Deputy Attorney General Rod Rosenstein appointed Special Counsel Robert Mueller to lead the Russia investigation, and he oversaw the probe until his boss, Attorney General Jeff Sessions, was forced to resign from the Justice Department.
But as the end of the investigation becomes ever more mired in controversy — driven by the actions of Attorney General Bill Barr and his lack of transparency — Rosenstein’s absence from the public stage is growing increasingly conspicuous.
Some of Barr’s most controversial decisions involve Rosenstein directly. In his letter summarizing the “principal conclusions” of the investigation, Barr said that Mueller had declined to reach a decision about whether President Donald Trump had committed the crime of obstruction of justice in the course of the probe, the special counsel left “it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” (It is far from clear this is what Mueller intended, however; many suspect he wanted Congress to make the final judgment.)
Barr said that he and Rosenstein together reached the conclusion that there was not sufficient evidence to conclude Trump obstructed justice.
Since this letter has come out, though, we have yet to hear publicly about Rosenstein’s thoughts on the matter from the man himself. (The Justice Department did not respond to a request for comment by the time of publication.)
This is significant for several reasons. Rosenstein, as the official who deemed it necessary to appoint Mueller in the first place, has more credibility than Barr in the investigation. He was also a much more bipartisan pick to supervise the investigation — he was confirmed by a vote of 94-6 in the Senate, while Barr’s nomination was approved in a divisive 54-45 vote. The deputy attorney general consistently defended the investigation even as Republicans and the president maligned and attacked him. From this perspective, if he spoke out and affirmed Barr’s decisions, it could give them more credibility.
On the other hand, Rosenstein is in some ways even more conflicted than Barr. Arguably, Barr should have recused from the investigation because he drafted a memo attacking Mueller’s investigation the summer before he was appointed to the head of the Justice Department. But there’s an even clearer reason why Rosenstein should have been recused from the obstruction investigation: He is a key witness in any case against the president.
That’s because it was Rosenstein who wrote the justification that Trump used to fire former FBI Director Jame Comey. Comey was then overseeing the Russia investigation in May 2017, and while Rosenstein’s memo argued for his ouster because of his actions during the Hillary Clinton email case, Trump later admitted on TV that he fired the director because of “the Russia thing.”
This act triggered the obstruction investigation. But while Rosenstein was involved in this central act, he still oversaw the investigation for nearly two years, and we have now learned that he was a part of making the final decision about whether Trump’s behavior was criminal.
“It is very odd for someone to be supervising the investigation for which they are a witness, let alone a central witness to the underlying act,” Jed Shugerman, a professor at Fordham Law School, told The Atlantic. “It compromises the conclusion that they did not find a criminal act, because it gets Rosenstein off the hook in several ways.”
While this issue had been discussed in media, few major figures publicly called for Rosenstein’s recusal — perhaps because, for the reasons mentioned above, he was viewed as being almost uniquely credible. Now that assessment must be revisited. (Sessions, the attorney general at the time of Mueller’s appointment, was recused because he was involved in Trump’s campaign. For that very reason, though, it seems he shouldn’t have been involved in Comey’s firing, as he was.)
And in recent days, multiple outlets have reported that members of Mueller’s team are fuming about Barr’s handling of the investigation’s final report, believing he has misled the public about how damaging the findings are for the president. In response, Barr’s Justice Department appears to be going on offense. This only makes the fact of Rosenstein’s absence from the public stage even more troubling — is he really going to sit back while his boss and the vital investigation he oversaw are feuding?
This is particularly perplexing because Rosenstein was initially expected to leave the Justice Department in March. CNN reported in mid-March, though, that he decided to stay on longer to be a “heat shield” for any “fallout” from the Mueller probe.
Right now, he doesn’t seem to be absorbing any heat. So why did he stick around?
All of these circumstances surrounding the still developing conclusion of the Russia investigation make it paramount that Rosenstein come forward, address the concerns, and provide satisfactory answers. Congress is already preparing to have Barr testify, and Mueller will almost certainly be called before lawmakers. Rosenstein, too, must make an appearance and explain his actions to the American people.