Would Rod Rosenstein Object to a Mueller Action before Brett Kavanaugh Is Confirmed?

There’s a lot of discussion about whether or not DOJ’s traditional prohibition on major prosecutorial actions limits Robert Mueller. As I have explained, I personally think the terms of it don’t apply, with the possible exception of Dana Rohrabacher, because no other conceivable subject of Mueller’s investigation is conceivably on the ballot. Quinta Jurecic has a good piece explaining that it is a general practice, not a rule.

Justice Department Inspector General Michael Horowitz spelled out exactly why it’s wrong in three short pages of his recent report on the FBI’s conduct in the Clinton email investigation.

Two years ago, Jane Chong dove deep into the supposed 60-day rule in a Lawfare post on FBI Director James Comey’s October 2016 letter on new developments in the Clinton investigation. As she wrote then, there is no formal rule barring Justice Department action in the days immediately before an election. Rather, the “rule” is more of a soft norm based on what former Attorney General Eric Holder himself described as “long-standing Justice Department policies and tradition.” In a guidanceHolder issued in 2012, the attorney general wrote that, “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party”—which, Chong noted, leaves a wide loophole for actions taken near an election without the purpose of affecting that election. In 2016, Attorney General Loretta Lynch issued a similar memorandum with the same language, as the inspector general report lays out.

Chong’s post was, in fact, cited by the inspector general report in the office’s own analysis of whether Comey had violated the supposed 60-day rule. “The 60-Day Rule is not written or described in any Department policy or regulation,” the report says. Investigators canvassed a range of “high-ranking [Justice] Department and FBI officials” on their own understandings of the guideline, which the report describes as “a general practice that informs Department decisions.”

This short section of the 500-plus-page report shows broad agreement among the current and former Justice Department officials interviewed that there is some kind of principle against taking action in such a way as to potentially influence an election, though the interviewees do not precisely agree on the contours of that principle. Former U.S. Attorney for the Southern District of New York Preet Bharara stated, investigators write, that “there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.” Former Deputy Attorney General Sally Yates located the cutoff more precisely at the 90-day instead of the 60-day mark.

The inspector general’s office also interviewed Ray Hulser, the former deputy assistant attorney general for the Public Integrity Section of the Justice Department, who was involved in the drafting of Lynch’s 2016 election integrity. Interestingly, Hulser told investigators that the Public Integrity Section had actually considered codifying the 60-day rule in the Lynch memo, but had decided not to because such a policy would be “unworkable.”

Yet, even though I don’t believe the 60-day “rule” does apply, my expectation is that Rod Rosenstein — who after is the one who will make any decisions about major Mueller actions — would nevertheless abide by it.

Still, that leaves three more days of this week, before the actual 60-day cut-off.

Which leaves me with another question: Would Rosenstein balk at a major action this week, before Brett Kavanaugh is confirmed to the Supreme Court?

After all, Rosenstein is close to Kavanaugh from when both served on a real witch hunt, the Ken Starr investigation into Bill Clinton’s blowjob (indeed, Kavanaugh seemed to have gotten off on the most scandalous details about that blowjob). Rosenstein has gone to great lengths to make DOJ resources available in support of his confirmation. Rosenstein showed up for the start of today’s hearing.

For Rosenstein, Kavanaugh’s confirmation is personal.

Would he do anything this week to stave off new Mueller revelations, to ensure the Kavanaugh bullet train races forward?

13 replies
  1. Mister Sterling says:

    I think Rosenstein would do anything to protect Kavanaugh, unless Mueller’s team indicted a member of Trump’s family. That could not possibly be ignored. I think the Mueller team has something big going down this week. Probably not Donald Jr., but big.

    • Bob Conyers says:

      I can see Rosenstein putting a thumb on the scale to ease Kavanaugh’s passage, but I agree if Mueller had a compelling reason to go now, he would get the green light. Without knowing the specifics, it’s hard to say.

      I think it’s worth saying that a novelist could present the scene in a way that Rosenstein is trying to give the guy a big hug before the police sirens start to blare and Kavanaugh finds out Rosenstein puts duty above friendship, but that’s probably too hackneyed to be good fiction.

  2. SpaceLifeForm says:

    Rod Rosenstein at Kavanaugh hesring today.

    Since Kyl, I want a third US Senator indictment.

    G, M, and C.


    I want to ask what this hearing is about and what this is not about,” Cruz said. “First, this hearing is not about the qualifications of the nominee. Judge Kavanaugh is by any objective measure unquestionably qualified for the Supreme Court. Everyone agrees he’s one of the most respected federal judges in the country.”

    [Memo to Cruz: It is *EXACTLY* about the qualifications of the nominee.

    You are a corrupt worthless POS to say that. You are so fucking braindead that even though you are going to lose your re-election, you are so corrupted that you do not care about the future state of the country.

    You are totally a worthless US senator. Totally fucking worthless]

    • Rayne says:

      Cruz is trying to shape the narrative when it’s definitely about Kavanaugh’s qualifications — the ones hidden by the Trump administration and those obscured by Kavanaugh’s false statements in front of the Senate in 2006.

      Cruz should instead be asking himself about Zina Bash who flashed the WP or OK symbol today as she sat behind Kavanaugh. She also worked on Cruz’ campaign. Does she have any relationship with people like Steve Bannon? Brad Parscale? Rebecca Mercer? Anybody at SCL/Cambridge Analytica?

  3. Katherine M Williams says:

    Does Mueller need permission from Rosenstein?  Why should Mueller “obey” a non-existent rule when Trump has trampled all over government traditions himself. Why should Mueller, or anyone, show courtesy to a Fascist regime filled with traitors and Russia-sycophants?  Why?  Is Mueller a patriotic American, or just another republican clone?  He must know better than anyone else alive how totally evil the republicans are, with crazy Trump as their avatar.

    • Drew says:

      Rosenstein supervises Mueller and he is (as Acting Attorney General for the Russia probe) the person who has announced most of the indictments. I don’t think Mueller would announce an indictment without involving Rosenstein. This is a question of timing, however. It doesn’t mean that Mueller would completely defer to Rosenstein on the substance.

  4. Tristan says:

    Hm. Phrasing?

    (indeed, Kavanaugh seemed to have gotten off on the most scandalous details about that blowjob)

  5. pseudonymous in nc says:

    If Rosenstein does object to a major action because of Generic FedSoc Judge, I think the fact of his objecting may leak.

  6. eric says:

    I think EW wrote that non-ironically, Kavanaugh was strangely obsessed with asking Clinton graphic sexual details about his affair.

  7. Trip says:

    There’s video of Rosenstein giving Kavanaugh an ‘atta boy’ pat on the back, at break, directly after Parkland father Fred Guttenberg extended his hand (which Kavanaugh rejected and then sicced security on him). I have a difficult time reconciling this since Rosenstein is responsible for an investigation into a corrupt president, while Kavanaugh has argued in the past that this should never happen (to a Republican president, anyway). The contradictions and alliances almost make you dizzy.

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