Ben Wittes and Susan Hennessey at the Lawfare Blog write:
We have not previously called for a special prosecutor, believing that [Deputy Attorney General Rod J.] Rosenstein was a person of integrity who should be given a chance to make a call on that question. His performance [Tuesday], however, requires that he now step aside. Assuming that he acted with sincerity for the reasons he articulated, he has still participated in a tawdry episode that will—and should—raise profound questions about the administration’s commitment to a fair and independent investigation of matters that touch the deepest of national security concerns. He cannot credibly lead this investigation any longer, and leaders of both parties must make sure he steps aside for an independent prosecutor who can.
To put it bluntly, Rosenstein was tasked with overseeing an investigation in which — for arguably false, pretextual reasons — he assisted in and recommended the firing of the lead investigator. What he thought he was doing or why he thought this was remotely acceptable has former Justice Department lawyers flummoxed. At the very least, he must now hire a completely independent prosecutor since his own actions are now the legitimate subject of investigation.
Senators should realize that Rosenstein is the key to — and the weak link in — this affair. Previously a respected prosecutor, Rosenstein must at some level realize that he has put the Justice Department’s integrity at risk and has set himself up for accusations that he conspired to interfere with an investigation of the president by firing the FBI director. He must be called to testify under oath immediately and asked:
- Was he told to find a reason to fire Comey?
- Does he know the real reason the president wanted Comey out?
- Was Sean Spicer lying when he said Rosenstein initiated the entire effort to oust Comey?
- Why was the attorney general involved, given that he supposedly recused himself from the Russia investigation?
- Did he know that the real reason for Comey’s firing was not identified in the letter?
- Did he advise anyone that it would be inappropriate, if not illegal, to fire Comey because he was pursuing the Russia investigation vigorously and refusing to investigate a bogus charge (“wiretapping”) meant to distract from the investigation?
- How can he now oversee the investigation in which he helped remove the chief investigator?
Rosenstein might consider resigning, perhaps the one act that could save his reputation and restore the integrity of the Justice Department. At the very least, Rosenstein “could partially redeem himself by asking a 3-judge court to appoint a genuinely independent prosecutor to investigate the Russia-Trump connection,” says constitutional expert and Harvard Law professor Laurence Tribe. Since Attorney General Jeff Sessions supposedly recused himself from the Russia investigation (but not Comey’s firing, which makes the firing that much more suspect), that decision would be up to Rosenstein. Tribe adds that the prosecutor “had better be a counsel who can command bipartisan respect and the respect of the entire nation so that any attempt by Trump to make the AG fire that counsel would cause an impeachment-level firestorm.”
In the event that Rosenstein insists on leading the investigation, conscientious Justice Department lawyers may want to consider an open letter of protest and/or en masse resignation. They also have the professional obligation as government lawyers to step forward with relevant information and to refuse to participate in statements and defenses they know to be false. Tribe counsels that they should “at least step forward and risk being fired, and certainly resign rather than participate in illegal conduct.”
A president convinced that his travel ban is not reviewable may not have realized that firing the lead investigator to protect himself was not kosher. With no one around to tell him “no,” his frustration and anger with a figure immune from pressure (Comey) likely boiled over. He and his entirely incompetent and unfit staff (and I include the attorney general) have stumbled into a minefield that may blow up the presidency. Republicans attempting to rescue the president from his predicament are likely to get burned.