The political world went into a frenzy Monday morning as various reports suggested Deputy Attorney General Rod Rosenstein — special counsel Robert Mueller’s boss — was out. Some reports claimed he had resigned, and some that he was about to be fired.
But as of early Monday afternoon, Rosenstein was still in his job. And apparently, he’ll be there for at least a few more days — the White House has said he’ll meet with President Trump on Thursday.
Trump has complained about Justice Department investigations into his associates for over a year now, and has repeatedly discussed firing various top Justice Department officials, including Rosenstein, so he could replace them with loyalists.
The precipitating incident for Monday’s drama, though, was a New York Times report that, after Trump fired FBI Director James Comey last year, Rosenstein discussed the possibility of secretly recording the president of invoking the 25th Amendment to remove him from office. (Rosenstein has disputed the report.)
As deputy attorney general, Rosenstein was responsible for the day-to-day running of the Justice Department. But the main reason his departure would have such import is that he appointed Mueller and continues to oversee the Russia investigation (thanks to Attorney General Jeff Sessions’s recusal on the topic). Many have feared that Trump would try to install a crony to replace Rosenstein who would rein the probe in or even shut it down completely.
All this comes at a crucial moment for the probe — just a week and a half after Paul Manafort agreed to cooperate with the special counsel’s team, but during a preelection period when Mueller isn’t expected to make other big new moves. And, as is common these days, much of this drama has unfolded in competing and contrasting leaks to the press.
Who is Rod Rosenstein?
Rosenstein joined the Justice Department all the way back in 1990 and has been there ever since, serving as a public corruptions prosecutor and then taking on management jobs under presidents of both parties. In 2005, President George W. Bush appointed him to be US attorney for the state of Maryland, and he held that position throughout the Obama presidency as well.
After Trump won the presidency, he picked Jeff Sessions to be his attorney general. As a US senator, Sessions was an outsider to the DOJ. So he wanted someone who knew the department well in the deputy post (which is traditionally responsible for running things day to day). So he chose Rosenstein, who was respected by legal professionals in both parties.
The pick got little attention at the time — but proved to be supremely important. In March 2017, Sessions announced he would recuse himself from the Russia investigation — meaning that, as soon as Rosenstein was confirmed by the Senate, he’d be the top Justice Department official in charge of it.
Then, once Rosenstein was finally sworn in in late April, Trump waited only two weeks before inviting him and Sessions to the White House to discuss firing James Comey. On May 8, 2017, Rosenstein wrote a memo harshly criticizing Comey’s handling of Hillary Clinton email investigation, and gave it to the White House. The very next day, Trump fired Comey and released Rosenstein’s memo as his justification.
Rosenstein appointed Robert Mueller and has overseen his investigation since
Comey’s firing was a shocking breach of political and institutional norms (the FBI director traditionally stays on for a 10-year term), and it threw the US political system into crisis. The ensuing chaotic days were filled with leaks claiming that Trump had privately pressured Comey for “loyalty,” that he’d and urged Comey to drop an investigation into Michael Flynn, and that he’d disclosed classified information to Russian officials in the Oval Office. With such allegations of Trump apparently trying to corrupt the rule of law, even some Republicans began to talk about impeachment.
It was Rosenstein who made the key choice that abated this crisis — appointing Robert Mueller as special counsel to oversee the Russia probe on May 17, 2017. The appointment of a special counsel restored confidence that the rule of law would be preserved and that, if there was anything to the Russia scandal, he’d get to the bottom of it. Mueller in particular had sterling credentials as former FBI director appointed by George W. Bush, which likely made him feel empowered to investigate quite vigorously.
Since then, there’s been an endless amount of ink spilled about the “Mueller investigation.” Yet all along, Mueller has had a boss: Rod Rosenstein. And Rosenstein’s backing of Mueller has clearly been crucial in shaping the probe so far.
- Mueller’s team has said in court that they inform Rosenstein of all their major decisions in advance, and that he would have the authority to overrule them.
- Rosenstein approved Mueller’s assembly of an all-star team that at its height totaled 17 prosecutors.
- In August 2017, Rosenstein wrote a memo to Mueller listing many people and topics he was authorized to investigate (the publicly released version is heavily redacted).
- Rosenstein held press conferences announcing Mueller’s two major indictments of Russians for election interference — the social media propaganda indictment in February, and the email hacking indictment in July.
- He was also reportedly involved in Mueller’s decision to refer an investigation into Michael Cohen to federal prosecutors in Manhattan, resulting in Cohen’s guilty plea to tax, bank fraud, and campaign finance charges in August.
Finally, Rosenstein has also helped preemptively protect Mueller from firing. He did so by testifying that the regulation under which he appointed Mueller gives only him — not the president — the authority to fire Mueller. He has also said that he believes the regulation only permits Mueller’s firing for “good cause.” With that testimony, it’s clear that a Trump order to fire Mueller would be legally dubious.
So, naturally, the president began to muse about firing Rosenstein instead.
Trump and his allies have discussed getting rid of Rosenstein (or Sessions) for months
The president has raged about the Russia probe and his Justice Department for well over a year now, both privately and publicly, with Sessions and Rosenstein frequent targets of his ire. (He’s reportedly dubbed them “Mr. Magoo” and “Mr. Peepers.”)
He’s repeatedly complained that the Russia investigation is a “witch hunt,” that “flipping” witnesses (like Michael Flynn, Rick Gates, and Paul Manafort) almost ought to be illegal, and that the Justice Department isn’t doing enough to investigate Democrats like Hillary Clinton and isn’t loyal enough to him personally.
Trump’s staunchest allies in Congress and in conservative media have joined him in this effort, too, training criticism on Sessions and Rosenstein. Hardline House conservatives even threatened to force a vote on Rosenstein’s impeachment this summer, based on the thinnest of pretexts (though they eventually backed down).
The obvious fear many have is that if Trump ousts Sessions or Rosenstein, he could at least temporarily install a crony who would take over the Russia probe — one who could manage to rein it in or even shut it down entirely, to protect the president.
A permanent replacement for either Sessions or Rosenstein would have to be confirmed by the Senate. And traditionally, the temporary replacement would be whoever’s next in line in the Justice Department’s line of succession. (Solicitor General Noel Francisco is next after Rosenstein.) However, it’s possible that Trump could try and use a law called the Vacancies Act to slot in someone from elsewhere in the government (any appointee already confirmed by the Senate would do).
A New York Times report amped up discussions of Rosenstein’s ouster
For a time, it appeared that Rosenstein had weathered the storm. A Wall Street Journal report from early August even claimed that his and Trump’s relationship was improving.
Later that month, however, Paul Manafort was convicted of financial crimes charged by Mueller, and Michael Cohen pleaded guilty to tax, bank, and campaign finance violations referred by Mueller to SDNY. Then, a week and a half ago, Manafort struck a plea deal with Mueller and agreed to cooperate. Cohen, too, has reportedly talked with Mueller’s team for hours in recent weeks.
But what seems to have put Rosenstein’s future in the most immediate jeopardy was a report the New York Times’s Adam Goldman and Michael Schmidt published on Friday.
The report describes purported conduct by Rosenstein in mid-May 2017, during the chaotic days between Comey’s firing and Rosenstein’s decision to appoint Mueller. The Times claimed that, in meetings with top FBI and Justice Department officials, Rosenstein made two eyebrow-raising suggestions: first, that they try to secretly record the president, and second, using the 25th Amendment to remove Trump from office. (Neither was carried out.)
The Times report was based primarily on anonymous source accounts and descriptions of contemporaneous memos written by then-acting FBI director Andrew McCabe. But Rosenstein publicly disputed the report. And in the hours after its publication, various outlets were told by an anonymous source in the room for the “recording” comments that Rosenstein was clearly being sarcastic.
Trump critics fearful of Rosenstein’s ouster soon latched onto the “he was being sarcastic” excuse. But the Times’s Michael Schmidt professed to be quite confident that wasn’t the case. He said in an interview with Slate’s Isaac Chotiner:
If this was a joke, we don’t think it would have been so difficult for us to have worked to get to this information. If this was a joke, this would not have been memorialized, documented, and discussed in the FBI in the way that it was. If this was a joke, Rod Rosenstein probably wouldn’t have made it more than once. Also, if this was a joke, the other thing is, this 25th Amendment stuff is in a memo as well. So this is like—is this a broader conspiracy of jokes that was going on?
Indeed, other accounts, such as from the Washington Post, seem to confirm that McCabe thought Rosenstein was serious and has been telling people such. (McCabe, another frequent target of Trump’s ire, was fired from the FBI this March and may be prosecuted for lying to investigators about leaks he had authorized.)
It is, however, important to keep in mind what was going on before Rosenstein allegedly made the “recording” comments on May 16, 2017. For one, it had just been reported that Trump had disclosed classified intelligence to the Russian foreign minister and ambassador in the Oval Office. For another, Comey’s accounts of Trump’s private pressure on him had just leaked out. It was a wild time.
At the time, Trump was interviewing candidates to replace Comey as FBI director, and it was widely feared that he’d appoint a corrupt crony who’d made him private promises. The Washington Post reports that Rosenstein’s suggestion was that FBI director candidates record their private interviews with Trump.
Dueling leaks about Rosenstein resigning or being fired spilled out Monday morning — but it seems the decision has been put off
Trump’s staunchest supporters were split on what he should do in the wake of the Times report. On Friday, Fox’s Laura Ingraham tweeted that “Rod Rosenstein must be fired today,” but Fox’s Sean Hannity notably urged the president not to fire anyone. (Ingraham later deleted her tweet.)
One interesting line of argument from some Trump supporters was that the allegations about Rosenstein were based primarily on memos written by Andrew McCabe — who the president has tried to attack and discredit for months now, and who may soon be prosecuted. Firing Rosenstein based on McCabe’s memos, some thought, would grant him credibility.
Then, on Monday morning, Axios’s Jonathan Swan dropped a bomb, publishing a short post claiming that Rosenstein had “verbally resigned” to White House chief of staff John Kelly, in anticipation of being fired by President Trump.
In the next few hours, there was a frenzy of leaks claiming several different things. Some claimed Rosenstein was not going to resign and was instead going to make Trump fire him. Others claimed he was merely “expecting to be fired.” Others said he had offered his resignation but stressed that it had not been accepted. (Vanity Fair’s Gabe Sherman even suggested the spectacle may have been entirely intended to distract from sexual assault accusations against Supreme Court nominee Brett Kavanaugh.) But no one really seemed to know what was happening as Rosenstein headed over to the White House.
There, Rosenstein met Kelly, and spoke with Trump (who is in New York) over the phone “to discuss the recent news stories,” according to a statement by White House press secretary Sarah Sanders. “They will meet on Thursday when the President returns to Washington,” Sanders continued.
So, after all that, Rosenstein is still the deputy attorney general — at least, it seems, until Thursday.