Should Rod Rosenstein recuse himself? The latest Russia revelation complicates the answer.


Deputy Attorney General Rod J. Rosenstein speaks during an event at the Newseum on May 1. (AP Photo/Andrew Harnik)

The New York Times just filled out the story of James B. Comey's firing a little bit more.

It turns out then-acting FBI director Andrew McCabe drafted a memo about an event he thought to be problematic in the days after President Trump fired Comey as FBI director. The memo says Deputy Attorney General Rod J. Rosenstein told McCabe that Trump had asked Rosenstein to mention Russia in his memo laying out the case for firing Comey.

It's clear why this is significant for special counsel Robert S. Mueller III's obstruction of justice probe: It would be a written record of a contemporaneous account that contradicted the official, stated reasons for Comey's firing — that they had to do with job performance and the Hillary Clinton investigation. Trump would later say he had the Russia investigation on his mind when he fired Comey, and this would solidify the evidence that the initial reasons were misleading, at best, and that he was trying to impede the investigation.

But it also complicates things for Rosenstein. There has been an undercurrent of questions about why he has not recused himself from overseeing Mueller's investigation, given that he is somewhat wrapped up in the obstruction of justice case through his authorship of that Comey memo. And this will only add to those questions. It's not difficult to see Trump supporters seizing upon this new evidence to press the case that Rosenstein — a guy Trump clearly doesn't like and has toyed with firing — is even more conflicted than we realized and must recuse himself.

Rosenstein's memo was already part of the case, but it wasn't clear whether he had actually been instructed by Trump in any way. If Trump told Rosenstein to include Russia in the memo and Rosenstein opted not to, that arguably makes him even more of what is known as a “fact witness” in the case.

And McCabe seemed to sense this, per the Times:

To Mr. McCabe, that seemed like possible evidence that Mr. Comey’s firing was actually related to the F.B.I.’s investigation into the Trump campaign’s ties to Russia, and that Mr. Rosenstein helped provide a cover story by writing about the Clinton investigation.

The story from Rosenstein's side is that this was merely a reference to Trump's frustration that Comey would not say publicly that Trump wasn't under investigation in the Russia probe. And that makes sense, given that we previously knew about a draft letter Trump wrote laying out the reasons for Comey's firing that included this frustration.

Some experts say this still raises valid questions, even as they have praised Rosenstein. Fordham University law professor Jed Shugerman said Rosenstein has a “huge problem” — even though rules for recusal aren't hard and fast.

Others have argued that Rosenstein should possibly have recused himself already. Jack Goldsmith, a former assistant attorney general in the Bush administration, wrote a Lawfare piece in January called, “Why Hasn’t Rod Rosenstein Recused Himself From the Mueller Investigation?”

Former Justice Department official Harry Litman, conversely, argued that not much has changed.

“On the one hand, the article shades in details that we only had in outline form, and they certainly portray Rosenstein as a witness to the initial firing,” Litman said. “On the other hand, we knew that he had been involved, and the additional details — such as the meeting with McCabe — don’t greatly strengthen the case for his being a fact witness.”

But Litman also noted that Rosenstein has reportedly consulted ethics officials about his situation and presumably would have mentioned what the McCabe memo described.

Former Whitewater special counsel Jack Sharman noted that a special counsel setup is a special case when it comes to recusal. “Because of the unusual nature of a special counsel as opposed to a ‘regular’ DOJ prosecutor, Mr. Mueller may properly be the ‘advocate,’ not the deputy attorney general,” Sharman said, “thus relieving some of the concern about Mr. Rosenstein being in a conflicted situation, should he be called as a fact witness.”

Rosenstein himself has acknowledged the possibility that at some point a recusal might be necessary — if requested by Mueller. “I've talked with Director Mueller about this,” Rosenstein told AP back in mid-2017. “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.”

Back then, of course, that would have been far less of a problem for Mueller's probe. At this point, Rosenstein's potential conflicts are grist for the mill when it comes to Trump's and his team's attempts to undermine the probe. And even if Rosenstein never recuses himself, you can bet they will use this alleged conflict to continuing arguing that the people leading this investigation aren't impartial.