Moreover, by giving the Cohen matter to career prosecutors, Rosenstein deflected questions over the scope of the special counsel’s mandate crossing Trump’s previously declared “red line” of personal or business dealings. With the transfer of that case, Trump now faces prosecutions under the special counsel and separate career prosecutors in three different jurisdictions, as well as the growing threat of state prosecutions. In other words, Rosenstein took out a legal insurance policy by first broadly defining Mueller’s mandate with Manafort, and then narrowly construing the mandate with Cohen.
Ellis is, therefore, correct that none of this makes much legal sense. It also shows that Mueller and Rosenstein are making prosecutorial decisions on the basis of political, not legal, priorities. There is no other obvious explanation for the different decisions made in the two cases. Mueller and Rosenstein’s motivation — to guarantee the survival of the investigation — may be laudable, but it is also undeniably strategic and, ultimately, irrelevant. Mueller is also “really something very special” as counsel. He can go anywhere that his mandate takes him.