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It was never clear what motivated Rod J. Rosenstein, the deputy attorney general, to hand the investigation of Michael D. Cohen, President Trump’s former lawyer, over to career prosecutors in New York rather than to the special counsel. With that investigation now implicating the president in serious campaign finance violations, we look at how fateful the decision may be. Guests: Neal Katyal, a lawyer who drafted the rules that govern special counsel investigations, and Michael S. Schmidt, who has been covering the special counsel investigation for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

Duration: 23m
Broadcast on: 17 Dec 2018
Audio Format: other

For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

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Brought to you by the Capital One Saver Card. With Saver, you are an unlimited 3% cashback on dining, entertainment, and at grocery stores. That's unlimited cashback on ordering takeout from home. Or unlimited cashback on tickets to concerts and games. So grab a bite, grab a seat, and earn unlimited 3% cashback with the Saver Card. Capital One. What's in your wallet? Terms apply. See CapitalOne.com for details. From the New York Times, I'm Michael Barbarale. This is The Daily. Today, it was never clear what motivated Rod Rosenstein to hand the investigation of Michael Cohen over to career prosecutors in New York, rather than the Special Counsel. Now, with that investigation implicating the present in serious campaign finance violations, my colleague Mike Schmidt spooked to Neil Cottio, the man behind the Special Counsel Rules about how fateful that decision by Rod Rosenstein may turn out to be. It's Monday, December 17th. So Neil, 20 years ago, you were the guy at the Justice Department who had to come up with a way that we as a country were going to investigate the most powerful people in the government and have that investigation protected from politics. We were coming out of the star investigation into Bill Clinton, Watergate, and its legacy still cast a huge shadow on executive power and how we looked at our president. When you built this structure for a special counsel investigation, a special way that we could look at this type of wrongdoing, what was that structure you created? Right. So the special counsel would have day to day independence. If they were to do something that contravene to establish department justice policy, they would go to the attorney general or the acting attorney general and seek permission for departure. And this is very important because we said in there, if the attorney general says no to the special counsel, then that triggered a reporting requirement to Congress and not just to the majority party in Congress, but to the minority party as well. And so the idea is to shed sunlight into the process and avoid a government cover up because we were worried about a president who would lean on an attorney general and say, hey, you know, look the other way, you know, that was all stuff we anticipated. And that's why the regulations look the way they do. So you're trying to build, as you said, sunlight into this. So the public will have a belief that this was an investigation conducted without politics. This was free of politics. And by doing that, it's this trigger that if the investigators wanted to do something and their superiors, the attorney general said, no, then Congress would be told about it. That is correct. What we wanted to do was just figure out a mechanism to let the career folks do the job that they know how to do without any interference by the attorney general or some other political creature. And after you built it, how did it work? So the special counsel regulations have only been triggered a couple of times. And I think the experience has been pretty good thus far. They have worked in largely the ways we've anticipated. But I'm not sure we ever anticipated a presidency like Donald Trump. What do you mean by that?

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