If Rod Rosenstein feels conflicted, he should simply recuse himself

In testimony and reports this week, Deputy Attorney General Rod RosensteinRod RosensteinTrump blasts Mueller, decries 'witch hunt' at 2020 launch Trump blasts Mueller, decries 'witch hunt' at 2020 launch Trump: I didn't fire Mueller since firings 'didn't work out too well' for Nixon MORE has emerged as the Hamlet of the Potomac, an increasingly tortured and conflicted figure who is both misunderstood and misunderstanding. According to the New York Times, Rosenstein swayed between angst and anger in the aftermath of the firing of FBI Director James ComeyJames Brien ComeyWant the truth? Put your money on Bill Barr, not Jerry Nadler Want the truth? Put your money on Bill Barr, not Jerry Nadler Trump: Reported security incidents related to Clinton emails 'really big' MORE. In conversations with both friends and colleagues, he reportedly “expressed anger” and “remorse” while appearing “conflicted,” “shaken,” “unsteady” and “overwhelmed.”

The reports only magnified prior concerns of the ethical basis for the deputy attorney general to appoint and supervise special counsel Robert MuellerRobert (Bob) Swan MuellerKamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE. Rosenstein has long maintained that he can handle such concerns. The suggestion is that, as with Hamlet, “there is method” to any “madness” that he might have displayed.

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There are legitimate doubts, however, in whether there is more method or madness in Rosenstein refusing to recuse himself. After the appointment of the special counsel (which I continue to support) last year, I wrote a column questioning how Rosenstein could appoint and supervise Mueller, given his own role as a key witness in the underlying subject matter of the investigation. Indeed, both Mueller and Rosenstein were eyewitnesses to critical periods in the firing of Comey.

On May 16, 2017, Mueller was interviewed by President TrumpDonald John TrumpGOP senator introduces bill to hold online platforms liable for political bias Rubio responds to journalist who called it 'strange' to see him at Trump rally Rubio responds to journalist who called it 'strange' to see him at Trump rally MORE to replace Comey as FBI director. The firing of Comey must have been an obvious subject of that meeting. The next day, however, Rosenstein informed Trump that the man the president had just interviewed for Comey’s job would, instead, investigate him about his firing of Comey.

If Mueller’s conflict was concerning, Rosenstein’s conflict was glaring. Rosenstein was asked to write a memo on Comey’s misconduct as FBI director. That scathing memo was then presented by the White House as the basis for the termination. Rosenstein was irate and, this week, his associates told the media that he complained at the time about being “used” by the president and that he was angry over the initial false account involving his role. Trump later admitted that he had already decided to fire Comey before the Rosenstein memo.

Any investigation into obstruction allegations involving Comey’s firing would put Rosenstein at the top of the list of witnesses. The questions are obvious and remain largely unanswered. Who asked Rosenstein to write the memo? Why was the memo written? What was Rosenstein told before Comey was fired as to why Trump was unhappy with him? What were the circumstances and communications over the use of his memo by the White House? Most importantly, why was he so reportedly angry?

Rosenstein has been treated unfairly by Trump and Congress, including in the last hearing. He has a solid reputation for even-tempered and professional judgment. However, his conflicts in this matter have only become more glaring with time. While Rosenstein has indicated that he would recuse himself if asked, it is hard to see how he can continue as Mueller’s superior if there is a credible investigation into Comey’s firing. Unless Mueller concluded early on that there was no credible allegation to investigate, Rosenstein has continued to act as the superior to a prosecutor who is investigating, in part, his own conduct and judgment.

With authority over the scope and resources of the investigation, Rosenstein has maintained a level of control over a matter where he has pronounced personal and professional interests. Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe Hill's Morning Report - Trump to kick off bid for second term in Florida The Hill's Morning Report - Trump to kick off bid for second term in Florida Sarah Sanders to leave White House MORE correctly recused himself to avoid the appearance of a conflict. It has become increasingly evident that Rosenstein may have an actual — and not just an apparent — conflict in this matter.

The recent reports describe conflicting emotions of Rosenstein, ranging from anger to rationalization to despondence. Indeed, the dogged reluctance of Rosenstein to recuse himself is itself concerning. The controversy over FBI investigations has been fueled by the key role of figures like FBI official Peter Strzok, who harbored clearly antagonistic views against Trump. Strzok was eventually removed from his senior position, but long after critical decisions were made in the Clinton email and Russian investigations. This taint has now undermined the integrity of the investigation and the bureau itself.

Where Strzok’s failure is based on personal bias, however, Rosenstein’s failure is based on personal interest in the investigation. The New York Times reported that, according to multiple close associates and friends of Rosenstein, he “appeared conflicted” in the aftermath of the Comey firing. Consider this passage: “He alternately defended his involvement, expressed remorse at the tumult it unleashed, said the White House had manipulated him, fumed how the news media had portrayed the events and said the full story would vindicate him.”

If true, it is astonishing that Rosenstein did not recuse himself, or that his colleagues did not strongly encourage it. It is obviously problematic that Rosenstein selected and then supervised a special counsel in an investigation that he hoped would “vindicate him.” Rosenstein also will play a key role in the scope and release of the eventual special counsel report, which will by necessity touch on his actions and role.

There is no reason for such an apparent or actual conflict to exist, as Rosenstein is not essential to the investigation. He can recuse himself and leave the supervision of Mueller to a designated subordinate, in the interests of the integrity of the investigation.

Even before the reports this week, Rosenstein’s role was having a corrosive and deleterious effect on the credibility of the investigation. His reported colloquies over his role and mistreatment is reason enough for him to exit stage left before the culmination of the investigation. As with Polonius in “Hamlet,” he should have been sent off many months ago with that sage advice for those who must by necessity take their leave: “This above all, to thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man. Farewell.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.