Note: This op-ed was written and posted before the Justice Department on Wednesday appointed Robert Mueller to serve as special counsel to oversee the investigation of Russian meddling in the 2016 election.
Russian interference in the last election has captured our nation’s attention, and the confluence of events leaves my former colleague, Deputy Attorney General Rod Rosenstein, in a singular position to set us on a path out of the morass. The Department of Justice emerges as a pivotal institution in this saga. How did we reach this unprecedented place in our history?
This we know: The Russians maliciously interfered in the presidential election. Whether Russian meddling changed the result is the topic of heated but unproductive debate. The ultimate impact is unknowable, and the election is over. There are, however, unanswered questions of vital importance, to all Americans, regardless of party. We must know what the Russians did, how they did it and how to prevent its repetition. Russian meddling must be seen for what it is: an unacceptable assault on our republic. We must know if Americans colluded in the Russian attack.
We must answer these questions — not to settle political scores from the past, but to protect our nation in the future. A full, fair and skilled investigation is necessary; on that we should agree. The investigation must be seen as fair and impartial. We must have confidence in the integrity of our governing instruments. Otherwise, we deliver our foreign adversaries one of their goals: continued American discord and confusion.
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Until recently, the Russia investigation was led by former FBI Director James Comey and his deputy Rosenstein. Comey is not without critics. He, mistakenly, in the view of many, departed from DOJ guidelines in handling the Hillary Clinton email investigation. His integrity was unquestioned, however, and his independence in pursuit of the investigation was assured. President Donald Trump removed him as FBI director. The circumstances of his removal are at the center of the firestorm and will likely undermine confidence in the new director’s independence.
Upon Attorney General Jeff Sessions’ recusal from the investigation because of his own contacts with the Russians, Rosenstein became the senior DOJ official in charge of this matter. For anyone who knows Rosenstein, this was comforting. I served with him for seven years. We served together on the National Heroin Task Force. His stellar reputation is well-earned. He is smart, honest and dedicated to justice. He is driven to do the right thing. He, and his predecessor, Sally Yates, are sterling examples of the high ideals and institutional ethic of the Department of Justice.
Rosenstein’s stellar reputation is a valuable asset for the Trump administration, which should take greater care that it is not squandered on unworthy causes. White House messaging laid the controversial Comey firing at Rosenstein’s feet. Subsequent efforts to clarify his role have not had a salutary effect on public perception. Regardless of the merits of firing Comey, its implementation was botched. Rosenstein, likely through little fault of his own, has been closely associated with the decision to fire Comey and the president himself has linked that decision to the Russia investigation. Unfortunately, Rosenstein’s ability to lead the Russia investigation in a manner that will be seen as independent has been needlessly compromised.
Rosenstein retains the power to appoint a special prosecutor and he should do so. According to polling, nearly 8 in 10 Americans agree, remarkable for a country so politically divided.
The special prosecutor must be a person of skill, experience and unquestioned independence. There are many who fill the bill, but I have an unsolicited nomination: Former FBI director Robert Mueller. He has served as FBI director, United States attorney and in various other DOJ senior posts. He has served presidents of both parties and is fiercely independent, a fact well known to anyone who has ever served with him. Those attempting to unduly influence an investigation led by Mueller would do so at their peril.
An investigation led by Mueller, with the aid of DOJ career prosecutors and the incredibly skilled men and women of the FBI, would get it right and would win the confidence of the American people. Once such an investigation concludes, we should confidently accept the result, regardless of the political impact.
There is a positive way forward amidst the discouraging scenes from the evening news. Let’s hope the good people in our government, like Rod Rosenstein, find it soon.
Kerry B. Harvey served as U.S. attorney for the Eastern District of Kentucky from 2010 to 2017. He served on the Attorney General’s Advisory Committee and as co-chair of the Healthcare Fraud Working Group. Harvey also served as general counsel to the Kentucky Cabinet for Health and Family Services and acting inspector general. He practices law in the Lexington office of Dickinson Wright.