Why Hasn’t Rod Rosenstein Recused Himself from the Mueller Investigation? - Lawfare
by Jack Goldsmith
One puzzle that deepens with Mike Schmidt’s New York Times story on “Trump’s Struggle to Keep [a] Grip on [the] Russia Investigation” is why Deputy Attorney General Rod Rosenstein has not recused himself from overseeing the Mueller investigation. On Lawfare’s special edition podcast yesterday, Susan Hennessey briefly raised the issue, but the puzzle is worth unpacking a bit more here.
Recall that Rosenstein is the acting attorney general for this matter because Attorney General Jeff Sessions recused himself. As a result, Rosenstein appointed Mueller and, under the relevant Order and incorporated regulations, supervises him.
Rosenstein was also centrally involved in James Comey’s firing. When President Donald Trump fired Comey, he relied on a letter from Attorney General Jeff Sessions recommending the termination, as well as an oddly written memorandum from Rosenstein, on which Sessions also relied, that was highly critical of Comey’s handling of the Hillary Clinton investigation. A few days later, however, Trump made clear that his reliance on Rosenstein’s letter was (contrary to what he said in his letter firing Comey) secondary at best. In an interview with Lester Holt, Trump said that “regardless of the recommendation” by Rosenstein, and apparently before it was written, he was going to fire Comey because of the Russia investigation. (The president’s words were: “in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story.”)
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