Overseeing Mueller, Cohen Probes Makes Rosenstein a Big Target
(Bloomberg) -- From the start of the Russia probe, the question has been whether President Donald Trump might fire Special Counsel Robert Mueller. Now, the more serious question is whether he’d fire Rod Rosenstein.
The deputy attorney general finds himself in additional peril due to a recent twist in the case: He not only sits atop Mueller’s Russia probe but also the investigation into Michael Cohen, the president’s longtime lawyer.
Rosenstein’s dual responsibilities mean Trump could alter the trajectory of both investigations in a single stroke by removing Rosenstein and installing someone more likely to constrain or end the probes, according to current and former government officials.
Such a move would be politically explosive, with Democrats warning of a constitutional crisis. But while many congressional Republicans have emphatically defended Mueller, Rosenstein has been attacked by some House Republicans who say he’s been slow to comply with their requests for documents.
Rosenstein told Trump earlier this month that he isn’t a target in either probe, according to several people familiar with the matter. But Mueller hasn’t ruled out making him one at some point in the future, according to a U.S. official with knowledge of the unfolding investigation.
Role for Sessions
Complicating matters even more, Attorney General Jeff Sessions hasn’t recused himself from the probe into Cohen, the Trump lawyer, according to a person familiar with the matter, meaning he could insert himself into decision making. Sessions may step back from particular decisions tied to the probe, which is being conducted by the U.S. Attorney’s Office in the Southern District of New York.
“There are so many moving parts here,” said Stanley Twardy, a former U.S. attorney for Connecticut who’s now a white-collar criminal defense lawyer at the law firm Day Pitney LLP. “Not much of it, if any of it, is black-and-white.”
For the purposes of the Russia investigation, the Justice Department is treating Mueller like a U.S. attorney. Under department rules, the offices of U.S. attorneys report to the deputy attorney general. Rosenstein is in charge of the Mueller investigation because Sessions recused himself from that one.
U.S. attorneys coordinate on matters all the time, and the Justice Department encourages and sometimes facilitates such relationships. Here, in order to protect the independence of the special counsel’s investigation, Rosenstein is likely to be the conduit between the two inquiries to ensure they aid each other without conflicts, overlap or interference.
Rosenstein’s position means he can be briefed on -- and make decisions about -- some of the most sensitive aspects of both inquiries. For example, he approved the FBI’s April 9 raid on Cohen’s office and properties after a referral developed by Mueller’s team.
Before the search of Cohen’s property, investigators had obtained warrants allowing them to covertly monitor his email accounts. That led them to the determination that Cohen was performing little to no legal work and that there were no emails exchanged with Trump, according to court documents.
The search warrant seeking secret access to a lawyer’s email would also have been approved by Rosenstein, former federal prosecutors say.
For high-profile matters, such as those involving public officials, the U.S. Attorneys Manual lays out types of developments that prosecutors should tell Justice Department leaders about three days in advance. They include: the filing of criminal charges, the execution of search warrants and interviews of significant witnesses.
‘Crisis After Crisis’
“Every problem that cannot get resolved at a lower level ends up at the deputy attorney general’s office, so the only thing the deputy attorney general gets are the hardest, most thorny problems,” said John Walsh, a former U.S. Attorney for Colorado and now a partner at WilmerHale. “There’s a constant diet of that, and it’s crisis after crisis.”
Despite the responsibility he has, Rosenstein, a 53-year-old career prosecutor, doesn’t have as much security or backing as other officials.
Lawmakers have rushed to defend Mueller, including proposing legislation to shield the former FBI director from being removed. There’s no bill pending that would protect Rosenstein, who can be fired at will by the president. Republican Representative Mark Meadows earlier this month was urging colleagues to pursue contempt charges against Rosenstein and FBI Director Christopher Wray over their failure to hand over documents they had requested.
Some Senate Republicans have voiced their support for Rosenstein, cautioning Trump against removing him.
“Rod Rosenstein has handled himself extremely well on an issue that only he and a select few, including Bob Mueller, have clarity on what the scope of his investigation is,” Senate Intelligence Chairman Richard Burr of North Carolina, who is leading a bipartisan Russia probe, said in an interview. “And I would tell you that it’s probably been hindered by the president’s comments, but no more so than the media stories that are so far from reality.”
Republican Senator James Lankford echoed the praise, calling Rosenstein a “stable leader.”
“He’s handled his situation as best as he can handle it,’ Lankford of Oklahoma said. “He’s obviously had a lot of tough decisions where he didn’t have people above him who could make that decision, and so suddenly he’s thrust into it. There’s no easy, clean set of decisions that you can see in either direction.”
The Southern District of New York traditionally has operated with a great deal of autonomy and is comprised of career prosecutors that Trump can’t fire. Even Trump may have some protection, as a Justice Department legal memo contends that a sitting president can’t be indicted.
That may be why Rosenstein took it upon himself to tell Trump during an April 12 meeting that Trump wasn’t a target in the Russia or Cohen investigations, a move that has, at least for the time being, helped relieve pressure to fire him. Rosenstein declined an interview request for this story.
Sessions also told White House Counsel Donald McGahn in a phone call last week that he would consider resigning if Rosenstein were fired, according to a person familiar with the matter.
With regard to the Cohen probe, Sessions will consider his recusal on “a matter-by-matter basis as may be needed," the Justice Department said in a statement. “To the extent a matter comes to the attention of his office that may warrant consideration of recusal, the Attorney General would review the issue and consult with the appropriate Department ethics experts.”
U.S. attorneys have a large amount of autonomy when opening up and investigating criminal matters. The Southern District of New York is notorious for sharing with Washington the bare minimum of information required under Justice Department rules.
Rosenstein is known for having fixed and strong opinions when it comes to process issues involving investigations, such as lines of communication between U.S. attorney offices and Justice Department headquarters. At the same time, he’s not known for being a micromanager who gets deep in the weeds in cases he oversees.
Even without a White House probe or a constitutional crisis looming, the deputy attorney general’s job is considered the most challenging in the department. It is by design, the office of controversy.
“In some ways it’s a role that the deputy attorney general was made to fill because everything -- especially on the criminal side -- comes up to that office,” said John Arterberry, a former federal prosecutor who spent three decades at the Justice Department. “It’s the appropriate place to make the kinds of sensitive and strategic decisions that will ensure the right law enforcement results are obtained.”
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