William Barr has been deservedly receiving his share of abuse for his misleading memo “exonerating” the President and his delay in actually producing any part of the Mueller report to Congress and the American people. But the focus on Barr has allowed the actions of Rod Rosenstein to fly somewhat under the radar. And, because Rosenstein was long considered the only person standing in the way of Trump and the termination of the Mueller probe, his actions and behavior were rarely seriously questioned. It’s time to do so.
If we are to believe the Barr memo, which admittedly requires a real leap of faith these days, “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense”. This was especially curious because Rosenstein is a potential fact witness against Trump in any obstruction case because of his participation in the Comey firing. It beggars belief that he would actually participate in Barr’s decision regarding obstruction rather than recuse himself in deciding a case where Rosenstein himself may have, wittingly or unwittingly, abetted the crime.
Then again, this was not the first time Rosenstein had bizarrely refused to recuse himself in the Mueller investigation. His problems really began when Jeff Sessions actually followed DOJ ethics recommendations and recused himself from the Trump-Russia investigation. Despite that recusal, Sessions participated in Trump’s decision to fire FBI Director Comey and Sessions and Trump enlisted Rosenstein to put together the excuse for firing Comey based on his violations of DOJ policy in the Clinton email investigation.
What is clear is that Rosenstein knew that there was a counterintelligence investigation into the President and his campaign that focused on contacts with Russia when he wrote the letter laying out the reasons for firing Comey. He had to have been aware that Comey was constantly being pressured by Trump about Flynn and Russia. He had to know the concern in the counterintelligence community that getting rid of Comey would create. He had to have some inkling that the reasons he delineated in his memo about Comey’s actions in the Clinton email investigation were merely a pretext for the President. And yet he still participated in Comey’s firing. Whether Rosenstein truly believed Comey’s actions justified his firing no matter what the President’s motivation was or naively thought that getting rid of Comey would somehow restore the appearance of independence of the DOJ or he truly subscribes to some version of the “unitary executive” that allows the President to fire subordinates for any reason is unclear.
What is clear is that Comey’s firing and Trump’s admission of the true reason for it panicked those in the counterintelligence investigation to the point that some even considered the possibility that Trump was a Russian agent. That led to a number of meetings which included Rosenstein where the newly Acting FBI Director Andrew McCabe claimed there were discussions about invoking the 25th Amendment and potentially wearing a wire to meetings with Trump. McCabe describes these discussions as serious while Rosenstein’s limited comments on them only claimed the issues were raised in jest.
At that point, McCabe and others felt that Rosenstein now had no option other than to recuse himself from the Russia investigation as Sessions had done. In fact, the case for recusal against Rosenstein as now a fact witness in a possible obstruction case was far greater than the issues confronting Sessions when he recused. Instead, Rosenstein decided to appoint Mueller as Special Counsel and remain in his position to oversee that investigation. Certainly, appointing Mueller took the heat directly off Rosenstein and the DOJ more generally. But Rosenstein’s inherent conflict still remained.
Why Rosenstein did not recuse at that point is, again, still an open question. Sessions subsequently came to his defense saying that he, Sessions, was the one who suggested firing Comey and Rosenstein’s memo was merely the result a loyal soldier following an order. According to Sessions, Rosenstein was not conflicted simply because he was following Sessions’ instructions and should therefore remain in charge of the Mueller investigation. This explanation actually makes Rosenstein’s position look worse. The recused Attorney General, directly interfering in the Russian investigation in which he was not supposed to be involved, recommended firing Comey and then instructs a witness to possible obstruction of justice of that investigation to oversee that investigation. This makes Rosenstein a Trump puppet twice, once for being involved in firing Comey and then for not subsequently recusing himself.
Perhaps Rosenstein felt that, like Comey with Clinton, he was uniquely positioned and that, having created good will with the President in getting Comey fired, he could help navigate the Mueller investigation to a conclusion, believing that anyone who replaced him would be more inclined to restrict or kill the investigation. We just don’t know.
The Mueller investigation was incredibly tight-lipped, virtually refusing to comment on anything and speaking through their indictments. But there was one glaring exception to that rule, and that was when the Special Counsel’s office specifically refuted a Buzzfeed report that provided evidence that Trump had instructed Michael Cohen to lie to Congress about the Trump Tower Moscow negotiations. In fact, in his subsequent testimony, Cohen never claimed Trump told him to lie, only that he, Cohen, matched his statements to the President’s political messaging. There had been plenty of erroneous stories written about the Mueller investigation over the years, so the fact that Mueller’s team pushed back on just this one was, shall we say, curious and even more so in retrospect as it clearly touches on obstruction of justice. And, according to press reports, that rebuttal from Mueller’s office may have been prompted by a call from Rosenstein’s office inquiring whether his office would refute the Buzzfeed story. Again, this seems like a curious micromanaging of the Mueller investigation in which Rosenstein was required to be fairly hands-off.
In addition, we also have little insight into whether Rosenstein actually restricted the Mueller investigation in specific ways. The fact that Mueller never interviewed Trump beyond written questions seems like a critical failing of his investigation. Whether that was because Mueller and Rosenstein decided the lengthy litigation wouldn’t be worth it or whether Rosenstein himself decided Mueller could not go there is also unknown. It also seems that Mueller largely avoided investigating Trump’s business connections with Russia, another questionable decision considering the Trump Tower Moscow project was potentially part of a quid pro quo. Why that path was not fully explored by Mueller raises additional questions.
What we do know is that the Barr memo defined the potential conspiracy in an incredibly narrow manner stating, “In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The Special Counsel defined ‘coordination’ as an ‘agreement — tacit or express — between the Trump Campaign and the Russian government on election interference’”. Basically, this definition ignores the fact that many non-governmental organizations and oligarchs are still basically controlled by the Kremlin and seems to almost require an oral or written “contract” to be considered collusion. Again, the question is whether this was a limiting definition imposed on Mueller by Rosenstein or is this just part of Barr’s deception.
Rosenstein was originally scheduled to resign in the middle of March, when Mueller completed his probe. That has not happened. He may feel his continued presence may be required in order to help Barr with decisions regarding redactions to be made to the report submitted to Congress. But, by staying on, Rosenstein is once again, as with the Comey firing, being used to provide his imprimatur to a seemingly corrupt process. Not only has the decision not to pursue obstruction of justice gotten him off the hook with regard to his actions around the Comey firing, as well as fueling suspicions he shares Barr’s unique view of the “unitary executive”, but now he is also providing Barr with cover for any redactions made to the report.
Many of the questions surrounding Rosenstein were willfully ignored, except by those on the right, in the belief that, at minimum, he was protecting Mueller. But, now, with Barr releasing a clearly misleading summary of Mueller’s findings and delaying and redacting the report that will be delivered to Congress, both with Rosenstein’s apparent support and acquiescence, it really is time to find out just what Rosenstein’s real story is. Was he the protector of Mueller or did he strictly limit Mueller’s investigation? Was he the defender of the law in protecting Trump from firing Mueller or did he actually provide cover, wittingly or not, for some of the President’s crimes? Or was it all of that at once? It’s about time we found out.
Originally published at thesoundings.com on April 9, 2019.