Just a few months ago, President Donald Trump was attacking Deputy Attorney General Rod Rosenstein as “totally conflicted” in his oversight of Special Counsel Robert Mueller’s Russia investigation. He retweeted a Photoshopped image that depicted Rosenstein behind bars, suggesting he should be jailed for treason. And he wrote that Rosenstein appeared to be “planning a very illegal act” with the deputy FBI director, Andrew McCabe, in the early days of his administration, when the pair reportedly discussed ways to remove him from office.
In the wake of Attorney General William Barr’s memo, however—in which Barr, in consultation with Rosenstein, concluded that Trump did not obstruct justice—Trump’s allies are characterizing Rosenstein as a nonpartisan professional whose input legitimized the “no obstruction” finding. Legal experts, however, have questioned the appropriateness of Rosenstein weighing in, given the role he played in former FBI Director James Comey’s firing. That episode has been at the center of Mueller’s obstruction inquiry, which ended after nearly two years without Mueller making a final determination as to whether or not the president committed a crime. According to Barr, Mueller concluded that the obstruction question touched on “difficult issues” and chose not to resolve it. Mueller therefore left the findings to two political appointees, Barr and Rosenstein, to interpret, despite the original purpose of his appointment—to make findings free from political influence.
The Justice Department did not return requests for comment.
Corey Lewandowski, Trump’s former campaign manager, who remains a close confidant, said he believes Mueller left the obstruction question up to Rosenstein on purpose. “He couldn’t make the decision, so he turned it over to his boss, Rod Rosenstein,” Lewandowski said. He added that while Rosenstein is “no fan” of Trump, he’s also not a “hack.” “He’s the one who ultimately made the decision, in consultation with Barr, that there was no obstruction based on the evidence they were given from Mueller,” he said.
Mark Corallo, who served as the Trump legal team’s spokesman until July 2017, said he believes Rosenstein’s involvement in deciding whether or not Trump obstructed justice only “strengthened the conclusion” reached by Barr. “This guy is a career prosecutor, highly regarded, follow-the-facts public servant,” said Corallo, who served as public-affairs director at the Justice Department under former President George W. Bush.
And Rudy Giuliani, one of Trump’s lead outside lawyers, told The Atlantic that Rosenstein’s role should ease any suspicions that political lackeys gave Trump a favorable ruling. After appointing Mueller, Rosenstein gave the special counsel ample freedom to conduct a tough investigation, Giuliani said. Rosenstein was “supervising the investigation,” Giuliani said. “He could have stopped all those things. He didn’t. He let Mueller do everything Mueller wanted to do to get an answer, if it was there, that might be unfavorable.”
He added: “For the doubters, the fact that Rosenstein agrees with it [the conclusion that Trump did not obstruct justice] makes it that much more acceptable to people who want to criticize.”
Rosenstein’s tumultuous tenure as deputy attorney general has been punctuated by attacks from the president—who has called him “weak”—and spats with GOP lawmakers. House Freedom Caucus Chairman Mark Meadows went so far as to file articles of impeachment against Rosenstein last summer. After then–Attorney General Jeff Sessions recused himself from the Russia probe in early 2017, Rosenstein became the one person capable of firing Mueller directly. However, far from entertaining Trump’s characterization of the Mueller probe as a “witch hunt,” Rosenstein quietly defended the special counsel and pushed back on some requests from Trump’s allies in Congress for sensitive, Russia-related documents.
Even so, Rosenstein’s role in clearing Trump of obstruction has raised eyebrows among some legal experts, given his involvement in Comey’s dismissal in 2017. Mueller reportedly investigated that episode as a possible effort by Trump to derail the Russia probe, which Comey was in charge of at the time. According to both The New York Times and a recently released memoir by McCabe, Trump drafted a letter before firing Comey that outlined why he wanted him gone, and mentioned the Russia investigation. Rosenstein saw Trump’s letter during a meeting in the Oval Office, but then wrote a separate memo for the president about why Comey should be fired that centered on his handling of the Hillary Clinton email investigation. Trump ultimately used the Rosenstein memo to justify Comey’s firing, despite later telling NBC that he fired Comey over “this Russia thing.”
It’s still unclear whether Rosenstein was ordered to write the memo, as McCabe has claimed, or volunteered to write it—he has said that he stands by it and believes what he wrote. But Rosenstein was distraught that his memo was being used as the justification for Comey’s firing, according to the Times, and reportedly considered wearing a wire in the Oval Office to record the president’s interviews with candidates to replace Comey. Rosenstein also discussed invoking the Twenty-Fifth Amendment against Trump to remove him from office, McCabe told The Atlantic, prompting Trump to tweet that Rosenstein and McCabe were planning a “very illegal act.” Rosenstein said in a statement last year that he never “pursued or authorized” recording the president, and that “any suggestion that I have ever advocated for the removal of the President is absolutely false.”
In any case, Rosenstein’s involvement in the conversations and events surrounding Comey’s firing made him a key witness in Mueller’s obstruction probe, experts say—and raised immediate and ongoing questions about whether Rosenstein should have continued overseeing the investigation. “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 in an interview.
“It compromises the conclusion that they did not find a criminal act, because it gets Rosenstein off the hook in several ways,” Shugerman added. “It means he’s not a witness anymore, and that he didn’t participate in criminal activity, because there was none.”
Daniel Hemel, a law professor at the University of Chicago, said, “The notion that Rosenstein’s involvement legitimizes the ‘no obstruction’ finding is an idea straight out of Alice in Wonderland. Adding a second conflicted decision maker to the process makes it worse, not better.” (The first “conflicted decision maker” Hemel was referring to is Barr, who wrote an unsolicited 19-page memo to the Justice Department last year, calling Mueller’s obstruction probe “fatally misconceived.” He was then appointed to oversee that probe by its main target—the president.)
Rosenstein was slated to leave the Justice Department in March, but will now stay on indefinitely, according to NBC. The hearings for his replacement, Jeffrey Rosen, are scheduled for later this month.
Harry Litman, a former U.S. attorney in Pennsylvania who also served as deputy assistant attorney general under former President Bill Clinton, said, “From the start, Rosenstein has obviously been a witness in the key episode—the Comey firing.” But the bigger question, Litman said, is whether Rosenstein “was enlisted to bolster a very anomalous move” by Barr—namely, his decision to clear Trump of obstruction, despite Mueller’s reluctance to do so.
For now, Trump is feeling emboldened by the conclusions set forth in Barr’s memo, but the memo was not an “exhaustive summary” of Mueller’s findings, Barr told lawmakers in a letter last week. The attorney general said he would release a public version of the report in mid-April, but House Judiciary Committee Democrats voted on Wednesday to subpoena the full report without any redactions. Trump, meanwhile, has been hinting that he opposes the release of the full 400-page report. “The problem is, no matter what the Radical Left Democrats get, no matter what we give them, it will never be enough,” he tweeted last weekend. “So maybe we should just take our victory and say NO, we’ve got a Country to run!”
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