You can’t trust “anonymous sources”: this from the guy who, in approving the final Carter Page FISA warrant application, endorsed asking a court to rely on anonymous sources—some of them Russian operatives—who were channeling information through a foreign spy from whom the Justice Department continued to take information even after telling a federal court that the spy had been cut out of the investigation for leaking to the media.
And my favorite: Rosenstein knows “there is no basis to invoke the 25th Amendment” against President Trump. Of course, that does not respond to what the Times report actually says, which is that back in May 2017, when he was an emotional wreck because Democrats were being mean to him, Rosenstein urged that there might at that time be a basis to remove the president under the 25th Amendment if he could get enough top officials to agree that Trump was unfit to discharge his duties.
The Times tells us that Rosenstein “grew concerned that his reputation had suffered harm” and that he “became angry at Mr. Trump.” Sensing which way the wind was blowing, desperate to get back in the Democrats’ good graces, the deputy AG started singing from the #Resistance hymnal: Trump is unfit. Of course, Trump was neither more nor less unfit than he’d been at any other time. Rosenstein’s sudden concern about the president’s suitability was about Rosenstein, not Trump. The deputy AG now felt the need to show his former admirers, as emphatically as circumstances would allow, that he was on the right side of this question. Let’s look at the steps he took.
1) Wiretapping the President
Rosenstein seized on the most current agenda item: Trump’s interviews of candidates to replace Comey.27 He began badmouthing the president as dangerously unserious. He allegedly urged that he or a top FBI official, such as then-acting-director McCabe, should covertly record conversations with Trump to amass evidence of the president’s derelictions and incapacity.
Regarding this eye-popping Times claim that he proposed wiretapping Trump, Rosenstein’s allies insisted he was just kidding. Clearly, enough people heard the deputy AG talk about covertly recording the president that he could not credibly deny doing so. Thus, Rosenstein issued a non-denial denial: “I never pursued or authorized the recording of the President.” Notice: no one said he gave a directive; the allegation was that he floated the idea. In fact, Rosenstein may not have been totally serious about wiring up. But rest assured he was dead serious about appearing ready to monitor the president—i.e., about assuring anti-Trump bureaucrats that he was with them, especially those who had good relations with Democrats, such as McCabe.
2) Invoking the 25th Amendment
Rosenstein also broached the possibility of invoking the 25th Amendment.28 This overwrought suggestion appears never to have advanced beyond the larval stage. The amendment contemplates removal of a president who is incapacitated in the medical sense. It is not a substitute for impeachment, which is the remedy for unfitness in the sense of maladministration, about which Rosenstein was talking.
Furthermore, the 25th Amendment calls for a written declaration by the vice president and a majority of the cabinet. Rosenstein, by contrast, is said to have told McCabe that he might be able to get a grand total of two cabinet officials on board: then–Attorney General Sessions and John Kelly, who was then the homeland-security secretary (he later served as White House chief of staff). There is no indication that Rosenstein ever actually raised the possibility of a 25th Amendment coup with either of them. Still, this was more than idle chatter: Rosenstein’s “joking” about secretly recording Trump came in this context of exploring whether a case for removing the president from office could be built. The idea would have been to capture some outrageous statements by the president, then use those statements to persuade cabinet members that he was unfit.
Hence, the non-denial denials from Rosenstein: “I never pursued or authorized recording the President and any suggestion that I have ever advocated for the removal of the President is absolutely false.” Right. As already noted, Rosenstein’s assertion in September 2018 that the president was at that point fit to serve did not actually respond to the Times report—which said that Rosenstein, while in an agitated state in May 2017, intimated that Trump might at that time be unfit and removable. Equally unresponsive was the deputy AG’s vehement denial that he “advocated for the removal of the President.” The Times did not allege that Rosenstein advocated for Trump’s removal; it says he raised but did not seriously pursue the harebrained notion that Trump could be removable under the 25th Amendment.
Tellingly, Rosenstein avoided claiming that he never discussed the 25th Amendment at all, with anyone. Again, the evidence he did so is overwhelming. Unable credibly to deny it, he deflected it. The deputy AG was more serious about being perceived as favoring Trump’s removal than about putting his neck on the line in an actual removal effort.
3) Appeasing Democratic Demands for a Special Counsel
The most consequential step Rosenstein took to appease Democrats was his appointment of Robert Mueller as special counsel.
As we’ve detailed, the president’s performance after Comey’s dismissal was bizarre. It intensified the already heated Democratic calls for the appointment of a special counsel for the Russia investigation, notwithstanding the absence of any factual evidence that the president, for all his missteps and Twitter twaddle, had actually committed a crime.
No one was more affected by this pressure cooker than the deputy AG. By May 12, 2017, the Times recounts, an “upset and emotional” Rosenstein was longing for Comey’s return to the Bureau’s helm. By May 14, Rosenstein was asking FBI officials whether he ought to call Comey directly to seek the former director’s advice about appointing a special counsel—a suggestion the officials are said to have shot down as a “bad idea.” At that very time, the just-ousted Comey was leaking his Flynn memo to the Times, hoping it would spur appointment of a special counsel. Implicitly, this was an appeal to Rosenstein; by regulation, the decision whether to name a special counsel was his to make.
On May 16, the Times ran with its barnburner story about Comey’s Trump/Flynn memo.29 This ratcheted up to new heights the calls for a special counsel, with Democrats upbraiding the president for obstructing the FBI—both by firing Comey, who had been running the Russia probe, and by meddling in the case of Flynn, a potential witness in the Russia probe. One can certainly disagree with Trump’s moves, and find them foolish. Some even say indefensible. Others would argue that Comey deserved to be removed (or, at least, that his removal was justified), and that Flynn did not deserve to be investigated. Whatever you think, though, these actions could not constitute obstruction—as a matter of law, FBI investigations are not “proceedings” that can be obstructed. Counterintelligence investigations are done for the president, not to prosecute in judicial proceedings, so justice is not obstructed; and a president’s discretionary exercise of his lawful constitutional authority (such as by firing subordinates or weighing in on the merits of continuing investigations) cannot constitute prosecutable obstruction—though, if Congress believes there have been egregious abuses of power, it can always impeach the president.30
Nevertheless, on May 16, in the wake of Comey’s firing and on the same day as the big Times report about Comey’s Trump/Flynn memo, Rosenstein raised with McCabe the possibility of removing Trump via the 25th Amendment. Less than twenty-four hours later, on May 17, Rosenstein suddenly announced the appointment of a special counsel.
This was Rosenstein’s chance to get back into the Democrats’ good graces. Indeed, the Times reports that the deputy AG came close to appointing his old friend and former boss, James Cole, President Obama’s deputy attorney general for four years (who, the Times adds, was then in private practice representing such Democratic operators as Sidney Blumenthal). In the event, Rosenstein did the next best thing to restore his good standing in Washington by picking Robert Mueller, an appointment that was certain to (and did) receive ringing endorsements from Comey, Democrats, and the Beltway’s bipartis
an media pundit class.31
Rosenstein gave the president no notice regarding the Mueller appointment. The intrepid deputy AG phoned Sessions, who was at the White House, so that he could deliver the news to Trump. The president was devastated. Sessions and his chief of staff, Jody Hunt, were embarrassed and horrified—Rosenstein had given them no heads up, either. Slumping into his chair, as Sessions, Hunt, and White House Counsel McGahn looked on, Trump wailed, “Oh my God. This is terrible, this is the end of my presidency. I’m fucked.” He berated the attorney general, “How could you let this happen, Jeff?” The president asked for Sessions’s resignation but ended up not accepting it—the beleaguered attorney general finally left the Justice Department after the 2018 midterm elections.32
When he and Sessions returned to Main Justice, Hunt was livid. He stormed into Rosenstein’s office, finding the deputy AG hunkered down behind his desk. Rosenstein asked whether the president was going to fire him. Hunt told Rosenstein that what he had done was “despicable and unprofessional.”33
Rosenstein’s first stop after installing Mueller as special counsel was Capitol Hill. There, he put on sackcloth and ashes for Senate Democrats, promising he would impose no investigative restraints on Mueller. As The Washington Post later reported, the deputy AG
emphasize[d] to the senators the independent authority that the new special counsel … has in the Russian investigation. “If one thing is clear from the meeting we just had, it is that Mr. Mueller has broad and wide-ranging authority to follow the facts wherever they go,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “That gives me confidence and should give the American people some confidence.”34
The Post further related that Rosenstein stressed “Mueller’s wide scope” as his rationale for referring senators to Mueller rather than answering their questions about the investigation. The message: the deputy AG planned to be hands off; the special counsel would be given free rein.
The appointment of Mueller as special counsel effectively wrested control of Crossfire Hurricane from the FBI. That appeared inappropriate: the FBI investigation was counterintelligence, and Mueller was a prosecutor not an intelligence analyst. But the investigation really was criminal now. After Comey’s firing, McCabe—now the Bureau’s acting director—formally opened a criminal investigation of President Trump for obstruction. That it was a specious theory is, for now, beside the point. What matters is that the focus had shifted dramatically, to obstruction: a potentially criminal offense, and an abuse of power for which presidents have faced impeachment—and over which Richard Nixon would have been removed had he not resigned in 1974.
The collusion narrative had served its purpose. To be sure, Plan A had failed: The whitewashing of a criminal case against Hillary Clinton, the airbrushing of her serious misconduct, had not been able to compensate for her weaknesses as a presidential candidate. But the collusion narrative, seeded by the Obama administration, tilled by intelligence leaks, and tended by constant media care accomplished its objectives. A special counsel—effectively, an independent prosecutor—was imposed, despite the absence of a criminal predicate, to monitor the Trump presidency. This special counsel produced a report which, though unable to establish the Trump–Russia conspiracy that was its rationale, urged an impeachment roadmap on the Democratic-controlled House of Representatives. Though that roadmap will never trigger the president’s removal from office, it will spawn congressional hearings on the president’s asserted unfitness for office, teeing up the Democrats’ 2020 campaign.
That is the Ball of Collusion: counterintelligence as a pretext for a criminal investigation in search of a crime; a criminal investigation as a pretext for impeachment without an impeachable offense; an impeachment inquiry as a pretext for rendering the Donald Trump un-reelectable; and all of it designed as a straitjacket around his presidency. Will it succeed? That depends on whether President Trump exposes and defies the narrative, or plays the role it has scripted for him.
Notes
INTRODUCTION
1. “Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal Emails System” (Remarks prepared for delivery at press briefing, July 5, 2016) (hereafter, Comey July 5 press conference).
2. Andrew C. McCarthy, “‘We Need to Clean This Up’: More Evidence Obama Lied About Hillary’s Private E-mails” (National Review, Oct. 25, 2016); McCarthy, “Podesta Leaks: The Clinton-Obama E-mails” (National Review, Oct. 15, 2016); McCarthy, “Obama’s Growing Conflict of Interest in the Clinton E-mail Scandal” (National Review, Feb. 3, 2016).
3. Julian Hattem, “Obama’s ‘classified’ comments strike nerve” (The Hill, April 11, 2016).
4. The Espionage Act, codified at Title 18, United States Code, Section 793 (“Gathering, transmitting or losing defense information”), subsections (e) through (f), further discussed, infra. See also Title 18, United States Code, Section 1924 (“Unauthorized removal and retention of classified documents or material”).
5. Kenneth Starr, Contempt: A Memoir of the Clinton Investigation, pp. 201-06 (Sentinel 2018).
6. Matt Apuzzo, Michael S. Schmidt, Adam Goldman, and Eric Lichtblau, “Comey Tried to Shield the F.B.I. From Politics. Then He Shaped and Election.” (New York Times, April 22, 2017).
7. Lisa Page Testimony before the House Judiciary and Oversight Committees, July 13, 2018, pp. 94-95; Jerry Dunleavy, “Lisa Page said FBI discussed charging Hillary Clinton with ‘gross negligence’ in 2016, and DOJ told them no” (Washington Examiner, March 12, 2019).
8. Matt Zapatosky, “Officials: Scant evidence that Clinton had malicious intent in handling of emails” (Washington Post, May 5, 2016); “Clinton aide Cheryl Mills leaves FBI interview briefly after being asked about emails” (Washington Post, May 10, 2016); see also Andrew C. McCarthy, “Clinton E-Mails: Is the Fix In?” (National Review, May 14, 2016).
9. Title 18, United States Code, Section 641 (“Whoever embezzles, steals, purloins, or knowingly converts to his use, or the use of another, or without authority, sells, conveys, or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or [w]hoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—[s]hall be fined under this title or imprisoned not more than ten years, or both”).
10. Office of the Inspector General, U.S. Department of Justice, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” Executive Summary p. iv (June 2018).
11. Clinton’s popular vote plurality could be credited to solely to California, which she won by a staggering 4.3 million votes. Since 2010, California has employed a nominally nonpartisan “Jungle Primary” system. See, e.g., Adam Nagourney, “Here’s How California’s ‘Jungle Primary’ System Works” (New York Times, May 24, 2018). In effect, this means the Golden State is not only deeply blue; it discourages Republicans from voting on Election Day. In the primaries for state and congressional races, party labels are not included on the ballot; the two top primary vote-getters, regardless of party, are awarded spots on the November ballot. In California, that generally means the two top Democrats. In 2016, for example, there was no Republican finalist in the most important statewide race, for a United States Senate seat. (In the contest between Democrats, Kamala Harris defeated Loretta Sanchez.) With Republicans thus marginalized and with Clinton a lock to win the state, Republican voter turnout was predictably weak. If California were put aside and the other 49 states were aggregated, Trump would have had more popular votes than Clinton, though still not a majority. Nevertheless, Clinton’s popular-vote edge over Trump exceeded that of five elected presidents, Richard M. Nixon (1968), John F. Kennedy (1960), Grover Cleveland (1884), James A. Garfield (1880), and Polk (
1844—an election in which the total number of Americans who voted was less than 3 million).
12. John McCormack, “The Election Came Down to 77,744 Votes in Pennsylvania, Wisconsin, and Michigan” (Weekly Standard, Nov. 10, 2016) (later updated to reflect final results); Andrew Mercer, Claudia Deane, and Kyley McGeeney, “Why 2016 election polls missed their mark” (Pew Research Center, Nov. 9, 2016). As Mrs. Clinton’s husband could tell her, it is not abnormal for a winning candidate to fail to earn a popular majority—he won twice without cracking 50 percent. Trump is the fifth president to win an electoral majority despite losing the popular vote, joining George W. Bush (2000), Benjamin Harrison (1888), Rutherford B. Hayes (1876), and John Quincy Adams (1824).
13. George F. Will, “The Electoral College is an excellent system” (Washington Post, Dec. 16, 2016).
14. Andrew C. McCarthy, Spring Fever: The Illusion of Islamic Democracy (Encounter Books, 2012).
15. Michael Isikoff, “U.S. intel officials probe ties between Trump adviser and Kremlin” (Yahoo News, Sept. 23, 2016); Glenn Simpson Testimony before Senate Intelligence Committee, pp. 197-210 (Aug. 22, 2017); Senator Harry Reid letter to FBI Director James B. Comey (Aug. 27, 2016); Michael J. Morell, “I Ran the C.I.A. Now I’m Endorsing Hillary Clinton” (New York Times, Aug. 5, 2016); Lee Smith, “How CIA Director John Brennan Targeted James Comey” (Tablet Magazine, Feb. 9, 2018); Andrew C. McCarthy, “Politicizing Steele’s Raw, Unverified ‘Intelligence’” (National Review, Jan. 9, 2018).
16. Sophie Tatum, “Trump defends Putin: ‘You think our country’s so innocent?’” (CNN, Feb. 6, 2017).
17. Andrew Kaczynski, “Trump in 2008: Hillary Clinton will go down at a minimum as a great senator” (CNN, Oct. 19, 2016); Sean McMinn, “44 Sitting Members of Congress Have Accepted Donations from Trump—Group includes prominent lawmakers from both parties” (Roll Call, Jan. 18, 2017). Nick Gass, “Trump has spent years courting Hillary and other Dems” (Politico, June 16, 2015); Dan Eggen and T.W. Farnam, “Trump’s donation history shows Democratic favoritism” (Washington Post, April 26, 2011).
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