: that Mueller is investigating President Trump for obstruction of justice on the basis of Comey’s reports of their conversation or for firing Comey.

Is there any evidence of that, outside of some anonymous second-hand sources at the Washington Post? Perhaps something behind the paywall in the Wall Street Journal?

If that assumption is false, then Mueller and Rosenstein aren’t conflicted.

    artichoke in reply to clintack. | August 8, 2017 at 12:36 pm

    Where is the formal limitation of the scope of the investigation to exclude that? Even if you’re right, it’s a conflict that Rosenstein has permitted to persist, with no other oversight able to ensure that it’s excluded.

    That’s enough to fire Rosenstein.

    Edward in reply to clintack. | August 10, 2017 at 8:38 am

    IIRC in the actual Turley article he points out that if obstruction isn’t, and doesn’t become, an issue in the investigation then there is no legal problem.

    Jackie in reply to clintack. | August 11, 2017 at 12:23 pm

    The whole obstruction thing is ridiculous. Trump can fire Comey for any reason. Determining what Trump’s reasoning is an exercise in mind reading. There were several good reasons including he just didn’t like or trust him. Meuller would have to prove a nefarious reason tying Trump to Flynn in some illegal venture. Meuller also would have to explain why he didn’t recuse himself in an accusation involving Comey and he knows it. He is going to go after Trump in other ways. He will go through Trump’s finances for the last 15 years and look for something illegal.

Conflict of interest? That is the tip of the iceberg even when you consider that the entire purpose of creating a special prosecutor (SP) is to avoid potential conflicts of interest.
The real issue is that the SP was founded for the wrong reason. SP’s are created to investigate specific crimes or alleged crimes and yet the entire Russia thing was never a criminal investigation; it was a counterintelligence investigation. Since no crime was alleged, why was a SP required?
Additionally, the law requires the SP to be assigned a specific scope to prevent the investigation from running on endlessly and turning into a witch hunt, but Rosenstein has yet to officially define the scope of this investigation. He claims he has a gentleman’s agreement with Mueller and that is good enough. Really?
With the creation of this SP, we are witnessing a miscarriage of justice because it blatantly violates many laws and principles. None of this matters because the reality is that this SP is not there to be a SP, rather it is there and performing its work as a part of a larger coup effort. The Left hates Trump and will do anything, bastardize the law however it can, lie whenever it wants, and so forth, in an effort to accomplish a coup to remove Trump from office.
With this investigation, we are potentially witnessing the last dying gasps of our democracy and freedoms.

Connivin Caniff | August 8, 2017 at 8:03 am

Dear God, President Trump, immediately fire Rosenstein and Mueller and all his underlings. A comparison among the Sessions recusal statement, the applicable CFR Regs, and the Rosenstein appointment statement raises enough issues and discrepancies to slice and dice Rosenstein and Mueeller, and make Julienne potatoes out of Comey: failure to investigate all the campaigns, Democrat & Republican, and the appointment to properly define the scope otherwise, for example. And they are all so horribly conflicted. Save your Presidency and this wonderful America before it is too late! And that will be soon. If you do it it you will survive and thrive, and the Never-Trumpers will only be able to whine, as usual.

Common Sense | August 8, 2017 at 9:05 am

What about the simple issue to avoid the appearance of a conflict of interest.

Rod Rosenstein, Robert Mueller both should step down from the investigation ASAP!

This whole fiasco started with the FBI director “leaking”
material because he wanted a Special Counsel appointed.

God help us!

    YellowSnake in reply to Common Sense. | August 8, 2017 at 12:55 pm

    What Comey wanted is irrelevant. He instructed his friend to release the material AFTER Trump threatened him. The material, filed contemporaneous, has more credibility than Trump since Trump has no tapes.

    God is helping us.

      Arminius in reply to YellowSnake. | August 8, 2017 at 4:45 pm

      Sh*thead, he broke the law when he released that material. It wasn’t his. It was the government’s.

      I realize in your blind hatred of Trump you don’t care. That hardly commends you.

      Comey deserves prison. No matter what Trump did.

      Don’t drag God into this. Comey has zero credibility. He is such an idiot that he actually testified in open court to capitulating to Lynch’s command. Under his leadership he politicized the FBI…a crime in itself. Information is finally coming to light under the “freedom of information act”. It is slow going, and the meat of the request was redacted, but they’ve gone back to court and will get the information they need. Hopefully it will be enough to prosecute everyone who colluded, to break whatever law was necessary, to put Hillary in office. All that and she lost and now some very bad actors will go to jail. I hope.

So why isn’t Jay Sekulow all upset with the SP and Rosenstein? He is as close as anyone to the cast of characters, he is all upset about the Tarmac meeting, why not this investigation? Sekulow seems to be just shrugging it off. Is it possible that he knows very well there is no there there?

    Ragspierre in reply to amwick. | August 8, 2017 at 12:25 pm

    …OR, there is a “there” and it doesn’t really have much or anything to do with Der Donald, and it DOES indicate a criminal investigation.

    Which would mean a lot of hair is ablaze over nothing.

    In a lot of ways…a LOT…a grand jury is a good thing, and proper.

This is the Grubernment!

Just trust us, we are smarter than you…

Clearly this crosses every line, because Trump is unattackable in any better way. So they do all this horrible corrupt stuff, and the mainstream press defends them.

Trump could fire Rosenstein and enough others to get to someone who would actually supervise this investigation. But if he doesn’t have to even do that, and can shame Rosenstein into recusing, that’s better, or it gives more justification to fire him.

We didn’t have these problems when J. Edgar Hoover headed up the FBI.