Now Rod Rosenstein?

The word “stunning” in the twit caught my eye. What had I missed that should have stunned me?

Daniel Hemel is a University of Chicago lawprof, so it’s not as if he should be dismissed as just another lunatic on the twitters. Yet, what could be so horrible about Rod Rosenstein not recusing himself from the Bob Mueller special counsel investigation?

Deputy Attorney General Rod Rosenstein should recuse himself from the probe into the Trump campaign’s ties to Russia and the President’s apparent attempt to obstruct the FBI’s inquiry. Rosenstein himself played a key role in the events at the center of the controversy, and his continued involvement casts a shadow over the ongoing investigation.

Wait, what? Rosenstein was now at the “center of the controversy”? When did that happen?

Put more bluntly: The allegation is that President Trump fired Comey to impede the Russia investigation and then tried to pass it off on Rosenstein.

Well, sure, but that speaks to Trump, not Rosenstein. If Trump blamed Rosenstein for the Lindbergh baby kidnapping, that doesn’t make him involved. It just makes the accusation nuts.

It goes without saying that no Justice Department employee should participate in a criminal investigation if he is himself a person substantially involved in the conduct that is the subject of the investigation. The subject of the investigation (or at least, one significant subject) is whether Trump fired Comey to obstruct justice and then tried to cover it up by enlisting Rosenstein.

Bearing in mind that this comes from a person who is charged with, paid for, the teaching of inchoate lawyers, the only thing stunning about it is the utter lack of reasoning. Rosenstein was asked to give his opinion on Comey’s handling of the Clinton emails and he did. Whether his opinion played a role, any role from persuasive to cover, for the decision to fire Comey has no logical nexus to anything else.

Yet, Hemel, without even making an effort to draw a rational connection, inexplicably draws a line from Rosenstein’s view of Comey’s actions to Trump’s secret, and potentially corrupt, motivations. This, by some incredible voodoo, makes Rosenstein “substantially involved”? Hemel nails his argument down:

How is Rosenstein not a person substantially involved in that?

I know, I know. It’s all the rage to use vapid rhetorical questions to prove a point by the absence of proof the it’s wrong. But the question is nuts, as in utterly batshit crazy. Rosenstein has no connection to any allegation relating to Russians on any level. Hemel suggests none, because there is none. The Mueller investigation, whether it’s viewed as a broad mandate or too narrow, is focused on Russian involvement, whether with the campaign for the presidency or other involvement, personal or financial, with the administration.

Perhaps by some extended flight of the butterfly can one connect dots between Rosenstein’s memo on Comey’s handling of the Clinton emails and the Russians, but not by anything factual or rational. There is no intersection whatsoever. There is no connection at all. There is no involvement, substantial or otherwise. None.

But then, Hemel tries to argue that the evil in Rosenstein’s “substantial involvement” comes from his control over the investigation.

While Mueller does have jurisdiction to investigate allegations that President Trump tried to obstruct the FBI’s Russia probe, Mueller remains under Rosenstein’s thumb. Rosenstein, acting as Attorney General following Sessions’s recusal, has control over Mueller’s budget and can decide at the start of any federal fiscal year (the beginning of October) to shut down Mueller’s investigation (see 28 CFR 600.8(a)).

So too, Mueller must inform Rosenstein at least 72 hours in advance of any “major development” in the investigation, which includes not only the filing of criminal charges or the arrest of a defendant, but also the execution of a search warrant or an interview with a significant witness “when the events are likely to receive national media coverage” — which here, they surely are (see 28 CFR 600.8(b) and U.S. Attorneys’ Manual 1.13.000). And Rosenstein has the power to order Mueller not to pursue any investigative or prosecutorial step (see 28 CFR 600.7). This is far too much power for someone so close to the center of an investigation to wield over its direction. (Paragraph broken up for readability.)

Beyond presuming some imaginary malevolent machinations in the statutory controls over special counsel, because Bob Mueller doesn’t get to go nuts, spend money, exceed his mandate or otherwise be untouchable in the scheme of law, there is nothing about Rosenstein’s memo that makes him “too close to the center” to wield discretion. Not only is he not “too close,” but he’s nowhere near the investigation, center, periphery. Maybe the next town over.

Hemel’s “stunning” contention may reflect the depth of passion with which he approaches the Mueller investigation, thought it’s hardly clear why. But that an academic not only characterizes a position so bizarrely irrational as stunning, but promotes the notion that completely disconnected matters that, if one squints really hard, might be seen as remotely related, shows just how crazy the view of life from the Academy has gotten.

Whether one agrees with Rosenstein’s memo (which I find unpersuasive) or not, it deals with specific conduct by Comey, the handling of his public treatment of the Clinton email investigation. What that has to do with anything relating to Russia can barely be imagined, no less argued. The rhetorical trick of shifting the burden to the other side without making a remotely rational argument doesn’t make Rosenstein’s performance of his duty “stunning.” It makes Hemel’s twit unhinged.

The crazy has got to stop. And if the lesson here is that the Academy is too weak and compromised to call out its own when they write such nonsense, then it’s left to the trench lawyers to do so. Leave Rosenstein alone, for better or worse. He’s not part of your political fantasies, and stop trying to turn everybody into a partisan or conspirator.

 

9 thoughts on “Now Rod Rosenstein?

  1. Richard Kopf

    SHG,

    A quick look at Professor Hemel’s bio shows that he teaches tax, he has a bunch of degrees from elite places and three clerkships with highly regarded judges culminating in a clerkship with Justice Kagan. But Professor Hemel has no experience whatever as a prosecutor. He has never been the target of a fastball thrown high and tight near his head.

    For prosecutors (and judges), recusal is all too often the last refuge of cowards who care more about themselves than their responsibilities to the office they hold. I have every confidence, given his reputation and experience, that Rosenstein will recuse himself if the facts and circumstances warrant. In contrast, Professor Hemel wouldn’t know those facts and circumstances if they presented themselves to him on a silver platter. In short, he has zero, zilch, nada experience in the world about which he writes.

    All the best.

    RGK

    1. SHG Post author

      Ironically, if I was Rosenstein, I would give my left nut to recuse myself and get as far away as possible from this thankless morass. No good will of it to anyone within striking distance, so let some poor schmuck down the chain of command take the heat (Brand is next in line). But that would be an abdication of duty, and from my understanding, that’s not the kind of person Rosenstein is. He won’t bail on his responsibility because it’s the easiest way out for him.

  2. pml

    “What had I missed that should have stunned me?”

    This is why you shouldn’t sleep at night, see what you missed.

  3. B. McLeod

    Politics. Race ahead. Trump, who has few friends in DC in either party, will be impeached. It isn’t complex, and all this collateral crap is just a distraction. Blah, blah, blah, blah, blah, blah. Let’s just cut to the chase and see how it comes out.

    1. LocoYokel

      There are a couple of people I work with who are among the deeply passionate, as SHG puts it, who are constantly spouting how Trump is literally Hitler and MUST be impeached this instant, just wait Congress is going to start the process any minute now and he’ll be perp-walked out of the White House.

      I keep trying to explain that Ivanka slapping his hand away as they walk across the runway is not an impeachable event. Furthermore, given that impeachment is so extreme and rare an event I would not put money on him being impeached for anything less than absolute confirmation that he, personally, is colluding with the Russians, and perhaps not even then. It’s just too damaging to the nation and the status of the government and both parties know it. I thoroughly believe he will fail as President and may resign even before his first term is halfway over, if given a chance to do so without being seen backing down, but impeachment may be a stone’s throw to far.

      Feel free not to post this, I just had to rant and get it out. Trying to reach these two is like pissing into a hurricane.

      1. LocoYokel

        Realized after I submitted this that it was Melania that slapped his hand, that is how much attention I am paying to every little Trump tidbit that flies on the interwebs.

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