Some commentators are already speculating what Associate Attorney General Rachel Brand will or should do when she becomes Acting Attorney General for purposes of the Russia investigation . . . based upon an apparent assumption that Rod Rosenstein will soon recuse himself from being the nominal supervisor of Special Counsel Robert Mueller.

Jack Goldsmith and Ben Wittes, for example, write that “Rosenstein’s involvement in the case has grown untenable for many reasons,” and that a couple of recent developments “surely suffice to at least require Rosenstein’s recusal.” (I assume the “at least” is intended to convey:  “if not his resignation”).  Noah Feldman likewise writes that “Rosenstein will now have to [recuse] — soon.”

Not so fast.

To be sure, Rosenstein has already acknowledged that “Director Mueller . . . [is] 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.”  And ABC News reports that according to unspecified “sources,” Rosenstein discussed the possibility of his recusal with Rachel Brand.  “Rosenstein told [Brand],” not surprisingly, “that if he were to recuse himself, she would have to step in and take over” his responsibilities relating to the Russia probe.

I will therefore assume, for purposes of this post, that Rosenstein should or would recuse himself from his role as Acting A.G. in the Russia probe if he were to become a fact witness, no matter how peripheral, who Mueller interviews in his investigation.  (I’m actually not certain that this is true–that any interview of Rosenstein would or should trigger removal–and Rosenstein himself was careful only to say that he would recuse “if anything that I did winds up being relevant to his investigation” and “if there’s a need from me to recuse.”  For present purposes, however, I’m willing to indulge the assumption that Rosenstein would recuse if he becomes a fact witness.)

With this as background, the “Rosenstein must recuse” argument is premised on two assumptions:  (i) that Mueller is now investigating whether Trump’s removal of Jim Comey as FBI Director was an unlawful obstruction under either 18 U.S.C. 1505 (“Whoever corruptly . . . endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States . . . [s]hall be fined under this title, [or] imprisoned not more than 5 years.”) or 18 U.S.C. 1512(c)(2) (“Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”); and (ii) that Mueller would interview Rosenstein as part of that investigation, because his account of how he came to write his memo critical of Comey would be relevant to that obstruction-of-justice investigation.  As noted above, I’m assuming that if Mueller found it necessary to question Rosenstein about his involvement, then Rosenstein might well need to recuse.

Here’s how Jack and Ben put the argument:

Most importantly, the substance of the investigation has apparently developed to include a potential obstruction of justice focus on the President in connection with (among other things) the President’s discussions with and firing of James Comey. In that matter, Rosenstein may be a witness because of his role in the firing, and thus he cannot at the same time be the supervisor of the investigation.

I think there’s serious reason to question both premises.

Let’s start with the minor premise.  Even if Mueller were investigating whether Trump obstructed justice by removing Comey (but see below), that firing would only be “corrupt,” and thus even conceivably a violation of section 1505 or section 1512(c)(2), if it were done in order to influence, obstruct, or impede the Russia investigation.  Well, even in that scenario, Mueller would hardly need Rosenstein’s testimony to establish that that was Trump’s motive.  After all, Trump freely and openly brags about it–not only to Lester Holt (“Oh, I was going to fire regardless of [Rosenstein’s] recommendation. . . .  He had made a recommendation. But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it.  And 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. It’s an excuse by the Democrats for having lost an election that they should’ve won.”), but to Russian officials themselves (“I just fired the head of the F.B.I. . . .  I faced great pressure because of Russia.  That’s taken off.”).  And unless there were some pressing need to question Rosenstein about whether he could corroborate Trump’s motives, even in light of these concessions, it’s hard to imagine Mueller doing so in this  case, especially if such question would require Rosenstein’s recusal.  More to the point, as far as I know there is no evidence, or even rumor, that Mueller has done so, or plans to do so.

More fundamentally, the major premise is mistaken:  As of now, we do not now have any reason to believe Mueller is investigating whether Trump violated the law by removing Comey as FBI Director.  Indeed, the only such “evidence” that anyone has cited is Trump’s own juvenile tweet yesterday morning:  “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch hunt!”  I hope it should go without saying–but here goes, anyway–that this is hardly a serious basis for believing that Mueller is investigating Trump for firing Comey; to the contrary, the more reasonable assumption is that if Trump tweeted it, it must be nonsense (or at the very least unsubstantiated).  [The New York Times therefore should not have reported that  Trump has “acknowledged” he is “under investigation”–let alone under investigation for having removed Comey.  Trump didn’t “acknowledge” anything; he merely tweeted it.  For all we know, Donald Trump has no idea whether he is “under investigation” unless he’s been informed he is a target, which is highly unlikely.]

Indeed, there are at least a couple of reasons to think it is very unlikely that Mueller is investigating whether the removal was unlawful.  First, as noted above, the only possible factual question at issue, for purposes of Section 1505 or section 1512(c)(2), would be Trump’s motives for firing Comey (and perhaps why Trump wanted to try to scuttle Comey’s investigation); the dismissal itself is a matter of public record.  And in light of Trump’s own admissions about his desire to put a crimp in the Russia inquiry, it’s not obvious that Mueller would have much to do in investigating that question other than to question Trump himself, something that apparently has not yet happened.

Moreover, I would be very surprised if Mueller investigates whether a President’s exercise of his at-will removal power–an authority the President has by virtue of his authority to appoint the FBI Director and Congress’s choice not to qualify that removal power–can ever be a “corrupt[] endeavor[] to influence, obstruct, or impede the due and proper administration of the law under which [an FBI investigation] is being had.”  With David Pozen, I have argued that a presidential removal, even pursuant to an “at will” standard, is not necessarily lawful.  Indeed, if such a firing were effected in order to stymie a legitimate investigation into whether the Presidents’ agents were involved in efforts of a foreign power to corrupt an American election, it would, in my view, plainly be an unconstitutional action.  (As I wrote ten years ago with respect to the controversial firings of many U.S. Attorneys, although the President has a very broad removal authority, he “could not fire [such prosecutors] because of their religion or race, for instance. And he could not fire them in order to ensure partisan prosecutorial decision-making,” which appeared to be the case in that episode.)

It might even be the case that removing Comey for that invalid reason could, as an abstract matter, be a “corrupt” endeavor to influence an FBI investigation, one that technically violates Section 1505 and/or section 1512(c)(2).*  I think it’s very unlikely, however, that Mueller’s investigation is going in that direction, because it’s hard to see anything valuable coming of it.  Mueller is not going to prosecute the President, and likely will not indict him, either, in light of the Executive branch’s formal, longstanding view that such an indictment or prosecution would be unconstitutional during the President’s term in office.**  And recall that there are not really any serious factual disputes at issue:  Congress, the public and the Russians all think, based upon Trump’s own acknowledgements, that Trump fired Comey at least in part because Comey would not let up on his investigation.  Therefore, the only function that would be served by a publicly stated conclusion by Mueller that the removal violated Section 1505 or section 1512(c)(2) would be the revelation of Mueller’s own considered view on the contested legal question of whether such an at-will removal can ever amount to a violation of those statutes–a statement of law that would have no practical impact (and that would inevitably be contested by others).

In light of all this, why would Mueller turn his investigation to the question of whether Comey’s removal violated a federal criminal statute?  I don’t see it.  More to the point, however, we have no basis, other than a Trump-tweet, to think that Mueller has done so.

That’s why it makes complete sense that, after the “Rosenstein-must-recuse” stories started flying fast and furious yesterday, the Department of Justice issued a statement to confirm that Rosenstein “sees no reason at this point to recuse himself.”  “As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will,” Justice Department spokesman Ian Prior said in a statement. “However, nothing has changed.”

So let’s all take a deep breath . . .


* I’m assuming here for the sake of argument that Mueller has concluded that an FBI investigation is a “pending proceeding” for purposes of Section 1505 and/or an “official proceeding” for purposes of Section 1512(c)(2).  In fact, however, as both Andrew Crespo and Helen Klein Murillo/Ben Wittes have explained, those are difficult and open questions, and it’s very possible Mueller would decide that neither 1505 nor 1512(c)(2) is implicated, or that it’s not advisable to press such unresolved legal questions, especially not in the context of the President’s exercise of his removal authority.  On the other hand, as Crespo further notes, “even if th[e] narrower view [of ‘proceeding’ were to prevail, Trump arguably endeavored to influence two other investigations that, as others observe, are more clearly covered by the statute: the pending grand jury investigation of Michael Flynn, and the pending congressional investigations of Russia’s role in the election.”

** I don’t mean to suggest that Mueller would, for this reason, never investigate whether the President violated the law.  He might well do so where culpability does turn on serious, disputed factual questions, not so that the President might face criminal charges now, but for possible purposes of post-term prosecution and/or impeachment.


Photo: Acting FBI Director Andrew McCabe, Deputy Attorney General Rod Rosenstein, Director of National Intelligence Dan Coats and National Security Agency Director Adm. Michael Rogers appear before the Senate Intelligence Committee, June 7, 2017 – Mark Wilson/Getty