Mueller Investigation

“It May Be the Start of a Major Constitutional Crisis”: Is Rod Rosenstein a Dead Man Walking?

The Times report that the deputy attorney general discussed recording Trump and the 25th Amendment re-ignites concern over his ouster. “Is this an effort by the president’s allies to lay a basis for him to insist that Rosenstein be fired?” said one Washington defense attorney. “My gut says yes.”
Rod Rosenstein
Rosenstein photographed at the confirmation hearing of Brett Kavanaugh on September 4, 2018.By Bill Clark/CQ Roll Call.

Nearly a year ago, as my colleague Gabriel Sherman reported, Steve Bannon warned Donald Trump that the greatest threat to his presidency wasn’t congressional impeachment, but a Cabinet revolt. And over the past month, a series of revelations suggests that Bannon was not far off base. Shortly after former F.B.I. director James Comey was fired, according to a New York Times report published Friday afternoon, Deputy Attorney General Rod Rosenstein suggested surreptitiously recording Trump to document the chaos emanating from the Oval Office, and discussed invoking the 25th Amendment—a constitutional fail-safe that allows the majority of the Cabinet to remove the president from office. The conversation reportedly occurred in the spring of 2017, around the time Trump famously cited Rosenstein’s memo accusing Comey of bungling the Hillary Clinton e-mail probe to justify his dismissal. According to the Times, Rosenstein found Trump’s behavior in the wake of Comey’s firing to be profoundly disturbing.

Citing people briefed on the conversations or contemporaneous memos written by F.B.I. officials—including Comey’s former deputy, Andrew McCabe—the Times reported Friday that Rosenstein made remarks about wearing a “wire” and a Cabinet revolt during meetings with F.B.I. and Justice Department officials. He reportedly told McCabe that he might be able to convince then-Secretary of Homeland Security and current White House Chief of Staff John Kelly, and his boss, Attorney General Jeff Sessions, to foment insurrection within the Cabinet ranks. Rosenstein flatly dismissed the report. “The New York Times’s story is inaccurate and factually incorrect,” he said in a statement. “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.”

It was not immediately clear, either, whether Rosenstein’s comments were meant to be taken literally. According to the Times, Rosenstein confirmed to individuals that he was serious about recording the president, but a Justice Department spokesman provided a statement from an unnamed person present during the conversations who said that Rosenstein was speaking “sarcastically,” a claim also reported by ABC News. In a subsequent report on Friday, The Washington Post cited another person at the meeting who said that the wire comment came in response to McCabe’s urgings that the D.O.J. investigate Trump. That person said that Rosenstein replied, sarcastically, “What do you want to do, Andy, wire the president?” Additionally, the Post, citing a person familiar with the situation, said that former F.B.I. attorney Lisa Page wrote her own memo about the meeting in question, and did not note that there was any discussion of the 25th Amendment.

In a previous era, the notion that a top Justice Department official would suggest recording the president and staging a coup would be earth-shattering. But the impact of the revelation was blunted after the release of Bob Woodward’s Fear, and a Times op-ed penned by an anonymous senior official. “The notion, if accurate, that one of President Trump’s top appointees was talking about the 25th Amendment in this way is huge news—but, in a way, not surprising,” Neal Katyal, who served as acting solicitor general during the Barack Obama administration, told me. “This president has run roughshod over the Justice Department and Constitution, and this is the predictable consequence.”

More worrisome is the possibility, as raised by some observers, that disclosures to the Times were intended to provoke Trump into firing Rosenstein, a longtime punching bag for Trump allies, who argue he should recuse himself from the Russia probe based on his integral role in Comey’s firing. “My first thought is that the Times’s sources—described not as people with firsthand knowledge, but as persons who ‘were briefed either on the events themselves or on memos written by F.B.I. officials’—can only be people who wish to do Rosenstein harm,” William Jeffress, a Washington defense attorney who worked on the Valerie Plame leak case, told me. “Is this an effort by the president’s allies to lay a basis for him to insist that Rosenstein be fired? My gut says yes.”

McCabe, who was fired this year and faces potential charges for misleading investigators in a leak probe, was quick to deny that he was a source for the Times report, which appeared to be largely based upon memos he had written. The former deputy F.B.I. director “drafted memos to memorialize significant discussions he had with high-level officials and preserved them so he would have an accurate, contemporaneous record of those discussions,” McCabe’s lawyer, Michael Bromwich, said in a statement to the Post. “When he was interviewed by the special counsel more than a year ago, he gave all of his memos—classified and unclassified—to the special counsel’s office. A set of those memos remained at the F.B.I. at the time of his departure in late January 2018. He has no knowledge of how any member of the media obtained those memos.”

The Times report comes as tensions flare yet again between Trump allies, who have long claimed that Rosenstein is withholding information that would discredit the Mueller probe, and the Department of Justice. Earlier this week, the former group secured a major victory when Trump ordered the declassification of documents related to the origins of the probe, including the FISA application to surveil Carter Page, and text messages sent by high-ranking officials such as McCabe, Comey, Page, and former F.B.I. agent Peter Strzok. But on Friday morning, Trump announced on Twitter that the release would be delayed pending a review by D.O.J. Inspector General Michael Horowitz.

In the past, Trump has floated firing Rosenstein—a move that would certainly be welcomed by his base. And in the hours since the Times report, speculation abounded as to whether Rosenstein can continue to serve in the administration if he really did suggest recording the president and orchestrating a Cabinet coup. The next person in line to lead the Russia probe is Solicitor General Noel Francisco, but as Katyal noted, any move against Rosenstein could spell doom for the president. “If Trump tries to fire Rosenstein, it may be the start of a major constitutional crisis,” he told me. “The special counsel regulations would then be supervised by Noel Francisco, and if he did anything to interfere with Mueller’s probe, it would look deeply suspicious.”