After a postponement last week, it is not clear whether President Trump and Rod Rosenstein will meet anytime soon to come to grips with allegations that the deputy attorney general had considered wearing a wire to record Trump and invoking the 25th Amendment to remove him from office.
Republican sources who spoke with RealClearInvestigations described Rosenstein as an existential threat to Trump’s presidency through his authority over special counsel Robert Mueller’s Russia investigation. The problem, says one congressional source, “is that firing him may give Mueller the pretext to build an obstruction case.”
Thus it appears that Trump has chosen to keep Rosenstein on board at least for the time being rather than jettison him and risk chaos so close to the midterm elections in November. On top of that, the 11th-hour FBI investigation of Supreme Court nominee Brett Kavanaugh further complicates the strained interdependence of the two men.
Although Trump seems to hold all the cards, sources say Rosenstein knows how to take advantage of the president’s political inexperience. A careful assessment of Rosenstein’s actions — and the paperwork supporting them — shows evidence of shrewd bureaucratic calculation.
It was Rosenstein, for example, who convinced the president last week to defy the wishes of his political allies and delay plans to declassify documents concerning the FBI’s Russia probe. “Rosenstein warned that it would endanger ‘sources and methods,’” a senior U.S. official told RealClearInvestigations.
Senior officials say that Rosenstein’s overarching aim is to protect the Department of Justice, where, after a brief stint clerking, he’s worked since graduating from Harvard Law School in 1989.
Rosenstein is an “institutionalist,” one congressional investigator told RCI. “His calling is to defend the interests of the institution he’s served for most of his adult life.”
That has not been easy, with the DOJ shaken by abuses and possible crimes whose full exposure could end Mueller’s investigation and vindicate Trump. These were committed by senior leaders during the FBI’s investigations of Hillary Clinton’s emails and the Trump campaign’s alleged ties to Russia.
Several senior officials have been fired, or reassigned, or resigned under a cloud. Former deputy director of the FBI Andrew McCabe is facing a grand jury. Peter Strzok, the FBI’s lead agent on the Clinton email probe as well as its Trump investigation, was fired, and his paramour Lisa Page, McCabe’s legal counsel, left the bureau. Bruce Ohr, a senior DOJ official who funneled Clinton-financed opposition research that his wife, Nellie, helped compile into the Trump Russia probe, has been demoted twice.
Rosenstein was not directly involved in either the Clinton probe or the early phase of the Trump investigation. But he inherited the latter in the spring of 2017. After Trump fired FBI Director James Comey – relying in part on Rosenstein’s recommendation – Rosenstein appointed Mueller as special counsel to investigate possible Russian interference in the 2016 election. The Clinton investigation returned to the spotlight in June of 2018 when the DOJ’s inspector general issued a report raising questions about the handling of that probe.
Since then Rosenstein has been described in press accounts as “conflicted, regretful and emotional.” But he has also skillfully cultivated his relationship with Trump.
Sources told RCI that Trump, as one put it, “thought that he and Rosenstein were getting along well” before being surprised by a New York Times article last month reporting Rosenstein’s discussions about wearing a wire to gather evidence for the president’s possible removal.
Rosenstein and Trump spoke once or twice a week and he had the president’s ear on issues central to his political agenda, like immigration.
The deputy attorney general also benefited from the public wrath Trump has directed at Rosenstein’s boss, Attorney General Jeff Sessions, for recusing himself from the Russia probe. This had allowed Rosenstein to operate with a relative amount of freedom behind the scenes.
Immediately after taking his post on April 26, 2017, Rosenstein ingratiated himself with Trump by writing the memo that would help justify the May 9 firing of FBI chief James Comey. “The Director was wrong,” wrote Rosenstein, “to usurp the Attorney General’s authority” in announcing that the investigation of Hillary Clinton’s server “should be closed without prosecution.”
But the landscape quickly changed when Democrats criticized Rosenstein for supplying the rationale to oust Comey. Morale was low at the FBI after Comey’s firing.
It was during this period that a reportedly dejected and harassed Rosenstein raised with McCabe and others the possibility of recording Trump and convincing other Cabinet members to use the Constitution to remove the president.
Sources close to Rosenstein tried to control the damage by telling other news outlets that he was not serious about recording Trump or moving to replace him. Rather, Rosenstein was being “sarcastic.”
It is not possible to know whether Rosenstein was serious, or just trying to demonstrate his loyalty to the department after Comey’s firing. Talk of the 25th Amendment was in the air, cited by anti-Trump journalists. So was talk of a special counsel — months before Comey was fired.
Shortly after Sessions recused himself in March from any investigations regarding the 2016 presidential campaigns, Senate Democrats led by Dianne Feinstein demanded a special counsel to oversee the Russia probe. Sen. Charles Grassley recommended that the decision be left to Trump’s nominee for deputy attorney general.
“Once confirmed, Mr. Rosenstein can decide how to handle it,” said Grassley. “I know of no reason to question his judgment, integrity or impartiality.”
A little more than a week after providing the pretext for Comey’s dismissal, Rosenstein appointed the special counsel that Democrats had been requesting for months.
In authorizing Mueller, Rosenstein essentially put the Russia probe under his direct control.
“He could have left it with the FBI,” former FBI agent Mark Wauck told RCI. “It would have fallen under McCabe’s supervision, he was acting director after Comey was fired, and it seems Rosenstein had a good working relationship with him.”
Why did Rosenstein want to take it away from the bureau? A possible clue comes in a text Strzok sent to Page the day after appointment of the special counsel, expressing his reluctance to join the Mueller team. “There’s no big there there,” Strzok wrote.
“If the agent who ran the Russia probe believes there’s nothing there,” Wauck told RCI, “that suggests the special counsel was appointed because Rosenstein wanted to ensure that the investigation would continue. The use of a special counsel also puts the investigation on steroids — Mueller has an almost unlimited budget and resources, can choose agents who agree with his goals and tactics, and he was able to insulate the investigation from the normal institutional controls of DOJ -- Rosenstein was the sole gatekeeper. By using the special counsel, Rosenstein closes the probe off from regular oversight and protects it from Trump in a political sense.”
A month after appointing Mueller, Rosenstein signed the final renewal of the Foreign Intelligence Surveillance Act warrant on Trump campaign adviser Carter Page. In January 2017, Page reportedly contacted Trump adviser Steve Bannon, raising the possibility that their phone call was monitored.
Rosenstein may not have been serious about wearing a wire to record Trump, but he authorized electronic surveillance of Trump associates. The “two-hop” rule would have allowed the bureau to monitor the communications of anyone Bannon contacted, including Trump.
Those who believe Rosenstein is part of the anti-Trump resistance also point to his August 2, 2017 memo outlining the scope of Mueller’s investigation. Among the few unredacted lines, Rosenstein authorizes the special counsel to investigate allegations that Trump campaign adviser Paul Manafort “committed a crime by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election.”
As former DOJ official Andrew McCarthy recently wrote for National Review, “the only publicly known allegation that Manafort ‘colluded’ with Russia … comes from the Clinton campaign’s Steele dossier.”
The DOJ has refused requests from congressional oversight committees to declassify the rest of the scope memo. Sources told RCI they suspect there may be more from the Steele dossier concealed in redactions. “If they used politically funded opposition research designed to smear candidate Trump as a guideline for the Mueller investigation,” one congressional source told RCI, “that’s really bad.”
Accordingly, some congressional Republicans are less concerned about Rosenstein himself than the documents he is trying to protect from declassification — 20 pages from the final FISA renewal on Page; the FBI’s interviews with Bruce Ohr; and exculpatory material on Page.
“Let the documents speak for themselves,” said one congressional investigator. Declassifying them, Republican sources told RCI, will show that the FBI’s investigation was compromised from the beginning. Consequently, the Mueller probe will collapse under its own weight and Rosenstein will lose his leverage on Trump.
Of particular concern to Rosenstein is the FISA renewal he signed. In testimony before the House this summer, Rosenstein was evasive when answering whether he read the document.
The DOJ processed nearly 1,400 FISAs in 2017, but one obtained originally on a presidential campaign, and then a sitting president, would merit the careful attention of signatory authorities.
“Most of the FISA application is boilerplate anyway,” says Wauck. “It’s about procedures, compliance, etc. The important material, the probable cause, isn’t very long. And in a renewal it’s about what is new that is being presented. FISAs come up for renewal every 90 days because you have to show you’re making progress and you have something new -- or a good reason why you haven't made progress. So, in terms of reading the renewal application, of course nobody expected Rosenstein to wade through all the boilerplate. All Rosenstein had to ask before signing was, what’s new in this application, what progress are we making? And flip to the appropriate page.”
Either Rosenstein failed to ask what was new, or he did and is determined to conceal the answer from Trump and the public.
Still, it is a sign of Rosenstein’s bureaucratic skill, and Trump’s patience, that the two appear to be at a draw, at least until after midterm elections.