This week we got a revealing glimpse into Rosenstein's close working relationship with Mueller. On Wednesday, former Trump campaign manager Paul Manafort asked a federal court to dismiss his indictment because he contends it exceeds the scope of the Special Counsel’s jurisdiction. Manafort’s legal arguments did not seem to go over particularly well with the judge. At one point during Wednesday’s hearing, District Court Judge Amy Berman Jackson asked Manafort’s attorney whether there was a “single legal case” that gave defendants in Manafort’s situation a right to challenge the Special Counsel’s jurisdiction. Manafort’s attorney admitted that he had no case law to support his position. In response, Judge Jackson exclaimed, “I don’t understand what’s left to your case.” After today's hearing, therefore, it seems safe to say that we should not expect a favorable ruling for Manafort.
But what is really interesting is the 45-page brief that Mueller’s prosecutors filed in opposition to Manafort’s motion to dismiss the case. The Special Counsel’s brief is available here at the Just Security website.
The brief makes clear that Mueller is conducting his Russia investigation in very close coordination with Rosenstein (who the brief describes as the “Acting Attorney General” because Rosenstein's boss, Attorney General Jeff Sessions, recused himself from the Russia investigation). Here are excerpts from the brief (with my emphasis added) that discuss the close working relationship between Mueller and Rosenstein:
- On p. 12, Mueller writes that “[t]he Special Counsel has ensured that the Acting Attorney General was aware of and approved the Special Counsel’s investigatory and prosecutorial steps.”
- On p. 14, Mueller explains that he and Rosenstein have established a process that “allows the [Acting] Attorney General to confer with the Special Counsel about whether a particular investigative step falls within or outside original jurisdiction, and it provides the [Acting] Attorney General with the opportunity to evaluate, if the matter is beyond the scope of the Special Counsel’s jurisdiction, whether to include it within his purview as an additional matter.”
- On p. 16, Mueller reveals that “[i]f the Special Counsel were to encounter unanticipated criminal activity by a subject of the current investigation, the Acting Attorney General has made clear that the decision on how to allocate responsibility for further investigation is ‘worked out with[in] the [D]epartment.’”
- Most interesting of all, on p. 17, Mueller observes that “[t]he oversight that the Acting Attorney General publicly described [in his December 13, 2017 testimony before the House Judiciary Committee] necessarily includes non-public dialogue between the Acting Attorney General and the Special Counsel on the scope and subjects of the investigation.”
Needless to say, it would be fascinating to be a fly on the wall at the Justice Department when Rosenstein and Mueller engage in their “non-public dialogue” on the state of the Russia investigation. For example, how often, and in what context, do the names “Donald Trump,” “Donald Trump Jr.,” and “Jared Kushner” come up in those non-public dialogues?
Most Americans understand that Robert Mueller's investigation is central to getting to the bottom of whether any Americans assisted Russia's meddling in the 2016 presidential election. Indeed, a February 2018 Monmouth University poll found that 62% of Americans support legislation to protect Mueller from an effort to fire him by President Trump.
But far fewer Americans understand the crucial role of Rod Rosenstein. To be sure, Rosenstein got off on the wrong foot from the start. In the spring of 2017 Rosenstein wrote a memorandum criticizing former FBI Director James Comey, which President Trump subsequently used as a pretext to fire Comey. Prominent legal scholars, such as Prof. Jack Goldsmith and Prof. Alan Dershowitz, have raised the quite valid question of whether, in light of the memo, Rosenstein should have recused himself from the Russian investigation. As they point out, Rosenstein's involvement in Comey's firing means that he has a potential conflict of interest regarding the issue of whether President Trump obstructed justice in firing Comey. Thus far there has been no satisfactory answer from the Justice Department as to precisely how Rosenstein is avoiding that potential conflict of interest.
In the meantime, however, the crucial point is that Mueller appears to have Rosenstein’s full support in the Russia investigation. As Monday's filing demonstrates, Mueller’s probe depends on Rosenstein’s willingness to back him to the hilt. As long as Rosenstein continues to stand by Mueller, the only person who can stop Mueller’s investigation is President Trump himself.
Accordingly, Americans owe a debt of gratitude to Rod Rosenstein much like they do to Robert Mueller. The United States today is in unchartered terrain as a nation. We have a president in office who launches tirades against the judiciary and who calls on the FBI to conduct politically-motivated investigations of his opponents. His presidency is not even a year and a half old, and yet President Trump has already out-Nixoned Nixon, at least with regard to his public comments.
The Russia probe thus represents a test of whether the rule of law still functions in the United States as it did 45 years ago during Watergate. The answer rests as much on Rod Rosenstein as it does on Robert Mueller. Hence, although the national media describes the Russia probe as the “Mueller investigation,” it’s more accurate to say the “Rosenstein-Mueller investigation.”