Saturday, June 17, 2017

Misreading Rod Rosenstein and Missing a New Angle on Obstruction

Talking heads were in a dither yesterday, trying to decipher DAG Rosenstein's brief statement about the danger of relying on news accounts from supposedly reliable sources. See here for the Washington Post's account. Below is Rosenstein's statement in full:

Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch of agency of government — with which the alleged sources supposedly are affiliated. Americans should be skeptical about anonymous allegations. The Department of Justice has a long established policy to neither confirm nor deny such allegations.

My reading of it is simple. Any prosecutor or case agent who has ever been involved in a high-profile investigation knows that the vast majority of press accounts about the investigation are far off the mark. Rosenstein is acutely aware of this phenomenon, having worked for Ken Starr in the Office of Independent Counsel in pre-Monica days. Yet the prosecutors and case agents are generally not allowed to talk to the press about the investigation, even to rebut preposterous stories, because this would entail disclosing highly confidential information, and prosecutors and case agents are subject to strict secrecy obligations. Self-important and self-interested people, however, inside and outside of law enforcement, love to parade their inside knowledge to the press, even anonymously. Rosenstein is trying to make that point, but he is doing something else as well. I think he is trying to throw a lifeline to Bob Mueller.

As those who professes to be an expert on television should know, sources interviewed by the government or brought before the grand jury are not, except in rare instances, under any obligation of secrecy. So a person whose lawyer is called by an Assistant Special Counsel or FBI Special Agent and asked to schedule an interview or accept service of a federal grand jury subpoena can shout it to the rooftops or anonymously leak it.

What if the source contacted by the government for an interview is strategically aligned with the target or subject of the overall investigation? What better way to conspire to attack the prosecution team than to anonymously leak your client's upcoming interview or grand jury appearance to the press, tip off the main subject's lawyer, and then sit back and watch while that lawyer attacks the prosecution team for illegal leaks? It is possible that something like this is happening right now to Mueller and company, and I believe that Rosenstein's statement was meant to cover this situation as well. The bottom line is that Mueller and company may not be leaking anything, yet are essentially powerless to do anything about the accusations against them.

But what if there really is an orchestrated effort by President Trump and his attorneys to have their allies leak to the press and then falsely accuse Team Mueller? In my view, this might supply the falsehood element that is required to prove a criminal obstruction of justice and has been, so far as we know, missing in the case of President Trump--Jeff Toobin and company to the contrary notwithstanding. Absent the extra element of lying or bribery, the firing of Comey or anybody else by Trump does not constitute obstruction. As I have previously said in these pages with regard to Comey's firing:

[B]arring new information, the idea that [Comey's] firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.

This kind of thing would be extremely difficult to prove, and trying to prove it could seriously sidetrack the investigation and alienate the press. But if it is happening and Mueller can prove it, such conduct could constitute criminal obstruction of justice.


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