My theory: A pair of longtime GOP operatives who are also excellent attorneys have been attempting to create a situation that forces the recusal of Rod Rosenstein. Why? two reasons:
1) To put someone more likely to protect Trump in the position of overseeing (and eventually shutting down) the Mueller investigation.
2) Forcing Rosenstein into a recusal situation avoids the public/political explosion that would ensue if he were fired or “resigned” (because otherwise he’d be fired — in effect forced out)
This is going to take some explaining. IOW this will be one of those diaries of mine that some folks say gets too far into the weeds. But I hope you will indulge me.
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What I believe was at best a snow job (on NYT reporters Michael Schmidt & Adam Goldman) and at worst Times reporters willingly being used exploded into the news last week. Citing second and third hand sourcing the Times breathlessly told the world that Rod Rosenstein wanted to “wire up” and record the President, perhaps as part of invoking the 25th Amendment which they also claim he advocated in a meeting that may wind up ranking next to the infamous June 9, 2016 Trump Tower meeting. The thing is, not only the New York Time’s arch rival the Washington Post come out later with a story with sourcing from at least one person who was actually in the meeting in question, but so did NBC. The sourcing the Post & NBC cited (again, someone actually in the freaking meeting!) said Rosenstein was being sarcastic with a specific quote: “What do you want me to do Andy, wear a wire?” in a sarcastic tone. Rather than gracefully fade away with a “We believe our sources” the Time’s Michael Schmidt continued over the weekend and into today to insist that Rosenstein was dead serious & that there was follow up discussion proving he was serious.
Again, the NYT is relying on “sources who were “briefed’ on the meeting” and/or “the contents of a memo(s)” written after the meeting. I repeat, second and third hand information.
The Times is doing all it can to flog this. Given Schmidt’s/their history with flogging the “Hillary’s emails” “story” I have to wonder if a sustained campaign is underway. Let me be clear, Trump doesn’t have anywhere near the smarts to conceive of what I suggest in the headline. However, he’s got two lawyers working over in the WH Counsel’s office who are first rate with fairly distinguished (if at odds with my beliefs on the right & wrong of political use of the law) careers. At least prior to getting involved with Trump at least. But both have wanted to protect Trump from Mueller. And Flood is a flat out attack dog. He is said to be furious that the WH offered any shred of cooperation back when Ty Cobb was in his job. He’s there precisely to help the WH go on offense against the Mueller investigation, probably in part because Trump’s personal lawyers are second rate. He’s hoping he can do what they can’t but keep his hands and career clean in the process — not getting too close to Trump.
Smart people can be really stupid sometimes.
My point in writing this though is both McGahan & Flood are both excellent lawyers, but also posses a career’s worth of experience in how things work in DC and that includes over at DOJ. Rosenstein has been and continues to be a problem for Trump. He authorized the Mueller investigation and expansion of its mandate. He also understands (having been a career federal prosecutor himself) how criminal investigations work, which makes him well qualified to supervise Mueller’s work, and being an extremely bright & capable, by the book guy he’s not going to go messing with Mueller when he (Mueller) comes to him and explains why this or that action should be taken. They want Rosenstein gone, and to have supervision of the Mueller investigation taken over by someone who can wind it down in a politically acceptable (to Independent voters at least) way and in the meantime slow Mueller down. Having someone with more reliable loyalty to Trump, who also has no experience with criminal investigations and would wind up asking Mueller a boatload of questions and require multiple meetings over something that Rosenstein could approve in less than an hour would be perfect. Someone who can slow walk things without actually “doing anything wrong” until it’s safe to shut the thing down. And bury any report Mueller submits.
Someone like Solicitor General Noel Francisco who happens in the current chain of command at DOJ to be next in line to oversee Mueller if Rosenstein is gone.
You have no idea how much is pains me to say this but what Hannity said on TV and has no doubt been telling Trump in their nightly musings on the phone about horrible things happening if Rosenstein (or Sessions for that matter) is fired is correct. Hannity is I bet begging Trump privately even more fervently than he did during his TV show last week not to do it. However, even before that, there have been worries that especially with the Kavanaugh nomination in trouble that Trump might feel an overwhelming urge to do something bold to prove he’s the “boss.” He’s got his love/hate relationship with Sessions but even firing Sessions wouldn’t do the trick because the likelihood of replacing him anytime soon is slim, and wouldn’t stop Rosenstein from letting Mueller do his thing. Rosenstein is the key. Firing him would bring just as much uproar as firing Sessions and the GOP would be kissing the Senate, as well as the House goodbye come November.
So how best to deal with Rosenstein? I believe McGahan & Flood cooked up a way in which to neutralize him. By forcing him into a situation where he’d have no choice but to recuse himself.
A long time ago there was some discussion about whether Rosenstein might have to recuse himself because he wrote that memo to Trump about Comey after being asked if he though Comey should remain as FBI Director. Being a straight shooter and believing Comey had committed not one but two serious breaches of standard DOJ policy during the campaign he had no problem writing the memo to Sessions that described why there was actual cause for the firing. Then Trump turns right around and not only ignores the memo but admits to the world publicly and to the Russians privately (although THEY told the world) he fired Comey over the “Russia thing.” I can see how Rosenstein felt used, and he was concerned enough that he sought an opinion from the Office of Legal Counsel at DOJ on whether he should recuse himself. It seems that their ruling was he could remain in charge of supervising Mueller.
I’m guessing but I’m pretty sure that ruling included the provision “so long as he didn’t become a witness for Mueller in any Obstruction of Justice portion of the investigation.” Mueller has plenty to work with without calling Rosenstein on that one, and it’s arguable if Rosenstein offering to write a memo after being asked if he thought Comey should continue to lead the FBI that the question from Trump was an actual attempt to obstruct Justice. This hurts almost as much as admitting Hannity gave Trump good advice, but I’d think any President including the person who should be (Hillary Clinton) would have asked the same question to Rosenstein or whomever was in the senior positions at DOJ. So while it was and remains a close call however. So the question then becomes (if I’m right about my theory) “How do we turn Rosenstein into a witness in a way that bears on the Mueller investigation?”
Any attempt to fire Rosenstein would make him a witness for Mueller even though there might be little, if any direct evidence of obstruction he can testify to. Here’s where it gets truly diabolical. I believe a decision was made to pit Rosenstein against others present at that meeting who have since been fired or forced out of DOJ. Trump has, as Rachel Maddow predicted in the summer of 2107 systematically worked his way through the senior leadership of the FBI, and along with a complicit GOP methodically engaged in smear campaigns against those same people. In fact he’s currently engaged in one against Bruce Ohr who’s still there. All except perhaps Ohr have certainly become witnesses & given testimony/evidence to Mueller. Andy McCabe’s firing came after a lengthy IG investigation, the results of which were forwarded to the WH via the Counsel’s Office. If they weren’t provided then, a phone call requesting supporting documents/exhibits made it’s way over to McGahan’s office as well. That would include McCable’s memos, and in particular the one that the NTY’s sources were “briefed” on.
Sarcasm, and btw Rosenstein is known to have a dry wit doesn’t convey itself well to written form. A few discrete contacts with pals in the FBI (the NY Field Office perhaps?) might find a person or two who would contact a pal who could “brief them” on that meeting. And a “story” was born. The story didn’t have to accurately reflect the discussion that took place. In fact the whole point of the exercise was to MIS-characterize it. But it’s out there and the wound to Rosenstein is severe. More importantly, it gives GOP Congress Critters plenty of cover to call Rosenstein over to the Hill and demand testimony under oath. It doesn’t matter that he might well be able to truthfully testify that the denials he issued in the media are true. That’s not the point. The point is to cite McCabe’s memo and name others who were present then but have been fired or forced out of DOJ. They won’t be able to get the answers they want BUT they can raise enough stink to make a criminal referral to DOJ that someone has lied either in testimony or in official documents filed with the FBI.
All they need is to force Rosenstein into a legal matter where he has to provide testimony. It doesn’t matter whether he actually thought and talked about “getting Trump” or not. It could be just enough to put him in the middle of a criminal investigation, and from there getting Mueller involved will be easy.
Once that happens Rosenstein will have to go to OLC and request issuance of a recusal order.
Neither Trump or his personal lawyers are smart enough to conceive, much less implement something like this. It takes someone smart, ruthless and knows both the inner workings of the DOJ & DC politics in general AND who has the skill not to leave fingerprints on their work.
Don McGahan and Emmet Flood are seasoned GOP operatives with the smarts, the skill and the ruthlessness to pull off a stunt like this. Hell, given that there isn’t a chance in hell that the NYT will ever name the sources for their “story” it’s possible that, having been promised anonymity in exchange for providing a major scoop that they are the very sources that were “briefed” on what took place in that meeting. I’m not sure they’d want to stick their own necks out that far, but given the history of Schmidt in particular (and especially with frequent WH flack Maggie Haberman as a go between) I think it’s more than a little bit possible. After all, they’d be in a good position to keep Trump from out and out firing Rosenstein by warning him of the consequences both legal and political. However, if they can simultaneously discredit Rosenstein AND turn him into a Mueller witness & shove him aside this duo is quite capable of telling Trump just enough & in the right way that he will sit tight, secure in the belief that long before the midterms Rosenstein will have to recuse himself. And then firing him in a few months won’t be so politically damaging & they can cite the firings of other senior folks at the FBI/DOJ as proof of the latter. Hell, they’d be getting a “twofer” out of it — moving Rosenstein out of the way and tarnishing him as a witness by pitting his account of that meeting against McCabe’s memo. It doesn’t matter that McCabe (and others present) might provide statements/testimony that those Times sources took things out of context. The simple, sensational version is already out there and playing catch-up in the court of public opinion by having to explain nuance & context seldom works. It can be done in a courtroom sometimes but we have to go through a long political/PR exercise before this would ever be hashed out in a courtroom. And the former could wind up preventing the latter from ever happening.
I know it’s a long, complicated theory and for anyone who’s taken the time to read through and consider it I thank you.
There’s another element which I saw raised on TV last night and again this morning. We might already be past the point of no return, either from the visit to the WH yesterday (which included a phone call with Trump) or the meeting that’s been set up for Trump & Rosenstein on Thursday. A single “Can I count on you Rod?” from Trump either yesterday or on Thursday and it’s game over. Even if there are no witnesses, once he’s done memorializing the meeting in a memo Rosenstein will have to walk a copy down the hall to the OLC. It might take a week or two for OLC to do its thing, but it’s hard to see how they wouldn’t reach the conclusion that Rosenstein WILL become a witness in the Obstruction of Justice part of Mueller’s probe. I hope I’m wrong about that. I really do. The only hope I see is the one that kept Rosenstein in charge of the Mueller investigation in the first place — he’s got enough (and is willing to prove it to OLC) on the Obstruction that he doesn’t need Rosenstein and won’t call him as a witness. However, a lot has changed during the course of the investigation and using that kind of legal technicality might taint Mueller’s final findings on the subject. Which means Rosenstein will be out — shuffled to some other spot in DOJ where after an appropriate length of time he can be quietly asked to resign. In theory he could say (as was indicated by folks at DOJ who escorted him to his vehicle) that he’s not going quietly — that if they want him gone they are going to have to fire him. Calling their bluff might make them back off for the time being, but as I’ve said that still means he’s a witness to an actual act of Obstruction, or at least potential Obstruction. McGahan & Flood know Rosenstein will still have to write it up and submit it to OLC.
For those who think I’m nuts or wrote another TMI diary I’d ask you to consider this: Trump is incompetent and an idiot & a lot of people close to him share at least one of those qualities but not both. However, not all the people propping up Trump fall in that category. Unfortunately, some are both bright and capable and that includes the two mean I’m accusing in this diary.
A final note about them both. McGahan has wanted out for a while, and while he brought Flood on board in Ty Cobb’s old job expecting that Flood would take over his as WH Counsel Flood has shown indications from the beginning of wanting to avoid becoming too close to Trump which would happen if he became WH Counsel instead of holding a special, limited function position. Both McGahan & Flood left promising legal practices to work for Trump and both are young enough to want to pick up where they left off. Both are smart enough to know that too long & too close to Trump leaves a permanent stain on anyone who does so. Finding a way to shut down and discredit the Mueller investigation by doing so to the person supervising it might they believe allow them to re-enter private practice with a good portion of their reputations intact.
I doubt that’s the case and I suspect anyone who’s read this thinks so either. The Trump stench will never be washed off them but once inside the WH bubble that can be hard to perceive even for the smartest people. I just happen to believe they think they can move on and have a great life & legal career post Trump. And that they are smart & ruthless enough to cook up a plan like I've outlined that would increase their odds of getting out “clean.” I think they are wrong about that.
However, if I’m right they will have found a way to grab a measure of control over the Mueller investigation in a relatively (politically) “clean” way. And that’s what matters to us all.