Do these questions-suggestions, really-point to a genuine problem? The latest example is Sen. Lindsey Graham’s just-released May 31 letter in which he asked Rosenstein if he should recuse himself “from further interactions with and oversight of the Mueller investigation.”
As watchdogs and experts on government conflicts who have advised on thousands of them over a combined half-century of legal practice, the answer is a resounding no. Any suggestion of a disabling conflict at this stage is contrary to ethics rules. Rosenstein’s involvement in the case has quite properly been cleared by Department of Justice career ethics officials – the same individuals who appropriately recommended that Attorney General Jeff Sessions recuse. The fact that Rosenstein may be a fact witness in a case that he supervises does not provide sufficient grounds for his recusal under any of the applicable standards.
We begin with the American Bar Association (ABA) Model Rules of Professional Conduct (which have been adopted, with modifications, by most jurisdictions). Model Rule 3.7 lays out the rules for lawyers as witnesses and bars a lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule protects against a lawyer from being both the source of evidence and an interpreter of it – roles that if conflated could confuse a factfinder and prejudice parties to the proceeding.
To state the obvious, though, Rule 3.7 only bars this dual function at trial – not when a lawyer is involved in an investigation or even in the pretrial stages of a case. To be sure, this rule might bar Rosenstein from serving as an attorney for the government in any criminal trial involving the president’s firing of Comey. But that scenario is extremely unlikely since Rosenstein, the second-highest ranking official in the department, is unlikely to appear as a prosecutor at a trial of Trump (or anyone else). If an obstruction case against the president or others prosecuted by the special counsel went to trial, Rosenstein’s only potential appearance would be as a witness, not as an advocate. At any rate, we are far, far away from such a trial, or even a decision as to whether the president should, and if so could, be prosecuted as a matter of law.
Another ABA Model Rule is also relevant – and yields the same result: that Rosenstein has no present conflict. Rule 1.7 precludes an attorney’s representation of a client in several scenarios, including in those where representation of a client will be “materially limited . by a personal interest of the lawyer.” If Rosenstein were, for example, himself a subject or target of Mueller, this rule would be implicated. But there is absolutely no reason to believe that Mueller is going after Rosenstein at this point, or should. Rosenstein penned a memo detailing Comey’s mishandling of the Clinton investigation, including some valid criticisms. But Trump publicly disclaimed reliance on Rosenstein’s memo when he told NBC’s Lester Holt that he fired Comey because of Russia and would have done so “regardless of recommendation.” Indeed, Rosenstein reportedly threatened to resign after the White House initially suggested that he, not President Trump, was primarily responsible for Comey’s firing.
Nor are we concerned by recent press reports that former FBI Deputy Director Andrew McCabe might have speculated that Rosenstein intended to provide a cover story for Trump. Reportedly, Rosenstein told McCabe that the president asked him to mention Russia in the memo. Another witness apparently says that this was a request that Rosenstein say the president was not under investigation. At any rate, Rosenstein (properly) did not include the reference, so all of this points to Rosenstein serving as a witness, which absolutely does not require recusal at this stage on either Rule 3.7 or 1.7.
What about the ABA’s criminal justice standards for prosecutors? They contain nothing mandating that Rosenstein step aside. Standard 3-1.7(c) does state that a “prosecutor should not participate in a matter in which the prosecutor previously participated, personally and substantially, as a non-prosecutor.” But Rosenstein has here been acting as a prosecutor (albeit a supervising one) throughout. Moreover, this standard is intended to make clear that an individual should not work on a criminal matter as a prosecutor if he or she has, for instance, assisted in the private representation of an individual being investigated. That is not the case here – not remotely.
Finally, some ask whether recusal is required under broader conflict of interest regulations (5 CFR � 2635.502) that apply to all executive branch employees, non-lawyers and lawyers alike. But section 502 only precludes a federal official’s involvement in a matter where that individual has a personal stake in the matter that would cause a reasonable person to question his or her impartiality in the matter, or a limited financial interest. Neither of these circumstances apply to Rosenstein. If he were to become a subject or target of the investigation, he might have a personal stake (or a financial one, since he might need to pay for a lawyer) – but as we have explained, he is far from being a subject or a target. The mere fact that Mueller interviewed Rosenstein last summer does not create a conflict.
Section 502 also counsels all government employees to avoid the appearance of a conflict. Having between us applied this standard thousands of times, we don’t see one here. Supervising prosecutors routinely have fact information about cases, and while the stakes are unusually high here, that fact of life is not. At any rate, when there is an appearance question, 502 permits an agency’s ethics officers to authorize continued involvement in the matter if, after consideration of all relevant circumstances, the officer determines that “the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.” Rosenstein has revealed that DOJ ethicists have approved his continued participation (though whether on this or other bases is unknown).
To be clear, we do not think such a waiver is required — but if one were, we believe the case would be strong for it to be granted. It would be a perverse outcome indeed if Rosenstein’s purported conflicts prevented full investigation of the president’s possible crimes. And make no mistake: Rosenstein is irreplaceable given his decades of experience as a criminal litigator and as a career employee at the department, not to mention the fact that of the top three Senate confirmed leaders of DOJ, he is the only one left who can oversee this matter with the AG recused and the No. 3 slot vacant.
We believe that this analysis addresses Senator Graham’s questions. We doubt it will do so for President Trump and his cronies and enablers. Team Trump continues to employ bogus “conflicts” attacks as part of their ongoing smear of Rosenstein, Mueller, and other law enforcement professionals, while real conflicts of interests in this administration go unchecked. For an administration that could be an indictment or two away from shattering, the president and his defenders are throwing an awful lot of stones.