If Rod Rosenstein is in conflict, he should simply recuse himself

In this week's testimony and reports, the Deputy Attorney General Rod Rosenstein Rod Jay RosensteinRosenstein was felt used by the White House in Comey: Hillicon Valley report: the NSA removes records of calls | Tinder just sweeps for encryption | Strzok's lawyer calls for a transcript of interviews with the House panel, accuses GOP lawmakers of partisan leaks MORE has become the hamlet of the Potomac, an increasingly tortured and confrontational figure that is at both misunderstood and misunderstood. According to the New York Times Rosenstein oscillates between anguish and anger following the dismissal of the FBI director James Comey James Brien's ComeyTrump says it will evoke a electoral interference with Putin Rosenstein used by the White House in the fire of Comey: report Mueller again asks for delay in the conviction of Flynn PLUS . In his conversations with his friends and colleagues, he would have "expressed anger" and "remorse" while appearing "in conflict", "shaken", "unstable" and "overwhelmed".

Reports only amplified ethical concerns the Deputy Attorney General to appoint and supervise special advocates Robert Mueller Robert Swan MuellerSasse: The United States should applaud Mueller's choice for lead the probe of Russia PLUS . Rosenstein has long argued that he can handle such concerns. The suggestion is that, as with Hamlet, "there is method" to any "madness" that he might have shown.

There are legitimate doubts, however, whether there is more method or madness in Rosenstein refusing to recuse himself. After the appointment of the special advocate (whom I continue to support) last year, I wrote a chronicle asking how Rosenstein could appoint and supervise Mueller, given his own role as a key witness in the underlying subject. l & # 39; investigation. Indeed, Mueller and Rosenstein have been eyewitnesses of the critical periods in the return of Comey.

May 16, 2017, Mueller was interviewed by President Trump Donald TrumpMike John Huckabee: If Trump appointed Moses to Supreme Court Dems would still be unhappy Trump admin likely to detain migrant families for months During Immigration Proceedings: ICE Chief's Report to Protesters: We Are Not Those Who Separate PLUS Families to replace Comey as Director of the FBI. The shooting of Comey must have been an obvious subject of this meeting. The next day, however, Rosenstein informed Trump that the man the president had just interviewed for Comey's work would instead investigate his removal from Comey.

If the Mueller conflict was disturbing, the Rosenstein conflict was shocking. Rosenstein was asked to write a memo about Comey's misconduct as director of the FBI. This scathing memo was then presented by the White House as the basis for the termination. Rosenstein was furious and this week his associates told the media that he was complaining at the time of being "used" by the president and that he was angry because the false initial account concerning his role. Trump later admitted that he had already decided to send Comey back before Rosenstein's memo.

Any investigation into allegations of obstruction involving the removal of Comey would place Rosenstein at the top of the witness list. The questions are obvious and remain largely unanswered. Who asked Rosenstein to write the memo? Why was the memo written? What did Rosenstein say before Comey was fired to explain why Trump was unhappy with him? What were the circumstances and communications about the use of his memo by the White House? More importantly, why was he so angry?

Rosenstein was treated unfairly by Trump and Congress, including at the last hearing. He has a solid reputation for his impartial and professional judgment. However, his conflicts in this area have become more and more obvious over time. While Rosenstein has indicated that he would recuse himself if asked, it is difficult to see how he can continue as Mueller's superior when there is a credible investigation into the removal of Comey. Unless Mueller concluded early on that there was no credible allegation to investigate, Rosenstein continued to act as superior to a prosecutor who investigates, in part, his own conduct and his own judgment

. investigation, Rosenstein maintained a level of control over a case where he pronounced personal and professional interests. The Attorney General Jeff Sessions Jefferson (Jeff) Beauregard SessionsThe leader of the protesters: We are not the ones who separate families from Trump justice? The betting website gives long term chances on Ivanka, Kanye West being the choice of supreme court Protests against Trump 's nationally – planned immigration policy PLUS is challenged properly to avoid the appearance of a conflict. It has become increasingly clear that Rosenstein may have a real – not just apparent – conflict in this case.

Recent reports describe Rosenstein's conflicting emotions, ranging from anger to rationalization to discouragement. Indeed, Rosenstein's obstinate reluctance to recuse himself is itself worrying. The controversy over FBI investigations was fueled by the key role of figures like FBI official Peter Strzok, who harbored clearly antagonistic views against Trump. Strzok was eventually removed from his high-level post, but long after critical decisions were made in Clinton's e-mail and Russian investigations. This blemish has now undermined the integrity of the investigation and the office itself.

When Strzok's failure is based on personal prejudices, however, Rosenstein's failure is based on a personal interest in the investigation. The New York Times reported that, according to several close associates and friends of Rosenstein, he "seemed to be in conflict" following the shooting of Comey. Consider this passage: "He defended in turn his involvement, expressed his remorse at the turmoil that he unleashed, said the White House had manipulated him, fulminated how the media had portrayed the events and said that all history would justify it. "

It is surprising that Rosenstein did not recuse himself, or that his colleagues did not strongly encourage him. It is obviously problematic that Rosenstein chose and then supervised a special advocate in an investigation that he hoped to "justify". Rosenstein will also play a key role in the scope and publication of the Special Advisor's final report, which will necessarily affect his actions and role.

There is no reason for such an apparent or real conflict to exist because Rosenstein is not essential to the investigation. He may recuse himself and leave Mueller's supervision to a designated subordinate, in the interest of the integrity of the investigation.

Even before this week's reports, Rosenstein's role had a corrosive and deleterious effect on the credibility of the investigation. . His colloquiums reported on his role and mistreatment is reason enough for him to leave the scene before the end of the investigation. As with Polonius in "Hamlet", he should have been sacked several months ago with this wise counsel for those who must by necessity take their leave: "This above all else, to yourself be true, and he must follow, like the night, the day, you can not be wrong for any man. "Adieu."

Jonathan Turley is Professor of Public Law at Shapiro at George Washington University . You can follow him on Twitter @JonathanTurley .