Federal Law Enforcement

Six Takeaways From Trump’s Threats Against Rod Rosenstein

By Susan Hennessey, Matthew Kahn, Benjamin Wittes
Thursday, April 12, 2018, 6:34 PM

The firing of James Comey happened without warning. After fuming about the FBI director during a May 2017 weekend trip, President Trump dismissed Comey in a shocking fashion. There was no time for other political actors, law enforcement officials, the commentariat, or the general public to prepare or to figure out how to react. Many people struggled to digest the implications over the following days amid shifting presidential stories about what had happened and why he had taken the action.

If the president fires Deputy Attorney General Rod Rosenstein, no one can plead a similar lack of notice. The warnings have been ample. On Tuesday, CNN reported that the president was considering firing Rosenstein with renewed “urgency following the raid of the office of the President's personal lawyer.” The Washington Post reported Wednesday evening that ousted White House adviser Steve Bannon is pushing the idea of firing Rosenstein as a way to “cripple the federal probe into Russian interference in the 2016 election” led by Special Counsel Robert Mueller. According to the Post, Trump “yelled about Rosenstein and Attorney General Jeff Sessions for several hours Monday and has continued to complain about them since.” CNN reported Thursday that the White House has begun prepping anti-Rosenstein talking points.

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This president often publicly flirts with firing people, but the degree to which Trump has trolled this sub-Cabinet officer—taunting him in Twitter statements, ginning up audience for television shows in which the dismissal is then demanded, publicly attacking his character—is unprecedented. If Rosenstein is dismissed—this week or next, this month or in six months—it would surprise only those who choose to be surprised.

The president could, of course, change his mind about firing Rosenstein; perhaps he already has done so. A Trump tweet Thursday said:

This isn’t the first time Trump has contemplated firing Rosenstein—and the past episodes have blown over. In February, Trump reportedly considered canning Rosenstein in the wake of the FISA memo controversy manufactured by House intelligence committee Chairman Devin Nunes. When asked by a journalist if he planned to fire the deputy attorney general, Trump replied, “You figure that one out.”

Two months later, we still haven’t figured it out. Jack Goldsmith has mapped “the cycles of panicked reactions” to fears that Trump might fire Rosenstein, Mueller or Attorney General Jeff Sessions. It is possible that Trump doesn’t really intend to fire Rosenstein but benefits from discombobulating his opponents as they continually scramble to respond. Alternatively, perhaps the outrage that follows has itself walked Trump back from the edge. Goldsmith writes: “The panic to Trump and the related Republican response might be the very mechanisms that are keeping him from acting on his natural impulses. The provocation at stage one might be a trial balloon that gets shot down every time by the panicked reaction. Absent the reaction, Trump might follow through.”

Rosenstein was spotted at the White House on Thursday. And on Wednesday evening, he reached an accomodation with the House intelligence committee leadership over Nunes’s access to unredacted documents. So it is possible that the crisis is passing this time too.

In short, until Trump actually pulls the trigger, there is a chance he is bluffing or will back down or will change his mind.

There is at least some reason to believe, however, that this time is different and that Trump is prepared to follow through. The context for the newest round of reporting involves a confrontation between the White House and the Justice Department. The raid on the offices of Michael Cohen, Trump’s personal attorney, which Rosenstein personally authorized, represents a serious escalation of the investigation in a fashion that highlights the risk to the president himself. Cohen is very much within Trump’s inner circle. The New Yorker’s Adam Davidson describes him as “the most important non-Trump in the Trump business world”: Cohen has long been deeply involved in Trump’s businesses and particularly in efforts to bring in international deals. Perhaps more importantly, he has also acted as Trump’s personal fixer, coordinating the non-disclosure agreement and $130,000 payment to the actress known as Stormy Daniels in the advance of the 2016 election (though Cohen has said he acted without Trump’s knowledge in that instance). So investigators stand to learn a great deal about the president by sorting through material seized from Cohen. And in critical respects, investigating Cohen is investigating Trump, since the investigation appears to be focused on activities Cohen undertook in service to Trump.

That said, it is not entirely clear what firing Rosenstein would mean operationally for the investigations—either the Russia investigation or the Cohen investigation—and who supervises them. The issue turns at least in part on whether Trump’s firing of Rosenstein renders Rosenstein a person “otherwise unable to perform the functions and duties” of his office for the purposes of the Federal Vacancies Reform Act. If so, the president may designate any Senate-confirmed official to act as the deputy attorney general—perhaps someone more amenable to Trump’s aversion to the Russia investigation. Otherwise, both the statute and Justice Department regulations appear to make Solicitor General Noel Francisco the acting deputy—and thus acting attorney general for the Russia investigation.

Does a firing render an official unable to perform his duties? By its text, the standard described above is triggered when a Senate-confirmed official “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Steve Vladeck on Just Security and John Bies on Lawfare have speculated that Congress may have deliberately left out “fired” to avoid the moral hazard that would ensue if the president could circumvent the Senate confirmation process by firing an official and then naming an acting replacement. A 1994 memo from the Office of Legal Counsel notes that the law doesn’t give a clear answer; the memo does not endeavor to do so either, but it does say that the act’s Senate sponsor said in floor debates that firing should count.

In short, it is not only unclear whether Rosenstein will be fired, it is also unclear what precisely the consequences would be—at least in immediate legal terms—if he is fired.

With those caveats, here are six observations about the possible firing of Rosenstein:

First, firing Rosenstein is not the same as firing Mueller, but it would be borne of the same corrupt purpose.

Congressional Republicans have signaled that Mueller’s firing would constitute a red line. Sen. Lindsey Graham has said it would be “the beginning of the end of [Trump’s] presidency.” But Trump doesn’t necessarily have to fire Mueller himself to undermine the special counsel’s investigation. With Sessions recused, the deputy attorney general oversees the Russia investigation and dictates its scope. In the ordinary course, the FBI director also directly reports to the deputy attorney general. On both matters, Trump would prefer in that role someone who displays more loyalty to him personally than to the relevant institutions (don’t believe us on this point; just listen to what he says). If the president is looking for a way to cripple Mueller’s investigation while less directly courting congressional wrath, firing Mueller’s immediate boss is one way to get there.

The immediate practical, legal and symbolic consequences of firing Rosenstein are, to be sure, less catastrophic for the investigation than they would be were the president to dismiss Mueller. Firing Rosenstein would not, after all, alter the investigation. It might not even immediately disrupt it, depending on how Rosenstein’s successor behaved once installed. But the underlying intent is plainly the same. Firing Rosenstein would be an act intended to limit and ultimately enable the shutdown of the Russia investigation and other inquiries into the president, his family and his inner circle of business associates. This is a corrupt purpose, plain and simple.

Second, there is no non-corrupt reason to fire Rosenstein. Rosenstein is, to be sure, a complicated figure. His tenure as deputy attorney general has been marked by some ugly incidents, most significantly when he authored the memo designed to provide the president with a pretext for firing Comey as FBI director. But whatever criticisms of Rosenstein may be valid, none of them is related to the reason Trump wants to fire him.

Rather, the reasons for the president’s displeasure with Rosenstein are openly corrupt and self-interested: Trump doesn’t like the Russia investigation. He doesn’t like having his family and businesses investigated. He wants Hillary Clinton investigated instead. And he doesn’t like that Rosenstein is not facilitating these wishes. Whatever his other faults, Rosenstein has presided honorably over these investigations. He has worked to protect their integrity despite the president’s fervent efforts to undermine them and unrelenting congressional pressure.

Rosenstein is not being persecuted for his vices. If Trump fires him, it will be for his virtues.

Third, it would be no better for Trump to force Rosenstein’s recusal than to remove him from office entirely. Trump tweeted Wednesday encouraging people to watch Sean Hannity’s show on Fox News that evening. The program was largely dedicated to advocating that Rosenstein be fired. Alan Dershowitz, who has become something of an adviser to the president, argued that rather than directly fire Rosenstein, he would “do it differently”—perhaps sidelining him from the investigation by insisting on his recusal. CNN has reported that the White House is drafting talking points in line with Dershowitz’s message, arguing that Rosenstein’s involvement in Comey’s firing makes him too conflicted to continue overseeing the investigation.

Substantively, the recusal question is complex. Why Rosenstein is not recused from supervising the Russia investigation remains a bit of a mystery. Rosenstein was involved in the Comey firing, after all. This means he is a witness to a key event that is the subject of the investigation into whether or not the president sought to obstruct justice. Ordinarily, that could be expected to result in a recusal.

The mere existence of this puzzle, however, does not offer Trump sincere justification for acting against Rosenstein. Questions of recusal are handled by career officials in the Justice Department based on department ethics guidelines. Those officials are certainly aware of the possible conflict, and the fact that Rosenstein continues to supervise the investigation suggests that they have concluded it is appropriate under the circumstances for him to do so. We do not have sufficient information to assess the merits of that decision—and neither does Dershowitz.

The demands for Rosenstein’s recusal are actually a matter of some irony given that Trump has repeatedly expressed his displeasure that Sessions accepted the recommendation of career officials and did recuse himself from the Russia investigation.

Fourth, congressional pushback against the president if he fires Rosenstein is not a certainty. It isn’t accurate to say that Congress has done nothing to restrain the president. As Goldsmith noted in his piece on cycles of panic concerning firings,

One of the things that surprised me in looking at the examples above was how consistently Republican leaders in Congress have pushed back against Trump when the nation falls into panic mode. Not every leader, and not consistently. But in every cycle, an important cadre of senior Republicans push back and warn the president not to follow through on his ostensible inclinations to fire Justice Department officials related to the Russia investigation.

Indeed, congressional signaling may well have done much to restrain Trump from firing Mueller and Rosenstein to date. At each new round of reports that Trump wants to fire Mueller, Rosenstein or Sessions, some Republican lawmakers reaffirm their confidence that the president would do no such thing. Some have gone so far as to say that he had better not. A number of “Mueller protection” bills have been proposed—their merits have been the subject of significant debate on Lawfare and elsewhere.

But nobody should be confident that Congress would take strong action in the event that Rosenstein is removed. In the wake of Comey’s firing, outraged Democrats found only some mild tut-tutting across the aisle. Comey’s firing didn’t even figure especially prominently in the confirmation hearings of his successor, Christopher Wray. And while certain Republicans have warned the president not to act against the law enforcement hierarchy, plenty of other Republican lawmakers have effectively hidden under their desks to avoid this issue. And some, most notably Nunes, openly agitate for Rosenstein to be fired and seem to be assisting Trump in forming a pretext for precisely that. Nunes even threatened to impeach Rosenstein and Wray on Tuesday after the Justice Department refused to turn over a set of unredacted documents that initiated the Russia investigation. Nunes and the Justice Department reached an accommodation only on Wednesday night—a turn of events that actually may have turned down the heat on Rosenstein.

Taken together, the congressional picture is not reassuring. It is possible that Trump’s moving against Rosenstein would jolt people into action. But don’t count on it.

Fifth, the courts are a non-option. The president unquestionably has the authority to dismiss Rosenstein. The Mueller case, where there is a genuine legal question as to whether the president has authority to directly dismiss a special counsel, is different. But with Rosenstein, there simply isn’t any issue to take to the courts. Rosenstein serves at Trump’s pleasure, and he can be dismissed at his displeasure.

To be sure, it is possible that Rosenstein’s dismissal would trigger a wave of resignations akin to the Saturday Night Massacre—albeit for slightly different reasons. It might also be the final straw for White House Counsel Don McGahn, who reportedly threatened to resign over past efforts to dismiss Justice Department officials. But these would be acts of conscience within the executive branch, not legally compelled. And in any event, it is not clear whether anyone will follow Rosenstein out the door or whether Trump would care if anyone does.

Finally, sixth, this is really all about political power. The only meaningful remedy to a Rosenstein firing is political. The clearest expression of political reaction, assuming Congress does not get meaningfully involved, will come in the midterm elections in November. If the president fires Rosenstein for openly corrupt reasons and his party does not pay a devastating electoral price, it will mean that in the American political system, at this moment in time, it is OK for the president to fire a law enforcement officer for openly corrupt reasons.

But the midterms are months away and the president’s action—if it takes place—would precipitate interim political measures too, measures of either acceptance or rejection. It will matter to the perceived legitimacy of the action how the democratic polity reacts. One of the most powerful statements in the Trump era has been citizens repeatedly taking to the streets to express their views on a diverse array of matters. In some ways, the most important reaction to a Rosenstein firing might come from the populace itself. And that raises a critical question: If the president fires the deputy attorney general, will people care?