Over the past week, a series of events and reports have cast Rosenstein’s role under a bigger shadow, giving fodder to Trump allies to attack the legitimacy of the investigation. Many of those attacks are in bad faith. But the central question is valid: How can one supervise an investigation in which one is a central witness? For those who care about protecting the investigation from interference by bad-faith actors and about the investigation maintaining an appearance of propriety, there is a balanced solution: Rosenstein should recuse from the obstruction investigation but continue the Russia investigation.
On Thursday, my friend Norm Eisen, along with Virginia Canter and Conor Shaw—all legal ethics experts—published an article in Politico explaining why ethics rules do not require Rosenstein to recuse, “Spare the Rod.” But wouldn’t that then spoil the investigation?
This is no regular DOJ case. It is an unprecedented situation facing unprecedented political scrutiny and partisan assault. Even if DOJ ethics advisers have told Rosenstein he has not technically violated any ethics rules, he should recognize that the politics, perceptions, and common sense lead to the compromise solution proposed above. The logistical complications of such a split are less challenging than the risks of ignoring these concerns—or the risks of offering Trump a pretext to fire Rosenstein.
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