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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: rosenstein

Rosenstein Spared

09 Tuesday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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Department of Justice, deputy attorney general, firing, florida, Impeachment, investigation, midterm, Obstruction of Justice, police chief, president, rosenstein, trump

It has been reported that President Donald Trump has no intention of firing Deputy Attorney General Rod Rosenstein. There was some speculation that a firing or resignation would occur after it was reported by the New York Times that Rosenstein had discussed removing the President via the 25th amendment and recorded him secretly, though Rosenstein denied both allegations. Now, after a nice flight the two shared to Florida, Trump announces that he doesn’t intend to make any changes to the Justice Department.

This is surprising, considering the menagerie of firings Trump has collected throughout his campaign and administration.  However, there was some speculation that firing Rosenstein could amount to obstruction of justice, and with midterms looming, it may be that Trump is looking to avoid another scandal. This issue very well may resurface after November.

SUM7NGGLJUI6RI7GITNKHU263Y.jpgMandel Ngan/AFP/Getty Images

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It’s Too Late for a New “Saturday Night Massacre”

13 Friday Apr 2018

Posted by impeachableoffenses in Uncategorized

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Department of Justice, Mueller, Mueller investigation, Obstruction of Justice, Robert Mueller, Rod Rosenstein, rosenstein, Saturday Night Massacre

By Frank Bowman

In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together.  It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.

Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped.  That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly.  Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox).  It’s possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried.  Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants.  He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen.  For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so.  There is no legal basis for such an order.  More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed.  Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work.  Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York.   Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice.  The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear.  But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.

 

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Mueller’s cheerleaders: The peculiar certitude of two lawyers for his targets

04 Sunday Feb 2018

Posted by impeachableoffenses in Uncategorized

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indictment, Mueller, Mueller investigation, Robert Mueller, rosenstein

By Frank Bowman

Last week, I had an enjoyable conversation with Politico journalist (and outstanding Mizzou Journalism School alum) Darren Samuelsohn.  Darren was kind enough to quote me in an ensuing article about the likely result of Robert Mueller’s investigation. The piece is well worth a read, but the oddest bits to my mind are the quotes from several lawyers representing “clients swept up in the Russia probe.”

These lawyers are said to believe that Robert Mueller is likely to seek an indictment against Mr. Trump, despite the internal Department of Justice prohibition against doing so (that I’ve discussed at length here and here).  At least one of them bases his view on what he perceives as the growing “level of confidence” of Mueller’s staff.

I had two contrary reactions to the lawyers’ remarks. On the one hand, they may be the candid intuitive assessments of a couple of people who have the advantage of dealing directly with the Mueller team over time.  If so, they’re interesting, though probably not probative of very much.  After all, one can be confident about the course of an investigation without having any intention to conclude it with an attempt to do something DOJ policy now bars. On the other hand, these attorneys could be trying to use the media to inflame the already-sensitive Mr. Trump into firing Rosenstein and then Mueller, thus removing pressure from the lawyers’ clients.  But that’s way too Machiavellian.

Isn’t it?

Hmmm…

P.S. — I used the word “targets” in the title of this post for the sake of brevity. In DOJ parlance, a “target” is someone against whom prosecutors have substantial evidence and are likely to charge; actually, we don’t know whether these clients are “targets,” “subjects” (persons of interest against whom less evidence has been developed) or merely witnesses.

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Obstruction of justice matters only in an impeachment inquiry

05 Friday Jan 2018

Tags

nixon, obstruction, Obstruction of Justice, Robert Mueller, rosenstein, unindicted co-conspirator

For the past several days, the media has been ablaze with stories touting new details of Mr. Trump’s concern about the Russia investigation and his alleged efforts to quash it.  For example, Mr. Trump apparently believed that Attorney General Sessions could control the investigation and shield Mr. Trump, and therefore sought to prevent Sessions from recusing himself by sending White House counsel Donald McGahn to lobby Sessions against recusal.  Other bits and pieces are solidifying the proposition that Trump fired Comey in order to stop or impede the Russia investigation.

Unsurprisingly, many commentators have been declaring one or the other of these revelations definitive proof that Mr. Trump is guilty of obstruction of justice. The purpose of this post is not to assess the current state of the evidence.  Rather, I want to re-emphasize several points I made last summer:

1) While it is quite possible (contrary to the ill-considered declarations of folks like Alan Dershowitz) for a president to commit the crime of obstruction of justice, the official position of the Department of Justice is that a sitting president may not be criminally indicted.  Robert Mueller, whose appointment makes him subject to DOJ rules and regulations and subordinate to Deputy Attorney General Rod Rosenstein, has no authority to disregard that DOJ position.  Accordingly, no matter what evidence Mr. Mueller uncovers, it is vanishingly unlikely that he would even attempt to indict Mr. Trump for obstruction.

2) Even if Mr. Trump were indicted and convicted of obstruction, such a conviction would not result in his removal from office.  Only impeachment can accomplish that end.  Only Congress can impeach and remove a president.  And therefore the real question is what Congress will choose to do with whatever Mr. Mueller uncovers. But before it could do anything, it would have to have access to Mueller’s results.

3) Absent a formal indictment, the most Mueller could do in the criminal context is name Mr. Trump as an unindicted co-conspirator in an indictment charging others with obstruction.  This was the tack taken against Richard Nixon by Watergate Special Prosecutor Leon Jaworsky, but it was controversial at the time and is disfavored by DOJ policy.  We cannot predict with any certainty whether Mueller might try this approach, or whether Deputy A.G. Rosenstein would approve it.  Should Trump be named as an unindicted co-conspirator, that designation would formalize a legal conclusion by the Mueller prosecution team and give that conclusion a grand jury’s stamp of approval.  Critically, in the course of litigating the case against those formally indicted, the facts regarding Mr. Trump’s involvement would be revealed.

4)  If Mueller’s team assembles a convincing case that Mr. Trump did commit the crime of obstruction of justice, but is unwilling either to indict him or name him as an unindicted co-conspirator, there is some uncertainty about whether, and if so how, Mueller’s conclusions and supporting evidence would become available to anyone outside the Justice Department. Ordinarily, out of concern for the privacy interests of persons not charged, the Department does not disclose the facts of investigations that don’t result in charges.  James Comey’s choice to discuss publicly the details of the Clinton e-mail investigation was contrary to DOJ policy and would have been a perfectly sound reason to fire him — if it had been the real reason. Moreover, DOJ regulations on the appointment of special counsel make no provision for reports to congress or the public.

All that being said, there is little, if any, doubt that a committee of the House of Representatives engaging in an impeachment inquiry could request, and if necessary subpoena, Mueller’s materials and secure his testimony about his conclusions.  But, as I have observed before, no such inquiry is at all likely to occur so long as Republicans control the House.  Only if Democrats flip at least the House of Representatives will any of this chatter about presidential obstruction of justice have any practical consequence.

Frank Bowman

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Posted by impeachableoffenses | Filed under Uncategorized

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Does Mueller Matter? A Citizen’s Guide to the Obstacles Confronting the Special Counsel

19 Wednesday Jul 2017

Posted by impeachableoffenses in Uncategorized

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Tags

Ethics in Government Act, Independent Counsel, Mueller, pardon, Rachel Brand, rosenstein, self-pardon, Special Counsel

Robert Mueller, appointed by the Department of Justice as special counsel to investigate the Trump campaign – Russia connection, is looking into whether any crimes have been committed by Mr. Trump, his family, or subordinates.  Many people may be hazy on what would happen if and when Mr. Mueller identifies one or more prosecutable offenses. I have put together an “informed citizen’s guide to the obstacles that stand between Mueller deciding that a crime was committed and either impeachment of President Trump or prosecution of any Trump-linked suspects.”  It was published in Slate yesterday at the link below.

Not So Fast Special Counsel: All the ways Robert Mueller’s investigation of Donald Trump might be tripped up before it reaches the finish line.

Readers might find it informative.

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Where Deputy Attorney General Rosenstein Stands

18 Sunday Jun 2017

Posted by crosbysamuel in Articles, Uncategorized

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Impeachment, investigation, recusal, rosenstein

Click here to read about the possible recusal of Deputy Attorney General Rod Rosenstein, and here for a statement from Representative Ted Lieu about what consequences might come if Rosenstein were fired.

rosenstein.jpg

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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