Wednesday, February 7, 2018

Why firing Rod Rosenstein would be like firing Robert Mueller

Now the House Freedom Caucus is trying to "fire"Rosenstein: Deputy Attorney General Rod Rosenstein Tuesday compared articles of impeachment drafted against him by members of the conservative House Freedom Caucus to an extortion attempt.
“There have been people who have been making threats privately and publicly against me for quite sometime and I think they should understand the Department of Justice is not going to be extorted,” he said speaking at The Newseum’s Law Day event. “We are going to do what is required by the rule of law and any kind of threats anybody makes are not going to affect the way we do our job.”
The House Freedom Caucus, which is chaired by Rep. Mark Meadows, North Carolina Republican, have drafted eight articles of impeachment against Mr. Rosenstein, multiple media outlets reported late Monday. Those drafts reportedly accuse Mr. Rosenstein of abusing his authority when he renewed a Foreign Intelligence Surveillance Act (FISA) warrant on Trump campaign aide Carter Page ahead of the 2016 presidential campaign.
From the Washington Times, May 1, 2018

This post was written the last time rumors were Donald Trump was threatening to fire those investigating him, but it is a relevant now as rumors are rampant now, 4 11 18
Revised February 8, 2018

Update: April 20, 2018: AG Sessions threatens to quite if Rosenstein is fired:

Why do some in Congress equate firing Deputy Attorney General Rod Rosenstein with the same importance as  firing  Special Counsel Robert Mueller? We know the Deputy Attorney General has the power to fire Mueller and the President must go through him to do it, but whoever sits in the Deputy Attorney General's chair also  has the ability  to influence the outcome of the Mueller investigation even if Mueller is not fired. The Deputy AG has the power to limit the  scope of the investigation and to make  the  decision whether  to release the Mueller report in some form to the US public.  

Rosenstein's tenure is in jeopardy. CNN quotes  President Trump as having said of Rosenstein, “Let's fire him, let's get rid of him,” but was talked out of it.  Soon after the Nunes memo came to the public's attention, it was seen by critics as an attempt to create a pretext for the President to fire him. Mr. Trump revived the possibility. When asked if he would fire Rosenstein,  Trump  answered "you figure it out".  In a letter to President Trump, Democratic Congressional leaders wrote "Firing Rod Rosenstein, DOJ Leadership, or Bob Mueller could result in a constitutional crisis of the kind not seen since the Saturday Night Massacre." They were referring to  similar actions Richard Nixon took in Watergate. Even Paul Ryan, House Majority  Leader, said : "Rod Rosenstein is doing a fine job."  

Donald Trump has his own self-interested reasons to want to fire Deputy Attorney General Rod Rosenstein. Assuming President Trump believes firing Special Counsel Robert Mueller would certainly trigger serious impeachment attempts, firing Rosenstein would be a tempting alternative. Rosenstein has already indicated he was not a Trump team player when his Department of Justice  objected to the release of the Nunes memo.The Nunes memo was also  viewed by many as an attempt to provide  Donald Trump with a public rationale  to fire Rosenstein  for alleged “deep state bias” and  for  FBI alleged  incompetence in a single  court filing to renew a FISA warrant for surveillance of Carter Page. The Nunes memo was also seen as an attempt to damage the credibility of the FBI so that their findings would be viewed as biased. Polls show that strategy is working with the GOP rank and file

Some senators have warned him firing Rosenstein also could backfire on him just as did the the firing of FBI Director James Comey. Comey was investigating President Trump's associates' with contacts with Russians. That firing resulted in the appointment of Mueller to investigate if the President or his associates were obstructing justice or they conspired with Russians to interfere in the 2016 elections, or even if financial crimes were committed, all possible impeachable offenses.

Another possible temptation for Donald Trump to fire Rod Rosenstein would be to limit the scope of Mueller’s report. The Deputy AG has the power to put the report in a desk drawer if he does not see release of it would be in the public's interest, whatever that means. A new deputy AG could take money laundering off the table or out of the report, for example. Mr. Trump has made it clear that subject was a red line he thought Mueller should not cross.

The game could then become delay, delay, delay until after the November Congressional elections. Firing Rosenstein and replacing him with a Trump loyalist could a result in drawn out court challenges, congressional hearings, and a confirmation vote of the Senate, though it would not halt the investigation since it could continue under Rosenstein's deputy. Donald Trump could also contend his reason try to avoid testifying to the Mueller team or taking the 5th was that the FBI was too politically biased against him. That issue could also be tied up in the Courts past the November 2018 election.

Win or lose the court challenges, resulting delays could benefit the GOP and President Trump. The GOP fear is the 2018 midterms could flip control of the  House that  has impeachment powers to Democrats. The GOP now has the majority in the House and while they have control, it is realistic to believe they would not impeach their President. Delays would give Donald Trump an opportunity to keep up the morale of his base through November and keep Congress in GOP hands. It might work. In the midst of Watergate, Nixon was re-elected to a second term by a large majority. It was not until after that  election he was forced by the courts to release the tapes that his role in the Watergate cover up was revealed to the public and impeachment was begun.

There are two unforeseen circumstances that could change this scenario: the Mueller findings could be
so explosive even House Republicans could not ignore them and would proceed with impeachment or
that Mueller would indict the president and shortcut impeachment proceedings. Whether he has the power to do the latter is an unsettled legal matter and would depend upon a Supreme Court ruling..


“What happens when the special counsel’s investigation is complete?

Rosenstein’s order notes that if Mueller deems it “necessary and appropriate,” he is “authorized to prosecute federal crimes arising from the investigation of these matters.” The federal code states that at the conclusion of a special counsel’s investigation, he must provide the acting attorney general with a confidential report explaining decisions about whether or not prosecutions are warranted. The acting attorney general could decide to make that report public. According to the code, the “Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.”

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