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The Times’s big new Rod Rosenstein story has major implications for Mueller’s probe

Their sources said Rosenstein discussed taping Trump and invoking the 25th Amendment. But other accounts dispute the story.

Javier Zarracina/Vox
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

Did Deputy Attorney General Rod Rosenstein seriously suggest to top Justice Department officials last year that someone should secretly tape President Donald Trump?

Or did he make an obviously sarcastic comment that he never intended anyone take seriously?

A new report from the New York Times’s Adam Goldman and Michael Schmidt says it was the former — and adds that Rosenstein also talked about invoking the 25th Amendment to remove Trump from office. (Neither ended up happening.) The reporters’ sources are anonymous people “briefed either on the events themselves or on memos” written by former deputy FBI director Andrew McCabe and others.

But a separate report from the Washington Post’s Devlin Barrett and Matt Zapotosky quotes an anonymous source who was in the room and disputes the account given to the Times. Per this source, Rosenstein was rebutting a suggestion by McCabe that the Justice Department open an investigation into Trump, and said something along the lines of, “What do you want to do, Andy, wire the president?”

Who’s right? The consequences could be enormous. It was Rosenstein who appointed Mueller as special counsel back in May 2017, and it’s Rosenstein who continues to oversee Mueller’s Russia investigation. Well before these new stories President Trump has privately mused about firing Rosenstein (or Sessions, or Mueller), so he could put someone he views as more loyal in charge of the Russia probe.

Trump has hesitated on actually following through with this. The new Times report, though, will undoubtedly infuriate the president — and could well provide him with the pretext he’s long sought to justify Rosenstein’s firing, and provoke a showdown over the future of Mueller’s probe. And in the moments after the Times published it, speculation about a new Saturday Night Massacre once again arose in Washington.

What the Times’ sources said about Rosenstein

Rosenstein was sworn in as deputy attorney general toward the end of April 2017. Just two weeks later, on May 8, he and Attorney General Jeff Sessions met in the White House with President Trump to discuss the potential firing of FBI Director James Comey. Afterward, Rosenstein wrote a memo criticizing Comey’s handling of the Hillary Clinton email investigation, which the White House then released the next day to justify Comey’s firing.

In the new Times report, Goldman and Schmidt purport to describe Rosenstein’s behavior and interactions with top Justice Department officials in the week or so after the firing (when, it should be noted, President Trump himself was behaving quite erratically — seeming to admit on television that he fired Comey over the Russia probe, and disclosing classified information to Russians in the Oval Office).

For their two most controversial bits, the Times team doesn’t seem to be quoting sources with firsthand knowledge. Instead, they attribute the report to “several people” who “were briefed either on the events themselves or on memos written by FBI officials” including McCabe.

First is Rosenstein’s supposed comment about recording Trump. The Times says it was made during a meeting with McCabe and “at least four other senior Justice Department officials,” and describes it as follows:

Mr. Rosenstein then raised the idea of wearing a recording device or “wire,” as he put it, to secretly tape the president when he visited the White House. One participant asked whether Mr. Rosenstein was serious, and he replied animatedly that he was.

If not him, then Mr. McCabe or other F.B.I. officials interviewing with Mr. Trump for the job could perhaps wear a wire or otherwise record the president, Mr. Rosenstein offered. White House officials never checked his phone when he arrived for meetings there, Mr. Rosenstein added, implying it would be easy to secretly record Mr. Trump.

But the Times sources were not in the room, and it’s not even clear they’ve seen the memos in question. Meanwhile, both the Washington Post and Huffington Post are quoting an anonymous source who was in the room, claiming the comment was obviously sarcastic.

In the Washington Post source’s account, Rosenstein was rebutting a suggestion by McCabe that the Justice Department open an investigation into Trump, and said something along the lines of, “What do you want to do, Andy, wire the president?”

The Huffington Post also quoted a source present at the meeting (perhaps the same one, perhaps not). “I remember this meeting and remember the wire comment,” the person said. “The statement was sarcastic and was never discussed with any intention of recording a conversation with the president.” (In any case, there’s no evidence it was ever carried out).

The Times’ second controversial claim is that Rosenstein discussed using the 25th Amendment to remove Trump from office. Section 4 of the 25th Amendment of the Constitution states that if the vice president and a majority of Cabinet secretaries decide the president is “unable to discharge the powers and duties” of the presidency, they can start a process that could remove him from office. It has never been invoked.

According to Goldman and Schmidt, Rosenstein brought this up in conversations with McCabe and others, and told McCabe that he might be able to persuade Sessions and then-Homeland Security Secretary John Kelly, who is now Trump’s chief of staff, to get the process rolling.

However, the Times report is unclear about when the 25th Amendment comment was purportedly made, only seeming to attribute it to something Rosenstein said to McCabe, and that McCabe then repeated to others.

“Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment,” Rosenstein said in a statement to the Times.

Trump could use this to fire Rosenstein

From one perspective, this is a story about two things that didn’t happen: If the story is accurate, Rosenstein floated two remarkable possibilities during a tumultuous time 16 months ago, but neither appears to have actually come to pass.

But the near-term consequences are likely to come from the fallout from the story itself, with big implications for Rosenstein’s future and the future of the Mueller investigation.

Since Rosenstein first appointed Mueller in May 2017, Washington has awaited the next showdown between President Trump and his Justice Department. The president raged privately about potentially firing Mueller as early as June 2017, and at various points since has reportedly discussed firing Sessions or Rosenstein too.

However, Trump has shied away from actually doing so — evidently realizing that he had no defensible justification, and fearing the political backlash that would ensue.

Trump’s conservative allies in the House of Representatives have also harshly criticized Rosenstein for months and discussed the prospect of impeaching him with only the thinnest of pretexts. But they basically had nothing, so the effort was shelved.

Now this new story seems so perfectly designed to justify Rosenstein’s firing that Twitter soon brimmed with suspicion that the Times’s sources were trying to bring about that very outcome.

In any case, Trump does now have something on Rosenstein. He may well calculate that he can portray this behavior as outrageous or insubordinate enough to justify firing the deputy attorney general at long last. And if so, the crisis over the Russia probe and the rule of law will have finally arrived.

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