Will Rosenstein recuse himself from overseeing special counsel probe? Not at this point, DOJ says

Legal Ethics

Deputy U.S. Attorney General Rod Rosenstein


The U.S. Justice Department says Deputy Attorney General Rod Rosenstein has no immediate plans to recuse himself from overseeing the special counsel’s investigation into Russian influence, though he reportedly told colleagues he may need to take that step.

Anonymous sources tell ABC News and the Washington Post that Rosenstein has acknowledged in private conversations that he may have to step away from supervising the investigation by special counsel Robert Mueller. ABC was the first to report the news.

But Justice Department spokesman Ian Prior issued a statement on Friday saying Rosenstein remains in a supervisory role, at this point. “As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will,” Prior said. “However, nothing has changed.”

Rosenstein could be a witness in the investigation he is overseeing if Mueller has expanded his probe of Russian influence to investigate whether Trump obstructed justice by firing FBI director James Comey. Mueller may want to learn about Trump’s conversations with Rosenstein, the Justice Department official who wrote the memo criticizing Comey’s performance before his firing on May 9.

Trump appeared to confirm he was being investigated for obstruction in a tweet on Friday that read: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt.”

Harvard law professor Noah Feldman argues in a Bloomberg View article that Trump’s tweet could force Rosenstein’s recusal because of his suggestion that Comey’s firing was Rosenstein’s idea. That would leave supervision of the Mueller probe to Associate Attorney General Rachel Brand, a a Harvard law graduate who clerked for Justice Anthony M. Kennedy and ran the Office of Legal Policy at the Justice Department.

Brand is “a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller,” Feldman says. He speculates that her attitude may be “more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence.”

According to the ABC report, Rosenstein discussed his potential recusal with Brand and told her she would have to take over his role if he did so.

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