A news report today sent Washington into another spasm when it appeared that ABC and other news outlets reported that Deputy Attorney General Rod Rosenstein confirmed that he . 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).
He also holds the final word on whether Mueller can continue as special counsel. That gives him a modicum of influence over a Special Prosecutor who could be investigating Rosenstein’s own role in the firing of Comey. Rosenstein could also be a witness on the narrative put out by the White House after the firing — citing Rosenstein as the moving force behind the termination (an account Rosenstein reportedly objected to as false or misleading).
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.
My earlier reservations over Mueller were due to the long-standing and close relationship between Mueller and Comey. Both men share deep professional and institutional history and values. They have shared DNA. In comparison, Mueller has about as much in common with Trump as a wombat.
Mueller and Comey joined in a historical moment that defined both men in a deeply personal way. In March 2004, Comey, who was deputy attorney general, went to hospital bed of Attorney General John Ashcroft to keep him from relenting to demands from White House counsel Alberto Gonzales and others to sign papers reauthorizing the unconstitutional domestic surveillance program.
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.
The Mueller and Comey history in the Bush administration would have been enough for me to scratch off his name from the list of possible special counsels. As the obstruction allegations grew against Trump, so did the discomfort over Mueller’s connections to Comey. The White House has said that Mueller interviewed with Trump for the FBI position to replace Comey. The day before he was made special counsel. Presumably, if this conversation occurred, Trump may have explained why he fired Comey and what he was looking for in his replacement. With obstruction now confirmed as a focus of the special counsel investigation, that makes Mueller a possible witness. It certainly raises the issue of whether Trump shared any thoughts material to his firing of Comey.
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.
None of this is meant to cast aspersions on Mueller. No one has questioned his integrity. However, this investigation is already being discussed as the possible basis for the indictment or impeachment of a president. There should be no questions of motivation or bias as part of such an investigation. There are roughly 1.2 million lawyers in this country. Indeed, in Washington, you can throw a stick on any corner and hit ten out of the over 50,000 lawyers in the city.
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
The views expressed by contributors are their own and are not the views of The Hill.