By Raymond C. Gerard
Gerard Law, P.C.
New Reasons For The Recusal of Rod Rosenstein
As early as June of 2017, according to a published report by ABC News, Deputy Attorney General Rod Rosenstein had advised his colleague, Associate Attorney General Rachel Brand, that he might need to recuse himself from his supervisory role over the Mueller investigation. In the interim, he has not found sufficient grounds for such a recusal, but should he do so at some point, the high-profile question would instantly arise as to who would then oversee the Mueller team. With the resignation last week of Ms. Brand, the person next in line for such a responsibility, purportedly for fears over this prospect, the question takes on even more vibrant significance.
It has publicly been suggested, including in a recent opinion piece by Alan Dershowitz, that Rosenstein may have good reason to recuse himself. The reasons usually given relate to the fact that Rosenstein was directly involved in the firing of former FBI Director James Comey. He authored a memo that may or may not have been instrumental in the decision to terminate Comey’s services. Should the Mueller team turn their attention to possible obstruction of justice charges against the President, Rosenstein could become an important witness. In that event, potential conflict of interest issues would be front and center, and the only way to adequately remove them would likely be recusal.
Recent events, however, provide a new and more powerful reason. The now famous “memo” released by the House Permanent Select Committee on Intelligence (HPSCI) discloses some facts that change the way this question should be viewed. That memo states that Rosenstein signed “one or more” of the FISA warrant applications. FISA, the Foreign Intelligence Surveillance Act, requires that the Attorney General, or as in this case the Deputy Attorney General, approve an application to the FISA Court. He or she must represent to the Court that the application satisfies various requirements listed by FISA. Among those requirements is that the Court be told “a significant purpose of the surveillance is to obtain … information necessary to the ability of the United States to protect against … clandestine intelligence activities by an intelligence service or network or a foreign power or by an agent of a foreign power.”
The HPSCI memo also reveals that the FBI knew, at the time of its first FISA warrant application on October 21, 2016, that the famous “dossier,” which formed an “essential part” of the FISA application, was paid for by the Democratic National Committee and the Hillary Clinton campaign. One month earlier, in September, 2016, Christopher Steele, the author of the dossier, during a conversation with another DOJ attorney, Bruce Ohr, admitted to being “desperate that Donald Trump not get elected”and “passionate about him not being president.” Further, the dossier had not yet been corroborated. An FBI official testified to the HPSCI that corroboration activities were then in their infancy. Subsequently, investigation into the dossier was conducted by the FBI, but the only conclusion reached was that the corroboration of the dossier was “minimal.”
Facts such as these raise the question as to whether a “significant purpose” of the FISA warrant application was for the protection of the vital interests of the United States or something else. Surely, if the allegations in the dossier were not even corroborated, and if there were questions regarding the motivation and reliability of the confidential source being used, the question should be asked whether it was a fair and impartial assessment of national risk that led to the FISA warrant being sought.
In addition to the HPSCI memo, a memorandum issued by Senator Charles Grassley, of Iowa, and Senator Lindsey Graham, of South Carolina, disclosed that there were a total of four FISA applications, the initial one in October, 2016, and three subsequent renewals in January, April and June, 2017. It is likely Mr. Rosenstein signed one of the later renewals. By that time, however, the circumstances regarding the credibility of Mr. Steele had grown even worse, the FBI having terminated its relationship with him because he had conducted numerous interviews with media outlets, thereby violating a “cardinal rule” of the FBI, and further indicating that his purposes were more agenda-driven than not.
Like any other executive branch official, Mr. Rosenstein is governed by the basic ethical standards found in 5 CFR 2635.101. They provide that such officials “act impartially and not give preferential treatment to any private organization or individual.” They further provide that such officials “shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards in this part.”
It is the appearance of conduct partial to certain interests that is the relevant concern here. Certainly, it is not out of place for an official to participate in a search warrant application and then participate in the subsequent prosecution of any wrongdoing found through that warrant. The reason, however, such an occurrence is not out of place is that there often is not a question surrounding the acquisition of the warrant. Where there is a question regarding the warrant, there is also a question regarding the prosecution.
Here the questions are not to be casually dismissed or lightly taken. They require attention. Here the questions go to the very basis for the rules governing the appearance of impropriety – confidence in our legal system. If the people of this country come to have justified concerns about the actions of people at the highest levels of our government, then personal interests of retaining authority must give way to the more important needs of preserving public confidence.
Attorney General Sessions recused himself for precisely such reasons. He could have acted differently. He could have maintained that his involvement with the Trump campaign would not interfere with the impartiality of his judgment or, should he have decided to appoint a special counsel himself, that the public perception of the investigation into Russian electoral interference would not likely be harmed. It was presumably for similar reasons that Attorney General Loretta Lynch did not recuse herself from the Clinton email investigation, even though she had participated in the famous “tarmac meeting” with former President Clinton. Still, it is better to protect the public trust than not.
Here, the public confidence is rightly a concern. There are legitimate questions regarding the FISA warrant applications, particularly the later ones. Could people not ask, if allegations had not been checked, should the FBI not have waited until they were before taking action on a warrant? Should not the FBI have been wary of the risk that the allegations being pursued were simply allegations coming from one campaign against another? Should that not have given the FBI even more reason to check the veracity of the allegations?
In June of 2017, when Mr. Rosenstein was perhaps first considering recusal, the public did not yet know that he had signed at least one of the FISA applications, nor that the dossier had even been used in the applications, nor that the DNC and the Hillary Clinton campaign had paid the author of the dossier. Now the public is aware of such matters. They change the equation on Mr. Rosenstein’s recusal.