Third, the appointment of a special counsel applies only to criminal investigations, not to counterintelligence probes.87 The FBI’s case at that point was, according to the testimony of Comey, a counterintelligence matter. The distinction is an important one. Counterintelligence collects information about foreign threats to be given to the president so that he may fulfill his responsibility to protect the United States’ national security. No suspicion or evidence of a crime is needed. Contrast that to a criminal investigation, which develops evidence for potential prosecution. It must be premised on a crime. In the absence of any articulable facts supporting a crime, the FBI should have quietly continued its counterintelligence probe. If in the process it had found possible crimes, it could have referred them to the DOJ for a determination as to whether charges should be brought. There was no need whatsoever for a special counsel.
Finally, the importance of specifically stating a suspected crime as a necessary predicate for appointing Mueller is reinforced by the condition set forth in 28 C.F.R. § 600.4, which states, “The Special Counsel will be provided with a specific factual statement of the matter to be investigated.”88 The scope of the probe is to be strictly circumscribed in order to limit the special counsel’s work to a defined subject. But Rosenstein did not comply with that requirement. The order announced a sweeping mandate with ill-defined parameters. Mueller was granted broad and nearly unlimited license to investigate matters that were not criminal at all.
Though it is true that 28 C.F.R. § 600.4 allows a special counsel to investigate and prosecute obstruction, it is expressly confined to obstruction “with intent to interfere with the special counsel’s probe.”89 But potentially obstructive acts, such as Trump’s supposed comments to Comey about Flynn and the subsequent firing of the director, fell well outside this stated jurisdiction inasmuch as they predated Mueller’s appointment. To put it another way, Mueller had no authority under the order to pursue any obstruction that might have occurred before he was appointed. He could pursue only obstruction impeding the investigation itself after it began.
Once again, Rosenstein failed to adhere to the law. He charged the special counsel with investigating something without authority. Rosenstein and Mueller knew they were trampling all over the special counsel regulations. In later court documents, the special counsel admitted that his original authorization order had been deliberately vague because anything specific would have been confidential and might have jeopardized his investigations.90 This is not, and has never been, a bona fide excuse for disobeying federal regulations derived from statutory law. It was an astonishing confession that the acting attorney general had carefully crafted his appointment order in a way that willfully violated the regulations requiring a specific statement of facts.
As the Mueller Report confirmed, the special counsel had conducted an intensive examination of whether the president’s firing of Comey had been a “corrupt” act intended to obstruct any investigation into Trump-Russia “collusion.” The president had relied, at least in part, on Rosenstein’s written recommendation that Comey be terminated for the reasons detailed in the deputy AG’s memorandum of May 9, 2017.91 He had also had extensive conversations with the president and then attorney general Jeff Sessions about discharging Comey for a justifiable cause.92 That made Rosenstein a central witness in any obstruction case.
Under those circumstances, Rosenstein was undeniably the wrong person to decide whether a special counsel should be named, and it was an indefensible mistake for him to have proceeded with the appointment given his status as a key witness in the case. The deputy attorney general was seriously compromised by his own role in firing Comey. Sessions had recused himself because of the appearance of impropriety arising from a perceived conflict of interest. By comparison, Rosenstein was afflicted with a genuine and indisputable conflict of interest that necessitated his recusal.93 His failure to recognize the obvious was incomprehensible. His desire to make the appointment notwithstanding is strong evidence that he nurtured a hidden agenda.
As previously noted, Rosenstein was an emotional train wreck in the aftermath of Comey’s firing. As reported by the Times, colleagues and friends described him as simultaneously angry and remorseful, shaken and unsteady, overwhelmed and conflicted.94 That was affirmed by McCabe, who had several meetings with him.95 “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,” reported the Times.96 Those accounts by people close to Rosenstein underscore his personal and professional involvement in the Comey firing. Rosenstein should not have been the one at the Justice Department to make the decision as to whether a special counsel should be appointed. Someone else should have taken charge while the deputy attorney general stepped aside.
Rosenstein’s recusal from the entire case was mandatory. Section 28 C.F.R. § 45.2 requires disqualification if a person is “substantially involved in the conduct that is the subject of the investigation.”97 Rosenstein was substantially involved as a vital witness to the reasons behind Comey’s firing. That bore directly on whether the president had obstructed justice. Rosenstein had a “personal and professional” interest in the outcome—another disqualifying circumstance cited in the regulation. His refusal to recuse himself also violated the Rules of Professional Conduct that govern lawyers.98
Once Mueller was appointed, he began investigating whether Trump had obstructed justice. The most important person who could attest to the president’s motivations was the very man who was now supervising the investigation into Trump’s intent. The provisions of 28 C.F.R. § 600.7 placed Rosenstein in charge and made him Mueller’s immediate superior.99 As acting attorney general on the case, Rosenstein was overseeing every aspect of it and directing both the scope and the decision making. He wielded the ultimate power to determine whether a prosecution would be brought but was also the principal witness who would influence that decision.
Was Rosenstein interviewed by Mueller or his investigators? He must have been. The Wall Street Journal reported that the deputy AG was among the first witnesses questioned by the special counsel’s team.100 Cryptic footnotes in the Mueller Report seem to confirm this.101 Although Mueller answered to Rosenstein, it was Rosenstein who had to answer the special counsel’s questions. That was about as warped and improper as a case can get. The boss was questioned by his subordinate; then the boss played an instrumental role in deciding whether charges should be brought based, in whole or in part, on his own testimony. It does not take a genius to realize that the scenario was fundamentally wrong and unethical. Rosenstein, as a chief witness, should not have been permitted to contemporaneously judge whether a prosecution was merited. That is the equivalent of a prosecutor putting his boss or himself on the witness stand to testify in the very case he is prosecuting. A lawyer cannot be an impartial investigator, witness, prosecutor, and judge all rolled into one. Rosenstein played all of those roles in a single case. His refusal to recuse himself was an atrocious lapse in judgment. It rendered the entire special counsel investigation inherently suspect amid persistent questions of self-interest, political bias, and a lack of objectivity.
The Mueller Report left little doubt that Rosenstein was interviewed by the special counsel. Private conversations between the deputy attorney general and Trump are recited almost verbatim in the section on obstruction of justice.102 Since Trump wisely chose not to be interviewed, those conversations were likely recounted by Rosenstein to the special counsel.103 Mueller seems to have accepted his boss’s version of events as gospel, without questioning whether Rosenstein had a veiled motive to shade the truth in a way that was self-serving and adverse to the president. That was lunacy: the deputy AG advised Trump how to get rid of Comey, then hired Mueller to investigate whether that decision constituted obstruction of justice by the president. Rosenstein’s refusal to recuse himself and his determination to supervis
e the case were unconscionable. No responsible and ethical lawyer would do such a thing.
Throughout the probe, Rosenstein was evasive and cagy about his conflict of interest. He allegedly consulted with an ethics adviser at the Justice Department and “followed that individual’s advice.”104 If so, that person should be cashiered for incompetence. At one point, Rosenstein said he would leave it up to Mueller to decide about his recusal.105 This is nonsensical in the extreme. Ethical rules and federal regulations impose the duty to recuse on the conflicted person, not his subordinate.106 If the subordinate is also involved in the case, as was Mueller, any advice on recusal would inevitably create his own conflict of interest because he would have an interest or bias in protecting his star witness as his boss.
There is another essential aspect to this: What if Rosenstein did not tell the truth when he was interviewed by the special counsel? What if other witnesses or documents offered proof that he lied? As supervisor of the case who would make the ultimate prosecutorial decisions, he would be free to disregard it and cover it up. Would he really decide to charge himself for false statements or perjury? Not a chance. That is exactly why a prosecutor cannot wear another hat as a witness in the same case: there is no penalty for dishonesty; it is a license to lie.
Rosenstein knew he should recuse himself because McCabe told him so to his face during an angry confrontation right in front of Mueller, according to the Washington Post.107 It happened just days after the special counsel was appointed. In a room with Mueller present, the two men hurled verbal assaults, each accusing the other of compromising behavior that had left them riddled with conflicts of interest requiring their recusals. Rosenstein assailed McCabe over his wife’s connections with Clinton allies, as well as “public and private statements expressing deep loyalty to Comey and unhappiness over his firing.”108 In response, McCabe impugned Rosenstein’s objectivity since he had “abetted” Comey’s termination and was now a fact witness in the case he was overseeing. Both men were correct.109 Both of them should have disqualified themselves and put as much distance as possible between their jobs and the special counsel investigation. They did not. To his discredit, Mueller made no move to force their departure, despite the “tense standoff” and the validity of their respective arguments.110
Rosenstein had not just one but two untenable conflicts of interest. In addition to presiding over an obstruction case that involved himself directly as a witness, he was tangled up in the “collusion” case, as well. He signed his name on the fourth FISA warrant application to surveil Trump campaign associate Carter Page.111 He vouched for its veracity and authenticity, even though the statements he submitted to the court had not been verified as required by federal rules and regulations. Did he even read the document he signed and “certified” as truthful? Under questioning by Representative Louie Gohmert (R-TX) at a House hearing in June 2018, Rosenstein deflected answering.112 Though he admitted that he had signed the third Page warrant renewal, he declared that he didn’t need to read all the FISA applications he signed. “Understanding” them was sufficient, he said.113 Had he read the renewal, he would have said so. His evasion is evidence that he did not. That exchange was a harbinger of the alibi Rosenstein would likely use for deceiving the FISA court. That is, he couldn’t have defrauded the judge because he hadn’t actually read the misrepresentations to which he had affixed his signature. It’s a standard ploy by wily prosecutors to shift the blame elsewhere.
Rosenstein’s suspected plot to secretly record Trump and then use the recording as evidence to remove him under the Twenty-fifth Amendment should also have disqualified him from any involvement in the special counsel probe. It was not possible for someone so noticeably antagonistic to the president to be an unbiased and neutral party overseeing that investigation. Even if one accepts Rosenstein’s dubious explanation that his discussion about deposing Trump was all in jest, the appearance of a conflict of interest was more than enough to merit his recusal. Rosenstein had agreed that the Sessions recusal had been appropriate.114 Applying that same standard, how could the deputy AG not disqualify himself? It made no sense.
So many of Rosenstein’s decisions failed to pass the smell test. As the number two person in charge of the Justice Department, he had scarcely been on the job when he counseled the president to fire the FBI director. When a political firestorm erupted and blame was heaped on him, he grew angry and emotionally distraught. That prompted his hasty decision to appoint a special counsel when none was merited under federal regulations. The result created a debilitating cloud over the presidency and embroiled the nation in a scandal that consumed public discourse for more than two years.
But Rod Rosenstein did not act alone. The man he helped fire was also instrumental in the wrongful appointment of a special counsel.
Comey’s Machiavellian Moves and Deceptions
James Comey was not the kind of person to take the indignity of his termination without consequence. Extraordinarily tall at six feet, eight inches, he is a man who tends to dominate whatever room he occupies, for better or worse. His imperious nature is consistent with his physical stature. His sense of self-righteousness can be suffocating. At the FBI and the DOJ, he flanked himself with a cadre of loyal lieutenants, but others loathed him as a smug and egocentric overlord, questionable in both character and scruples. Joseph diGenova, who spent decades as a US attorney, independent counsel, and special counsel to the House of Representatives, offered this assessment:
In the annals of U.S. law enforcement, no individual has reached such depths of disgrace as James “Cardinal” Comey. The “Cardinal” was a sobriquet that FBI agents used to denigrate their leader. As Deputy Attorney General, he was called “drama queen.” Known for his pomposity and self-regard, Comey cut a swath of arrogance unmatched in the histories of either of those illustrious organizations. He was the cult of personality. He surrounded himself with sycophants, people dedicated to his promotion and their advancement. The Bureau and the public became the losers.115
The director and his FBI confederates reviled Trump. They despised the man himself more than his politics. Proof of that was laid bare in the hateful and profane text messages shared between Peter Strzok and his lover, Lisa Page, as well as in McCabe’s spiteful book and Comey’s own publication wrapped in the fulsome title A Higher Loyalty: Truth, Lies, and Leadership.116 It is a nauseatingly preachy book by an author who preens behind false rectitude in an effort to paper over his own lies and lack of leadership. Truth is to Comey what military music is to music. Apologies to John Philip Sousa, but you get the idea.
Comey viewed himself as the savior of the nation who would oust Trump from the seat of power by any means necessary, legal or illegal. The august director surely knew better than all those deplorable voters who were crippled by levels of intelligence and wisdom inferior to his. So in the summer of 2016, Comey and his lieutenants launched an investigation of Trump without a whiff of credible evidence to legally justify the probe. Comey cleverly disguised it as a counterintelligence investigation, but its aim was to target Trump for treasonous acts he had not committed. On the very day Comey contorted the law to clear Hillary Clinton of crimes, FBI agents met covertly with ex–British spy Christopher Steele and enlisted him to provide the phony evidence that Trump was a latent Russian agent. It was utterly preposterous, of course, but that didn’t matter. If Trump could be tarnished with the specter of treason, that would suffice.
Armed with the unverified Steele “dossier,” secretly funded by the Clinton campaign and Democrats, Comey signed the first FISA warrant to spy on a Trump associate in hopes of gathering some incriminating evidence in support of his imaginary case of Russian “collusion.”117 When Trump unexpectedly won the election, Comey doubled down and met privately with the president-elect to debrief him on the “salacious” document so that it could then be leaked to the media to damage Trump before he was even sworn into office. The plan worked, and the “collusion” narrative took flight with t
he complicit media merrily on board. While the calculating director privately assured the new president that he was not a suspect, he suggested to Congress that indeed he was.118 Comey was conducting a secret counterintelligence operation against the president of the United States. Trump could sense it. By May 2017, the FBI director’s manipulations had caught up with him, and he was summarily canned. But Comey was far from finished.
Comey should have taken a page out of Deuteronomy and retitled his book “Vengeance Is Mine.”119 Stewing over his termination as director of the FBI, the notion of how to exact retribution against Trump came to him, he claims, in the middle of the night just a few days after he was banished from the J. Edgar Hoover F.B.I. Building.120 Before he was fired, Comey had poached copies of several presidential memos he had composed that recited the content of conversations he had had with the president. As detailed in The Russia Hoax, those memos were the property of the US government, not Comey’s personal property.121 He had written them in the course and scope of his employment for the government. Bureau regulations required him to “surrender all materials that contain FBI information . . . upon separation from the FBI.”122 Comey did not do that. He stashed copies of the memos in his home.
In essence, Comey stole government records and converted them to his own use. He has tried to justify the theft by claiming that the memos were “like a diary” and therefore belonged to him.123 This is a ridiculously disingenuous characterization. He was literally on the job when he wrote them, used taxpayer-funded government resources to do so, and recited almost verbatim the words that were exchanged in an official meeting with the president of the United States. Comey was speaking with Trump in his capacity as FBI director, not private citizen. Those conversations with the president were both privileged and confidential. Comey was in the Oval Office as a function of his job. Indeed, he shared the documents with senior officials at the Bureau and they discussed their contents, proving that they were work-related. Under no reasonable interpretation can the memos be described as a private “diary.” They were strictly work documents that were not his to plunder. The originals were stored in a secure place inside the FBI building. He admitted that he had made a conscious decision about their classification status, which only proves that they were important work documents. Comey’s rationalization bears no semblance to the facts and the law.
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