This is a repeat of the previous blog because “we the people” are at a pivotal point in being able to rely on a competent and thorough investigation in the Trump -Russian probe by the FBI’s Special Counsel Robert Mueller III, as his ability to deliver is being possibly derailed by the republican President Donald Trump.
There is a reason that on the evening of 6/15/17, the DOJ’s Deputy Attorney General Rod Rosenstein made public the following statement,
Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch or agency of government — with which the alleged sources supposedly are affiliated. Americans should be skeptical about anonymous allegations. The Department of Justice has a long-standing policy to neither confirm or deny such allegations.
The president with a contingent of hard line conservatives have been giving serious thought about how to fire both Rod Rosenstein and the Special Prosecutor Robert Mueller III.
A legal liberal legal scholar that I follow, Laurence Tribe is of the same opinion as what is reflected in Mr. Feldman’s analysis as per the following op-ed piece.
And who am I to disagree most respectfully with these two fine gentlemen but I do.
For me, it is a question of when not if, Mr. Rosenstein will have to recuse himself. But this act does not have to be made right now without the required due deliberation which can be a lengthy process, despite what all the news pundits are stating via the various news outlets. For right now. it is up to Mr. Mueller in a way because he is the one who knows where the investigation is heading. Mr. Rosenstein should withstand the heat for now.
Of course, the president wants to fire both Rod Rosenstein and Mr. Mueller, and based on leaks, he is strongly leaning that way. But remember that there was a reason that Mr. Rosenstein delivered that cryptic message for the public, not to believe news stories that are not specifically attributed to named sources.
Here’s the deal. Mr. Mueller is no fool. but he runs a tight ship. Leaks are not from the FBI side. This means that the leaks are from the White House. We are not getting the entire story, So, stay tuned, hang tight and get ready for a rough ride. This reality show down is not over.
Here is the rest of the story…
On June 16, 2017, Noah Feldman of Bloomberg penned the following opinion piece, “One Trump Tweet Can Shake Up the Justice Department.”
“Is President Donald Trump trying to fire Deputy Attorney General Rod Rosenstein without actually firing him? That’s the logical inference from the president’s tweet Friday morning asserting that he’s being investigated for firing FBI Director James Comey by the person who told him to fire Comey, namely Rosenstein. The immediate effect of the tweet is to pressure Rosenstein to recuse himself from special counsel Robert Mueller’s investigation. Rosenstein will now have to do so — soon.”
“Whether Trump has thought it through or not, that will leave Rosenstein’s supervisory obligations in the hands of Associate Attorney General Rachel Brand. She’s a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller. Brand is more like Trump Supreme Court appointee Neil Gorsuch: a high-powered conservative appellate lawyer who clerked for the U.S. Supreme Court, worked in the George W. Bush administration, and is prominent in Federalist Society circles. Her attitude toward the investigation is likely to be a bit different from Rosenstein’s, more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence.”
“Even before Trump commenced his assault on Rosenstein for conflict of interest, it was becoming conceivable that the deputy attorney general would have to recuse himself from supervising Mueller. If Mueller is focused on the Comey firing as a potential obstruction of justice, he would want or maybe need to know the details of how Trump interacted with Rosenstein around that decision.”
“The facts of whether Trump had already decided to fire Comey before getting Rosenstein to write the memo justifying the firing are unclear and at least partially contested. That would make Rosenstein into an important witness for the Mueller investigation — which would in turn make it difficult for him to be the figure to whom Mueller is supposed to report. Rosenstein acknowledged something like this in a recent meeting, according to reporting by ABC News.”
“Nonetheless, without Trump’s Twitter barrage, Rosenstein could potentially have refused to recuse himself by saying that Mueller, not he, is doing the investigating. The Department of Justice regulations do after all say that “the Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”
“Rosenstein could have asserted that although the regulations allow the attorney general (here Rosenstein because of Jeff Sessions’s recusal) to ask for explanations of the special counsel’s investigative process, and require periodic reports from the special counsel to the attorney general, he wasn’t going to be supervising Mueller’s investigation.”
“After Trump’s tweet, that course of action isn’t really available to Rosenstein. Trump not only made a concrete argument that Rosenstein has a conflict of interest, but also deepened that conflict by asserting that firing Comey was Rosenstein’s idea. If firing Comey was indeed obstruction of justice, then, according to Trump’s implicit logic, Rosenstein could be guilty of a crime of obstruction.”
“So Rosenstein will have to recuse himself. And that leaves Brand as the next highest Senate-confirmed official in the Department of Justice.”
“Brand might look at the whole affair differently from Rosenstein. She’s well-known among the nation’s legal elite — but she belongs to a different tribe from the former prosecutors at Justice. She’s the kind of person you’d be more likely to hear was appointed to an appeals court than was supervising an investigation of the president.”
“Brand went to Harvard Law School and clerked for Justice Anthony Kennedy. She worked in the White House counsel’s office under George W. Bush and then ran the office of legal policy at the Department of Justice, where she helped prepare Chief Justice John Roberts and Justice Samuel Alito for their confirmation hearings. During Barack Obama’s presidency, she was a tough regulatory litigator and was named by Obama to his Privacy and Civil Liberties Oversight Board, a mark of bipartisan respect for her intelligence and fairness.”
“In short, Brand’s a first-class conservative Washington lawyer, but not a prosecutor. Her first instinct therefore is likely to be following the law, not preserving the credibility of prosecutorial institutions and personalities.”
“That would matter if Trump decides to fire Mueller. Like Rosenstein, Brand wouldn’t fire Mueller without cause, because the Department of Justice regulations say so. But she would also have the conservative perspective on executive branch — which gives the president abundant authority.”
“Thus, Brand could be expected to inform the president that he could repeal the regulations that protect the special counsel, and then fire Mueller. With the regulations gone, there would be nothing illegal about firing Mueller, whether the order came from Brand or the president.”
“Not that this is a choice Brand would relish. She’s more than smart enough to know that being the vehicle of such an outrageous presidential act as firing Mueller would have reputational consequences. But she also surely knows that Robert Bork was the Department of Justice official who ultimately fired Watergate investigator Archibald Cox in President Richard Nixon’s Saturday night massacre. And that didn’t stop Bork from later becoming a Supreme Court nominee” (and who lost it because of his firing of M.r Cox).”
“The upshot is that Trump is probably better off with Brand supervising the special counsel’s investigation than Rosenstein. But that doesn’t need to have been the president’s motive. It’s enough that he’s angry with Rosenstein for appointing Mueller in the first place.”
“The tactic of firing by recusal is a new one. But it’s bound to have consequences.“