Executive Power

If Rod Rosenstein Recuses: What Happens Next?

By Jack Goldsmith, Benjamin Wittes
Friday, June 16, 2017, 1:30 PM

ABC News is reporting that Deputy Attorney General Rod Rosenstein “has privately acknowledged to colleagues that he may have to recuse himself from” his role as Acting Attorney General for the Department’s Russia Investigation. (Recall that Rosenstein assumed that role when Attorney General Sessions recused himself earlier.) Rosenstein’s involvement in the case has grown untenable for many reasons. 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. (Noah Feldman makes a similar argument in BloombergView.) In addition, the President and his surrogates have viciously attacked Rosenstein’s choice of Special Counsel, Robert Mueller. This morning, the President also seemed to say that Rosenstein himself is responsible for what the President sees as a witch hunt against him:

These developments surely suffice to at least require Rosenstein’s recusal.

Rosenstein’s potential recusal raises a number of important questions. First, how much longer can he stay on as Deputy Attorney General? He first seemed to compromise himself when, under apparent pressure from the President and the Attorney General, he wrote a pretextual memorandum for James Comey’s firing as FBI Director, only to see the President toss him under the bus and reveal how he was used. Rosenstein is Exhibit A for how working for Donald Trump in a legal capacity can tarnish one’s reputation. The President, who appears to lack respect for law and legal process, has now used Rosenstein for overtly political ends and both undermined his integrity by announcing the pretextual nature of his memorandum and attacked his integrity directly in the tweet this morning. One of us called for Rosenstein’s resignation even before this latest episode. In light of the President’s public statement this morning, and everything else, it is hard to see how Rosenstein can continue to serve this President with honor.

Second, assuming Rosenstein does recuse, the spotlight now shifts to the recently confirmed Associate Attorney General Rachel Brand, who would become the Acting Attorney General for the Russia investigation. (The ABC story reports that Rosenstein mentioned recusal in a conversation with Brand.)

We both know Brand well and admire her a lot.

She is a Harvard Law School graduate who clerked for Justice Anthony M. Kennedy on the Supreme Court and then-Justice Charles Fried of the Supreme Judicial Court of Massachusetts. Brand previously served as Assistant Attorney General for the Office of Legal Policy, in other lower-level Justice Department jobs, and in the George W. Bush White House Counsel’s Office. She has also served with real distinction on the Privacy and Civil Liberties Oversight Board (PCLOB), an independent federal agency that oversees and advises other agencies’ counterterrorism activities. Brand is a conservative lawyer and not everyone agreed with her opinions on the PCLOB, but there is no doubt that she made significant contributions there and was an important voice in the PCLOB’s public output. She thus has extensive Justice Department experience and extensive national security experience. She is also intelligent, fair, independent, and tough-minded.

What Brand lacks is prosecutorial experience or even a background in criminal law practice, which may become relevant if she will now be in charge of the Russia investigation. That, we think, is a manageable problem. After all, the special counsel in question is a person profoundly knowledgeable and experienced on both the prosecutorial side and the investigative side (Mueller ran both the Criminal Division of the Justice Department and the FBI). Following appointment, the job of the Acting Attorney General situated between Mueller and the President is essentially threefold. First, under 28 CFR § 600.6, it appears that Mueller, rather than Brand, will presumptively make the call on any prosecutorial decisions, though Mueller can “[i]nform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.” Second, and potentially qualifying the first point, under 28 CFR 600.7(b), Brand can request, when appropriate, “that the Special Counsel provide an explanation for any investigative or prosecutorial step,” and can, after review, “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Third, under under 28 CFR 600.7(c), Brand is the person who can discipline or remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” In exercising these responsibilities, Brand can easily get up to speed and solicit advice from other relevant experts in the Department as needed on criminal law and investigative matters beyond her expertise.

In addition to these regulatory duties, Brand will face the tough task of insulating the investigation from the erratic and inappropriate behavior of President Trump. Such insulation is needed for the integrity of the investigation, so that any decisions it may reach about prosecution or exoneration have credibility. This task will require backbone—and a willingness not to last long in the job.

Against this background, Brand will quickly assume several important burdens. The first and most important one, in light of the President's attacks on Mueller and Rosenstein and the Department, will be to express full confidence in Mueller’s investigation. Among other things, she needs to do the following. First, she will need to examine Rosenstein’s terms of reference for the Mueller appointment and make sure she agrees with them and stands by them. Second, she will need to meet with Mueller to get an update on the investigation and ensure that she thinks he continues to act in a fashion consistent with the regulatory guidelines. Then she should as quickly as possible reconfirm Mueller’s appointment and her confidence in his investigation. If, for any reason, she differs with Rosenstein or Mueller over the terms or parameters of the investigation she needs to work that out with Mueller quickly. At this moment we foresee no reason why she should need to change the terms of the investigation. But in light of the apparent application of these terms to include the obstruction of justice issue, and Mueller’s relationship with Comey and Rosenstein, both of whom may be witnesses, Brand will need to think this matter through carefully.

Brand is in a very tricky spot. Any departure from Rosenstein’s terms, depending on what those departures are, might be seen to vindicate the President and damage Mueller in some quarters. Confirmation of the terms and of the investigation more generally might well infuriate the President and lead him to direct his ire at her. And, of course, Trump may well direct that ire at her even if Brand modifies the investigation’s terms, since in any event she is highly likely to reaffirm at least the vast majority of it. The only thing for her to do is to call ‘em like she sees ‘em and be willing to walk for the last time out of the building every day with her head high, knowing that she conducted herself as best she can independently of any of the various pressures she faces and consistent with her understanding of the traditions of the Justice Department and its regulations.

Finally, Mueller needs to prepare for the possibility that he might be fired. Yesterday, the president tweeted about him:

Today he blasted Rosenstein for allowing Mueller’s investigation to continue. Mueller needs to operate every day as though he might not be there tomorrow—and as though his office might not either, since the President may decide that he has the authority to rescind the regulation under which he and ultimately his staff were appointed. You conduct an investigation very differently if you know you’ll be able to finish it than if you’re aware every day that it might be your last in office. Without knowing the details of the investigation, what it is looking at, what it has found already, or what Mueller’s investigative plan looks like, it is impossible to suggest how Mueller should handle the possibility of his own removal, except to say this: He needs an active plan for what happens if and when Trump pulls the trigger. If she assumes the role of Acting Attorney General for purposes of this investigation, Brand and her staff need to work with him on developing that plan and making sure it can be implemented even without Mueller—and even without Brand herself.