President Donald Trump’s tweet Friday struck many of Deputy Attorney General Rod Rosenstein’s friends and colleagues as a bid to get him to drop oversight of the special prosecutor investigation into Trump and his campaign’s contacts with Russian officials, but Rosenstein’s allies insist he won’t buckle under such pressure.
“I think Rod’s going to be able to handle whatever position he’s put in and do what the job calls for. Tweets are not going to change how he approaches something,” said Jan Miller, a former U.S. attorney in Illinois who earlier spent time working with Rosenstein in the Maryland office. “I know it sounds somewhat trite, I suppose, but it’s just the way it is. He’s going to do what needs to be done.”
However, other Rosenstein friends noted reports that he complained bitterly to the White House last month when Trump aides said the president fired Comey at Rosenstein’s instigation.
One lawyer who is involved in the case and knows Rosenstein well said the veteran prosecutor is a mix of furious and amazed at Trump’s tweets.
“I think he will hit his breaking point soon with this guy,” said the Rosenstein associate, who asked not to be named.
The president has tweeted repeatedly this week about the investigation, which has expanded to include Trump’s firing of FBI Director James Comey last month. “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt,” Trump tweeted Friday morning, apparently referring to Rosenstein and his role in preparing a memo that was used to justify Comey’s dismissal.
Trump’s morning tweet reverberated in legal circles, where many viewed it as encouragement that Rosenstein recuse himself from overseeing the investigation being led by Special Counsel Robert Mueller. Some said the Twitter message could even be a prelude to Rosenstein’s resignation or firing.
“The objective may be either forcing him to leave his position or putting the entire investigation under someone other than Rosenstein. That person then using their ‘independent judgment’ removes Mueller,” said Richard Painter, former White House ethics counsel under President George W. Bush. “That is what I’m very worried about. … This is a problem. The president is going to try to take advantage of this to put someone in there other than Rosenstein who will try to fire Mueller without any of Trump’s fingerprints on it.”
Other lawyers said that while Trump’s tweet contained some dubious factual premises, the president was correct that Rosenstein played a significant part in at least some of the events that Mueller’s team appears to be looking into.
“Trump has a point,” said Kathleen Clark, a top legal ethics expert and law professor at Washington University in St. Louis. “In some ways, this is a savvy tweet. There’s at least a partial truth to it and raising questions with the public about Rosenstein undermines the public credibility of the entire endeavor of investigating Trump. However, like a lot of things Trump says, it’s not entirely accurate.”
Clark noted that Rosenstein isn’t actually doing the investigating and it is unclear whether Rosenstein told Trump to fire Comey. Rosenstein endorsed the decision, but Trump has said he actually made up his mind to fire Comey before meeting with Attorney General Jeff Sessions.
However, Clark and other ethics experts have said Rosenstein may need to recuse himself from some or all of the Mueller probe if it delves into the Comey firing — a topic many lawyers believe Mueller cannot avoid.
“If reports Mueller is investigating the president for obstruction of justice are true, when there are any reports [from Mueller] at least regarding the firing of Comey … Rosenstein is not going to be able to participate and will have to recuse at that point,” Clark said.
Painter said Rosenstein might be able to retain general authority over Mueller’s probe, but step back from assessing any of the investigative decisions.
“He shouldn’t be involved in any of the substantive decisions about the obstruction of justice part of the probe,” Painter said. Rosenstein “was used to obstruct. He’s a material witness. I don’t think he engaged in conduct sufficiently serious that he could be guilty of obstruction, but it’s close enough that he shouldn’t be involved.”
Justice Department spokesman Ian Prior declined to comment on Trump’s tweet. He said Rosenstein isn’t planning to recuse himself from the matters Mueller is probing, but also won’t rule out doing so.
“As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will. However, nothing has changed,” Prior said.
Jim Trusty, a former head of the Justice Department’s organized crime division who also worked with Rosenstein in the U.S. attorney’s office in Maryland, said he doesn’t see the tweet as bolstering the case for Rosenstein to bow out.
“To me a tweet like that doesn’t rise to the level of implicating Rod’s impartiality,” said the ex-prosecutor, now a partner at Ifrah Law in Washington. “I don’t view that as something that could lead or should lead to Rod bowing out of the investigation. … I don’t think that tweet puts us there.”
Trust added: “If anyone is able to weather the storm of controversy, opinion, theories and accusations, it’s going to be Rod.”
Trump’s tweet about Rosenstein came just hours after the deputy attorney general released a highly unusual statement Thursday night, warning the public not to trust published reports that rely on anonymous sources.
“Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch or agency of government — with which the alleged sources supposedly are affiliated,” Rosenstein said. “Americans should be skeptical about anonymous allegations. The Department of Justice has a long-established policy to neither confirm nor deny such allegations.”
The deputy AG’s statement did not refer to any specific reports, but appeared to be prompted by a Washington Post report saying Mueller’s probe was looking into whether Trump obstructed justice and another that investigators are interested in Trump’s son-in-law and White House adviser Jared Kushner.
One curious aspect of Rosenstein’s statement is that he has indicated that he hasn’t spoken to Mueller since appointing him last month. A Justice Department official said that again Friday, suggesting that while Rosenstein knows what the FBI was looking at a month ago, he doesn’t have much current insight into what Mueller is focusing on.
Some analysts said Rosenstein’s statement seemed ill-advised because he seemed to be echoing White House talking points about “fake news” and anonymous sources just at a time when the deputy attorney general is trying to insist that he’s making decisions without political interference.
An official at the Justice Department — the U.S. Justice Department, to be clear — said Rosenstein acted without prodding or direction from Trump or the White House.
“This was all Rod. He just decided he needed to do it,” said the official, who spoke on condition of anonymity.
“I’m puzzled by it,” Clark said of Rosenstein’s statement. “It seems Rosenstein is responding to pressure. The specific response here is relatively innocuous, but it wouldn’t be a good sign if the deputy attorney general is responding to pressure from the White House, just in general. … I do wonder what kind of advice he’s getting on messaging.”
Rosenstein’s friends expressed some exasperation with his predicament, saying that it’s increasingly clear that he’s going to be criticized whatever he does.
“To me, it’s kind of exhibit No. 1042 showing that Rod has the ultimate thankless task,” Trusty said.
Josh Dawsey contributed to this report.
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