Criminal Justice & the Rule of Law Executive Branch

Quick Notes on the Rosenstein Revelations

Jack Goldsmith
Friday, September 21, 2018, 4:46 PM

The New York Times story will assist Trump’s “Witch Hunt” and “Deep State” narrative, and deepen worries about the stability of our government.

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There is a lot to chew over in the blockbuster New York Times story about Deputy Attorney General Rod Rosenstein’s erratic behavior in his first few weeks on the job, just after President Trump fired FBI Director Jim Comey on May 9, 2017.

The Times reports that Rosenstein suggested that “he secretly record President Trump in the White House to expose the chaos consuming the administration” and that he “discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.” Rosenstein also reportedly told Acting FBI Director Andrew G. McCabe “that he might be able to persuade Attorney General Jeff Sessions and John F. Kelly, then the secretary of homeland security and now the White House chief of staff, to mount an effort to invoke the 25th Amendment.” As Drudge summarizes it, with only a tad of unfairness: “Rosenstein Wanted to Wear Wire; Plot To Remove Trump.” As the Times makes clear, “None of Mr. Rosenstein’s proposals apparently came to fruition.”

Rosenstein responded to the story in a statement: “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.” But he did not deny the story’s claims that he discussed invoking the 25th Amendment and secretly recording the president. And indeed, the Justice Department issued a statement from an anonymous official who said that Rosenstein made his proposal to record the president “sarcastically.” Other anonymous officials, however, insisted that Rosenstein “was serious about the idea” and “followed up by suggesting that other F.B.I. officials who were interviewing to be the bureau’s director could also secretly record Mr. Trump.”

The events the Times describes came on the heels of Rosenstein’s unfortunate participation in Comey’s firing. As the Times now reports the episode, when Trump informed Rosenstein and Attorney General Sessions of his plan to fire Comey, Rosenstein, to the surprise of White House officials, “embraced the idea, even offering to write the memo about the Clinton email inquiry.” (Bob Woodward’s recent account of the episode is similar: “Rosenstein told Trump that he thought Comey should be fired. He had no problem writing a memo outlining his reasoning.”) After Trump invoked Rosenstein’s memo as the basis for firing Comey, Rosenstein “became angry at Mr. Trump” and “grew concerned that his reputation had suffered harm,” according to people who spoke with him.

Based on sources who spoke to or witnessed Rosenstein’s behavior, the Times reports that Rosenstein was emotionally uneven during this period. Of the Comey firing, the paper says that “Mr. Rosenstein appeared conflicted, regretful and emotional, according to people who spoke with him at the time.” (Amazingly, Rosenstein considered calling Comey five days after assisting in his firing in order to seek his judgment about a special counsel.) And people who were with Rosenstein at the time said that his suggestions regarding the 25th Amendment and wearing a wire exemplify “how erratically [Rosenstein] was behaving while he was taking part in the interviews for a replacement F.B.I. director, considering the appointment of a special counsel and otherwise running the day-to-day operations of the more than 100,000 people at the Justice Department.”

Wow—what a story. A few quick reactions:

  • The Times’ story appears to have originated in part in some contemporaneous memoranda written by McCabe, who is under a grand jury investigation by the Justice Department.  (The memos have been turned over to special counsel Robert Mueller.)  It is not clear how McCabe might benefit from this leak (and McCabe, through a spokesperson, has denied involvement in the story.) Presumably the Times did a thorough assessment of its sources to confirm the validity of the story, especially since the story (as I explain below) so helps the President’s narrative. But the story is strangely sourced to people “briefed either on the events themselves or on memos written by F.B.I. officials, including Andrew G. McCabe, then the acting bureau director, that documented Mr. Rosenstein’s actions and comments.” Companion stories with different emphases are now appearing, but I have not seen anything in these stories that changes the basic story in the Times: Rosenstein discussed recording Trump and the 25th Amendment, and one or two people who were present suggest he was joking about the wire, but others (and seemingly more people) insist he was serious. No one has yet cast doubt on the Times’ claim about Rosenstein and the 25th Amendment.*    
  • This story gives President Trump plenty of legitimate reasons to fire Rosenstein, including: (1) Rosenstein’s suggestion of recording Trump; (2) Rosenstein’s floating of the idea to decapitate Trump under the 25th Amendment; (3) Rosenstein’s plan to consult Comey about who should be appointed special counsel just days after Trump fired Comey; and (4) Rosenstein’s related acts of insubordination and disrespect. Trump now has cover should he wish to fire Rosenstein for his appointment and supervision of Robert Mueller. It will be interesting to see how Trump reacts.  He could fire Rosenstein immediately.  Or he could not fire him and instead use the story to continue to attack Rosenstein’s supervision of Mueller. (The current fight over the nomination of Brett Kavanaugh to the Supreme Court might significantly affect the President's calculus.)
  • The Justice Department said today that the revelations will have “no bearing on Rosenstein's supervision of Mueller's probe.”  We’ll see.  But in any event, the revelations deepen the puzzle that I and others long ago noted about Rosenstein’s conflict of interest in supervising the Mueller investigation. The main issue is that Rosenstein appears to be a central witness to Trump’s motivation for firing Comey, which appears to be an issue under investigation by Mueller. Rosenstein’s personal anger and resentment toward Trump, and his suggestions about secretly recording him and organizing his removal, deepen the conflict.
  • Regardless of the legal issue of Rosenstein’s conflict of interest, this story will lend enormous credibility to the president’s claim that the Mueller investigation is hopelessly compromised. The president can now tell a story about how Rosenstein acted with anger and resentment in appointing Mueller; that the Mueller appointment was part of Rosenstein’s larger plan to decapitate the president; and that Rosenstein’s 18-month supervision of the Mueller investigation, and the investigation itself, is therefore compromised. I don’t think these revelations affect the legality of the Mueller appointment and investigation. But they will surely affect the atmospheric lens through which it is judged.
  • The president and his allies will also use this story as confirmation that there is a broader “Deep State” conspiracy to bring down the president. This has always been a hard story to tell about Rosenstein, whom Trump appointed. But the story makes clear that Rosenstein had resentment toward the president and considered taking personal steps to bring him down. The story also suggests that Rosenstein was more bureaucrat than political appointee by noting that he is a “lifelong public servant” and that he considered seriously appointing his former supervisor, President Obama’s Deputy Attorney General James M. Cole, to be the special counsel for the Russia investigation.
  • The Times story will feed the Trumpian narrative in all of these ways.  At the same time, and looking at it from something like the opposite perspective, it’s another piece of evidence—on top of large-scale senior-level insubordination, the anonymous Times op-ed writer, and many episodes in Woodward’s new book—that senior Trump officials are significantly disenchanted with the president’s basic competence and have undertaken very unusual steps to deal with it. Some will worry about a Deep State; others will worry about the stability of our government; yet others will worry about both.   
  • The Rosenstein revelations are akin to the text messages between Peter Strzok and Lisa Page. They demonstrate bad judgment expressed in what the participants mistakenly thought was a private setting, but that became public and had a devastating impact on the perceived legitimacy of the government’s law enforcement efforts. This has happened a lot recently, and it is related to the point I wrote about last year: the institutions that oppose the norm-defying president have often “defied their own norms, and harmed themselves and the nation in the process.”

This story will continue to develop, and our understanding of the facts may well change.  But for now the story helps Trump a lot. 

*After I wrote this, the Washington Post reported that ,“While McCabe’s memos assert both the recording and 25th amendment conversations occurred at a meeting within days of Comey’s firing, another person at the meeting, speaking on condition of anonymity to discuss internal deliberations, insisted the recording comment was said in a moment of sarcasm, and that the 25th amendment was not discussed.”  The Post also reports that “a third person familiar with the discussions said McCabe had privately asserted previously that Rosenstein suggested invoking the 25th amendment and the idea of a senior law enforcement officials wearing a wire while talking to Trump.”

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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