Rosenstein Bent the Rules to Protect Mueller — and It Worked

(Bloomberg Opinion) -- History’s verdict on Rod Rosenstein’s tumultuous two years as deputy attorney general will be mixed, if he does leave as expected when a new U.S. attorney general is confirmed. Rosenstein broke the normal rules to save a shred of normality. Usually that kind of compromise doesn’t work. In this case, it did — mostly.

Rosenstein is going to be remembered first for naming Robert Mueller as special counsel to investigate Russian interference in the 2016 election. Because Attorney General Jeff Sessions was recused from anything Russia related, because of his false statements to Congress during his confirmation process about his Russian contacts, Rosenstein also had the task of supervising Mueller. Rosenstein’s second important accomplishment was to successfully protect Mueller from being fired by President Donald Trump, despite repeated threats and attacks on the investigation from the White House.

But Rosenstein should never have been in a position either to appoint Mueller or to supervise his investigation. He should’ve been recused from both tasks.

To begin with, the event that triggered Mueller’s appointment was Trump’s firing of FBI Director James Comey. Rosenstein played a central role in that process: He drafted a memo providing reasons to fire Comey that Trump relied on, whether in good faith or otherwise.

If you’ve advised the president on how to perform an act that is going to come under investigation, you really shouldn’t choose the investigator or supervise the investigation. That’s classic grounds for recusal. Indeed, back in June 2017, when Trump tweeted that he was effectively being investigated by Rosenstein for conduct Rosenstein had advised, it seemed obvious to me that Rosenstein would have to recuse himself.

He didn’t.

Then, in September 2018, it came out that Rosenstein was so troubled by Trump’s conduct around the Comey firing that he had discussed wearing a wire to record the president. He had also reportedly discussed having the cabinet invoke the 25th Amendment and declare the president unfit for office. This made it clearer still that Rosenstein should recuse himself.

Once again, he didn’t.

Under normal circumstances, Rosenstein’s failure to recuse himself would stand as a serious blot on his otherwise excellent reputation as a nonpartisan career prosecutor and Department of Justice professional. Prosecutors especially, but also other top Justice Department officials, gain their professional and moral authority from following the rules all the time, not some of the time.

Prosecutors hold tremendous power, greater than any other actor within our federal system, including judges. If you’re prosecuted, your life is going to change drastically. Guilty or innocent, you’re going to have to spend all your resources on defense. Most of the time, you will be guilty of something. The U.S. code criminalizes so much activity that prosecutors can typically find some area where you’ve broken some law — and hold you accountable.

Given that prosecutors have extraordinarily broad discretion to decide whom to charge and what crimes to charge them with, prosecutors need to be paragons of rule-following. In other areas of life, bending the rules is sometimes necessary or desirable. In a prosecutor, it’s the cardinal sin. And Rosenstein definitely bent the rules by not recusing himself.

Yet, from the perspective of two years, Rosenstein’s rule-bending was probably justified — because Mueller’s investigation is necessary to assuring that the rule of law plays a role in making sense of Russian interference in the 2016 elections.

Without Rosenstein’s appointment of Mueller, there might have been no special prosecutor at all. Or the person appointed might have been weaker or less competent than Mueller. Or the person appointed might have been more susceptible to pressure from the Trump White House.

It’s also easy to imagine that without Rosenstein, another Justice Department official might have interfered with Mueller’s investigation at the urging of the White House or even fired Mueller. Ask yourself: Do you have any faith that acting Attorney General Matthew Whitaker would have resisted Trump’s pressure for two years?

Now that Mueller has been able to operate for two years, and a new attorney general has been nominated, it’s totally reasonable for Rosenstein to plan to step down.

If confirmed, William Barr will take over supervision of Mueller. Technically, Trump handed over that supervisory role to Whitaker after Sessions was fired — but Rosenstein needed to stick around because Whitaker’s appointment was itself legally questionable and because Whitaker isn’t especially trustworthy as an independent actor.

In contrast, Barr, whatever his views on executive power and the Mueller investigation, would at least be a credible attorney general. He served in that role under President George H.W. Bush. At that time, there was no serious talk of firing independent prosecutor Lawrence Walsh, whose investigation of the Iran-Contra affair was getting close to the president.

A new attorney general should be able to recommend his own deputy. Rosenstein is free to step down because, in essence, his job is done. Mueller survived. The ends arguably justified the means. That’s not a sentence I’m very happy to write when it comes to prosecution and the Department of Justice. But that will probably be the judgment of history this time.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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