Rod Rosenstein's departure would turn the Mueller investigation on its head

The expected departure of Deputy...

Posted: Sep 25, 2018 10:05 AM
Updated: Sep 25, 2018 10:05 AM

The expected departure of Deputy Attorney General Rod Rosenstein is a massive moment in the ongoing Justice Department investigation into Russian interference in the 2016 election and will spawn a series of equally large reverberations in political Washington.

Rosenstein's expected departure comes just 72 hours after The New York Times reported that the deputy attorney general -- and the man overseeing the special counsel probe of Robert Mueller due to the recusal of Attorney General Jeff Sessions -- had suggested wearing a wire to record President Donald Trump and even contemplated organizing an effort to invoke the 25th Amendment to remove Trump from office. Rosenstein denied the story -- and said, via a statement, that he did not currently think the 25th Amendment applied to Trump. Under pressure from the White House, Rosenstein issued a more fulsome statement of denial Friday night.

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Rosenstein was at the White House Monday and sources say he expected to be fired. He met with chief of staff John Kelly and spoke with Trump, who is in New York. He will meet with the President on Thursday, according to the White House.

While Trump was counseled by the likes of conservative talk show host Sean Hannity to keep Rosenstein in the job, his comments in a radio interview with Geraldo Rivera over the weekend made clear that he didn't totally believe Rosenstein. "I think it's a very sad story," Trump said. "We're looking into it. It's a very sad state of affairs when something like that can happen." Asked directly whether he would fire Rosenstein, Trump responded: "I don't want to comment on it until I've got all the facts. Certainly its being looked at in terms of what took place, if anything took place."

We know, of course, that Trump had contemplated firing Rosenstein before. In the wake of the FBI raid on Trump's one-time lawyer Michael Cohen back in April, CNN reported that Trump was weighing getting rid of Rosenstein as a way to curtail the Mueller investigation. And, we also know that Trump ordered the firing of Mueller last summer but was thwarted when White House counsel Don McGahn refused to carry it out, citing the blowback and damage he believed it would cause the White House. And Trump has been unrelenting in his criticism of Sessions himself, a dislike that those familiar with Trump's thinking trace to the former Alabama senator's decision to recuse himself from the Justice Department's investigation due to his close ties to Trump during the campaign. In Trump's mind, Sessions' recusal spurred the decision by Rosenstein to appoint Mueller, a former FBI director, as special counsel.

So, here's what we know: The President of the United States has railed against the attorney general, might lose the deputy attorney general and wanted to fire the special counsel. And, of course, he fired James Comey as FBI director last year -- a move the White House initially attributed to a memo written by Rosenstein that laid out Comey's protocol breaches during the 2016 campaign but that Trump admitted in an interview with NBC's Lester Holt was really about "this Russia thing."

And here's what else we know: That same president would be able to control the line of succession at the Justice Department, which determines who steps up to oversee the Mueller probe because of Sessions' recusal. While that person needs to be someone who has already been confirmed by the Senate, as of now it'd be Solicitor General Noel Francisco, who may or may not be amenable to Trump's view of the special counsel probe as a "witch hunt" and a "total hoax." Later, if Trump appointed and the Senate confirmed a Justice Department official to a position above Francisco's, that Trump-backed person would take over directing Mueller.

It could be a sea change from Rosenstein who, despite being chosen by Sessions and serving as the No. 2 in Trump's Justice Department, had repeatedly signaled that he would have no interest in removing Mueller based on the information publicly available about the investigation. In December 2017, Rosenstein, in testimony on Capitol Hill, insisted he would not fire Mueller unless there was clear evidence that the special counsel was acting appropriately. "I would follow the regulation," said Rosenstein. "If there were good cause, I would act. If there were no good cause, I would not."

Such a move would create the possibility that Mueller's probe, which remains largely a black box, could be curtailed or forced to a premature end. It remains to be seen how that news would be treated by congressional Republicans who have previously urged Trump to allow Mueller to finish his work without impediment but have also grown increasingly vocal about their desire to see the probe end sometime soon.

Even before we know a) who replaces Rosenstein b) how that person will approach to Mueller probe and c) how Congress will react to whatever the person decides to do about Mueller, we do know a few things as a result of Rosenstein's expected departure.

First, this throws the Justice Department into even more chaos as it seems to land the probe into Russia's involvement in the 2016 election, potential collusion between Russia and elements of the Trump campaign and the obstruction of justice and the possibility that Trump obstructed the probe by firing Comey. The Justice Department would be without its two top officials on a probe of a foreign country actively interfering in our elections. The Justice Department line of succession would mean that Francisco would be placed in charge of the Mueller investigation, but there is a debate as to whether presidential preference could override Justice's succession plan.

Second, it almost certainly makes the ongoing Russia probe an even more present issue in the 2018 midterm campaign. Republican strategists had openly fretted about what Trump firing Rosenstein could mean to the party's chances at the ballot box this fall, concerned that it would create not only the appearance of chaos within the White House but also that it could make the President and his inner circle look like they were desperately trying to cover something up in regards the Russia probe.

Republicans, who are hugely supportive of Trump, are unlikely to be deeply affected by such a move. But Democratic base voters, who are already hugely fired up to vote in 43 days, will likely be even more incentivized to do so -- believing that the stakes have been raised by the removal of Rosenstein. Independents and unaffiliated voters may well be turned off by the perception that Trump is meddling in an active investigation.

Third, the already-troubled confirmation hearings for Supreme Court Justice Brett Kavanaugh likely become even more so in the wake of the Rosenstein removal. Why? Because the Rosenstein news amounts to taking a boulder and throwing it into already-churning waters. Republicans are already worried about the fallout at the ballot box of continuing to push for the confirmation of a Supreme Court nominee who now faces public accusations of sexual assault and inappropriate sexual behavior as a young man. Take those extant worries and pile on the agita created by the deputy attorney general (and the guy in charge of the Mueller probe) being replaced and you have a very skittish group of Republican elected officials. And did I mention that the election is only 43 days away? The interest in defending Trump and Kavanaugh even while also answering questions about the Rosenstein's departure and next steps for the Mueller probe will be somewhere close to zero for lots of endangered Republicans who want to just get out on the campaign trial and try to keep their jobs.

The initial shock of Rosenstein is still being felt in Washington. The aftershocks the move sets off will be shaking our political system for the next days, weeks and months.

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