Q&A: The Complex Issues of the Russia Probe, Special Counsel

WASHINGTON (AP) — President Donald Trump’s closest allies are attacking the integrity of those involved in the widening probe of Russian interference in the U.S. election, accusing special counsel Robert Mueller of driving a biased investigation. Trump himself took aim Friday at the senior Justice Department official responsible for appointing Mueller, accusing him on Twitter of leading a “Witch Hunt.”

The rising criticism puts a new focus on the relationships between the president, special counsel and the Justice Department, especially as questions loom over whether Deputy Attorney General Rod Rosenstein will recuse himself from overseeing Mueller’s probe. Some questions and answers about what could happen:


Rosenstein appointed former Mueller, a former FBI director, in May while facing questions about his role in the firing of FBI Director James Comey. Rosenstein had written a scathing memo criticizing Comey’s handling of the Hillary Clinton email investigation, which the White House initially cited as the impetus for Comey’s ouster. But Trump later said in a television interview that he fired Comey at least in part because he was frustrated over the Russia investigation Comey was leading. Comey later revealed that he orchestrated a disclosure of details about conversations with Trump to prompt the appointment of a special counsel.

Rosenstein was the one to make the decision because Attorney General Jeff Sessions had already recused himself from the Russia investigation. That happened after Sessions disclosed previously unreported contacts with the Russian ambassador during the 2016 presidential campaign.



Mueller reports to Rosenstein on budget and staffing needs for his team. Mueller has been choosing his own staff, tapping top legal minds from inside and outside the Justice Department. And it’s up to him to decide how much to tell Rosenstein about the substance of the investigation itself. Mueller was appointed under a rarely used regulation that gives him a broad mandate to investigate just about anything he feels is necessary, which could ultimately include Rosenstein’s role in Comey’s firing. Rosenstein told The Associated Press this month he would recuse himself from any oversight of Mueller if he were to become a subject of the probe. That had not happened as of Friday afternoon, but the possibility remains.

Rosenstein also has authority to fire Mueller, if he finds evidence of good cause. He said this week he had not found reason to do so — making the statement in the days after Trump’s friends raised the possibility that the president himself was thinking of “terminating” Mueller. Rosenstein also insisted Mueller’s investigation would have the resources it needs.



If Rosenstein recuses himself from oversight of the special counsel investigation, that role would fall to the Justice Department’s No. 3 official, newly confirmed Associate Attorney General Rachel Brand. Among other roles, she was an official in the Justice Department’s Office of Legal Policy under George W. Bush.



That would be unsettling for a Justice Department where many top positions remain unfilled. Trump has expressed increasing dissatisfaction with the Justice Department since Mueller’s appointment. If he fires Sessions, Rosenstein would become acting attorney general until the Senate confirms a permanent replacement. If he fires Rosenstein, Brand would lead the department. If the dominos continue to fall, one of five assistant attorneys general or the solicitor general would assume the role. But because none of those positions have been filled by Senate-confirmed people, the job would fall to the U.S. Attorney for the Eastern District of Virginia. Right now, that’s Dana Boente, who is also acting as head of the department’s National Security Division. Someone else would have to fill that role.

Oddly enough, Boente was acting deputy attorney general when Sessions recused himself, and until Rosenstein was appointed.



Trump allies have been questioning whether Mueller can lead an unbiased probe, given that some members of his team have made campaign contributions to Democratic candidates. But Justice Department policy and federal service law bar discrimination in the hiring of career positions on the basis of political affiliation, so Mueller may not have considered those contributions.

There is also no rule barring such donations, said David Alan Sklansky, a criminal procedure professor at Stanford University.

Others have pointed to news that Mueller interviewed with Trump for the FBI director post after Comey’s firing. But that doesn’t appear to violate any ethics rules, either, Slansky said.

Questions of conflicts of interest are typically a matter of “self-regulation,” rather than Justice Department regulations, said Jonathan Turley, a public policy law expert at George Washington University.

“A special counsel investigating the president of the United States must first and foremost be beyond the question of conflict,” he said. “This investigation is so important to our country that it was incumbent on Rosenstein to find someone who would be beyond question or reproach. Robert Mueller is not that person. There is too much cross-pollination between his background and that of James Comey.”



Kind of. Allegations of commingling between politics and law enforcement are age-old and standard, even when there’s not a special counsel. When Comey was deputy attorney general in the Bush administration, he appointed a close friend and former colleague, Patrick Fitzgerald, as special counsel to investigate who leaked the identity of Valerie Plame, a covert CIA officer. And allies of former President Bill Clinton also raised concerns of political bias by Kenneth Starr, who led the Whitewater investigation that ultimately led to Clinton’s impeachment.


Associated Press writers Vivian Salama and Eric Tucker contributed to this report.

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