JONATHAN TURLEY: If Rod Rosenstein feels conflicted, he should simply recuse himself.
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.
The answer to the question “Why won’t Rosenstein recuse himself?” might lie in the final clause of that last sentence.