Politics & Policy

Rod Rosenstein’s Resistance

Deputy U.S. Attorney General Rod Rosenstein (Leah Millis/Reuters)
Weasel words, weasel moves from an emotionally overwrought deputy AG eager to ingratiate himself with Democrats

Rod Rosenstein is even a weasel when repudiating his weasel moves. Here (with my italics) is the deputy attorney general’s non-denial denial of a New York Times report Friday that he brainstormed about ousting President Trump in May 2017:

The New York Times’s story is inaccurate and factually incorrect. . . . I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.

Let’s parse this.

  • The Times story “is inaccurate and factually incorrect.” Rosenstein won’t say exactly what is wrong in the report. He is careful not to say that the gist of the report is wrong — he just hopes that, if he sounds indignant enough, you will hear it that way. The Times may have gotten a few details wrong, but you can bet the story is essentially true.
  • You can’t trust “anonymous sources”: this from the guy who, in approving a FISA warrant application to spy on an American political campaign, relied on anonymous sources — some of them Russian operatives — who were channeling information through a foreign spy from whom the Justice Department continued to take information even after telling a federal court that the spy had been cut out of the investigation for leaking to the media.
  • And my favorite: Rosenstein knows “there is no basis to invoke the 25th Amendment” against President Trump. Of course, that does not respond to what the Times report actually says, which is that back in May 2017, when he was an emotional wreck because Democrats were being mean to him, Rosenstein urged that there might at that time be a basis to remove the president under the 25th Amendment (specifically, Section 4) if he could get enough top officials to agree that Trump was unfit to discharge his duties.

The Times account is based on multiple unnamed sources and draws on memoranda about interactions with Rosenstein, written by the FBI’s former deputy director, Andrew McCabe, and other officials. The Times creates ambiguity about whether its journalists have actually seen these memos. Times reporters Adam Goldman and Michael S. Schmidt indicate that the chirpy anonymous officials with whom they spoke “were briefed either on the events themselves or on [the] memos” — implying that the journalists are relying on their sources’ accounts of the memos. Yet, the report subsequently adds a quote from McCabe’s lawyer, Michael Bromwich, who says his client “has no knowledge of how any member of the media obtained those memos.”

Miscalculating the Comey Firing
In any event, we learn that, shortly after being confirmed as deputy AG in April 2017 (i.e., weeks after Attorney General Jeff Sessions recused himself from matters related to the 2016 campaign and Russia’s meddling in the election), Rosenstein was openly supportive of President Trump’s desire to fire FBI director James Comey — to the dismayed surprise of White House aides then trying to talk the president out of doing so. Rosenstein is said to have volunteered to write the memo about Comey’s mishandling of the Hillary Clinton–emails investigation, and to have been sufficiently enthusiastic about this assignment that he “turned [the memo] in shortly after.”

Certainly, the substance of Rosenstein’s memo (dated May 9, 2017, the day Comey was fired) is consistent with the Times’ version of events. Rosenstein rips Comey over the Clinton emails caper, writing: “The Director was wrong to usurp the Attorney General’s authority” and “to release derogatory information” about an uncharged person (Mrs. Clinton). Rosenstein being Rosenstein, his memo’s conclusion is slippery. He won’t just come out and say that Comey should be fired. But he takes pains to point out that “the President has the power to remove an FBI director” and that the FBI under Comey has lost “public and congressional trust,” which it is “unlikely to regain” unless it has a director who “understands the gravity of [Comey’s] mistakes and pledges never to repeat them.” Then, Rosenstein pointedly notes that Comey refuses to do this.

It was perfectly obvious that Trump was planning to use Rosenstein’s memo as justification for dismissing Comey and that Rosenstein crafted the memo to support precisely that outcome. Yet Rosenstein claimed to have been shocked, shocked when his memo was deployed.

In truth, what transformed Rosenstein into a high-strung drama queen (“conflicted, regretful and emotional,” writes the Times) was not Trump’s firing of Comey; it was the ferocious Democratic blowback against Comey’s firing.

For years, Rosenstein had carefully tended to his reputation as an apolitical lawman, beloved of both parties. At a time when Trump nominees for top executive offices were extraordinarily difficult to move through the Senate with Republicans holding a razor thin 51–49 majority, Rosenstein breezed to confirmation as deputy attorney general by the margin of 94 to 6, with overwhelming #Resistance support.

Yet, on Comey’s firing, he badly misdiagnosed the Democrats. Like the president and some B-Team White House advisers, Rosenstein figured that his memo — so solicitous of Mrs. Clinton, so respectful of Democratic as well as Republican rebukes of Comey — would be applauded by Democrats, who blamed the former director for Clinton’s defeat. It had apparently escaped Rosenstein’s notice that Democrats had moved on from Hillary. Stoking anti-Trump derangement was now the order of the day, and Comey had made himself useful in that effort, particularly during March House testimony in which Comey publicly fingered the president’s campaign as a suspect in Russian sabotage. Whatever contempt Democrats might silently harbor for Comey, the president’s firing of him presented a political opportunity to accuse Trump of obstructing the Russia probe. The president, Democrats said, must’ve feared that the FBI director was about to expose a corrupt Trump–Putin conspiracy.

The apoplectic Democratic reaction sent Rod a-reeling, anguished by such taunts as this one by Senator Christopher Murphy of Connecticut: “You wrote a memo you knew would be used to perpetuate a lie. You own this debacle.” Pathos drips from the Friday Times report: Rosenstein grousing that Trump had used him; Rosenstein remorsefully wishing that Comey (whom he’d just portrayed as mutinous and incorrigible) was still running the FBI so the admiring Rod “could bounce ideas off him.”

Grousing about Trump’s Unfitness
The Times tells us that Rosenstein “grew concerned that his reputation had suffered harm,” and he “became angry at Mr. Trump.” Sensing which way the wind was blowing, desperate to get back in the Democrats’ good graces, the deputy AG started singing from the #Resistance hymnal: Trump is unfit. Of course, Trump was neither more nor less unfit than he’d been at any other time. Rosenstein’s sudden concern about the president’s suitability was about Rosenstein, not Trump. The deputy AG now felt the need to show his former admirers, as emphatically as circumstances would allow, that he was on the right side of this question.

1.) Wiretapping the President
So naturally, Rosenstein seized on the most current agenda item: Trump’s interviews of candidates to replace Comey. He began badmouthing the president as dangerously unserious. He allegedly urged that he or a top FBI official, such as then-acting-director McCabe, should covertly record conversations with Trump to amass evidence of the president’s derelictions and incapacity.

Regarding this eye-popping Times claim that he proposed wiretapping Trump, Rosenstein’s allies are reduced to insisting that he was just kidding. Clearly, enough people heard the deputy AG talk about covertly recording the president that he cannot credibly deny doing so. Thus, as is his wont, Rosenstein has issued a non-denial denial: “I never pursued or authorized the recording of the President.” Notice: No one is saying he gave a directive; the allegation is that he floated the idea.

In fact, Rosenstein may not have been totally serious about wiring up. But I believe he was dead serious about appearing ready to monitor the president — i.e., about assuring anti-Trump bureaucrats that he was with them, especially those who had good relations with Democrats, such as McCabe.

2.) Invoking the 25th Amendment
Further, according to McCabe’s memos, as reported in the Times, Rosenstein broached the possibility of invoking the 25th Amendment. This overwrought suggestion appears never to have advanced beyond the larval stage.

The amendment contemplates removal of a president who is incapacitated in the medical sense. It is not a substitute for impeachment, which is the remedy for unfitness in the sense of maladministration, about which Rosenstein was talking.

Furthermore, the 25th Amendment calls for a written declaration by the vice president and a majority of the cabinet. Rosenstein, by contrast, is said to have told McCabe that he might be able to get a grand total of two cabinet officials on board: Attorney General Sessions and John Kelly, who was then the homeland-security secretary (he’s now White House chief of staff). There is no indication that Rosenstein ever actually raised the possibility of a 25th Amendment coup with either of them. Still, this was more than idle chatter: Rosenstein’s “joking” about secretly recording Trump came in this context of exploring whether a case for removing the president from office could be built.

Hence, the non-denial denials from Rosenstein.

Here is the statement the deputy AG put out on Friday night: “I never pursued or authorized recording the President and any suggestion that I have ever advocated for the removal of the President is absolutely false.”

As already noted, Rosenstein’s assertion that the president is currently fit to serve is not responsive to the Times report, which says that Rosenstein, in an agitated state, intimated over a year ago that Trump might at that time be unfit and removable. Equally unresponsive is the deputy AG’s vehement denial that he “advocated for the removal of the President.” The Times does not allege that Rosenstein advocated for Trump’s removal; it says he raised but did not seriously pursue the harebrained notion that Trump could be removable under the 25th Amendment.

Tellingly, Rosenstein avoids claiming that he never discussed the 25th Amendment at all, with anyone. Again, it seems the evidence he did so is sufficiently convincing that Rosenstein dares not flatly deny it; he must instead deflect it. It also seems manifest that the deputy AG was more serious about being perceived as favoring Trump’s removal than about putting his neck on the line in an actual removal effort.

3.) Appeasing Democratic Demands for a Special Counsel
We come now to the most consequential step the deputy AG took to appease Democrats: his appointment of Robert Mueller as special counsel. This needs to be placed in sharper context than the Times has provided.

After firing Comey on May 9, 2017, President Trump hosted the Russian diplomats on May 10, the session at which he shamefully rebuked Comey and, according to the Times, divulged classified intelligence. We should add that, in the days that followed, the president botched Comey’s dismissal: first relying on Rosenstein’s memo, then insisting it was his own idea; first, adopting Rosenstein’s rationale that Comey mishandled the Clinton investigation, then blaming Comey’s handling of the Russia investigation, and so on. (For more, see my June 17, 2017, column, section 4.)

This bizarre performance intensified the already heated Democratic calls for the appointment of a special counsel for the Russia investigation, notwithstanding the absence of any factual evidence that the president, for all his missteps and unhinged Twitter twaddle, had actually committed a crime.

No one was more affected by this pressure cooker than the deputy AG. By May 12, 2017, the Times recounts, an “upset and emotional” Rosenstein was longing for Comey’s return to the Bureau’s helm. By May 14, Rosenstein was asking FBI officials whether he ought to call Comey directly to seek the jilted director’s advice about appointing a special counsel — a suggestion the officials are said to have shot down as a “bad idea.”

Here, the Times omits to mention that, at this very time, the just-ousted Comey was leaking to the Times a memo he’d written to himself. The memo claimed that, three months earlier (on February 14), the president leaned on Comey to drop any investigation of Michael Flynn, the former national-security adviser whom Trump had just fired. Comey has testified that his objective in orchestrating this leak was to “prompt the appointment of a special counsel.” By regulation, of course, that would have to have been done by Deputy AG Rosenstein, who we now know was keen to consult with Comey about such an appointment right before making it.

On May 16, the Times ran with the sensational story of Comey’s Trump/Flynn memo. This ratcheted up to new heights the calls for a special counsel, with Democrats inveighing that Trump had committed criminal obstruction — both by firing Comey, who had been running the Russia probe, and by meddling in the case of Flynn, a potential witness in the Russia probe. As I have repeatedly argued, these may have been politically foolish moves by the president, but they cannot constitute criminal obstruction because they involve lawful exercises of the president’s constitutional authority (to dismiss executive officials and exercise prosecutorial discretion). I am not alone in this assessment; it has also been posited by Harvard’s Alan Dershowitz and former solicitor general Ken Starr, among others.

Nevertheless, it was on May 16, in the wake of Comey’s firing and on the same day as the Times blockbuster report about Comey’s Trump/Flynn memo, that Rosenstein raised with McCabe the possibility of removing Trump via the 25th Amendment. Less than 24 hours later, on May 17, Rosenstein suddenly announced the appointment of a special counsel.

This was Rosenstein’s big chance to get back into Democrats’ good graces. Indeed, the Times reports that the deputy AG came close to appointing his old friend and former boss, James Cole, President Obama’s deputy attorney general for four years (who, the Times adds, was then in private practice representing such Democratic operators as Sidney Blumenthal).

In the event, Rosenstein did the next best thing to restore his good standing in Washington: He picked Robert Mueller, an appointment that was certain to (and did) receive ringing endorsements from Comey, Democrats, and the Beltway’s bipartisan media pundit class. (Though adamantly opposed to the appointment of a special counsel, I, too, acknowledged Mueller’s top-shelf credentials.)

Though the Times does not mention it, Rosenstein’s first stop after installing Mueller as special counsel was Capitol Hill. There, he put on sackcloth and ashes for Senate Democrats, promising he would impose no investigative restraints on Mueller. As the Washington Post reported, Rosenstein

emphasize[d] to the senators the independent authority that the new special counsel . . . has in the Russian investigation. “If one thing is clear from the meeting we just had, it is that Mr. Mueller has broad and wide-ranging authority to follow the facts wherever they go,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “That gives me confidence and should give the American people some confidence.”

The Post further related that Rosenstein stressed “Mueller’s wide scope” as his rationale for referring senators to Mueller rather than answering their questions about the investigation. The message: The deputy AG planned to be hands off; the special counsel would be a law unto himself.

An Investigation Supported by . . . the Steele Dossier
By the FBI’s own account, the Russia probe is a counterintelligence investigation. Justice Department regulations do not authorize the appointment of a special counsel for counterintelligence (an information gathering, non-prosecutorial task). No matter. Senator Schumer had been demanding a special counsel from the moment Comey was fired, claiming that there were grounds to suspect “the Trump campaign colluded with the Russians.” Emotionally shaken and eager to please, Rosenstein gave the Democrats the special counsel they wanted, vowing there would be no restrictions on Mueller.

How avid was Rosenstein about atoning for his role in Comey’s firing, about ingratiating himself with the Trump #Resistance irrespective of whether the president had committed a crime? It is worth considering this timeline.

May 17, 2017: Rosenstein appoints a special counsel to take over the Russia counterintelligence investigation, specifying no crime and providing no factual recitation of grounds for a criminal investigation against President Trump. Nor does the deputy AG explain why the Justice Department is too conflicted to conduct the Russia probe itself. (Mueller will proceed to staff his investigation with top prosecutors from the supposedly conflicted Justice Department, and later — with Rosenstein’s approval — will transfer his Russia indictments to components of the supposedly conflicted Justice Department.)

Mid June 2017: Just a few weeks after appointing Mueller to run the Russia counterintelligence probe, Rosenstein approves the final application for a FISA warrant — a counterintelligence measure — against former Trump campaign adviser Carter Page. Page 10 of the FISA warrant application green-lighted by Rosenstein (echoing the three prior applications that are incorporated by reference) avers, after two deleted lines:

The FBI believes that the Russian Government’s [afore-described cyber-espionage] efforts to influence the 2016 U.S. Presidential election were being coordinated with Page and perhaps other individuals associated with [Donald Trump’s] campaign.

The only publicly known “evidence” that makes this allegation is the unverified Steele dossier, a Clinton-campaign opposition-research project based on hearsay reporting by a foreign spy, former British intelligence officer Christopher Steele, several of whose unidentified sources are Russian operatives. Although a FISA warrant requires a showing that the target’s clandestine activities involve probable violations of federal criminal law, and although the warrant application signed by Rosenstein (like its predecessors) asserts that a prosecutive assessment will be made to determine whether any crimes were committed, neither Page nor any other Trump campaign official has ever been charged with any crime related to collusion with Russia.

August 2, 2017: A little over two months after appointing Mueller, and a few weeks after approving the FISA warrant application, Rosenstein provides Mueller with a supplemental memorandum that purports to flesh out the special counsel’s jurisdiction. The memo is clearly intended, at least in part, to fend off objections that, by failing to comply with federal special-counsel regulations, Rosenstein has authorized Mueller to conduct a limitless fishing expedition — a criminal investigation with no underlying crime.

Rosenstein’s August 2 memo is classified. Most of it has remained hidden from public inspection. Mueller’s prosecutors, however, were forced by the court to disclose part of it in connection with Mueller’s prosecution of Paul Manafort, Trump’s former campaign chairman. In part, the disclosed portion authorizes Mueller to investigate:

allegations that Paul Manafort . . . committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law.

It is worth noting that the special counsel regulations do not call for a regurgitation of “allegations.” They call for a factual basis to believe there are grounds for a criminal investigation. In any event, again, the only publicly known allegation that Manafort “colluded” with Russia (to borrow Schumer and Rosenstein’s term) comes from the Clinton campaign’s Steele dossier. To repeat, Manafort has never been charged with a collusion crime related to the 2016 campaign. It is not known whether Rosenstein’s August 2 memo expressly authorizes Mueller to investigate the president, or to investigate any person other than Manafort for colluding with Russian government officials, as the Steele dossier alleges.

Conclusion
To summarize, when he thought it would be popular, Rod Rosenstein was all in on removing FBI director Comey, eagerly volunteering to write the coup de grâce memo. When Comey’s firing ignited bitter protest and recriminations, a distraught Rosenstein blamed Trump for using him. The deputy AG ostentatiously sidled up to the bureaucracy’s “Trump is unfit” faction, expressing openness to wiretapping the president in an effort to force his removal under the 25th Amendment. Indeed, just days after his memo excoriating Comey, Rosenstein confided in FBI officials that he wished Comey were back at the helm and that he hoped to get Comey’s advice on the appointment of a special counsel.

When Democratic pressure to appoint a special counsel reached fever pitch with the Times’ publication of its report, based on a Comey leak, that Trump had pushed for the FBI to drop the Flynn investigation, Rosenstein decided to appoint a special counsel without specifying any crime against Trump. As he brainstormed about the possibility of ousting Trump under the 25th Amendment, Rosenstein flirted with the idea of appointing Obama’s deputy AG, James Cole, as special counsel. Ultimately, he appointed Mueller, the former Obama and Bush FBI director — Comey’s predecessor at the Bureau and colleague in the Bush Justice Department. Mueller staffed his investigation with top officials from the Obama Justice Department, which had green-lighted an investigation of Trump’s campaign.

Immediately after announcing Mueller’s appointment, Rosenstein further assuaged Senate Democrats, promising that Mueller would have no limits. Rosenstein then approved a FISA warrant application that alleged, apparently based on the Clinton-campaign-generated Steele dossier, that the FBI believed Trump campaign officials were complicit in Russia’s hacking conspiracy against the 2016 election. Subsequently, Rosenstein memorialized his authorization to Mueller to investigate “allegations” of collusion — apparently without spelling out any collusion evidence and very likely relying on the Steele dossier.

In Chicago last month, Rod Rosenstein was the featured speaker at annual meeting of the notoriously anti-Trump American Bar Association. Upon his introduction, his speech was delayed by a raucous standing ovation. The beaming deputy attorney general seemed to have gotten over his anguish.

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