On Rod Rosenstein’s Peculiar Testimony

Benjamin Wittes
Thursday, June 4, 2020, 10:37 AM

The Senate Judiciary Committee sees exactly what the country is yearning for right now: another investigation of the origins of the Russia investigation.

Then-Deputy Attorney General Rod Rosenstein speaks at the 2018 State of the Net Conference. (Flickr/Internet Education Foundation,; CC BY 2.0,

Published by The Lawfare Institute
in Cooperation With

The United States is facing three concurrent crises: a pandemic of a type not seen since 1918, an economic catastrophe of a type not seen since 1929, and an eruption of protests and police violence of a type not seen since 1968.

So, logically enough, on June 3 the Senate Judiciary Committee convened to discuss the pressing issues of the day: the origins of the Russia investigation, the text messages between Peter Strzok and Lisa Page, and the Steele dossier—with former Deputy Attorney General Rod Rosenstein as a witness.

For years, it was Democrats who wanted to talk about Russia. Not any more. Democrats these days would be happy never to hold another hearing on the subject. Whether because they believe the truth has been exposed to the degree it ever will be or because they believe they have garnered from the subject all the political benefit they are going to get from it, they are generally happy to let the Mueller report and the fallout from it be the final word on the subject. For Republicans, however, and for the president in particular, talking about the Russia investigation is like listening to golden oldies. It rallies the base. It keeps people mad at super-villains well drawn. The occasional hearing at which to denounce James Comey and all his works is like comfort food.

But it’s comfort food of a peculiar variety.

Because whoever you are and whatever political persuasion you bring to the table, the food has some embarrassing ingredients. For Republicans, there’s the small matter that their central narrative is untrue. There was no coup. There was no political spying on a campaign. There was no corruption of the FBI. No amalgamation of the very real errors that took place in the Russia probe will support the only story Republicans want to tell about it.

And bringing Rosenstein to testify actually highlights some of the difficulties with the basic Republican thesis. As countless senators pointed out, after all, it was he—a Trump appointee—who signed the last of the Carter Page FISA applications. And it was his decision to appoint Special Counsel Robert Mueller. It was Rosenstein—not Comey or FBI Deputy Director Andrew McCabe—who offered to wear a wire in conversations with the president. If you’re trying to uncover a deep-state conspiracy, Rosenstein is a tricky figure to have as your witness.

There is also another small matter: the behavior of the president and his coterie. No, Mueller could not prove there was “collusion” between the Trump campaign and the Russian government. But what he did find was very unflattering stuff—often criminal and, even when not criminal, not the sort of thing one generally brags about. “Just Short of Criminal Collusion” is not exactly a campaign slogan.

Yet weirdly, Republican senators seem eager to revisit over and over the failures of patriotism that infected the Trump campaign—at least, if doing so only offers the chance to indulge in just a few more dramatic readings of text messages and a few more opportunities to make the tendentious assertion that only political motivations and machinations can explain the errors in the Carter Page warrant applications.

Again, Rosenstein is a peculiar ingredient for comfort food of this variety. He, after all, does not repent the indictments Mueller brought. And it was Rosenstein who sent the Strzok-Page text messages to Congress and ordered them released to the press, in any event.

There is embarrassment on the other side of the aisle too—because the investigation’s errors were real, because the investigation itself was imperfect, because the people who ran it were people with real human failings, and because, ultimately, many Democrats expected too much of the special counsel’s office and believed it would prove something it did not ultimately prove.

And there was—or at least should have been—embarrassment to Rosenstein himself, whose own decisions, despite his stated confidence that he “got all the big issues right,” made catastrophic errors and left the department in far worse shape than when he inherited it.

The result was a very strange Senate Judiciary Committee hearing. On the one side, Republicans provided questioning designed to support a basic falsehood. And, on the other side, Democratic questioning was mostly designed to protect the Mueller findings from whatever dust Republicans and the Justice Department inspector general and Attorney General William Barr have kicked up.

And between the two sides was Rosenstein—ever the survivor, as Comey once called him—triangulating, bobbing and weaving between insinuations and hostile questions. Whoever the questioner, from whichever point of view, there he was gamely insisting that whatever may have ailed the investigation he supervised, an investigation he never quite disclaimed but also never quite stood by, his decisions (based on what he knew at the time, mind you) had integrity.

It wasn’t leadership. Rosenstein is nobody’s hero in this story—except, perhaps, his own. But there was something impressive about it. He refused to be pinned down about anything. Was he responsible for signing a FISA application with many errors in it? He was accountable, he said, but not responsible for the errors. Does he stand by the prosecutions that Mueller brought? He does, and he doesn’t think the investigation was a hoax or a witch hunt. But he also understands the president’s frustrations and doesn’t want to nitpick over how Trump chooses to express himself. He thinks there was no evidence that any of the investigative subjects were working with the Russians in 2017, but he also stands by his decision to appoint Robert Mueller as special counsel.

He both meekly defended the investigation and meekly defended the president’s conduct with respect to the investigation—and, in order to do the latter, he, like Barr, overread the degree to which the investigation exonerated the president.

And then he stumbled—rather badly, I think.

Near the hearing’s end, Sen. Mazie Hirono asked him about the New York Times’s September 2018 story reporting that “[t]he deputy attorney general, Rod J. Rosenstein, suggested last year that he secretly record President Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.”

Hirono asked:

Mr. Rosenstein ... The New York Times reported that you suggested wearing a wire to secretly record President Trump after he fired FBI Director Comey and linked the firing to the Russia investigation. The article reported that you discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office.


Did you suggest or hint at secretly recording President Trump, yes or no?

Rosenstein responded: “I did not secretly hint at recording President Trump. I—”

Hirono followed up:

Hirono: Have you ever discussed the possibility of invoking the 25th Amendment to remove this president from office?

Rosenstein: I have never in any way suggested that the president should be removed from office under the 25th Amendment and I can give you a more detailed explanation if you have time—

Hirono apparently didn’t have time to let Rosenstein explain, which is a bit of a shame. Perhaps had she given Rosenstein a chance to give his more detailed explanation, we would have learned how his claim might be reconciled with the rather significant evidentiary record that Rosenstein did, in fact, suggest that he might wear a wire to surreptitiously record the president and did, in fact, also raise the subject of invoking the 25th Amendment.

Recall that when McCabe’s book came out some months after the New York Times story, he was asked about these incidents in interviews:

Here’s how Quinta Jurecic and I summarized his comments at the time:

[H]is account to 60 Minutes helps clarify the story that the Times first reported—chiefly in contradicting Rosenstein’s own account of the matter. In response to the initial Times report, Rosenstein issued a statement declaring that the story was “inaccurate and factually incorrect” and that, “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.” The Justice Department also provided an anonymous official’s comment that Rosenstein had made the comment about wearing a wire sarcastically. Soon after the Times’s report was published, the Washington Post quoted a source who likewise characterized Rosenstein’s comments as sarcasm, along the lines of, “What do you want to do, Andy, wire the president?”

McCabe’s own account raises serious questions about Rosenstein’s comments at the time, and the suggestion, never made publicly by Rosenstein himself, that the wire-wearing offer was sarcastic. McCabe paraphrases Rosenstein as saying: “I never get searched when I go into the White House. I could easily wear a recording device. They wouldn’t know it was there.” Rosenstein, he says, “was not joking” about wearing a wire. “He was absolutely serious.”

By McCabe’s account, he did not seriously consider implementing Rosenstein’s suggestion—but he did discuss it with the FBI’s leadership team. Notably, he describes then-FBI General Counsel Jim Baker as having been the one to throw cold water on the idea: “I think the general counsel had a heart attack. And when he got up off the floor, he said, ‘I, I, that’s a bridge too far. We’re not there yet.’”

McCabe also provides more context on Rosenstein’s suggestion of invoking the 25th Amendment, which he characterizes as “something that [the deputy attorney general] kinda threw out in a very frenzied chaotic conversation.” In McCabe’s account, “he was discussing other cabinet members and whether or not people would support such an idea.” (Notably, while McCabe told Pelley that he couldn’t recall whether Rosenstein “assign[ed] specific votes to specific people,” the Times describes Rosenstein as telling McCabe that “he might be able to persuade Attorney General Jeff Sessions and [then-Secretary of Homeland Security] John F. Kelly” to turn against the president.)

After listening to Rosenstein’s testimony, I emailed McCabe asking for his thoughts on Rosenstein’s testimony on this point. He wrote in response: “Mr. Rosenstein and I had several meetings from 5/12/17 through 5/16/17 to discuss steps the FBI should take in the wake of the firing of the FBI director. In several of those conversations he discussed invoking the 25th Amendment and the possibility of him wearing a wire to record his conversations with the president. Other DOJ and FBI personnel were present for statements on both subjects."

One of the FBI personnel present was Lisa Page, whom I also talked to yesterday about the testimony. She expressed surprise that Rosenstein would say that these events hadn’t happened, having been in a meeting in which Rosenstein raised the possibility of wearing the wire.

What’s more, McCabe also wrote a contemporaneous memo documenting Rosenstein’s suggestion regarding wearing a wire—a memo obtained under the Freedom of Information Act by the right-wing group Judicial Watch.

And for those inclined for whatever reason to discount McCabe’s or Page’s accounts, there’s the lengthy testimony on the subject by Jim Baker, the FBI’s former general counsel, before the House Judiciary and Oversight Committees in October 2018. Baker’s deposition is long, and the references to the incidents are scattered around it, but see particularly pp. 128-138 and 140-146 of this document and pp. 2-34 and 109-155 of this document. Here are some highlights:

[Rep. Mark] Meadows: Were you in the meeting when deputy AG Rod Rosenstein suggested to wire tap or record the President of the United States as has been recently reported allegedly in the McCabe memos?

Mr. Baker: I was not at those meetings, but I heard about those meetings.

Mr. Meadows: And how did you hear about those meetings?

Mr. Baker: I heard about them, I believe, from Andy [McCabe] and from Lisa [Page].

[Rep. Jim] Jordan: At the time?

Mr. Meadows: At the time?

Mr. Baker: Shortly thereafter.

Mr. Meadows: So Andy and Lisa came to you and said the DAG [Deputy Attorney General] is suggesting that we tape the President of the United States?

Mr. Baker: What they told—I can't remember specifically who told me. It was I believe to the best of my recollection it was some combination of them that they told me that there had been a conversation with the DAG about the idea of the DAG wearing a wire into a conversation or conversations with the President.

Mr. Meadows: Did they take that seriously?

Mr. Baker: Yes.

Q: Was the 25th Amendment conversation had in the same conversation as the wire conversation?

A: I don't recall that. They were at or about the same time.

Q: And you were in neither of those conversations, correct?

A: Correct.

Q: So at or about the same time you don't know whether they were part of the same conversation or different conversations. Somebody told you that the DAG had spoken about the 25th Amendment. Is that accurate?

A: Andy McCabe told me that the DAG had talked about the 25th Amendment.

Q: And what did Mr. McCabe tell you?

A: To the best of my recollection he told me that the DAG said that he had at least two members of the cabinet who were ready to invoke the 25th Amendment.

In the coming days, there is sure to be stern talk about whether Rosenstein made some sort of false statement before the committee. Such talk will miss the point. The questions were vague, multifaceted, and confused, and his answers were fragmentary and incomplete.

It is, however, fair to say that the discrepancy between Rosenstein’s testimony and the rest of the record is one that he should probably endeavor to resolve, even if doing so requires some embarrassment. In the end, Rosenstein should at least take responsibility for his own words.

Not that this will matter to the progression of things. Senate Republicans are bent on using as many little scraps of fact as they can gather to prove a predetermined falsehood, one in which Rosenstein actually plays an amusingly inconsistent role. For some of the harder-core, conspiracy-minded Republicans, Rosenstein was part of the problem—a participant in an attempted deep-state coup against the president. For some, like Sen. Ted Cruz in the May 3 hearing, he was a weak overseer of a department out of control—negligent but not complicit. But little ultimately turns in the construction of the story Republicans want to tell on whether Rosenstein is a coup-plotter himself or merely the man who didn’t act to prevent the coup.

All of which brings me back to the strange, shadow-boxing quality of hearing from Rosenstein about dead horses long-ago beaten in the midst of a multipronged crisis that is very much alive and very much about other things. It is in the power of the Senate majority to convene such a hearing, just as it is in the power of the witness to dissemble so as never to have to admit things the record plainly suggests. To admit such things involves ceasing to triangulate; the witness cannot do it and also avoid presidential denunciation as a conspirator. He cannot admit suggesting that he wear a wire and still avoid answering the question of why he did it—a question that, in turn, requires admitting that he knew he was working for a president who was crazy and out of control and he knew that he had screwed up terribly and was looking desperately for a way out.

And just as Rosenstein cannot admit these things, Senate Republicans cannot fail to hold these hearings, even knowing they are a farce, because to fail to hold them is to admit that all of the rhetoric they have been throwing around regarding the Russia investigation is a lot of malicious nonsense.

Because if you call something a coup or political spying or a hoax long enough, how can you not investigate? How can you not call Rod Rosenstein—even if the last thing the country wants or needs right now is to hear his self-justifications?

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare