Jack Goldsmith

A Very Interesting Question

#PutiTrump | #WhatTheyVotedFor

A child walks past a graffiti depicting Russian President Vladimir Putin and Republican presidential candidate Donald Trump on the walls of a bar in the old town in Vilnius, Lithuania, 14 May 2016. (Photo by Mindaugas Kulbis/AP Photo)

Yes, that Jack Goldsmith, for Lawfare:

One puzzle that deepens with Mike Schmidt’s New York Times story on “Trump’s Struggle to Keep [a] Grip on [the] Russia Investigation” is why Deputy Attorney General Rod Rosenstein has not recused himself from overseeing the Mueller investigation.

In short, before the Schmidt story, we knew that Rosenstein was intimately involved in the president’s decision to fire Comey. Rosenstein’s memo was used as a pretext to fire Comey;Rod Rosenstein is shown during his confirmation hearing to become deputy attorney general on 7 March 2017. (Photo: J. Scott Applewhite/Associated Press) Rosenstein knew that the president wanted to fire Comey; and he read the Bedminster draft before he wrote his own memorandum.

In this light, it has been very puzzling for a while why Rosenstein does not have a conflict of interest in the Mueller investigation. The Washington Post reported unequivocally that Mueller’s investigation includes “whether President Trump attempted to obstruct justice,” including, as a central issue, in his firing of Comey. Rosenstein was in the middle of that firing. He possesses information about the president’s beliefs and motives in firing Comey, and quite possibly a personal interest in how those beliefs and motives are construed, since he appeared to many to have been used by the president (and was reportedly very angry about it). Rosenstein would thus would very likely be a fact witness in any obstruction inquiry in connection with the Comey firing. It is hard to understand why he did not have a conflict of interest the moment Mueller’s investigation turned to obstruction in the firing of Comey.

File under, he might have a point, y’know.

Just sayin’.

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Image notes: Top —A child walks past a graffiti depicting Russian President Vladimir Putin and Republican presidential candidate Donald Trump on the walls of a bar in the old town in Vilnius, Lithuania, 14 May 2016. (Photo by Mindaugas Kulbis/AP Photo)  Right — Rod Rosenstein is shown during his confirmation hearing to become deputy attorney general on 7 March 2017. (Photo: J. Scott Applewhite/Associated Press)

Barrett, Devlin, Adam Entous, Ellen Nakashima, and Sari Horwitz. “Special counsel is investigating Trump for possible obstruction of justice, officials say”. The Washington Post. 14 June 2017.

Goldsmith, Jack. “Why Hasn’t Rod Rosenstein Recused Himself from the Mueller Investigation?” Lawfare. 5 January 2018.

Schmidt, Michael S. “Obstruction Inquiry Shows Trump’s Struggle to Keep Grip on Russia Investigation”. The New York Times. 4 January 2018.

The Senate GOP in Crisis

Mitch McConnell

“It is a useful thing when a political party reveals itself as utterly unsuited for national leadership.”

Fred Kaplan

In a way, everyone else is taking it well. That is to say, even the Iranians are trying very hard to enjoy themselves in the moment, and why not? It is not every day the United States Senate goes out of its way to afford a foreign nation the opportunity to school it on American constitutional issues. Or, as Akbar Shahid Ahmed explains, for Huffington Post:

After sparking a furor in Washington Monday with a letter signed by fellow Republican senators warning Iran against nuclear diplomacy with the Obama administration, Sen. Tom Cotton (R-Ark.) went to the extra trouble of having his message translated into Farsi for Iranian leaders. Among his targets: foreign minister Mohammad Javad Zarif.

Cotton needn’t have bothered with the translation. Zarif is more than capable of reading the Republicans’ letter in English. He attended prep school in San Francisco, San Francisco State University, Columbia University, and the University of Denver’s School of International Studies (where, Zarif told The New Yorker’s Robin Wright, a professor who had taught GOP foreign policy icon Condoleezza Rice once quipped to the young Iranian, “In Denver, we produce liberals like Javad Zarif, not conservatives like Condi Rice.”)

Zarif, leading his nation’s negotiations with the U.S., the U.K., France, Germany, Russia and China, put that education to use in his response Monday to the Republican message, which suggested that Iran’s leaders “may not fully understand our constitutional system.”

Zarif answered that it was Cotton and the 46 other Republican senators who signed his letter who suffered from a lack of “understanding.”

“The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations,” Zarif said, according to Iran’s government-controlled Tasnim News Agency.

He suggested that the Republican warning that a successor to President Barack Obama could undo any agreement with Iran was baseless. Zarif said the “change of administration does not in any way relieve the next administration from international obligations undertaken by its predecessor.”

Yeah. See, it’s one thing to say there is a problem in that Mr. Zarif has a point. But the problem isn’t that an Iranian foreign minister has a point, rather that he needs to make it at all.

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