Will Rod Rosenstein Recuse Himself From the Russia Probe?

Trump’s apparent ire toward the man he appointed as the Justice Department’s second-highest-ranking official seems to have grown since news reports on Wednesday described how Special Counsel Robert Mueller is planning to question witnesses as part of a probe into whether Trump may have committed obstruction of justice. That line of inquiry reportedly focuses on Trump’s actions toward former FBI Director James Comey before the president abruptly ousted him last month, and on Trump’s alleged pressuring of top intelligence officials to intervene in Comey’s investigation. 

The president’s attack renewed concerns that Trump could move to oust Mueller from the investigation, which would require Rosenstein’s assent under Justice Department rules. Rosenstein told Congress on Wednesday he would not fire Mueller without the legally required “good cause,” potentially setting up a situation where Trump could fire Rosenstein for refusing to fire the special counsel. Richard Nixon attempted a similar purge of the Watergate special prosecutor’s office in 1973 that was dubbed the Saturday Night Massacre; it ultimately hastened his downfall.

Adding to the confusion is a bizarre Justice Department statement released in Rosenstein’s name on Thursday night. The three-sentence press release castigated “anonymous allegations” reported in the media and urged Americans to “exercise caution” before believing them, “particularly when they do not identify the country—let alone the branch or agency of government—with which the alleged sources supposedly are affiliated.” It’s unclear if Rosenstein was reacting to any recent press report, one yet to be published, or speaking in general terms. A few hours before his statement’s release, The Washington Post reported that Mueller’s team is scrutinizing business dealings by Jared Kushner, the president’s son-in-law and adviser.

At the same time, news of the obstruction investigation now raises questions about whether Rosenstein will have to recuse himself from the Russia investigation because of his direct involvement in Comey’s firing—a decision ABC reported he is mulling over. If he does step aside, ultimate oversight of Mueller’s probe would fall to Associate Attorney General Rachel Brand, the Justice Department’s third-in-command.

Rosenstein recently discussed his potential recusal, indicating his decision would depend on how the probe unfolded. “I’ve talked with Director Mueller about this,” he said in an AP interview earlier this month. “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 Justice Department seemed to suggest Friday afternoon that his recusal may not be imminent. “As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will,” a DOJ spokesman said. “However, nothing has changed.”

While Rosenstein does not exert day-to-day control over Mueller’s probe, he established its parameters and has the ultimate say on any prosecutions that spring from it. (Under Justice Department rules, he would also have to notify Congress in writing if he constrains Mueller in any significant way.) Rosenstein’s oversight of the probe only came after Attorney General Jeff Sessions recused himself in March, one day after the Post reported he hadn’t disclosed meetings with Russian Ambassador Sergey Kislyak during his confirmation process. 

Rosenstein’s current quandary stems from his role in Trump’s ouster of Comey on May 9. In the lead-up to the dismissal, Rosenstein drafted a memo for Sessions and Trump outlining his criticisms of Comey’s actions during the federal investigation into Hillary Clinton’s private email server last year. He focused on the July 2016 press conference in which Comey revealed the FBI would not recommend criminal charges against Clinton, and said the director was “never empowered to supplant federal prosecutors and assume command of the Justice Department.”

“The director was wrong to usurp the attorney general’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution,” Rosenstein wrote in the memo. “It is not the function of the director to make such an announcement.”

Rosenstein did not recommend that Trump fire Comey in the memo itself. But it was cited by Sessions in a letter to the president urging Comey’s dismissal, and the White House initially defended the president’s decision by pointing to the events outlined by Rosenstein. The resulting political firestorm eventually led Rosenstein to appoint Mueller as special counsel to oversee the Russia investigation and any related matters. Rosenstein’s central role in the drama could make him a key witness in an investigation he now oversees, placing him in a troubling ethical spot.

Longtime Justice Department observers couldn’t help but note the legal and political quicksand rapidly surrounding the deputy attorney general. “We’re in a race for which comes first: Rosenstein recusing or getting fired,” Matthew Miller, a former Justice Department spokesman during the Obama administration, quipped on Twitter on Friday.