For Impeachment Referral, Mueller Would Need Rosenstein

By Sam Thielman | January 29, 2018 4:18 pm

The news that the controversial Nunes memo accuses Deputy Attorney General Rod Rosenstein of misconduct underscores a crucial but often overlooked reality about Robert Mueller’s investigation of Russian influence in the election: If Mueller decides that President Donald Trump obstructed justice or otherwise broke the law, he may well still need Rosenstein’s sign-off to do anything about it.

The pivotal position Rosenstein occupies may help explain the determination of many Trump loyalists in and out of Congress to release the Nunes memo. Rosenstein has been facing calls since last year to step down or recuse himself from the Mueller probe — and his replacement would likely be a Trump loyalist. That means that if Rosenstein is forced out and a Trump loyalist takes his place, the move could neuter the Mueller probe.

At the heart of the issue are limits on the powers of the special counsel. Many legal scholars believe a sitting president can’t be criminally indicted, meaning that if Mueller finds evidence of crimes by Trump, his strongest recourse might well be to make a referral to Congress for potential impeachment proceedings. But some of those experts tell TPM that under the regulation governing the special counsel’s office, Mueller lacks the authority to make that referral without approval from Justice Department officials overseeing his investigation.

After Kenneth Starr’s pursuit of Bill Clinton, Congress changed the laws governing special investigations in 1999: No longer could a three-judge panel appoint an “independent counsel” acting with no direct DOJ oversight. Instead, the decision to appoint a “special counsel” had to be made by the attorney general. In Mueller’s case, Attorney General Jeff Sessions recused himself, because of meetings he had held with the Russian ambassador, leaving Rosenstein to appoint and manage Mueller and his probe.

“Those regulations don’t explicitly give the special counsel authority to make a referral,” William Yeomans, a 26-year DOJ veteran who has served as an acting assistant attorney general and is now a fellow at the Alliance for Justice, told TPM. “If there is a referral, it’s going to have to go through Rosenstein. Ultimately, it’s probably his decision.”

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