Rod Rosenstein will testify before the Senate Intelligence Committee on Wednesday. | AP Photo Democrats don’t want Rosenstein’s recusal, for now

Rod Rosenstein could be a central witness in special counsel Robert Mueller’s probe into potential collusion between Moscow and President Donald Trump’s campaign — but there’s a twist: As deputy attorney general, he’s still overseeing Mueller’s investigation.

Yet Democrats, who were once livid at Rosenstein for his role in the firing of FBI Director James Comey, are largely shrugging off the potential conflict.


That’s because Rosenstein, who will testify before the Senate Intelligence Committee on Wednesday, largely resuscitated his reputation when he picked Mueller to lead the investigation in the first place. By tapping the deeply respected Mueller as special counsel, Rosenstein won over most Democratic critics — and calls for him to recuse himself from the Russia probe have dropped off, easing pressure on him as he navigates a scandal consuming Washington.

“I think Rosenstein is 100 percent honorable, and I think Mueller is a 100 percent professional,” Sen. Sheldon Whitehouse (D-R.I.) said. “And you know, Mueller has to report to somebody. I’d rather have it be Rosenstein than anybody else I can think of in the department, particularly with [Attorney General Jeff] Sessions recused.”

Two days after Comey’s abrupt dismissal last month, Sen. Dianne Feinstein of California argued that both Sessions and Rosenstein should step aside from the “appointment, selection and reporting of a special counsel” and instead defer to the most senior career official at DOJ.

But on Tuesday, Feinstein, the top Democrat on the Judiciary Committee, said she wasn’t worried about Rosenstein interfering in Mueller’s investigation.

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“Bob Mueller isn’t going to allow that to happen,” Feinstein said during a brief interview.

Yet Rosenstein’s role raises questions about potential conflicts of interest, experts say, particularly if Mueller widens the scope of his investigation to include whether the firing of Comey was part of an obstruction-of-justice effort and the deputy attorney general is brought in as a witness.

Rosenstein drafted the memo that laid out the rationale for firing the FBI director, although Trump has since indicated that Comey’s role in investigating potential ties between Trump associates and Russian officials also played a part. Because DOJ rules say Mueller reports to Rosenstein, he retains the power to review major decisions in the special counsel probe, such as convening a grand jury.

The deputy attorney general told The Associated Press in an interview last week that if the scope of Mueller’s probe reaches him, he would recuse from his oversight role of the special counsel. Still, some liberals want Rosenstein to step aside from any role in the probe now.

“I think he should be recused from the whole investigation,” Sen. Richard Blumenthal (D-Conn.) said of Rosenstein. “He’s appointed by the president of the United States, who is potentially a target of an obstruction investigation. I’m baffled as to why he hasn’t said, ‘You know, I’m taking myself out of all of these decisions.’”

In an interview, Blumenthal said he is privately drafting a letter to Rosenstein asking him to clarify the specifics of the deputy attorney general’s role in the special counsel probe — including whether Rosenstein would sign off on Mueller hires and whether he would get any say if or when Mueller decides to issue subpoenas or grant immunity to witnesses.

Sen. Brian Schatz of Hawaii also urged Rosenstein to further explain to lawmakers his role in overseeing the special counsel investigation — a question that senators posed to the DOJ official when he briefed lawmakers behind closed doors last month.

“Obviously, you can’t be a supervisor and a witness at the same time,” Schatz said. But the liberal Democrat wasn’t yet willing to call for Rosenstein to be recused: “I think he needs to provide better clarity [on Wednesday], and I think [Wednesday’s] testimony will be instructive for all of us.”

Sen. Chris Coons (D-Del.) said he’s less concerned about Rosenstein than he is about Rosenstein’s boss — Sessions — who recused himself from the Russia probe in March due to his involvement in Trump’s campaign and his previously undisclosed contacts with Russian Ambassador Sergey Kislyak.

“I’m very concerned about repeated signs that Attorney General Sessions is violating the scope of his recusal,” said Coons, a member of the Senate Judiciary Committee. Asked whether he was comfortable with Rosenstein overseeing Mueller, Coons replied, “For now.”

Rosenstein is scheduled to appear before the Senate Intelligence Committee on Wednesday along with a host of other top national security officials for a hearing on an ostensibly unrelated matter: the Foreign Intelligence Surveillance Act.

But Sen. Mark Warner, the top Democrat on the committee, said he expects members of the panel to grill Rosenstein about his power over Mueller’s investigation. Asked whether he believed Rosenstein should recuse himself, Warner said, “I want to hear his answers to the questions.”

One senior House Democrat worried Tuesday that the parameters of Mueller’s investigation leave room for political interference — if not by Rosenstein, then by a possible successor should he recuse himself.

In a letter to Rosenstein on Tuesday, New York Rep. Jerry Nadler, a senior Democratic member of the House Judiciary Committee, noted that top DOJ officials still retain oversight of Mueller’s work and could impede his work if they chose to do so.

Nadler asked Rosenstein for clarity about how he intends to delegate authority if he decides to recuse himself and why Mueller wasn’t granted the sweeping authority of the most recent special counsel, Patrick Fitzgerald, who investigated the leak of CIA agent Valerie Plame’s identity.

“It is of paramount importance that Mr. Mueller’s investigation proceed unimpeded by any officials who may have a conflict of interest or other ethical bar, or by political interference of any kind,” Nadler wrote.

But Sen. Claire McCaskill (D-Mo.) said Rosenstein showed “good judgment” in choosing Mueller, who served as director of the FBI for a dozen years.

“The thing about it is, there’s so much going on here,” McCaskill said in an interview. “If he tried to interfere in any way, I am confident Mueller would call him out, and so I think we’ve got a check and balance there that’s appropriate.”

