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Rosenstein Should Be Fired Unless Agrees To Second Special Counsel

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Upon reading the terms of Deputy Attorney General Rosenstein’s order — and its highly prejudicial definition of the scope of the special counsel’s investigation —  I wrote in May, and again in July, that either Rosenstein’s order must be revised, or a separate order should be issued to require investigation of wrongdoing by the Obama administration.

As reported in The Daily Caller on Thursday, Republicans of the House Judiciary Committee have now issued a letter to Attorney General Sessions and Deputy AG Rosenstein requesting the appointment of a special counsel to investigate 14 separate categories of suspected unlawful activity by officials in the Obama administration, including unlawful spying, “unmasking” and leaking of information for political purposes during the 2016 campaign and its aftermath.

Some of the matters listed in the letter are arguably intertwined with alleged Russian interference with the election.  As such, by reason of his recusal, AG Sessions would be disqualified from appointing a special counsel.  With respect to those matters, then, compliance with the House Judiciary Committee’s request would require an order by the Deputy AG.

The House Judiciary Committee’s letter observes, “the very core of our justice system demands” an independent investigation of possible political interference in the 2016 presidential election.  Based on the recent incriminating testimony of James Comey himself; public statements of former Obama officials; the announcement on Thursday by House Intel Committee Chairman Rep. Devin Nunes that there were “hundreds” of suspicious unmasking requests by Obama officials; and other publicly available evidence: the investigation is obviously warranted.

My earlier op-eds explain that  Rosenstein’s order defines the scope of Mueller’s investigation by quoting, of all people, Comey, and, in particular, his selective disclosure of the only FBI investigation he was willing to confirm– the one pursuing so-called Russian “collusion” allegations.

Those allegations, according to  the House Judiciary Committee letter have “produced no evidence of criminality despite the fact that over a year has passed since the opening of the original FBI investigation.”  Given the evidence described in the letter, Comey is himself a suspect of criminal behavior, and also has a motive to harm the president.  How absurd that the current special counsel’s jurisdiction is delineated exclusively by quoting the “investigation confirmed” by the notoriously cagey Comey.

A separate investigation is needed, if for no other reason than to resolve the one-sided nature of the current investigation, which seems largely motivated by a fervent desire of the anti-Trump camp to disrupt President Trump’s policies and undo the election.   A failure by Rosenstein to appoint a separate special counsel would be to resist his obligation to serve the interests of the people and ensure our Department of Justice is not, in fact, a department of injustice.

The suspected political interference with the election strikes at the core of free and fair elections and representative self-governance.  A decision not to investigate such activities would violate the Deputy AG’s solemn oath to uphold and defend the constitution.  A decision not to investigate such activities would flout the Deputy AG’s solemn oath to uphold and defend the constitution.

Roger Banks is an attorney and writer in the Washington, DC area. 

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