Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Sen. Kamala Harris pressed Rod Rosenstein on why his appointment of Robert Mueller was done under Justice Department rules that give Rosenstein the ability to veto many key moves Mueller may make | AP Photo Rosenstein pressed on special prosecutor's powers

It was by no means the headline news out of the Senate Intelligence Committee hearing Wednesday, but Sen. Kamala Harris' questioning of Deputy Attorney General Rod Rosenstein about the powers of Special Counsel Robert Mueller offered a window into the legal nuances distinguishing one type of independent prosecutor from another.

Harris pressed Rosenstein on why his appointment of Mueller was done under Justice Department rules that give Rosenstein the ability to veto many key moves Mueller may make, such as convening a grand jury, seeking an indictment or even informally interviewing witnesses. She noted that in 2003 and 2004 then Deputy Attorney General James Comey gave Patrick Fitzgerald more unfettered authority to probe the disclosure of the identity of CIA officer Valerie Plame.

During a pointed exchange, Harris (D-Calif.) asked whether Rosenstein would be willing to give Mueller similar independence.

“Are you willing or are you not willing to give him the authority to be fully independent of your ability, statutorily and legally to fire him?” Harris asked.

Rosenstein argued that Mueller may actually have more independence than Fitzgerald, who was already serving as a U.S. attorney subject to being fired by the president.

“Robert Mueller cannot because he is protected by those special counsel regulations,” Rosenstein noted. He observed that he can fire Mueller or overrule his decisions, but that any such actions would be reported to Congress. (President Donald Trump could also order officials to rescind the regulations.)

POLITICO Playbook newsletter Sign up today to receive the #1-rated newsletter in politics Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

The deputy attorney general also turned the tables on Congress, noting that lawmakers let the independent counsel law expire in 1999.

“That sunsetted. ...That was a determination by the legislature,” Rosenstein noted. “They did not want special counsels, independent counsels who were 100% independent of the department.”

At one point, Harris’ efforts to get Rosenstein to give short, yes-or-no answer about giving Mueller broader independence drew an interjection from Sen. John McCain (R-Ariz.) and rebuke from Sen. Richard Burr (R-N.C.).

“The chair will exercise the right to allow the witness to answer the question and the committee is on notice to provide the witnesses the courtesy, which has not been extended all of the way across, the courtesy for questions to get answered,” Burr said.

Another safeguard is the honesty of the officials involved, Rosenstein said. "Although it is theoretically true there are circumstances [Mueller] could be removed by the acting attorney general which at this time is me, your insurance is his integrity, Robert Mueller's integrity, my integrity," the deputy AG said.

While Rosenstein is acting as the attorney general for the matter due to Attorney General Jeff Sessions' recusal, there have been calls from some Democrats for Rosenstein to hand off oversight of the probe— particularly in light of his role in the firing of Comey and his discussion with Trump on that subject.

Rosenstein told the Associated Press last week that he would recuse himself if that was necessary. The deputy AG also said he had made that pledge to Mueller directly.

Beyond Rosenstein's reference to him being the acting AG for the Russia probe "at this time," there was no discussion of a possible recusal at Wednesday's hearing.

Near the end of the session, Rosenstein promised — without mentioning the president directly but citing acting FBI director Andrew McCabe as a touchstone — that any plausible claim of obstruction of justice will be run to ground.

“If anybody obstructs a federal investigation, it would be a subject of concern, I don’t care who they are,” Rosenstein declared. “I can commit to you if you’re looking for a commitment from Mr. McCabe and from me, that if there is any credible allegation that anybody seeks to obstruct the federal investigation, it will be investigated appropriately, whether it’s by Mr. McCabe, by me, by the special counsel. That’s our responsibility and we’ll see to it.”