Rod Rosenstein has let Mueller go far too far

Rod Rosenstein is doing a star turn as principled defender of the law, but he’s performed abysmally as deputy attorney general and President Trump would be fully justified in firing him.

The leaked questions special counsel Robert Mueller wants to ask Trump in a prospective deposition are, if accurate, a sign that Mueller has spun out of control on Rosenstein’s watch. The questions suggest a free-floating investigation of the president’s motives, undertaken by a subordinate of the president. This is unlike any special-counsel investigation we’ve ever seen and represents a significant distortion of our system.

Per the questions, Mueller wants to know how Trump reacted to news stories in The Washington Post. What he thought of FBI Director James Comey during the transition. What was the purpose of a statement he made to Maria Bartiromo of Fox Business Network. What he meant by various tweets about Comey. How he feels about his attorney general.

This is a sweeping and intrusive inquiry that isn’t just about official acts, but about the president’s state of mind. Mueller doesn’t just want to know what Trump did or what he said, but what were his thoughts in any given moment.

These queries grow out of an obstruction-of-justice probe centered, as far as we can tell, on Trump’s exercise of the legitimate powers of the presidency. Mueller is out to prove that Trump had ill intentions. But this is an inherently problematic inquiry that involves a subordinate second-guessing the president on highly political questions.

It’s doubtful a president can be guilty of obstruction of justice in exercising his official duties, precisely because passing judgment on the lawful acts of a president is not a matter for prosecutors or the courts, but for the political process. It’s another matter if a president has engaged in actual criminal conduct, like suborning perjury or bribing witnesses, but there’s no indication Mueller is investigating anything of that nature.

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What makes Mueller different from previous special counsels is that his predecessors were investigating specific alleged crimes. As my National Review colleague Andrew McCarthy has repeatedly pointed out, Rod Rosenstein mentioned no crimes in his initial order to Mueller, a violation of the special-counsel regulations. He said only that Mueller should investigate collusion and anything related. (Rosenstein followed up 10 weeks later with a more specific memo to Mueller giving him more detailed authority.)

Now, judging by the leaked questions, obstruction is the lion’s share of Mueller’s work. Absent smoking guns that we aren’t aware of (always possible), this is bizarre and disproportionate.

We now have an extensive obstruction investigation carried out by investigators who, as a material matter, haven’t been obstructed. There’s been an intense focus, for instance, on Trump’s Oval Office discussion with then-FBI Director James Comey about going easy on Michael Flynn. But as Andy McCarthy also notes, no one went easy on Flynn, who is awaiting sentencing after pleading guilty to lying to the FBI.

Regardless, Justice Department guidance says the president can’t be indicted. If Mueller takes heed of it, he’s limited to indicting underlings — often for lying to the FBI — and writing reports on his findings, with Congress the most important consumer.

This means Mueller is, in effect, the lead investigative counsel for a prospective House impeachment committee. It’s an important position, just not one that should be housed within the executive branch.

It is ultimately Rod Rosenstein who is responsible for the state of the investigation. On the merits, he should be fired and replaced by someone willing to exercise proper oversight of the special counsel, beginning by forbidding him from seeking an interview with the president on the current grounds or issuing a subpoena for his testimony.

The problem is that the ramifications of a Rosenstein firing would be difficult to predict, other than that there would be considerable political downside and it, too, would become fodder for the maw of the obstruction investigation.

A more practical lever would be to push for Rosenstein to recuse himself. He is a party to one of the events that Mueller is investigating, the firing of James Comey, and shouldn’t be overseeing a probe in which he’s a witness.

To this point, the White House posture toward the Mueller investigation has been to cooperate and hope it goes away, when a root-and-branch legal and constitutional challenge to Mueller’s work is now what’s called for. Surely, Mueller will want to ask questions about such an effort, too — because he’s the unbounded investigatory ombudsman of the Trump era.

Twitter: @RichLowry

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