While Washington digests the long-awaited report on the performance of the FBI and Justice Department during the 2016 campaign, separate revelations convince former federal prosecutor Andrew C. McCarthy that Deputy Attorney General Rod Rosenstein must recuse himself from the Mueller investigation over a clear conflict of interest.
McCarthy’s conclusion follows a Fox News report that Rosenstein has threatened to subpoena emails, phone records and other data from lawmakers and congressional staffers in response to the withering criticism from Republicans over Rosenstein’s failure to produce documents they have subpoenaed.
“He’s clearly in an untenable situation, even if this had not happened,” said McCarthy, who led the prosecution of Sheik Omar Abdel Rahman and others for the 1993 World Trade Center bombing and conspiracy to attack other New York City landmarks.
He says Rosenstein cannot possible oversee an investigation in which he is a critical witness.
“It’s been obvious for awhile now, really since the day that he appointed Mueller, since that event was triggered by Comey’s dismissal. Rosenstein has always been an essential witness if you’re going to investigate Comey’s dismissal as a potential criminal violation,” said McCarthy, who added that he sees no reason for such an inquiry.
“It’s pretty black letter conflict of interest law that where an attorney is an actor in the facts of an investigation, he can’t as a lawyer for one of the parties in the case. It’s a conflict of interest that can’t be solved,” said McCarthy.
McCarthy says Rosenstein is further entangled by playing conflicting roles as Congress examines how the Obama administration monitored the 2016 Trump campaign.
“You have a bunch of FISA warrants that were issued, the last one of which was issued on the approval of Rosenstein himself. So he’s yet again in a position of acting as the attorney general in connection with an investigation where his own behavior is the subject of scrutiny,” said McCarthy.
According to McCarthy, Rosenstein was well within his rights to initially go slow in releasing classified documents to Congress and even making an argument as to why some of the requested documents should not be turned over. But he says Rosenstein now appears to be running out the clock.
“It’s now gotten to the point where this is really over-the-top stonewalling,” said McCarthy, who stressed that the Justice Department does not have the power to ignore congressional demands.
“They cannot be beyond oversight and scrutiny. Basically, the position they’re taking is that they’re an unaccountable fourth branch of government, and that’s simply not acceptable,” he said.
And it’s those allegedly glaring conflicts of interest that McCarthy suspects has Rosenstein frazzled and lashing out with threats against lawmakers and their aides.
“It ratchets up the scrutiny that you’re under and you’re apt to make mistakes and to do the sort of things it’s now been reported that he’s done, including flying off the handle in a very inappropriate way with [congressional] investigators,” said McCarthy.
A Rosenstein recusal would likely cause a political uproar in Washington. The oversight for the Mueller probe would fall to the solicitor general, the No. 3 official at the Justice Department. And while the move would cause turmoil, McCarthy says Rosenstein’s responsibility is to do the right thing.
“When you’re making a decision about conflict of interest, the question you’re supposed to answer as a lawyer is, ‘Do I have a conflict of interest?’ It’s obviously a matter of importance what happens after you’re gone, but if you’re disqualified, you’re disqualified.
“The question of whether you have a conflict or you don’t have a conflict doesn’t hinge on whether it’s going to be difficult to replace you or not,” said McCarthy.