Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
-------------------------------For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime. I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime. However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point. Nevertheless, I continue to support the need for an independent investigation.
Here is the column:might have to recuse himself from any further involvement in the Russian investigation.
Like invading Russia in winter, it appears that participating in the Russian investigation is a prospect fraught with peril for those on the front lines. While the news account has not been verified, there is actually very good reason for Rosenstein’s recusal. Moreover, any recusal by Rosenstein would add questions about the status of Special Counsel Robert Mueller himself.
Rosenstein reportedly told his colleagues that he is now considering his own recusal in the Russian investigation, though it is not clear why he has reached this conclusion. The implications of the decision may magnify questions over Mueller’s own status.
In fairness to Rosenstein, recusal is not as much of a pressing question for him as it was for Attorney General Jeff Sessions. The appointment of a special counsel is itself a type of recusal for the entire department. However, Rosenstein continues to hold some authority in being able to countermand decisions of the special counsel (though such decisions are reported to Congress).
Mueller could have his own conflict issue now that obstruction is confirmed as a focus of the investigation. There has been a growing campaign to discredit Mueller as special counsel due to his past connections to former FBI Director Comey. For the record, I stated at the time of his appointment that Mueller is a person known for the greatest integrity and accomplishment. I also felt that his reputation brought a calming effect on the scandal, an image of professionalism and objectivity.
He is the ideal person for a special counsel position, but not necessarily this special counsel position. As I stated previously, Mueller could not be viewed as a neutral choice by anyone on Trump’s side due to his history with Comey. I noted earlier that aspects of Mueller’s background are troubling, and I believe that Rosenstein used poor judgment in his selection.
The man Comey called upon was Robert Mueller, who ordered the security detail protecting Ashcroft to not allow White House staff to eject Comey from Ashcroft’s hospital room. The two men backed one another in a moment etched into legend in both the Justice Department and FBI. It is the type of defining moment that leaves a deep personal and professional bond.
Mueller was appointed under 28 CFR 600.7, which states that “[t]he Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” If Mueller is a potential witness, recusal or termination would be warranted under that standard as a conflict.
Few are distinguished to the degree of a Robert Mueller, but even if you take the top one percent of lawyers in this country you are left with a pool of 12,000 candidates. Even if you took half of the top one percent, you still have 6,000 candidates. Certainly, one has the resume to serve as special counsel without the shared history with one of the key potential witnesses or interactions with a possible target.
If Rosenstein recuses himself, Mueller’s continuation as special counsel would fall to Associate Attorney General Rachel Brand who is the third most senior official at the Justice Department. However, the decision also rests with Mueller on whether, like Rosenstein, there is reason to step aside. In the very least, Mueller should confirm whether he discussed the Comey firing with Trump and sought Comey’s job from Trump. In legal ethics, the appearance of a conflict is grounds for recusal. It is incumbent on Mueller to remove any such appearance or to remove himself as special counsel.