Saturday, May 5, 2018

If you can't fire Rosenstein, impeach him?

Update: 5/10/18) At issue:

5/11/18 New bipartisan attempt to protect Mueller's investigation by preserving and reporting fruits of investigation if fired.

A version of this was published in the Sky Hi News May 7, 2018.

DOJ refuses to release information Nunes demanded because it asked for disclosure of the redacted information on what the DOJ says is an intelligence source and to release that name would damage national security and imperil the life of the source. The DOJ and Democrats on the the House Intelligence committee which Nunes chairs believes that 1) Donald Trump is looking for a pretext to fire Rosenstein if he does not provide the information and that 2) the information would flow to the White House, giving them inside information, a roadmap, needed for a defense against Mueller findings. Also imperiled in this is Attorney Jeff Sessions as well as Rod Rosenstein, since their refusal to turn over the classified information of ongoing investigations...long policy of the DOJ... This could open up the pretext for the President to fire Sessions and Rosenstein or for the impeachment of Rosenstein and then to close down the Mueller probe. As of 5/10/18, the issue is kicked over until next week. (comments per Ari Melber and guests on MSNBC). Impeachment of Rosenstein would take that off the hands of the President who probably would trigger impeachment for obstruction of justice action if he did it. This way one cannot impeach Nunes and his GOP cohorts who also received backing from Speaker Ryan to day for wanting to expose a secret source..

If Donald Trump cannot fire Rod Rosenstein because it would look too much like obstruction of justice, then the House Freedom Caucus is trying to impeach Rod Rosenstein, Deputy Attorney General, who oversees the Mueller Russian investigation.  Their impeachment attempt begins this week. The House Freedom Caucus is clearly trying obstruct justice by crippling the Mueller investigation to oust his boss, Rosenstein, in hopes that a Trump loyalist would take his place and rein in the Mueller investigation.  Clever. There is no way to impeach the House members for their obstructing justice.

At least three times since the first of the year Donald Trump asserted he wanted to fire Rod Rosenstein. However  a handful of GOP Senators warned him that could lead to his own impeachment for obstructing justice, much like the Nixon Watergate impeachment, when Nixon fired the investigators , special counsels, and Department of Justice ( DOJ ) officials  investigating his connection and cover up.

Why is Rosenstein such an object of this attempt? Rosenstein is the key player. He is the one who can fire Mueller and Mueller’s charge is to give a report to Rosenstein who has the power to decide whether to refer the report to Congress for their decision and power to impeach a president.   Since Donald Trump does not have the power to fire Mueller directly, he needs to replace Rosenstein with a loyalist who will either restrict Mueller’s probe or fire him. To Trump’s rescue comes the Freedom Caucus impeachment attempt.

Both Rosenstein’s  boss, Attorney General Jeff Sessions,  and he were appointed by Donald Trump. Both are Republicans.  Sessions has threatened to resign if the president fired Rosenstein. Sessions heads the Department of Justice (DOJ).Sessions recused himself because he himself had unreported conversations with the Russians during the 2016 campaign so that the task of overseeing the investigations fell to Rosenstein, next in line. . In turn, the DOJ/FBI had  already been engaged in investigating the Russian interference in the 2016 elections since the summer of 2016. When Trump fired the FBI director James Comey, allegedly for not swearing loyalty to him or for refusing to cooperate in the Russian connection investigations. Rosenstein hired a special counsel, Robert Mueller, to investigate whether obstruction of justice, conspiracy  (collusion) with the Russians to fix the elections, or other crimes were found to have been committed. Mueller’s investigators are the FBI, IRS and intelligence services, and any number of other federal investigators led by prosecutors in three jurisdictions. Whatever happens to Mueller, or Rosenstein, these other investigations could continue. So why bother?

A political drama  indeed will be all that will result. The merits of the arguments deserve an entire separate column, but the politics of it are clear.  The chances that the Senate would provide them with ⅔ vote needed to oust Rosenstein will not happen because there are not enough GOP senators . This is purely a political move geared to gin up the Trump base before the 2018 elections or to paint the Department of Justice full of non-Trump loyalists that are  so prejudiced against Trump that any findings and reports would have no credibility. In public addresses made to lawyer groups last week, Rod Rosenstein is holding firm in his support of the rule of law and called the House attempt: “extortion“. “...“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.”

This follows in the heels of the GOP Chair of the House Intelligence Committee,  Devin Nunes, abruptly cutting off their committee’s investigation into the Russian interference in the 2016 presidential elections that helped Donald Trump win. That committee was a farce, with  Rep. Devin Nunes caught coordinating actions with the White House in his infamous midnight ride to report to the White House what the White House had disclosed to him. . Nunes then engineered the end of the committee’s investigation without calling on key witnesses and subpoenaing key
documents. The minority Democrats were never consulted and issued their minority report that highlighted those shortcomings. Of course, the Mueller investigation continued in spite of these efforts since Mueller has farmed out his investigations to various agencies and several other prosecutors in other jurisdictions.
Failing that, per the conservative Washington Times,May 1,  “ 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.”  All of these charges are based on the Nunes led committee.

In the meantime, a handful of Senators made it clear they would not approve attempts to oust Mueller, enough given the closely divided Senate to stop amy impeachment attempts of Rosenstein. Bills have been introduced to protect Mueller, but have gotten nowhere because the Senate GOP leader refuses to bring the bills up to a vote, claiming it was unnecessary since the White House had no plans to fire Mueller. Whether those same senators would oppose impeaching Rosenstein is not known, but given the close partisan balance in the Senate, getting a 2/3 vote to convict and oust would still be an impossibility.

The is a replication of a prior blog post , updated, providing more details. Why firing Rod Rosenstein would be like   firing Robert Mueller, 2/ 7 /18
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:

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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