Rod Rosenstein has no conflict

All eyes are once again on Deputy Attorney General Rod Rosenstein, with news that he may soon be receiving the report by special counsel Robert Mueller on possible presidential obstruction of justice and deciding what to do with it. This comes on top of other recent stories claiming Rosenstein discussed wearing a wire to record President Trump and had a “clear the air” meeting with the president on Air Force One.

Some are claiming that Rosenstein has a “serious conflict” because he “is not just a witness” to the obstruction investigation but also “one of the key witnesses.” They conclude that this would require Rosenstein to recuse himself from his role overseeing the investigation. As experts on government conflicts with over a combined half century of experience, we strongly disagree. He should stay right where he is to receive and decide what to do with the special counsel report. A close examination of the ethics rules that actually govern the role of overseeing the investigation does not support the conclusion that he should recuse himself. Those rules require a much more imminent prospect of witness testimony or other conflict before disqualifying Rosenstein.

{mosads}Take the broad conflict of interest rules that apply to all executive branch appointees and career civil staff. 5 CFR § 502 precludes that official involvement in situations where the individual has a personal stake in the matter that would cause a reasonable person to question his or her impartiality, or where the individual has a limited financial interest under 18 USC § 208. Neither of these cases apply to Rosenstein. He does not have a specific interest because he is not a target or a subject of the investigation and does not have a “covered relationship” with anyone involved. No one suggests he has a financial stake in the matter.

Alleged statements by former FBI official Andrew McCabe that he felt Rosenstein had a conflict have no bearing on this analysis. The apparent angry assertion McCabe made during a dispute with Rosenstein was not as far as we know informed by the judgment of career ethics officials. To the contrary, Rosenstein has reported that he consulted with a career Justice Department ethics professional about his participation, and he was cleared to continue overseeing the special counsel investigation.

That Rosenstein consulted with an agency ethics official is crucial. The entire executive branch ethics program depends on employees seeking proactive advice from agency ethics officials. 5 CFR § 2635 provides a safe harbor mechanism for all employees to seek and rely on advice from ethics officials. An employee who makes full disclosure of all relevant facts to an ethics official and then relies on the advice of that ethics official, as Rosenstein did, cannot face disciplinary action for following that advice.

The integrity of the Justice Department ethics program depends on employees following this advice, which is why we disagree with those who cavalierly dismiss the analysis of those career ethics officials as the “judgment or rationalization” of a subordinate. While Justice Department ethics officials know more about the scope of this investigation than we do, we know enough to respect their judgment. It appears correct to us.

Next we turn to the targeted Justice Department recusal guidelines, codified at 28 CFR § 45, which covers personal and political relationships. There is simply nothing in the record to support a finding that Rosenstein has a political or personal relationship with anyone related to the investigation. He did not serve as a “principal adviser” to the Donald Trump campaign. He has no immediate family being investigated.

What about the American Bar Association model rules of professional conduct governing prosecutors? The model rules have been adopted by most jurisdictions, so they would apply in some form to the conduct of the deputy attorney general at the Justice Department. But again we find no evidence to support his recusal here. While model rule 3.7 bars a lawyer from acting as an “advocate at a trial in which the lawyer is likely to be a necessary witness” it only bars this dual function at trial. Thus, it does not apply to the investigatory stage or to the pretrial process.

That is because prosecutors meet with defendants and witnesses all the time. If prosecutors could be knocked out whenever they are a possible witness at a future trial, no matter how distant, that would lead to gaming the system. Indeed, it could not function. Model rule 1.7 also precludes representation of a client in other scenarios, including when the representation would be “materially limited” by a “personal interest” of the lawyer. So again, if Rosenstein were a subject or the target of the special counsel investigation, model rule 1.7 might be relevant, but he is not.

Thus, Rosenstein has no conflict as deputy attorney general. He should stay right where he is to oversee and protect the special counsel investigation. To require him to recuse himself without any basis would be to do tremendous damage to the public interest, particularly now, as the obstruction of justice report may be headed his way. Doing anything to interfere with that is the exact opposite of what ethics is all about.

Norman Eisen is chairman of Citizens for Responsibility and Ethics in Washington and a fellow at Brookings Institution. He served as White House special counsel to President Obama. Virginia Canter is chief ethics counsel Citizens for Responsibility and Ethics in Washington. She served as White House associate counsel to President Obama and President Clinton.