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Democrats accuse Barr of bias in handling Mueller report, but what about Rosenstein?

Most are holding fire on Rosenstein but want to know how he and Barr decided against obstruction within 48 hours

Deputy Attorney General Rod Rosenstein has so far largely escaped Democratic criticism his boss Attorney General William P. Barr has faced for their conclusion that the special counsel investigation did not yield enough evidence to prosecute President Donald Trump for obstruction of justice. (Tom Williams/CQ Roll Call file photo)
Deputy Attorney General Rod Rosenstein has so far largely escaped Democratic criticism his boss Attorney General William P. Barr has faced for their conclusion that the special counsel investigation did not yield enough evidence to prosecute President Donald Trump for obstruction of justice. (Tom Williams/CQ Roll Call file photo)

House Democrats have been quick to suggest bias in Attorney General William P. Barr’s assessment that the special counsel investigation lacked enough evidence to prosecute President Donald Trump for obstruction of justice. But most of them are holding their fire when it comes to Deputy Attorney General Rod Rosenstein, who joined Barr in that conclusion.

“We cannot make a judgement on the basis of an interpretation by a man who was hired for his job because he believes the president is above the law, and he wrote a 19-page memo to demonstrate that,” Speaker Nancy Pelosi told her caucus during its weekly meeting Tuesday, according to an aide present.

The California Democrat was referring to a memo Barr wrote to Rosenstein in June 2018, before he was nominated to be attorney general, calling special counsel Robert S. Mueller III’s obstruction theory “fatally misconceived.”

In the memo, Barr argued that the judiciary had no authority to assess the motives behind discretionary decisions the president is afforded under the Constitution, like those involving personnel.  Mueller’s decision to investigate Trump for obstruction seemed to stem from his decision to fire former FBI Director James B. Comey, in part — as the president publicly admitted — because of the agency’s Russia probe.

One line of the memo actually echoes the rationale Barr provided to Congress on Sunday in a four-page letter in which he said he and Rosenstein concluded that the evidence Mueller presented on both sides of the obstruction issue would not be enough to prosecute Trump — not withstanding the long-held Justice Department position against indicting a sitting president.

“Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the president about obstruction until has enough evidence to establish collusion,” Barr said in the 2018 memo.

Barr, former attorney general to President George H. W. Bush, was a private citizen at the time he wrote the memo. But Democrats feel it weighed heavily in Trump’s decision to nominate him to take over the DOJ after he fired his first attorney general, Jeff Sessions, who had recused himself from investigations related to the 2016 campaign.

Because of views Barr expressed in the past, Democrats don’t believe he can independently conclude there’s not a case for obstruction.

“When the special counsel apparently gave the attorney general the power to decide, the cake was baked. It was over at that point,” House Judiciary member Jamie Raskin of Maryland said. “How could the attorney general decide in any way that would oppose the lengthy legal analysis he gave, saying that the president simply can’t be guilty of obstruction of justice?”  

Barr didn’t decide alone

But Barr said he did not come to his conclusion on obstruction by himself. 

“After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,” he said in his Sunday letter to Congress summarizing the Mueller report. 

Rosenstein was actually the DOJ official who appointed the special counsel, and he oversaw the vast majority of Mueller’s probe after Sessions recused himself. Barr did not take over until he was sworn in as attorney general last month.

Despite being a Trump appointee, Rosenstein, who is set to depart the DOJ soon, came under more fire during his tenure from Republicans than Democrats in large part because of his role in overseeing the Mueller probe.

House Republicans complained during their time in the majority that Rosenstein deliberately slow-walked responses to their oversight requests. Freedom Caucus members threatened to file articles of impeachment against him, and Trump reportedly mulled firing him.

Republicans found more reason to question Rosenstein’s objectivity last summer after reports that he had discussed secretly recording Trump and invoking the 25th Amendment to remove him from office. Despite threats to do so last year, House Judiciary Republicans never subpoenaed the DOJ for the documents that allegedly chronicled Rosenstein’s suggestion, a set of memos former FBI Deputy Director Andrew McCabe wrote during his tenure as acting agency head in 2017.

ICYMI: Jim Jordan and Rod Rosenstein’s fiery exchange

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Republicans, now in the House minority, renewed their efforts Tuesday to obtain the McCabe memos from the Justice Department — this time, with Democratic support.

Judiciary ranking member Doug Collins filed a resolution of inquiry directing the DOJ to release the McCabe memos and other documents related to Rosenstein’s conversations with Trump as the FBI and DOJ deliberated early in his presidency whether to open a probe into Russian election interference. Republicans want to explore what they have characterized as the origins of a nefarious attempt to undermine Trump’s presidency in its nascence.

Judiciary Chairman Jerrold Nadler decided to support the resolution of inquiry but for different reasons. He said he wanted to know “what prompted such alarm among Mr. Rosenstein and Mr. McCabe, as well as other FBI officials, that they would consider these unprecedented actions” of recording Trump or removing him from office.

Few complaints about Rosenstein

Most Democrats have not publicly registered complaints about Rosenstein, like they have with Barr and his alleged bias stemming from his June 2018 memo.

“Nobody has expressed any concern about Rod Rosenstein’s involvement to date,” House Democratic Caucus Chairman Hakeem Jeffries said. 

Oversight Chairman Elijah E. Cummings suggested he does not question Rosenstein’s objectivity, noting he’s known him for 15 years because he served as a federal prosecutor out of his district in Baltimore. The problem, the Maryland Democrat said, is he doesn’t know what process the DOJ used to determine there wasn’t sufficient evidence of obstruction by Trump.

“We do know that [Mueller] said [Trump] wasn’t exonerated,” Cummings said. “We do know that he said there are arguments on both sides, and they are apparently presented in the report.”

That’s among the reasons why Democrats are demanding to see the full Mueller report and supporting documents. 

Jeffries, a Judiciary member, also said it’s important Congress evaluate what took place in the 48 hours between Mueller submitting his report to Barr and the attorney general presenting his conclusions to Congress.

“There’s reason to believe that Bill Barr is not an objective arbiter of the truth,” the New York Democrat said. “In fact, it is possible that he may be part of the ‘Shoot someone on Fifth Avenue’ crowd that would turn a blind eye to any wrongdoing by Donald Trump regardless of what the evidence gets.”

Oversight member Gerald E. Connolly said he would withhold judgment on Rosenstein’s impartiality in this case until he had seen the Mueller report and heard testimony from the deputy attorney general and his boss.

“I believe he’s an honorable man. I believe he’s protected Mueller during the course of this investigation. But I don’t know what communications he’s had with the White House, with this new attorney general,” the Virginia Democrat said.

Watch: The back and forth on why Mueller’s report hasn’t been released yet

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‘Did he meaningfully contribute?’

Judiciary member David Cicilline also said he couldn’t make a judgement without knowing the context of Rosenstein and Barr’s deliberations. 

“Was he sitting there and Barr said, ‘This is what I’m doing?’ Did he meaningfully contribute? Why did he?” the Rhode Island Democrat said.

Cicilline did not rule out Democrats calling on Rosenstein to testify. Judiciary Chairman Jerrold Nadler has already promised to bring Barr in.

Freedom Caucus Chairman Mark Meadows said it’s difficult for Democrats to suggest Barr did not reach an objective conclusion without also accusing Rosenstein of similar bias. Either way, he’s not buying their claims.

“I don’t think that they think that either person is biased. I think that that becomes the natural default to try to change the narrative of the news that they just recently received,” the North Carolina Republican said. 

Still, some Democrats did speculate that Rosenstein may not totally  be impartial. 

“Since Mr. Rosenstein wrote the memo that was used as a pretext to fire James Comey, he’s not in a position really to evaluate the obstruction of justice issue,” House Intelligence Chairman Adam B. Schiff said. 

Another concern, Raskin said, is that Rosenstein works for Barr.

“He’s the attorney general’s underling,” Raskin said. “All of this is based on this story as told by William Barr. … I want to read ‘Macbeth.’ And I certainly don’t want the Cliffs Notes version of ‘Macbeth’ told by the witches, a character in the play.”