CNN on Wednesday reported that congressional investigators are examining the possibility of a previously undisclosed meeting between Sessions and Kislyak during the 2016 presidential campaign. They are specifically looking into an event at the Mayflower Hotel in Washington last spring, which both Sessions and Kislyak attended.
The FBI is also looking into potential interactions between Kislyak and Trump campaign officials at the event.
Sessions came under scrutiny in February amid revelations that he failed to disclose to the Senate two meetings he had with Kislyak in 2016 while serving as a surrogate for Trump.
The attorney general has since recused himself from matters involving federal investigations of Russian election meddling last year.
The Justice Department on Wednesday denied that Sessions met with Kislyak at the Mayflower Hotel last year.
“The facts haven’t changed; the then-Senator did not have any private or side conversations with any Russian officials at the Mayflower Hotel.”
The FBI and at least four congressional committees are investigating Russian intrusions in the 2016 presidential race, including possible collusion between Trump’s campaign and Moscow.
Donald Trump’s chief strategist and EPA administrator maneuvered for months to get the president to exit the Paris climate accord, shrewdly playing to his populist instincts and publicly pressing the narrative that the nearly 200-nation deal was effectively dead — boxing in the president on one of his highest-profile decisions to date.
Steve Bannon and Scott Pruitt have sought to outsmart the administration’s pro-Paris group of advisers, including Trump’s daughter Ivanka, who were hoping the president could be swayed by a global swell of support for the deal from major corporations, U.S. allies, Al Gore and even the pope. But some of that pro-Paris sentiment wound up being surprisingly tepid, according to White House aides who had expected that European leaders would make a stronger case during Trump’s trip abroad earlier this month.
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Those who want Trump to remain also face a hurdle that may be insurmountable: The president has long believed, rightly or wrongly, that the U.S. is getting a raw deal under the accord, and it would prove nearly impossible to change his mind.
The internal reality show culminated in a rush of leaks Wednesday from administration officials saying Trump was on the verge of pulling the plug on U.S. participation in history’s most comprehensive global climate agreement. But some White House aides held out the prospect that the president still might take the middle course that Ivanka Trump and others had advocated — staying in the deal but drastically scaling back the Obama administration’s non-binding carbon cleanup promises.
Pruitt and Bannon want Trump to make a clean break by withdrawing from the agreement entirely. And in recent months, they made sure Trump heard from a parade of conservative leaders and Republican lawmakers who raised concerns that the deal would hobble his pro-fossil-fuel energy agenda.
“We made very much the economic message argument,” said Club for Growth President David McIntosh, whose group wrote letters to the White House and spoke to senior staff. “It was bad for the U.S. economy. It would stifle economic growth and the United States should withdraw.”
As the news of the impending decision spread Wednesday,White House chief of staff Reince Priebus began calling and fielding calls from lawmakers, indicating that the U.S. was unlikely to stay in the agreement, one person familiar with the conversations said. One White House official said the president’s team was furiously working on an announcement of the withdrawal.
Trump refused to confirm the news, telling reporters only that his verdict was coming “very soon.” But administration officials said Trump was always leaning toward withdrawing — and, though they cautioned he could change his mind, he is expected to do so.
If he withdraws, Paris’ foes will have Pruitt and Bannon to thank.
One Republican close to the White House called it the “classic split” and said conservative activists had flooded the White House in recent weeks, after seeing increasing chatter that Trump may stay in. This person said Bannon and Pruitt worked quietly to make sure Trump was hearing their side and touched base occasionally on political strategy to woo him.
“You had the New Yorkers against it, and all the campaign loyalists for it,” this person said, referring to the push to withdraw. “When the New Yorkers get involved, it gets complicated for Trump and everyone else around him.”
Pruitt and Bannon have told others repeatedly for months that Trump will pull out of the agreement, as they aggressively pushed a narrative that they hoped would prove to be true, even as White House aides continued to debate the issue.
“Some of the debate was for show to help the moderates feel like they had their say,” said one person who has spoken to Pruitt. “Pruitt has believed all along that this was never in doubt.”
Pruitt, who frequently attacked the EPA’s regulations in court when he was Oklahoma’s attorney general, used his new post as EPA administrator to orchestrate an aggressive campaign to marshal conservative opposition to the Paris agreement.
He bashed the deal during a closed-door April meeting of the National Mining Association’s executive committee, telling the group that the agreement would hurt the economy. Pruitt’s staff also urged lawmakers and conservative groups to publicly criticize the agreement, sources familiar with the issue told POLITICO, which had the effect of increasing public pressure on Trump.
Bannon similarly argued in meetings with Trump and his team that the president would be breaking his campaign promise to “cancel” the agreement if he decided to remain. And he argued that the accord is a bad deal for the United States because other countries aren’t doing enough to curb their emissions.
Pruitt and Bannon’s anti-Paris campaign was meant to counter a separate offensive by members of the administration who supported staying in the pact, including Ivanka Trump and her husband, Jared Kushner.
In recent months, Ivanka Trump set up a process in which the president would regularly hear from people who supported remaining in the agreement, according to administration officials.
The remain camp believed, perhaps naively, that Trump could be influenced by the support the Paris deal has received from major corporations, including Exxon Mobil, which Secretary of State Rex Tillerson led for more than a decade.
“Ivanka is doing what she can to get him to stay,” one official said. “But that doesn’t mean he’s going to do it.”
They hoped European leaders could persuade Trump he would risk damaging diplomatic relations if he withdrew. Ivanka Trump also brought Gore to Trump Tower to try to sway her father’s mind during the presidential transition, and Pope Francis handed the president a copy of his papal encyclical on climate change when the two men met at the Vatican last week.
Trump took calls from a parade of business leaders and foreign leaders in recent weeks, most pressing him to remain, according to a senior administration official — and the calls continued on Wednesday.
“He had tremendous pressure from international leaders, from members of his own Cabinet and advisers in the international sphere not to pull out of the accord because of the perceived loss of face,” said McIntosh, the Club for Growth president.
But while the leaders of G-7 nations all pressed Trump to remain in the agreement during last week’s summit in Italy, Paris supporters in the White House have privately groused that they didn’t make an aggressive enough case.
European officials countered they tried not to push Trump too much during the meetings, believing that a hard-sell could backfire. And they were buoyed by early signals from White House officials ahead of the summit that Trump was open to remaining.
Indeed, European officials received a series of mixed messages from Trump’s team during the summit. National Economic Council Director Gary Cohn, a Paris supporter and the only U.S. official permitted to attend meetings with G-7 leaders, told reporters that Trump was “evolving” on climate change, which many interpreted to mean that he would remain.
White House officials chalked up Cohn’s comments to Trump’s habit of echoing the perspective of the last person he talked to. By that time, Bannon and other opponents of the agreement had returned the United States. But Trump’s decision to delay a final verdict on the agreement gave Pruitt and Bannon a final opportunity to make their case. Pruitt met with Trump to discuss Paris on Tuesday.
Most European officials were unwilling to comment about the prospect that Trump will withdraw, as they have not yet received official word from the White House and they are still holding out hope that the president will change his mind.
The officials have already begun looking to other countries for support on climate change, with the European Union set to promise deeper cooperation with China. Some officials have even adopted a new informal nickname for the major remaining countries that support action on climate change: the G-6.
Some Trump administration officials were reeling on Wednesday after the news first broke that Trump was prepared to withdraw.
Trump had not officially told his entire team of senior aides he was considering leaving the agreement Wednesday when news leaked out. “Everyone assumed that’s what was going to happen, but we weren’t called all in and told, ‘Oh, we’re putting this story out today,” one person said.
Having learned a lesson after Trump changed his mind about pulling out of NAFTA, administration officials cautioned against definitive reporting, warning that the president is notoriously fickle. As administration officials began tamping down reports that Trump’s decision was final, White House aides were swamped with calls, emails and texts from lobbyists and diplomats seeking clarification.
Officials close to Trump sometimes leak information before it is final — hoping to back him into a corner, or believing that comments during a private meeting represent his ultimate view. White House officials put out word in April that he was pulling out of NAFTA, even though Trump had not made up his mind, and news leaked during the campaign that he would pick Mike Pence as his running mate even as he weighed other candidates.
“Sometimes people close to Trump put things into the media environment to see how he’ll react to it,” one adviser said. “If your idea gets good coverage, it’s likely to help him decide to go with what you’re saying.”
One of the biggest lingering questions: If he withdraws, how will Trump do it?
He could abide by the formal procedures in the underlying text of the agreement, which mandate that a formal withdrawal will not go into effect until at least Nov. 4, 2020. Or he could pull out of the United Nations Framework Convention on Climate Change, the underlying 1992 treaty that governs the negotiations, which would allow for a speedier pullout — a far more radical step that would see the U.S. abstain from the entire climate negotiating process.
He could also declare that the agreement is a treaty, which would require a two-thirds-majority ratification vote in the Senate that would certainly fail.
Whatever he does, supporters of the climate agreement expect a harsh reaction from the United States’ friends if the country pulls out.
“I think the diplomatic backlash will be worse than it was when the U.S. rejected Kyoto,” said Susan Biniaz, the State Department’s longtime former climate change lawyer, referring to the George W. Bush administration’s decision to spurn the 1997 Kyoto climate agreement.
One former U.S. official agreed: “Will global leaders trust the U.S. to negotiate a climate treaty ever again? After Kyoto and Paris, who will trust us to keep our word as a nation? Our credibility is gone.”
The public editorship of the New York Times was always a fictitious job. That essential truth was made clear on Wednesday morning, when the paper’s publisher, Arthur O. Sulzberger Jr., announced that he would be terminating the position, less than a year into the term of its sixth and final occupant, Liz Spayd.
Spayd’s columns were widely mocked and despised, especially by other people in the media. Still, she was probably not the worst public editor the Times ever had. She produced only one valuable column, in an otherwise unbroken string of dumb and wrong ones, but that was one more than readers ever got from Byron Calame or Arthur Brisbane or that other guy, whoever he was. Clark Hoyt?
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The majority of the public editors were bad because the public editor’s job was designed to be badly done. It was created after the Jayson Blair scandal and the collapse of Howell Raines’ executive editorship, as a means of showing that the Times was serious about managing the institutional damage. The first public editor, Daniel Okrent, was sharp and rigorous, befitting a newspaper that saw its mission as a sacred trust and had obvious lessons to learn from its failures. Once the crisis had passed, though, Sulzberger seemed to approach the routine duty of holding his paper accountable the same way a surly 12-year-old approaches the task of mowing the lawn—if he could do it badly enough, maybe people would decide he shouldn’t have been made to do it at all.
So the work of minding the Times fell to a series of timid people, dull-witted ones and bores. Only the fifth public editor, Margaret Sullivan, broke with that pattern and did her job energetically enough that she ended up being hired as a real media columnist, at the Washington Post. Sometime between Sullivan’s tenure and the end of Spayd’s, though, the boilerplate on the public editor’s web page was revised so that the word “independently” disappeared from the phrase, “The public editor works independently, outside of the reporting and editing structure of the newspaper.”
It was an honest enough change. All along, the public editor had been hired by the publisher—and therefore could be shut down by the publisher. Like a president facing a nettlesome attorney general or FBI director, Sulzberger had the power to end the scrutiny whenever it suited him.
From a certain angle, then, Spayd was the most successful public editor of all, achieving harmony with her boss. The overriding message of her brief time in the position was that the job, as she conceived it, was a foolish one and not worth doing.
Sulzberger felt the same. Announcing the early end of Spayd’s job, he wrote that the paper must now take its guidance from the mass voice of social media and the internet. “Our responsibility is to empower all of those watchdogs, and to listen to them, rather than to channel their voice through a single office,” he wrote.
This deference to the dubious wisdom of the online crowd was Spayd’s guiding principle as public editor, spelled out in the headline of her debut column: “Want to Attract More Readers? Try Listening to Them.” In that introductory piece, she disparaged journalists’ “reflexive aversion to interacting with readers” and wrote that the Times newsroom was “too distant from the people it serves”:
Take reader comments on stories. This is arguably the most elemental way The Times can let its audience engage. Yet only about 10 percent of articles on any given day are open for comment.
This morning, Sulzberger neatly echoed the message:
Currently, we open only 10 percent of our articles to reader comments. Soon, we will open up most of our articles to reader comments. This expansion, made possible by a collaboration with Google, marks a sea change in our ability to serve our readers, to hear from them, and to respond to them.
The idea that online comments will be a force for improvement is an odd one to encounter in 2017. But Spayd had a powerful faith in the public, made more powerful because she had no coherent idea of what the public was. She was a deeply conventional journalistic insider—managing editor of the Washington Post, then editor and publisher of the Columbia Journalism Review—trying to imitate an outsider.
As counterpoint to her familiar, sacred professional journalist’s viewpoint from nowhere, she offered a mangled, imaginary viewpoint from everywhere. No complaint was too bogus or vapid to merit serious consideration:
One reader from California who asked not to be named believes Times reporters and editors are trying to sway public opinion toward their own beliefs. “I never thought I’d see the day when I, as a liberal, would start getting so frustrated with the one-sided reporting that I would start hopping over to the Fox News webpage to read an article and get the rest of the story that the NYT refused to publish,” she says.
Here’s frustration as it crests, from James, an Arizona reader: “You’ve lost a subscriber because of your relentless bias against Trump — and I’m not even a Republican.”
You can imagine what the letters from actual conservatives sound like.
Most people with experience writing about politics online did know exactly what letters like conservatives would sound like—they would sound just like those letters, complete with suspicious disclaimers of bias on the letter-writers’ part. Spayd, though, operated as if the contents of her inbox were some reasonable sampling of public sentiment, rather than the weaponized claims of various pressure groups.
Some amount of this confusion was a built-in hazard of the job. The much-admired Sullivan once devoted a blog post to a letter criticizing the Times’ indifference to the March for Life, a complaint copied straight from a Catholic League press release. But Spayd had, if anything, an affirmative preference for chaff over wheat.
If there was a unifying concept to her work, it was that the newspaper should above all cater to the sensibilities of people who don’t like the newspaper—culminating in a flabbergasting column earlier this month in which she worried that not enough people were suing the New York Times for libel. It would be “disconcerting,” Spayd wrote, if the shortage of lawsuits “suggests that those with a legitimate claim feel too intimidated to even try.”
But even Spayd’s best column was undermined by her inability to defend real values against bogus sentiment. Back in December, she presented an unflinching, reporting-based indictment of the Times’ failure to diversify its newsroom, under the ruthless and accurate headline “Preaching the Gospel of Diversity, but Not Following It.” It was a model of what an aggressive internal watchdog could do:
Only two of the 20-plus reporters who covered the presidential campaign for The New York Times were black. None were Latino or Asian. That’s less diversity than you’ll find in Donald Trump’s cabinet thus far. Of The Times’s newly named White House team, all six are white, as is most everyone in the Washington bureau…
The executive editor, Dean Baquet, is African-American. The other editors on his masthead are white. The staff with the most diversity? The news assistants, who mostly do administrative jobs and get paid the least….
Given The Times’s ambitions across global cultures and languages, it would seem that instead of being a lagger, it would insist on being a leader—and make that an explicit goal. I see no sign that this is happening.
Three months later, Spayd devoted an entire 690-word column to the fact that the Times culture writer Sopan Deb had made a joking quote-tweet around a tweet in which the rapper Bow Wow had insulted First Lady Melania Trump—a complicated nest of referents that nevertheless set off a right-wing complaint campaign. Spayd wrote:
Deb accurately pointed out that some far-right conservative groups have latched onto his tweet for their own purposes, and in fact some of the letters I’ve received may be the result of that.
On the other hand, you don’t have to be a conservative to look at the language and imagery in the original tweet from Bow Wow and be offended. I was. As a journalist it would seem to have a red flag staked through the middle of it.
Even though she concluded there was no malice behind Deb’s tweet, Spayd warned that “mainstream readers … might easily take offense.” The Times needed to hire more minorities, but those minority employees risked being dressed down by the public editor if they did anything to upset “mainstream” sensibilities.
Spayd’s reportorial view of the inside workings of the Times apparently commanded less of her attention than the vision of the paper she attributed to outsiders. So, too, in April, when the op-ed section announced it was hiring Bret Stephens from the Wall Street Journal, Spayd could only respond to reader outrage with bromides about “hiring people who don’t conform to a liberal orthodoxy of thought” and “whether The Times should be a paper for all of America.”
Spayd did mention that Stephens was “yet another white male” in the op-ed department, but not that he was, in fact, the section’s third self-identified anti-Trump conservative columnist. The idea of promoting ideological diversity was what mattered, not the resulting lack of diversity of ideology.
Nor did she mention that the opinion editor who hired Stephens, James Bennet, was a white man, who had been hired by Sulzberger to replace a white man, Andrew Rosenthal, who was the son of the former Times top editor A.M. Rosenthal, also a white man.The elder Rosenthal had been hired by Arthur O. Sulzberger Sr., the father of Arthur O. Sulzberger Jr. Some institutional problems were less open to discussion than others. The public editors were a flagellating instrument, meant to sting the paper on its surface, never to cut to the bone.
President Trump sparked a global kerfuffle over “covfefe” with his bizarrely truncated tweet just minutes into Wednesday, spawning countless jokes across Twitter but also more serious questions for which the White House gave no answers.
Press Secretary Sean Spicer, during an unusually short 11-minute briefing in which he insisted not be on camera, declined to give any explanation for Trump’s tweet posted just after midnight. Nor would he translate what the president was trying to say in the garbled message that broke off mid-sentence.
But Spicer told reporters that the public should not be concerned that the president sent what the questioner called “somewhat of an incoherent tweet.”
“The president and a small group of people know exactly what he meant,” Spicer said.
Trump may have been simply complaining yet again about negative press “coverage” of his presidency when he tapped out: “Despite the constant negative press covfefe”. Period. The message stopped there. And it stayed online for more than five hours, prompting jokes and confusion across the Internet even before his hirelings in the White House press office were awake.
In the morning, the message was deleted and Trump seemed to welcome the tempest he’d stirred up. At 6:09 a.m. Eastern time he posted, “Who can figure out the true meaning of “covfefe” ??? Enjoy!”
By late afternoon, “covfefe” had been used more than 1.37 million times on Twitter, Facebook and Instagram, according to analysis for The Times by Brandwatch, a social media analytics firm.
The actor Paul Reubens, writing as his television persona Pee-wee Herman, declared “covfefe” the word of the day. Late-night host Jimmy Kimmel wrote on Twitter: “what makes me saddest is that I know I’ll never write anything funnier than #covfefe.”
Among the responses on Twitter, many in foreign languages, were some that suggested that Trump, a teetotaler, was “drunk-tweeting” or, alone in the White House, under the influence of drugs.
Professional as well as amateur wits of the Internet disagreed over how to pronounce Trump’s neologism. Associated Press went with “cuv-fey-fey,” suggesting a Spanish pronunciation, as did some others who suggested covfefe rhymed with “jefe,” the Spanish word for “chief” (pronounced hef-ay). But others thought the second syllable should rhyme with “leaf.”
Although the word was considered most likely a misspelling of the word “coverage,” Spicer, Trump’s top interpreter as White House press secretary, didn’t offer that explanation. Instead, speaking for a boss who does not admit to mistakes, he insisted — against all appearances — that this was no mistake.
Whatever it was, Trump’s tweet did raise concerns about the health of a president who is 70 years old, overweight and just returned from a jam-packed eight-day trip across the Middle East and Europe. Conservative writer David Frum, a former aide to President George W. Bush, tweeted his speculation that Trump may have experienced a spasm while his Twitter feed was live, and lost consciousness.
“Because typos are rapidly fixed. This looks as if the president spasmed, passed out — and nobody on staff noticed,” wrote Frum, who has been a frequent critic of Trump.
However innocent the truth of this matter, speculation about Trump’s mental and physical health follows a long history of presidents hiding the facts about troubling medical conditions from the public.
White House staff initially did not disclose a heart attack suffered by President Eisenhower. Kennedy kept secret that he had a rare autoimmune disorder called Addison’s disease. Reagan’s speech patterns showed early signs of dementia during his final years in office, a fact reported only after he left the White House.
Trump has not provided the sort of detailed medical records that recent predecessors and presidential nominees have. In September, his physician Harold Bornstein said Trump was in “excellent physical health,” in a letter released by Trump’s campaign without medical documentation.
“There is no family history of premature cardiac or neoplastic disease,” the doctor wrote. “Mr. Trump’s parents, Mary and Fred, lived into their late 80s and 90s.”
When Deputy Attorney General Rod Rosenstein named former FBI Director Robert Mueller as a special prosecutor to handle the Trump-Russia investigation, the No. 2 Justice Department official won widespread praise for handing the politically sensitive probe off to a lawman with a reputation for independence.
However, Rosenstein isn’t completely removed from the case. In fact, department rules call for him to continue to play an ongoing role in overseeing Mueller and to reviewsignificant moves he may make, like interviewing witnesses or convening a grand jury.
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That arrangement is troubling to some lawyers and ethics experts who say it puts Rosenstein in the awkward and arguably conflicted position of overseeing an investigation where he could be an important witness.
Rosenstein met with President Donald Trump the day before he fired former FBI Director James Comey. The veteran prosecutor also drafted a memo that was used by the White House to justify the dismissal, although Trump later suggested the firing had more to do with Comey’s handling of the Russia probe and less to do with Rosenstein’s stated concerns.
If Mueller decides to explore whether Comey’s firing was part of an effort or scheme to obstruct justice, Rosenstein might be called in as someone with first-hand knowledge material to the probe.
“If the investigation encompasses Comey’s firing, it would seem Rosenstein was involved in that and he’d be a witness,” said Kathleen Clark, a law professor at Washington University in St. Louis and a prominent expert on government ethics rules. “If it is the case that the investigation reaches the dismissal of Comey, then I think it would be inappropriate for Rosenstein to have any substantive involvement in the investigation other than as a witness.”
Clark added that given Trump’s statement in an NBC interview that he had the Russia probe on his mind when he decided to dismiss Comey, it seems inevitable Mueller will have to dig into what happened.
“After President Trump’s admission, I don’t know how examining what happened there could not be a part of the investigation,” she said.
A Justice Department spokeswoman declined to comment for this article. However, a Justice Department official noted that Mueller enjoys “a large amount of independent authority.”
Indeed, the regulations used to appoint Mueller specify: “The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”
During his confirmation hearings, Rosenstein was asked about his ability to oversee the FBI’s Russia probe.
“I would need to consult with experts in the department. We have a complex set of rules and statutes that govern recusals,” Rosenstein said at the time. “As a Department of Justice official, I’d have to rely on the advice I got from the career staff, we have folks who are trained to do just that.”
But University of Chicago law professor Daniel Hemel argues that Rosenstein is too wrapped up in the matter to oversee it.
“The underlying principle is you shouldn’t be a prosecutor in your own case, that not only does a conflict of interest matter but the appearance of a conflict of interest matters,” Hemel said. “It’s hard to say there’s no appearance of a conflict here. He told the House that the letter he wrote and who asked him to write it was a subject of the special counsel investigation.”
Some Democratic senators made similar suggestions in the days leading up to Rosenstein’s May 17 announcement of Mueller’s appointment.
“The attorney general and deputy attorney general should recuse themselves from the appointment, selection and reporting of a special counsel,” Sen. Dianne Feinstein (D-Calif.) said on May 11. “This issue should be handled by the most senior career attorney at the Justice Department.”
A spokeswoman for Feinstein had no comment on whether she still takes the view that the special counsel should not report either to Rosenstein or his boss, Attorney General Jeff Sessions.
Senate Minority Leader Chuck Schumer in a May 10 statement said he shared Feinstein’s concerns and described Rosenstein as having “played a central role in all of these events.”
“The decision to appoint a special prosecutor should go to the highest-ranking career civil servant at the Department of Justice,” Schumer said. “Mr. Rosenstein and other political appointees should not be the ones making the call on a special prosecutor, lest that decision be seen as influenced, or worse, made at the direction of the Administration.”
Asked about Schumer’s current view, a spokesman for the senator said Rosenstein’s decision to pick Mueller “should give the American people some confidence because he is a man of great integrity and experience.”
The rules governing special counsels seem to call fora significant flow of information from Mueller to Rosenstein—as the seniorofficial overseeing the probe following Sessions’ March recusal from the Trump-Russia investigation.
In particular, the regulations say a special counsel has to file the department’s standard “urgent reports”—defined elsewhere as three days advance notice of “major developments” in an inquiry. That includes the filing of criminal charges, but also interviews and grand jury testimony of significant witnesses.
The official overseeing the investigation then has the option to veto any such step, although such a veto would eventually be reported to Congress.
“This definition of ‘major development’ is unbelievably expansive,” Hemel noted. “So, 72 hours in advance of interviewing Rosenstein, Mueller would have to say, ‘I’m going to interview you’? That undermines the whole idea of an independent investigation.”
The only direct precedent for the Trump-Russia special counsel investigation was set two decades ago when Attorney General Janet Reno used the same Justice Department regulations to appoint an esteemed figure—former Sen. John Danforth (R-Mo.)—to investigate the FBI’s role in the deadly inferno at the Branch Davidian complex in Waco, Texas.
Often forgotten is what Reno did next: recuse herself from overseeing the probe.
“I think it’s important that this be an independent investigation,” Reno told reporters at a September 1999 Justice Department press conference with Danforth at her side. “I will, obviously, be a witness. And I think it’s important that it be conducted without influence of those who have been involved,” she said.
Former Justice Department official Neal Katyal, who drafted the regulations as an aide to Reno in the late 1990s, declined to comment on whether Rosenstein should continue to be involved in overseeing the probe, despite his involvement in the Comey firing and the sequence of events that led up to it.
However, Katyal confirmed that the special prosecutor is supposed to check in with his or her boss at main Justice before taking major steps.
“The driving force behind that particular provision was the idea that a special counsel could develop tunnel vision and pursue a case at all costs, even against established department positions,” Katyal said. “Several independent counsels had taken very aggressive legal positions and lost in the courts (including the Supreme Court), and made the law worse off for DOJ’s interests overall. So, we wanted to make sure that there was a way to ensure that special counsels would follow the established practices of the department.”
The special prosecutor probes that irritated some Justice Department officials included that of Whitewater Independent Counsel Ken Starr, who litigated several high-profile battles over attorney-client privilege and access to Secret Service records. An independent counsel investigating Agriculture Secretary Mike Espy, Donald Smaltz, also took heat for a prosecution that led to a Supreme Court ruling narrowing what could be considered an illegal gratuity.
The Justice Department’s rules on handling of criminal investigations say that a prosecutor or investigator should disqualify himself “if he has a personal or political relationship with…any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.”
Oddly, those rules are silent on how to proceed if the employee him or herself took part in the matter being investigated. There are separate rules and a federal law against self-serving financial conflicts of interest. There are, however, executive branch-wide standards of conduct calling for federal officials to “act impartially and not give preferential treatment to any private organization or individual” and avoid even appearances of an ethical violation.
Some ethics experts said it was simply too soon to say whether Rosenstein would need to recuse, although they didn’t rule out that might be a necessity.
“We don’t yet know enough to say that Rosenstein cannot perform these functions in light of his role in the Comey firing,” said New York University law professor Stephen Gillers. “If that role was essentially a ‘walk on’ within the scope of the Mueller investigation, there would be no problem. But if as events unfold, it appears that the Mueller investigation could embarrass Rosenstein or suggest his wrongdoing or unlawfulness, or if Rosenstein were simply to become an important witness, Rosenstein, like [Attorney General Jeff] Sessions, would have to step aside.”
Danforth, the man Reno picked for the Branch Davidian assignment 18 years ago, remembers that Reno stepped aside at the outset of that investigation and left oversight of the probe to then-Deputy Attorney General Eric Holder.
“I think she had given the order to the FBI that it was OK for the FBI to assault the compound. I think it was her call to do that and since she was involved in the actual decision, she [said] get someone totally not involved in that and that was Holder,” the former senator told POLITICO Tuesday.
Danforth, who said he did not recall any regular reporting to Holder, viewed the investigation as essentially independent of the department.
“If there were problems getting material from DOJ, if there was any kind of difficulty, I’m sure we dealt with them then clearing the way, but it wasn’t as though I was on a string being pulled by the deputy attorney general,” Danforth said. “I didn’t think anyone was supervising my investigation.”
One unusual feature of Danforth’s investigation: the probe was conducted largely by the U.S. Postal Inspection Service, after he decided that the entire FBI was too conflicted to be involved.
Some of the perceptions of who will be running the new probe appear to be colored by Mueller’s reputation for independence and rectitude.
“I can’t imagine that Rosenstein or anyone at DOJ would be supervising Mueller,” Danforth said. “Mueller is not going to say, ‘Here’s my opinion but what’s yours, Rosenstein?…’ For all practical purposes, I think Rosenstein is just totally out of it.”
Hemel said it’s possible Rosenstein did not recuse himself in the days after the Comey firing because there were virtually no other political appointees in the department. However, Associate Attorney General Rachel Brand was confirmed on May 18. She would inherit oversight of the investigation if Rosenstein were to bow out.
The University of Chicago professor said that would be a better option than the current arrangement. “My concern comes from the fact that the Reno rules give him the power to influence the investigation in ways that will not be immediately transparent,” Hemel said. “I’d like to think that Rosenstein will do what he thinks is right and recuse himself here.”