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June 13, 2018

Andrew McCarthy: If There Were Any Question That Rod Rosenstein Had a Conflict of Interest in the Russia Probe, His Threat to Subpeona Congressmen to Get Them to Stop Doing Oversight On Him Should Dispel Any Remaining Doubts

You don't allow people with conflicts of interest to act as judges or prosecutors in a case. Their emotional/personal attachments in the matter may cloud their judgment and cause them to behave unprofessionally, unethically, and even illegally.

Threatening retaliation subpoenas against Congressmen doing lawful, constitutional oversight, because you want to protect your friends or yourself, is the kind of thing that people with conflicts of interest do.

[R]osenstein has clung to his role as Mueller's ostensible supervisor in the investigation notwithstanding that he is a central witness in Comey's dismissal. He authored a memorandum that, ironically, posits that a troubled official’s removal was necessary "to restore public confidence" in a vital institution. The Trump administration used Rosenstein’s memo to justify Comey’s firing even though there are salient questions about whether it states the true rationale for the firing -- precisely the questions Mueller is investigating.

Conflicts of interests can be tough to analyze because some are contingent and hypothetical. Others, however, are obvious and straightforward. In the latter category are "actor on the stage" conflicts: If a lawyer is an important participant in the facts that form the subject matter of a controversy, he is a witness (at the very least) whose actions and motives are at issue. Therefore, he is too conflicted to act as an attorney representing an interested party in the controversy.

To point this out is not to attack Mr. Rosenstein’s integrity. I do not know the deputy attorney general personally, but people I do know and trust regard him as a scrupulous person and professional. That's good enough for me. And indeed, while I disagree with his appointment of Mueller (because it was outside DOJ regulations), his impulse to appoint a special counsel suggests that he perceived an ethical problem in directing an investigation that would have to scrutinize his own conduct. That is to his credit.

Nevertheless, it is not to his credit to threaten members of Congress with Justice Department subpoenas for their emails and phone records. It suggests that the conflicts under which he labors are distorting his judgment. And in any event, to point out that a lawyer has a conflict is not to assert that he is acting unethically. A conflicted lawyer recuses himself not because he is incapable of performing competently but because his participation undermines the appearance of impartiality and integrity. In legal proceedings, the appearance that things are on the up and up is nearly as important as the reality that they are.

I'd say McCarthy is being charitable in suggesting that the subpeona threat merely gives rise to an appearance of impropriety. Though his article does then argue that Rosenstein's threat was outrageous.

He asks some salient questions:

On what basis is the Justice Department still withholding some documents and massively redacting others; and when will President Trump, instead of blowing off Twitter steam, finally order his subordinates to comply with lawful congressional demands for information? If there were credible allegations that a Republican administration had spied on a Democratic campaign, we would not be hearing precious concerns about the viability of the Justice Department and FBI as critical American institutions; in unison, the media and the political class would be demanding transparency.

Finally, note that Attorney General Sessions was counseled by Justice Department officials (none of them Trump appointees) to recuse himself under circumstances in which (a) there was no criminal investigation (which the regulations call for in recusal situations); (b) his contacts with Russian officials were not improper; (c) there was scant evidence of criminally actionable collusion between the Trump campaign and Russia; and (d) Sessions apparently had no involvement in approving FISA surveillance of Trump officials, and had less involvement than Rosenstein did in Comey’s firing.

On what planet is it necessary for Jeff Sessions to recuse himself but perfectly appropriate for Rod Rosenstein to continue as acting attorney general for purposes of both the Mueller investigation and Congress’s probe of Justice Department investigative irregularities?


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posted by Ace of Spades at 01:51 PM

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