Thursday, May 16, 2019

Rosenstein's Bad Options

There are so many theories around Rod Rosenstein's motives that I can barely keep them all straight.

The left at first thought he was a great choice for the DOJ, as evidenced by his confirmation in the Senate by a wide margin (94-6). Then once he had a hand in firing James Comey, they called for his head. That flipped when he appointed Robert Mueller - Rod was their hero again. But now that the Mueller report is out and he supported Barr's decision-making, he's again a traitor. (phew!)

On the right, Rosenstein has been excoriated for his decision to appoint Mueller. And this rhetoric (that Rod's a bad guy) has been continued by many on the right through today. However there are also those on the right who believe Rod has been quietly doing Trump's bidding all along and, quite honestly, I find this idea fascinating.

Really, all this comes back to a single question: what was the reasoning behind the Mueller appointment. Why did Rod decide it was needed after consistently pushing back on the idea. Did he panic? Was he squeezed? Was it a grand plan? Something else?

So this is my attempt to parse that question.

There is no doubt that Rosenstein found himself in an extraordinary situation on the morning of May 16, 2017. The amount of crazy flying around Washington DC that day will go down in the history books. And it forced Rosenstein to make the unusual decision to appoint a special counsel.

As of this writing, we don't have all the underlying information as to why Rosenstein made that decision. But looking at open source material, we can make some guesses.

So, Andrew McCabe comes to Rosenstein with a fistful of new cases, one of them is an Obstruction of Justice case against the president of the United States. What does Rod do?

Trying to keep this simple, I see three options:
-Shut it down,
-Assign the case to US Attorney(s), or
-Assign the case to a Special Counsel

Each has upsides and downsides.

Shut it down
Essentially telling McCabe, this is a no go. You've gone too far. Shut it down.

We know now (thanks to Mueller) that there was no conspiracy between any Americans and the Russian government as part of the 2016 election, so with hindsight being 20/20, maybe this was the right move. But at the time, there were a lot of questions, a lot of information that was not yet public so making that call would have been nearly impossible.

For example, it's possible that McCabe brought Rosenstein information that morning that he had not yet heard. What if May 16, 2017 was the very first time that Rosenstein had heard about the Trump Tower meeting? It would be much harder to say "shut it down" when you are first hearing about information like that.

Furthermore, given the extreme public scrutiny involved, it's a guarantee that this decision will be made public almost immediately. Thus the cry of "COVERUP!!" will be shouted from the rooftops. Not a great situation simply for the optics of it.

Finally, and perhaps the most important part, shutting down the case would mean that Congress would be able to start asking for documents related to the (now finished) counterintelligence case against Trump/his associates. Given the precedent set as part of the Clinton email case where the FBI/DOJ produced large quantities of documents, Congress could start getting the case material from Crossfire Hurricane almost immediately.

You might think, well, the GOP controls both the House and the Senate at that time, so they wouldn't start asking for documents, right?
Richard Burr
Yes, GOP controlled both the House and the Senate, but a crucial Senate committee (Intel) was led by very squishy Republican. You could see them still asking for documents derogatory to Trump. Furthermore, Rosenstein had seen Trump's tweet about a Trump Tower wiretap, there was already a drum beat to "investigate the investigators." So, these documents were going to be asked for, probably going in both directions. The FBI and DOJ were about to undergo an enema.

Telling McCabe that the investigation was over has a side effect of opening the floodgates to production of documents and I wonder if that was the biggest consideration of all.

Because ultimately, the path to actually removing a president goes through the US Congress. Impeachment is the appropriate constitutional tool if you truly, honestly want to remove the sitting President. Ironically, Rosenstein shutting down the investigation of Trump could actually lead to his demise.

And to be clear, Trump himself was not asking for the investigation to be shut down. In two separate, public interviews (Lester Holt and Jeanine Pirro), Trump expressed a desire for the investigations to go on, but in an orderly fashion and led by someone with integrity. No doubt Rosenstein heard that loud and clear.

Assign the case to US Attorney(s)
Alternatively, Rosenstein could have said, "OK Andy, I'm handing this off to one of my US Attorneys and they will look at the evidence, work with the FBI to develop the case and ultimately decide whether to prosecute."

This would be a pretty "by the book" way of doing things. But this also comes with large downsides.

First of all, there was only one (!) Senate confirmed US Attorney at the time. His name was Dana Boente and he was already pretty tied up, being the acting assistant attorney general for the DOJ National Security Division and all. Boente had actually just stepped back from the Trump-Russia case after leading it for two months; he might have even expressed to Rosenstein a desire to get back into the background, rather than the holder of a political hot potato ("this is your problem now" type of thing).

So if Rosenstein was going to give it to a US Attorney not named Dana Boente (EDVA), it would have went to one in an "acting" capacity, and the district that would make the most sense is the DC district. The DC district was led by Obama-handpicked Channing Phillips who seemed inclined to Get Trump at any cost. SDNY district had issues too, being the employer of James Comey's daughter.
Channing Phillips
Plus, farming out the case to new people dramatically increases the likelihood of leaks. And it just means that Rosenstein is no longer in tight control of it. There is a LOT that could go wrong and with something so high profile, even a small mistake could be devastating.

Even if handing the case to a US Attorney would have been a very "by the book" way of doing things, I can see why this is a non-ideal solution.

Assign the case to a Special Counsel
Finally we get to the option that many Democrats had been asking for since January 2017: appointing a Special Counsel.

First of all, the idea of it was not new in May 2017. Many many people, including Rosenstein himself, had been asked about it and said consistently in early 2017, a Special Counsel is not needed in this case, the DOJ can handle it. I'm sure the White House had internal conversations about it ("what if we did this"). Judging from the way Trump trusts him so much, Trump likely asked Chris Christie directly what he thought of the idea of a Special Counsel. And judging from interviews done before Mueller, Christie likely said it was a bad idea. Trump also trusts Steve Bannon a lot. And Bannon also would have advised against a Special Counsel, and in fact did, if Michael Wolf's Fire and Fury is accurate.

Yet, on May 16, 2017, Rosenstein made the call to do it. Here are some possible justifications he made for doing it:

  • It means Congress gets shut out from the investigation. Gang of Eight doesn't get briefed regularly
  • It means he can keep tight control of the investigation and ultimately has the final say on anything
  • It means he alone gets to select the person leading it, rather than having to get Sessions approval, White House approval, or Senate confirmation
  • A Special Counsel is designed for prosecuting criminal offenses. So rather than letting this critical investigation continue in the foggy world of counterintelligence, it moves into hard, provable crimes, if they exist. In some ways this is a form of calling a bluff. If you have crimes, show them. If not, shut up.
  • It means that Democrats and the public at large are going to have a really hard time calling the investigation corrupted. Remember what Trump said to Lester Holt: "I want (the investigation) to be so strong and so good." He emphasizes those words in the interview. What better way to snuff out doubts about the investigation than giving the President's opponents exactly what they have been asking for
  • If the FBI and DOJ really are implicated in widespread FISA abuse, this buys time to root it out internally rather than have Congress or FOIA-warrior groups like Judicial Watch do the deed
And finally, there is the problem that Rosenstein was a participant in firing James Comey. If the firing of James Comey is part of the Obstruction of Justice case against Trump, there is no way Rosenstein can be the person in charge of it at DOJ. He truly is conflicted in that case. But recusing leaves it to the number three at DOJ, Rachel Brand, who was appointed by Trump but I get the sense that she got squishy too. She left the Trump DOJ about 6 months after being Senate confirmed. Really, Rosenstein shouldn't be overseeing the Special Counsel at all but he managed to avoid that bullet, even though it was pointed out by Jack Goldsmith at Lawfare.
Robert Mueller
So out of all the bad options, I can see how appointing a Special Counsel might actually be the best one, albeit a very explosive one.

Lastly, the great Jeff Carlson has posited his view of all this in an article. The gist is that Rosenstein saw how out of control McCabe was and appointed a special counsel because that took the investigation out of McCabe's hands.

That doesn't make sense to me, mainly for the following reason: McCabe's top assistant (Lisa Page) was invited on the Special Counsel team from day 1. If you are freezing McCabe out, why would you even let Lisa Page in the building. Wouldn't that taint the investigation?

Also, if McCabe was truly the problem, why not either fire him or, even easier, appoint an interim FBI Director while a the search for permanent one goes on? You could even appoint Mueller himself as an interim FBI Director. That still accomplishes the task of freezing out McCabe.

As mentioned above, we still don't have all the information and might not have it for a long time. First draft of history.


  1. A Special Counsel is designed for prosecuting criminal offenses. So rather than letting this critical investigation continue in the foggy world of counterintelligence, it moves into hard, provable crimes, if they exist. In some ways this is a form of calling a bluff. If you have crimes, show them. If not, shut up.

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