OPINION: Do Rosenstein’s Conflicts Render Mueller’s Investigation Unconstitutional?

John D. O'Connor | Attorney

Recent headlines blared the May 2017 discord between Deputy Attorney General Rod Rosenstein and interim FBI Director Andrew McCabe, reports which have caused loud continuing cries from the House for an explanation.  

The articles emphasized the dispute between the two over whether, as McCabe claimed, Rosenstein voluntarily suggested he wear a “wire” to investigate President Trump’s potential disability under the 25th Amendment.

But this aspect of the contretemps has little lasting significance and is correctly seen mainly as amusement for the chattering class.  The truly significant — indeed, earthshaking — part of the dispute has not drawn meaningful comment, unsurprisingly, considering the sorry state of modern journalism.

In short, Rosenstein and McCabe argued heatedly, in the presence of newly-appointed special counsel Robert Mueller, as to which of the two should recuse himself from the Russiagate Investigation. Mueller, The Washington Post reported, pronounced himself satisfied with Rosenstein’s supervision.    

But no report has suggested that McCabe or Mueller, or for that matter Rosenstein, ever asked for a DOJ ethics opinion on Rosenstein’s supervision. The Post reports implied that Mueller’s “acceptance” of Rosenstein’s supervision was provisional, and not irreversible.  

To be sure, the dispute over whether Rosenstein truly volunteered to wear a wire has some present significance, but not as to the 25th Amendment. What it shows is that Rosenstein was drinking the Comey/Brennan Kool-Aid, and therefore by inference likely bought into the questionable notion that Comey’s firing was itself potentially an obstruction of justice.     

The more enduring and, for present purposes, more critical issue is whether Rosenstein in May 2017 had, and continues presently to have, a disabling conflict of interest as the partisan, but not unintelligent, McCabe had so vehemently asserted.  

What Rosenstein’s most damning conflict of interest is, and how profoundly it affects the present investigation, though, is not widely and well understood.

Many point reflexively to Rosenstein’s signing of the third and final FISA warrant application to spy on the Trump campaign. If Mueller, however, had intended to investigate this shamefully fraudulent CIA/FBI FISA probe, former CIA Director John Brennan would now be comparing orange jumpsuits with Paul Manafort.  

Far more significant for conflict purposes is Comey’s firing, which, clearly, Mueller is investigating as obstruction of justice — a stretch, to be sure, but a claim that nonetheless has his team of partisan Democrats salivating. If Trump’s firing of Comey, however, constituted illegal obstruction, then wasn’t Rosenstein necessarily a co-conspirator in this obstruction?

Clearly, he had some communication with the White House before writing the recommendation to fire Comey.

In a sideways admission of guilt, Rosenstein reportedly complained to his associates that Trump may have set him up by this assignment. Rosenstein’s memo could thus be viewed as a Trumpian pretext to stop the Russiagate investigation.

Certainly, though, under Mueller’s apparent theory, Rosenstein knew in advance of the likelihood of Comey’s removal and therefore assisted the president in this illegal termination. So, if this theory of obstruction is accepted, Rosenstein is a potential criminal and, unlike Trump, can be indicted under DOJ rules.

But even assuming that there was a statutory basis for appointment of a Russiagate special counsel, no honest, competent DOJ supervisor would have permitted investigation of Manafort and his assistant Rick Gates, nor for that matter the Michael Cohen inquiry.  

The special counsel statute allows an investigation into the alleged crime creating the conflict of interest, and related process crimes such as perjury and obstruction. The Manafort crimes are not related and certainly not within Rosenstein’s original appointment, notwithstanding his sheepish acquiescence when Manafort’s prosecution was challenged. And does anyone believe that Mueller had not been investigating Cohen’s taxi medallions when he sent the case to the U.S. attorney?

Again, this had nothing to do with Russia, and yet Rosenstein rolled over.  Likewise, the local prosecution of Cohen’s partner seemingly bore the fingerprints of Mueller’s team.

Rosenstein’s clear abandonment of any attempted supervision, unfortunately for our justice system, shows that his conflicts of interest had effectively disabled him.

Instead of being supervised, Mueller, in essence, had full control over Rosenstein; not vice-versa, with his unspoken power to recuse his “supervisor”; in effect, terminating his employment and to indict him.  

Because there was no reason to believe a crime had been committed causing a conflict, the appointment of Mueller was clearly improvident under the special counsel statute.

More significantly, because Rosenstein apparently failed to disclose his disqualifying conflicts to appropriate authorities, under basic legal principles his fiduciary fraud makes voidable his acts materially affected by the conflicts, including his appointment of Mueller and his supervisorial decisions.  

But Rosenstein’s ill-conceived actions — improvidently appointing a special counsel to investigate imagined crimes for which Rosenstein himself could be indicted — are more than stupid, fraudulent and violative of the special counsel statute. They raise a serious constitutional issue going to the heart of our electoral democracy.  

Because Mueller has not had a true supervisor, given effective carte blanche, he has in sum and substance assumed the full powers of the attorney general, at least as it pertains to the wide swath of his investigation, a scope, not incidentally, as wide as Mueller decides it is.  

This dysfunctional arrangement violates the appointments clause of the Constitution. It is the duly elected president, under the Constitution, who has the sole power to appoint an attorney general and other executive branch officials.

 This observation does not impeach Mueller, whose job is to be a hammer as to which all else are nails. By presiding over and deciding the quarrel between McCabe and Rosenstein, however, he demonstrated that Rosenstein was a “supervisor” in name only, so compromised and so much under Mueller’s control as to have abandoned his constitutional duties in favor of Mueller.

So when Mueller’s team issues its expected scathing report on its investigation, possibly to be considered for Trump’s impeachment by a new “blue wave” House, we should keep in mind that the entire process has been tainted by unconstitutionality.

Ironically, an investigation to root out subversion of our constitutional electoral system has resulted in a gross subversion of our constitutional system of justice.

Unfortunately for Rosenstein, the recent reports of his dispute with McCabe flesh out the public’s knowledge of his motivations.  

While many knowledgeable observers see no illegality in Trump’s firing of Comey, Rosenstein and others, like McCabe and Comey, viewed it as criminal and thus warranted a special counsel. But by so determining, Rosenstein necessarily, by his own fallacious reasoning, became an indictable co-conspirator.

We hope that House investigators will have asked Rosenstein why his appointment of Mueller is not voidable because of his seeming fraud in not disclosing his egregious, disqualifying conflict. And given this disabling conflict, why he thinks he has meaningfully supervised the special counsel, as required by the statute and the Constitution. And, finally, given the above, how he can claim that this investigation passes constitutional muster.

John D. O’Connor is the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the co-author of “A G-Man’s Life: The FBI, Being ‘Deep Throat,’ and the Struggle for Honor in Washington” and is a producer of “Mark Felt: The Man Who Brought Down the White House” (2017). He can be contacted at johnoconnorlaw@gmail.com


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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