William Barr

A Question Barr Flubbed Badly

How could Barr have allowed Deputy AG Rosenstein to participate in evaluating an obstruction-of-justice case against the President when Rosenstein was a key participant in the possibly obstructive events, and would be a witness if a charge were brought?

|The Volokh Conspiracy |

There's been an enormous amount of ink, digital and otherwise, spilled over AG Barr's testimony last week (was it really just last week?!)before the Senate Judiciary Committee, and the question of whether he intentionally misled the Committee (and/or the public) by his statements and actions in connection with the Mueller Report or even, perhaps, committed perjury or some other impeachable offense.

One issue that popped up during the hearing, though, hasn't received the attention I believe it deserves.

Mueller, as everyone knows by now, chose not to make a charging decision—one way or the other—in regard to a possible obstruction-of-justice charge against the President because "a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct," (Mueller Report, Vol II p. 1) and because of "concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice." (Id., p. 2)

Barr, of course, went on to make such a decision:

After reviewing the Special Counsel's Report on these [obstruction of justice] issues, . . . Deputy Attorney General Rod Rosenstein and I have concluded that the evidence . . . is not sufficient to establish that the President committed an obstruction-of-justice offense … without regard to the constitutional considerations that surround the indictment and criminal prosecution of a sitting President."  [Barr's March 24 Letter to Congress, p. 3, emphasis added]

As Sen. Harris (D-CA) pointed out during her questioning (after having wrung from Barr an admission that he had not looked at any of the underlying evidence before making his charging decision), one example of possibly obstructive conduct by the President involved the "events leading up to and surrounding the termination of FBI Director Comey in March 2017"—events analyzed in great detail in the Mueller Report (Vol. II pp. 62-77). Deputy AG Rosenstein was, as the Report makes clear, a key participant in those events, meeting with the President and/or senior Administration officials on numerous occasions to discuss Comey's termination (as well as authoring the memo that was initially used by Trump to justify Comey's firing).

Rosenstein, therefore, would likely be an important witness if there were an obstruction-of-justice charge brought against the President. How could Barr have allowed Rosenstein to participate in a charging decision in a case in which he would potentially be a witness?!?

Here's the colloquy between Harris and Barr on this point:

HARRIS:
[Y]ou said that you consulted with [Deputy Attorney General] Rosenstein constantly with respect to the special counsel's investigation and report.  But Deputy Attorney General Rosenstein is also a key witness in the firing of FBI director Comey. Did you consult with DOJ ethics officials before you enlisted Rod Rosenstein to participate in a charging decision for an investigation the subject of which he is also a witness?

BARR:
My understanding was that he had been cleared already to participate in it when he took over the investigation.

HARRIS:
You don't know whether he's been cleared of a conflict of interest?

BARR:
He wouldn't be participating if there was a conflict.

HARRIS:
So you are saying that it did not need to be reviewed by the career ethics officials in your office?

BARR:
I believe–I believe it was reviewed and I would also point out–

HARRIS:
And what was the finding?

BARR:
–this seems to be a bit of a flip-flop because when the president supporters were challenging Rosenstein–

HARRIS:
Sir, the flip-flop I think in this case is that you are not answering the question directly. Did the ethics officials in your office in the Department of Justice review the appropriateness of Rod Rosenstein being a part of making a charging decision on an investigation which he is also a witness in?

BARR:
As I said my understanding was, he had been cleared before I arrived.

HARRIS:
And–and the findings of whether or not the case would be charged on obstruction of justice? He had been cleared on that?

BARR:
He was the acting attorney general on the Mueller investigation.

HARRIS:
Had he been cleared . . .

BARR:
I am informed that before I arrived, he had been cleared by the ethics officials.

HARRIS:
Of what?

BARR:
Serving as acting attorney general in the Mueller case.

HARRIS:
How about making a charging decision on obstruction of justice, that is the underlying offenses which include him as a witness?

BARR:
That's what the acting attorney general's job is.

HARRIS:
To be a witness and to make the decision about being a prosecutor?

BARR:
Well, no, but to make charging decisions.

Barr was pretty obviously unprepared for this line of questioning, and his answers were not very persuasive (to put it mildly).  I'm no expert in prosecutorial ethics, but it doesn't seem too complicated: prosecutors should recuse themselves from participating in cases (including participating in the decision about whether or not to charge someone with a crime) in which they might reasonably expect to be called to testify as a witness.  No?

Barr's defense—that Rosenstein had "already been cleared" to serve as Acting AG in connection with the Mueller investigation—is laughably inadequate. At the time that Rosenstein may have been cleared to serve as Acting AG—in Feb. 2017, when AG Jeff Sessions recused himself from overseeing Mueller's probe—there was no obstruction-of-justice investigation underway, and Rosenstein had not participated in any events that could be relevant to such an investigation and to such a charge; the possibly obstructive conduct in connection with the firing of FBI Director Comey took place a month later, in March 2017.  The idea that the earlier clearance somehow carried over to cover Rosenstein in connection with possibly obstructive conduct that had not yet taken place is absurd on its face.

It's hardly the most egregious example of misconduct that has emerged from Trump's White House and the other institutions of the Executive Branch.  But one does wonder: How could Barr, undeniably a smart guy and an outstanding lawyer—have blown it on this one?  His reputation has suffered badly as a result of his recent conduct and testimony; on this one, though, doesn't he owe us an explanation (or an apology)?

 

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  1. “His reputation has suffered badly as a result of his recent conduct and testimony;”

    LOL Yes, with Trump haters and Democrats.

    This is the worst Post post since the last Post post.

    1. I think herein lies the answer to how Barr blew this one. He wasn’t acting as a lawyer, but as Trump’s partisan.

      1. “blew”

        You misspelled “did very well on”

        1. Barr could have said anything and you would praise him to the skies, huh?

          1. Not at all. He did his overall job masterfully

            I was confused at first why Trump selected him but he has done very, very well so far.

            Who cares what he answered in a stupid and senseless senate responding to a smug worthless preening senator.

            Allegations of being a hypocrite can always be be made against the person making the allegation. They are the laziest response. Post and you think he did badly because he is Trump’s AG.

            1. No reasonable person can listen to the testimony and believe Barr “performed masterfully”.

              And that’s the entire point. You look at nothing with a critical eye. You believe anything and everything about the current administration with complete disregard of the facts.

              That is what makes you a hypocrite. And to use our Presidents lingo: loser.

              1. As someone in thrall to the progressives it amuses me that you would say such a thing. Of course it always is the progressive way to accuse others of what they themselves are most guilty.

                And before you protest, I remind you of the entire eight years of Obama’s reign in which both of his AGs were consistently acting as his henchmen. Obama even referring to Holder as ‘his wingman’.

            2. Why was Barr nominated as AG. First, and maybe foremost, his legal memo last June, on Obstruction, sent by Trump’s attorneys to Rosenstein, instead of Mueller, is probably a good part of why the Obstruction part of the Mueller investigation collapsed. Weissman and the other Mueller attorneys were pushing a legal theory that greatly expanded the reach of one specific Obstruction statute. Barr argued that the clause that they were using was a residual clause, and thus had to be limited to the previous clauses. Rosenstein apparently took the memo to OLC, and they all apparently agreed with Barr. Hence no Obstruction charges filed against Trump.

              Secondly, there appears to have been a meeting between Trump and Barr before he was nominated where Barr essentially committed to shutting down the Mueller investigation (after anything concerning Russian collusion was completed) and would aggressively investigate “Spygate”

              It appears likely that Barr would have been nominated in August or Sept of 2018, except that the confirmation of Justice Kavenough intervened. At that time, the Republicans didn’t know if they would hold the Senate, and Supreme Court Justice (esp after the Republicans refused to schedule hearings for Garland) was more critical to get done in 2018 than confirming Barr as AG.

              1. Under Mueller’s obstruction theory, of course, appointing Barr – a man known to have a different obstruction theory – would itself be another example of obstructive conduct by the President. But it didn’t make his list. I wonder why not ?

        2. Goout toz has u grammer polize. Pleaz continyou.

      2. Exactly. If he considers himself Donald Trump’s personal defense attorney, it is his duty to mount a vigorous defense even by means that another lawyer finds “absurd on its face”, certainly without regard to his own reputation.

        People more eloquent than I can discuss how horrible it is for an Attorney General to do that.

      3. Apparently it was fine with anti-Trumpers that Rosenstein did not follow DOJ guidelines in appointing a Special Counsel in the first place. He did this possibly with a CYA (corrupt?) motive. It was also fine with anti-Trumpers that Rosenstein supervised the entire Special Counsel investigation – the gathering and analyzing of evidence.

        Before one criticizes Barr’s motives or role, one should read (I have) the extremely persuasive memo on obstruction that Barr wrote – and offer specific legal, not ad hominem, criticism.

        The fact that Barr submitted this memo indicates that he had given the subject of obstruction considerable thought i.e. his decision concerning obstruction was not rushed by the pressure to release the Special Counsel’s report.

        In reaching his decision concerning obstruction Barr involved Rosenstein and the DOJ OLC and publically indicated that he had done so.

        So Barr was at fault for allowing the person who supervised the gathering and analysis of evidence concerning obstruction to weigh in on (not to determine – that was Barr’s call) the obstruction decision?

        I truly do not mean to be ad hominem, just descriptive: this level of analysis/commentary/criticism is unworthy of anyone who graduated in the top half of their law school class. Hate Trump, but please stop making such fools of yourselves – it’s embarrassing for the fans of the blog who read it for learned (if sometimes heated) discussions of legal topics of interest.

        BTW, please do not bother with ad hominem nyah nyah responses to this comment – I have invested more than enough time on this topic and will not be revisiting the comments.

    2. His reputation is only up with Trump cultists like yourself Bob. Anyone with more than 2 brain cells to rub together can see him for the fixer he is.

    3. By Trump haters and Democrats you mean, half the country?

    4. Un-freaking real. Who appointed the Special Counsel, wrote his mandate and supervised this farce for 2 years? How the hell can
      one question Rosenstein’s input at the end but at the same time not question this whole Special Counsel adventure from the start? And, speaking of conflicts, what about Mueller’s conflicts? What about the conflicts of just about everyone on the Special Counsel team?

      1. And, speaking of conflicts, what about Mueller’s conflicts? What about the conflicts of just about everyone on the Special Counsel team?

        What conflicts would those be? Do Trumpkins ever have an argument that doesn’t boil down to I Know You Are But What Am I?

        1. Apparently you’re too obtuse to remember them. Just admit it. You hate Trump, you want Trump gone. That’s what all of this has been about. The behavior of democrats is frequently brought up because you’re all such horrible people and massive hypocrites.

          1. Apparently you’re too obtuse to remember them.

            Apparently you’re incapable of identifying them, so you simply insulted instead. What conflicts of interest did Mueller have?

            Just admit it. You hate Trump, you want Trump gone.

            I hate Trump; I want Trump gone.

            The behavior of democrats is frequently brought up because you’re all such horrible people and massive hypocrites.

            I’m not a Democrat; sorry. You’ll have to try a different ad hominem.

          2. Don’t believe him, Last. D.N. is as lib as they get. He makes Bernie Sanders look like Barry Goldwater.

  2. “His reputation has suffered badly as a result of his recent conduct and testimony;”

    Blah, blah, blah.

  3. “His reputation has suffered badly”? I had barely heard of the guy before all this but now I think quite highly of him. So are you counting me in that tally?

    1. Yes, too bad he wasn’t the original Trump AG pick, no recusal and this farce of an “investigation” would not have gone on so long.

      1. We could also have gotten some justice with a probable Clinton prosecution. And so many other democrats blatantly guilty of a plethora of crimes.

  4. Gotta stop posting these humdingers on Fridays!

    1. Humdinger, more like a ho-hum. It brings nothing new to the table, and reads like a shower thought expanded into a full blog post.

      1. I ain’t in it for the OP, I’m in it for the comments!

        1. So far zero people (including myself) engaging with Post’s thesis.

          1. Because it is a waste of time, a matter of interpretation, and Post wouldn’t respond anyway?

            1. Engaging with a David Post “thesis” is the most time wasting thing on the internet.

              Better to look at Pond Monster videos.

  5. At the time that Rosenstein may have been cleared to serve as Acting AG—in Feb. 2017, when AG Jeff Sessions recused himself from overseeing Mueller’s probe—there was no obstruction-of-justice investigation underway

    er – this is dumbsville. Rosenstein wasn’t even appointed Deputy AG until April 26 2017. Jeff Sessions recused himself from all Trump-Russia stuff in early March 2017, not in February. And he didn’t then recuse himself from the Mueller probe because it didn’t start till May.

    The bottom line – I strongly advise Post that if he can’t get basic dates right in a written piece, he should avoid giving evidence to Congressional hearings, never mind talking to the FBI.

    Moving on from Post’s spectacular three royal flubs in half a sentence, the relevant exchange is :

    Barr :I am informed that before I arrived, he had been cleared by the ethics officials..
    Harris :of what ?
    Barr :Serving as acting attorney general in the Mueller case.

    Thus – if Barr is correct – Rosenstein was cleared by ethics officials to act in the Mueller case, which began after Comey had been fired, and Rosenstein had already witnessed whatever he was witness to.

    Now Barr (NB “I am informed”) may have been misinformed, but if he was that’s somebody else’s flub not his.

    I have to say that I’m surprised (and have been for some considerable time) as to why Rosenstein didn’t have a conflict all along, but apparently he was cleared by the ethics folk to act in the Mueller case. Which would obviously include coming to his legal conclusions on Mueller’s report. The latter wouldn’t involve any new issue.

    1. I ought to say that I am rather doubtful that Rosenstein was actually cleared by the ethics folk to act on the Mueller probe from the very start of the Mueller probe, since I get the impression it was something of a rush job to make the appointment.

      I may be wrong, of course. but I’d suspect it was done after the appointment of Mueller.

      An interesting question surrounds Mueller’s original instructions anyway, since everyone refers to the Aug 2017 updated instructions and there doesn’t seem to be any reference to detailed written May instructions beyond the short official letter. So it’s conceivable that Rosenstein and Mueller might have regarded Mueller taking over the obstruction angle as a later event.

    2. You sure are pedantic about nonmaterial stuff. I like how March 2 became ‘early March’ as well.

      The bottom line – I strongly advise Post that if he can’t get basic dates right
      Post’s spectacular three royal flubs
      Nice condescension. Your refund is in the mail, I’m sure.

      When are you going to get to the substance of the piece?

      Rosenstein had already witnessed whatever he was witness to
      I don’t think that’s why they don’t let people oversee cases they’re witnesses to.

      1. me : Rosenstein had already witnessed whatever he was witness to
        sarcastro : I don’t think that’s why they don’t let people oversee cases they’re witnesses to.

        You’re missing my point. The fact that Rosenstein had been cleared to act on the Mueller case, means he must have been cleared when there was a Mueller case to act on. There were no times when there was a Mueller case to act on when Rosenstein had not already done his witnessing. Consequently when the ethics folk cleared Rosenstein to act, they must already have been aware of his witnessing.

        Like you, I’m surprised they reached this conclusion, but apparently they did.

        And whether they were right to do so or not, their decision long predates Barr’s arrival, and applies in just the same way to Rosenstein’s legal eagling with Barr at the last minute, as to Rosenstein’s supervision of Mueller for the preceding nearly two years.

        IMHO there are indeed things to criticise Barr about in his handling of the Mueller report, but this is not one of them. Indeed it’s so obviously a damp squib that it dampens the powder for serious criticisms.

        1. I’d agree. In fact, these types of points, and the potential for Rosenstein himself to come under investigation by Mueller came up, and Rosenstein noted he would recuse himself if this was the case.

          (https://apnews.com/2fa69c1f399c485e96cc312f7a5039ec)

          Since Rosenstein was cleared by ethics to work on the case, despite being a witness, and indeed, Rosenstein oversaw the Mueller case for the majority of its existence, it makes sense for Barr to consult with Rosenstein on the charges. Charges that Mueller punted on…despite the investigation being authorized specifically so that Mueller could recommend or not recommend charges.

          1. As Rush says, “If you chose not to decide, you still have made a choice”; Punting was deciding not to recommend charges.

            1. Oh stop it, Brett.

              For the zillionth time – it is DOJ policy not to indict a sitting President. No matter what they found, and they found a lot, your Trump-worship notwithstanding, they weren’t going to bring charges.

              Is that so hard to understand?

    3. I could cut Post some slack in that when Sessions recused himself and left supervision of the FBI investigation that birthed Mueller to acting deputy AG Dana Boente, Rosenstein had already been nominated a month earlier. It is reasonable that whatever vetting was done prior to his confirmation would have included the consideration that he would be assuming the Acting AG role, but not in the context of the events surrounding the Comey firing, and I think that was Post’s point. The weak part of the argument is the unsubstantiated assertion that Rosenstein could not have been re-evaluated when the circumstances changed.

      1. Not to mention Barr’s explicit statement – which Post quotes – that Rosenstein was cleared by the ethics folk to serve “as acting attorney general in the Mueller case.”

        Note “acting Attorney General” and “the Mueller case” (post Mueller appointment reaities) not “Deputy Attorney General” and “the investigation into Russian interference and possible conspiracy/co-ordination with the Trump campaign” (pre-Mueller appointment realities.)

        But also note, since he was unprepared for the question, and was relying on someone whispering in his ear, he may have misunderstood the details. if he did, I imagine he will send a letter to the committee correcting his testimony.

      2. Actually there are news reports where Rosenstein says he consulted with ethics several times after the Mueller was appointed. So the entire point of the this article, wrong dates aside, was incorrect.

  6. David Post: “His reputation has suffered badly . . . .”

    Pot, meet kettle.

  7. “Interesting”–interesting as in depressing–how many lawyers (I assume) are in the tank for a man whose whole appeal is that he rejects the rule of law and substitutes instead the law of the jungle. Donald Trump has frequently expressed regret that the US did not “steal” (his word) Iraq’s oil. He frequently advocates torture as a way of revenging ourselves, not on those guilty of terror, or even those accused of it, but of their innocent relatives. Why do Trump’s admirers insist he’s “innocent” of any crime when what they like about him is that he proclaims it as his policy to break the law whenever it suits his convenience?

    1. Blah blah blah.

      1. “Bob from Ohio” or “Subverbal Bob” as his friends like to call him. (Also “Fido” and “Good Boy!”)

    2. I see an hominem attack on Trump, but nothing that addresses the question at hand, which is essentially whether Rosenstein should have been recused from delivering the Mueller investigation report, when he wasn’t recused from supervising Mueller during his investigation.

      1. But…but…
        Orange Man Bad!
        If 85% of the left could get over the fact that Trump is (a) a complete vulgarian; AND (b), notwithstanding that he is who he is, beat Hillary’s ass, the country, and the left itself, would be much better off.

  8. Is someone familiar with the standards that generally govern prosecutors on recusal questions? I remember reading that prosecutors will rarely recuse themselves on the ground that they are a witness unless a trial is imminent at which they are likely to testify. That sounds normal to me, as it is consistent with the rules that govern attorneys generally, so I’m wondering whether there is some special rule for prosecutors that requires recusal where no trial is in prospect.

  9. There were questions about Rosenstein’s ethical ability to oversee Mueller and his investigation. After all, it was Rosenstein, and not Trump, who actually fired Comey. Yet, the Mueller investigation (that Rosenstein was overseeing) investigated Trump for just that action – the Comey firing, as Obstruction of Justice. My (sometimes faulty) memory is that this potential conflict was run by the DoJ ethics office.

    I think that David has a logical problem here. If Rosenstein is conflicted out of working with AG Barr on wrapping up the Mueller investigation, then why wasn’t he conflicted out of supervising Mueller for initiating the Mueller investigation and then supervising it for its entire lifetime of almost two years? Whatever actions Rosenstein might be a fact witness for occurred before he even authorized the investigation. The only thing that I can see that has really changed over that time, is that Rosenstein now had supervision himself as to the Mueller investigation, and that would seem to reduce, not increase the justification for recusal.

    1. After all, it was Rosenstein, and not Trump, who actually fired Comey.

      No it was Trump.

      As t the rest of your comment, I agree. What is suace for the supervision of the investigation is sauce for concluding on its findings.

      And while I find the non recusal surprising (but knowing not a jot about the actual rules they apply), it’s hard to believe they didn’t go through it seriously in 2017, it being such an obvious issue.

      1. You are correct. Trump, not Rosenstein, fired Comey. Trump fired Comey on the recommendation of Rosenstein instead.

        1. You are correct. Trump, not Rosenstein, fired Comey. Trump fired Comey on the recommendation of Rosenstein instead.

          Not according to Trump himself. (Or according to Mueller.) Trump decided to fire Comey before he ever got any recommendation from Rosenstein.

      2. It’s a little confusing, but someone had to oversee the investigation. Merely witnessing a potential crime doesn’t necessarily mean someone MUST recuse themselves from the investigation or the prosecutorial decisions. Indeed, several of Trump’s “potential obstruction” issues were made in public. Does that make everyone a witness?

  10. A Post that Post Flubbed Badly. Is this guy really teaching law students? No wonder Bar Exam pass rates are falling!

    1. It says ” David Post was previously a professor at Beasley School of Law at Temple University.”

      1. He retired a while back

  11. So, here’s the answer to David’s Post.

    In this context, Rosenstein can best be placed under the “prosecutor” role. Thus, we will refer to the ABA’s standards on prosecutors.

    https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

    Now, the relevant section is here. “The prosecutor should not participate in a matter in which the prosecutor previously participated, personally and substantially, as a non-prosecutor, unless the appropriate government office, and when necessary a former client, gives informed consent confirmed in writing.”

    We can safely say that the government ethics office did give Rosenstein authority to participate in a matter previously participated. Indeed, Rosenstein oversaw the investigation for the majority of the investigation, and was authoritized by the ethics office. If Barr had not come in, Rosenstein might alone be responsible for making the prosecutorial decision. Thus, we can safely say they are covered.

    It is non-ideal, but not necessarily unanticipated.

  12. One interesting question is – what was Harris’s plan in pursuing this line of questioning ? She must have thought about it in advance, and hoped to gain some mileage from it.

    Post is right that Barr was not prepared for it, and it’s obvious from his reference to “flip-flop” that he was amazed by it…..along the lines of “This guy has been supervising this thing for nearly two years, you’ve had him up on the Hill to question him umpteen times, and now you want to ask me who’s only just turned up, why he didn’t recuse himself a couple of years ago ? Are you nuts ? ”

    Three possibilities occur to me :

    1. She wanted a short term win along the lines of “we can discount Rosie because he should have been recused, so having discounted him, the only guy who’s cleared Trump of obstruction is you, and we don’t trust you.” OK but pretty feeble. Even if Rosie should have been recused, he’s still hardly Trump’s poodle, having started this whole Mueller thing – to Trump’s fury – in the first place.

    2. She wants to discredit Rosie as a straight lawman, in case Barr’s investigation of pre-Mueller events turns nasty for the Dems, and Rosie is out there as a talking head who might fail to toe the Dem line. Way too intricate. Sufficient unto the day is the evil thereof.

    3. She’s just not very smart, and she picked up on a point without realising that it leads nowhere, and in fact isn’t even a point at all.
    She came across as the dumbest (though not the rudest) of the Dem Senators in the hearing (though she was outdumbed by a couple of the Republicans) so it could be this one.

    1. Probably a combination of 1 and 2, with a decent amount of 4 (Let’s throw out a curveball and see if Barr says something dumb we can quote out of context).

      Rosenstein’s an interesting figure, with a combination of “pro” and “anti” GOP behavior in his past. If I was feeling particularly conspiracy-theory-ist, I would point out Rosenstein was denied a seat on the 4th Circuit court of Appeals in 2007 by two Democratic Lawmakers, because he “didn’t have enough roots in Maryland” and was biding his time to get back at the Democrats.

    2. Harris is just not too smart. She does like to play the “gotcha” game.

      However, as several have already noted. If Rosenstein should not have participated in the release of the report, he should not have been overseeing it in the first place.

      Harris was not smart enough to figure that out. But when Barr stubbled a bit her sense of theatrics kicked in.

  13. This is verging on insanity. Does the writer of this post even realize that Rosenstein appointed Mueller in the first place? If he was so damn conflicted than doesn’t that bring into question the entire investigation?

  14. This line of questioning and the whole premise of it is self-defeating.

    If Rosenstein was conflicted, his participation as AAG on the case, and thus his appointment of Mueller is improper. Thus the entire investigation was improper.

  15. The dates are nearly all wrong.
    Rosenstein Nominated: Feb 1
    Sessions recusal: March 2
    Rosenstein Confirmed: April 25
    Trump asks for Comey memo: May 8
    Memo delivered and Comey fired: May 9
    Trump tells Lester Holt he was going to fire Comey anyway: May 11
    Mueller appointed and Rosenstein tells the Senate that Rosenstein knew Trump was going to fire Comey before he wrote the memo: May 17

    And now for what we also know about this… The Senate was told Rosenstein knew before he wrote his letter that Trump was going to fire Comey. Rosenstein isn’t a key witness, since they have Trump being interviewed by Lester Holt on TV, where Trump admits it was his decision and he was going to fire Comey regardless of what the memo said. Rosenstein has also stated that he consulted with the ethics people during the special counsel investigation. He also state that if he himself were to become a subject in the investigation due to his role in writing the memo, he would have recused himself.

    The DOJ and Mueller didn’t think Rosenstein was a “key witness” nor any witness at all. If he was, he would have already recused himself. That’s the entire point being made by Barr.

    The author needs to do better research and not fall for the soundbites created for the uninformed.

    1. Then again, it gave Willie Brown’s former mistress chance to get on the news.

  16. Hey guys, happy Friday.

    Remember when the media talked about collusion nonstop for 2.5 years, but then there was no collusion?

    And Democrats and deep state leakers got a dreamy special counsel appointed for 2 years while liberals had wet dreams about him, but then there was no collusion?

    And remember when tens of millions of American liberals fell for a conspiracy theory more pathetic than birtherism, but then there was no collusion?

    Good times, good times.

    1. One story dries up, just make up a new one. There’s always a story to gull the rubes.

      More and more Americans seem to be wising up though.

  17. Really bad, pointless TDS raving. You know what we need? An intelligent filter which allows the reader to eliminate all TDS posts from the VC. Of course, there wouldn’t be much left of some of the VC members.

  18. Reading the Volokh Conspiracy — comments and Conspirator content — has persuaded me that our strong law school faculties err when they pursue diversity by hiring movement conservatives.

    Let the right-wingers teach apt audiences at Ave Maria, Regent, Liberty, and the like. Perhaps Hillsdale and Grove City should develop law schools, too, or a few backwater towns could start conservative law schools.

    Proponents of backwardness, intolerance, superstition, insularity,and stale ignorance have little to offer, however, to modern, successful, reasoning, progressive Americans, and it seems time to stop pretending.

  19. Almost all of the discussion of this issue — here, in Congress, and elsewhere — has as its premise the proposition that Rosenstein was a potential witness, and was therefore ethically disqualified from participating in the investigation (including prosecution decisions).

    Yet as a practicing attorney, I have taken the witness stand myself, many times, in cases in which I was not only participating, but indeed in which I was lead counsel. How could that be?

    The relevant rules tell us. In Texas (where I practice), Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct, entitled “Lawyer as Witness,” has permitted me to be a witness when (1) my testimony has related to “an uncontested issue“; or when (2) it has related “solely to a matter of formality and there [was] no reason to believe that substantial evidence [would] be offered in opposition; or when (3) my testimony has related to “the nature and value of legal services rendered in the case”; or when (4) I “was a party to the action and appearing pro se.”

    Rosenstein’s prior involvement falls directly within categories (1) & (2) above: No one disputes that he was asked to write, and then wrote, his memo about Comey; no one disputes what it says; and indeed, with regard to the memo’s substance, it contained nothing new or disputed, but rather a series of justified criticisms of Comey which had previously been made in public op-eds by former AGs and Deputy AGs from both Republican and Democratic administrations. Rosenstein could have satisfied the evidentiary predicates for admission of his memo into evidence at some future trial, but authenticity, dates, etc., were all undisputed, and getting the memo into evidence was a matter of formality only. While Trump’s intentions when he asked Sessions to have Rosenstein prepare the memo may be matters of disputed fact and inference, and what Trump used the memo for afterwards may likewise be disputed, Rosenstein didn’t deal with Trump directly and isn’t a witness with first-hand knowledge of even what Trump said, much less what Trump intended.

    1. Somewhere in the DoJ’s files, I’d be willing to wager, is an Office of Legal Counsel memorandum blessing Rosenstein’s continuing participation notwithstanding concerns over his potentially becoming a witness — citing not the Texas version of Rule 3.08(a) but rather its District of Columbia (or possibly Maryland) counterpart, for this is the prevailing rule of legal ethics nationwide and has been for many decades. I hope that AG Barr will decide to waive investigative, executive, or other privileges and release this memo, whatever it says.

      1. Thank you. Most informative.

        1. You’re welcome, Mr. Moore. I teach this topic in continuing legal education classes, and have often been hired by other lawyers and firms as special ethics counsel when they’re facing motions to disqualify. A shocking percentage of lawyers, even law professors, don’t really understand the “lawyer as witness” rules very well — which is good for my business, actually.

          If one considers these same four safe harbors provided by Rule 3.08(a) for lawyers who may be witnesses, one can also immediately conclude that former Attorney General Sessions qualified for none of them, at least from and after the date Trump asked him to have Rosenstein prepare a memo on Comey: Because Sessions (unlike Rosenstein) spoke and dealt directly with Trump regarding the memo, his potential testimony seems quite likely to be on contested matters.

          And thus, because Sessions’ testimony might have been “necessary to establish an essential fact on behalf of [Sessions’] client [i.e., the United States, through the Department of Justice],” Sessions arguably was obliged to discontinue his “employment as an advocate before a tribunal in a contemplated or pending adjudicatory legal proceeding,” within the meaning of Rule 3.08’s general limitation on lawyers as witnesses.

          1. After re-reading the specific pages in volume 2 of the Mueller report cited by Prof. Post in his original post, I’ve concluded that I misspoke in my comment above (May.11.2019 at 1:06 pm) that Rosenstein didn’t deal with Trump directly in connection with Comey’s firing. I still believe I was correct, however, in asserting that Rosenstein’s testimony would not have been “necessary to establish an essential fact,” and that indeed his testimony would instead have been on matters that are undisputed or formalities. If anyone wants to cite chapter & verse of the Mueller report as to some specific matter in a hypothetical obstruction of justice case that only Rosenstein’s testimony could have proven, I’d be glad to take yet another look. But I believe this is the basis on which the OLC probably blessed Rosenstein’s involvement throughout.

    2. The relevant counterpart to Texas Rule 3.08 in the District of Columbia Bar’s Rules of Professional Conduct is Rule 3.07(a), which does indeed contain a safe harbor for lawyers whose “testimony relates to an uncontested issue,” and which only requires disqualification as a general rule when “the lawyer is likely to be a necessary witness.”

      1. Rosenstein is admitted to practice in both the District of Columbia and the State of Maryland. Since he’s subject to its discipline, since the investigation was headquartered there, and since Washington would be the likely situs of any (eventual) obstruction of justice prosecution and any attempt to impeach Trump in lieu thereof, I think OLC probably would have applied the D.C. version of the “lawyer as witness” rule.

  20. Prof. Post writes in his post:

    The idea that the earlier clearance somehow carried over to cover Rosenstein in connection with possibly obstructive conduct that had not yet taken place is absurd on its face.

    But recall that for many months now Trump has been bitching on Twitter about Rosenstein’s supposed conflicts.

    Prof. Post, will you admit that it’s at least plausible — and if they were remotely good at their jobs, extremely likely — that confronted with such Tweets from the POTUS, the OLC folks might have updated whatever initial clearance they gave Rosenstein to serve as Sessions’ Acting AG upon his recusal? Can you doubt that both Rosenstein, and they, would have had extremely strong institutional interests, as well as self-interests, to document that updated analysis? And do you doubt that OLC did so long before Barr arrived on the scene, and possibly thereafter when and if the Mueller investigation revealed some subject matter on which Rosenstein’s testimony would be essential to the Special Counsel’s potential obstruction investigation and/or prosecution?

    Every ethics expert will tell you — and I certainly tell lawyers in every CLE ethics lecture I’ve done — that to practice law ethically, one must continually reassess potential conflicts of interest and, especially for adversary practice lawyers, the “lawyer as witness” rules. What basis do you have for concluding that no one at OLC vetted, and dismissed, these concerns for Rosenstein? With respect, it seems to me that you’re engaged in extremely unflattering and ill-conceived speculation, sir.

    1. Sample Trump tweet about Rosenstein’s conflicts, from April 11, 2018:

      Much of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation, headed up by the all Democrat loyalists, or people that worked for Obama. Mueller is most conflicted of all (except Rosenstein who signed FISA & Comey letter). No Collusion, so they go crazy!— Donald J. Trump (@realDonaldTrump) April 11, 2018

      Would Prof. Post have us believe that no one in OLC, and Rosenstein himself, failed to pay attention to this tweet and to at least consider whether the allegation of conflict had some arguable merit? That seems plainly absurd on its face to me.

      1. Or much earlier:

        I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt— Donald J. Trump (@realDonaldTrump) June 16, 2017

    2. the OLC folks might have updated whatever initial clearance they gave Rosenstein to serve as Sessions’ Acting AG upon his recusal?

      The timeline is :

      1. Sessions recused himself from all campaign related stuff on 2 March 2017. This would have included any existing FBI investigation of Trump-Russia.
      2. Rosenstein was appointed Deputy AG on 26 April, and would presumably, pursuant to Sessions earlier recusal, then have taken over Trump-Russia from a DoJ point of view from whoever had been responsible since Sessions’ recusal on 2 March
      3. Comey was fired on 9 May
      4. Rosenstein (now in his capacity as Acting AG) appointed Mueller SC on 17 May

      Thus Rosenstein would presumably have received clearance to act in relation to Trump-Russia wef 26 April, but since there was no conceivable conflict at that stage it would presumably have been routine.

      It’s possible he had a “refresh” clearance before he appointed Mueller on 17 May, since he had been some kind of a witness, or else shortly afterwards. My suspicion is the latter, because it all seems to have been done in a great rush, but who knows ? Barr testified that Rosenstein had been cleared to act in “the Mueller case.” Since the Mueller case did not begin until 17 May 2016, and was not in contemplation until Comey’s firing on May 9, that means there must have been a refresh at some time after 9 May 2016.

      Then as you say, if any further doubts had arisen, the ethics folk would have looked at it again. Long long ago, while Barr was still playing with his grandchildren.

  21. Don’t you guys see the danger in trying to undo elections with this transparently political, entirely subjective “gotcha” nonsense?

    You really think that a free people will peacefully go along with hand-waving away their votes because you said magic legal-sounding words? They won’t.

    1. No one is attempting to undo the election, so far as I am aware.

      The educated population seems to prefer illumination and accountability, and those who oppose Pres. Trump politically seem inclined to thwart him politically, but none of that constitutes an attempt to undo an election.

      With respect to the vague allusion to “Second Amendment solution,” all-talk bigots and blustering malcontents are among my favorite faux libertarians. In part because of the way the culture war is stomping on their unattractive political preferences.

    2. Don’t you guys see the danger in trying to undo elections with this transparently political, entirely subjective “gotcha” nonsense?

      Impeaching Trump would not “undo” any election. It would make Pence president, not Hillary.

  22. I find this whole discussion, starting with Prof. Post’s rantings, a little mysterious, since CNN appears to have furnished the facts. https://www.cnn.com/2018/04/13/politics/rod-rosenstein-ethics-recusal/index.html

    1. A citation to CNN is evidence ? You work for the Special Counsel’s office ?

      🙂

  23. To the conspiracy theorists any evidence against the conspiracy is evidence of the conspiracy.

    See, inter alia, Post & Somin

  24. This would be more persuasive if Post had written about the oddities in the Clinton email investigation. In particular, Clinton’s lawyer (party to the matter under investigation) being questioned in the same room as Clinton and asserting attorney-client privilege. Perhaps Rosenstein’s behavior is unethical but the final paragraph asserting this is an example of widespread Trump corruption is unnecessary.

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