McCabe and Rosenstein had every reason to act outside the law to rid themselves of the president. The FBI had used a fraudulent “dossier” funded by the Clinton campaign and Democrats to launch its original investigation of Trump in July 2016. Comey, McCabe, and others at the Justice Department presented the FISA court that same unverified Russian disinformation to spy on a Trump associate, misrepresenting to the judges that it had been verified. As noted in the previous chapter, they had concealed vital evidence and deceived the court. The “collusion” narrative had been leaked to the media in an attempt to influence the election. As one columnist for The Federalist put it, “They had vastly overreached, assuming that an inevitable Clinton win would cover up their sins.”55 When voters decided otherwise, their only option was to act outside the law to nullify and undo the election results by vanquishing Trump.
In the 60 Minutes interview, McCabe portrayed himself as the mild-mannered Clark Kent turned Superman of the FBI—interested only in truth, justice, and the American way. Pelley played the adoring Lois Lane, lofting one softball question after another, never challenging his interviewee as he claimed credit for the appointment of a special counsel and feigned innocence as Rosenstein connived behind the scenes to pitch Trump from the Oval Office. Pelley also managed to misrepresent key facts while omitting others.56 The interview was a combination of performance art and choreographed charade. The truth is that McCabe’s abysmal judgment and rogue actions against Trump, together with his self-serving book and media tour, only served to further embarrass and disgrace the already beleaguered FBI.
In a scathing critique of McCabe’s media leak and ensuing lies about it, the Justice Department scolded him for conduct inimical to “the highest standards of honesty, integrity, and accountability” that are demanded of employees at the FBI.57 Michael Horowitz, the inspector general who had been appointed by President Barack Obama, found that McCabe had lacked candor (i.e., lied) or misled the FBI and federal investigators four times, and on three of these occasions had done so while he was under oath. The IG concluded that McCabe’s leak had been entirely self-serving, “designed to advance his personal interests at the expense of department leadership.”58 The findings were sent to the US attorney in Washington for potential criminal charges over false statements.59
McCabe and his mentor Comey had much in common. Both men were fired for wrongdoing, and both of them pilfered government documents on their way out the door.60 They lacked candor and scruples. They almost certainly abused their high positions of power for personal or political reasons. Once they were fired, they continued their campaign to castigate Trump at every turn through their books, tweets, and public denunciations. The bias they have exhibited since leaving the Bureau is persuasive evidence that they were acting on that same bias while serving at the FBI.
Rosenstein Begs Trump’s Forgiveness
It was duplicitous for Rosenstein to preside over the special counsel investigation of Trump at the same time that he was conspiring to overthrow him. How could he conceivably oversee Mueller’s probe in an objective manner while harboring such extreme bias against the president? The deputy attorney general was hopelessly conflicted, but he dug in his heels and refused to step aside despite repeated calls to do so. The evidence suggests that he was determined to exploit his bias. No one at the Justice Department had the authority to force him off of the McCarthy-style investigation he initiated. Mueller seemed quite satisfied with a compromised sycophant as his direct supervisor. It gave him greater autonomy to do as he pleased. Rosenstein also resisted all efforts by Congress to have him testify about his conspiracy to depose the president. Rosenstein was an island unto himself—unreachable and untouchable. Only the president could get rid of him, but that was politically untenable. Any effort to fire someone connected to the special counsel, even for just cause, would have been met with mass hysteria among Democrats and the leftist media. Trump would have been crucified with phony portrayals that he was obstructing the investigation and, hence, justice.
Following the Times story in the fall of 2018 detailing Rosenstein’s clandestine plan, Republicans in the House of Representatives demanded that he appear before the Judiciary and Oversight Committees to explain himself. The deputy attorney general adamantly refused to testify publicly. He then engaged in protracted negotiations to answer questions behind closed doors.61 Every time a tentative agreement was struck, Rosenstein imposed new conditions at the last minute. He rebuffed the notion that he should be held to account for his words or actions. In so doing, he was obstructing Congress in much the same way he had done by defying lawful subpoenas to produce documents.62 He was also buying valuable time.
It was fairly obvious that Rosenstein was trying to run out the clock until the 2018 midterm elections on November 8. He was banking on polling data showing that the GOP would lose control of the House. Once Democrats assumed the reins of power, all interest in Rosenstein’s coup attempt would be consigned to the trash heap of political cover-ups. That was precisely what happened. In the end, when the House flipped control, Democrats saw to it that the entire matter was buried. Like Houdini, Rosenstein proved to be a proficient escape artist.
Congress’s leverage over the deputy attorney general was diminished when the “emotional” and contrite Rosenstein retreated to the White House in late September, prepared to submit his resignation.63 He reportedly pleaded his case to the president’s aides that he had never sought to evict Trump from office, notwithstanding all of the evidence to the contrary. The gambit worked. With the Mueller investigation winding down, a “detente” was reached with the president.64 If nothing else, perhaps a general commitment was secured from Rosenstein that he would treat the president fairly upon the conclusion of the probe. That, of course, had been his duty all along.
Why did Rosenstein resist answering questions under oath so vigorously? In the absence of a transcribed or recorded interview, he would be free to give deceptive answers without putting himself into legal jeopardy. If he gave a false or misleading statement, he could always deny it later. With no record, he might simply claim that he had never made a given statement. Another reason is that he could not readily explain or justify many of his actions. People who have nothing to hide generally don’t hide. They are anxious to tell the truth. But Rosenstein knew that there were several credible witnesses to his illicit scheme to remove the president. Denying it under oath would have exposed him to perjury or false statement charges. It is easy to lie to the media through anonymous leaks. But under direct questioning before Congress, it is a crime not to tell the truth.
When news of Rosenstein’s alleged plot became public, he rushed to the White House, expecting to be fired.65 A meeting with the president, however, was delayed. On October 8, 2018, Rosenstein was invited aboard Air Force One to discuss the matter with Trump face-to-face.66 Here is what the president told me about their meeting:
JARRETT: Two witnesses who were in Rosenstein’s office in the days after Comey was fired confirmed that he was serious about wearing a wire to secretly record you and recruiting cabinet members to remove you from office. You talked to him about it on Air Force One on the way to Florida. What did he say?
PRESIDENT TRUMP: He said it didn’t happen. He said he never said it. What he told other people is that he was joking. But to me he claimed he never said it.
JARRETT: Did you believe him?
PRESIDENT: I didn’t really know what to believe.
JARRETT: Why did you keep him on as deputy attorney general?
PRESIDENT: Because I thought it would be bad to fire people in the middle of an investigation. And it turned out to be the right thing to do.67
So which was it? A joke or a fiction? Logically, it cannot be both. During which account was Rosenstein telling the truth? In one of them, he must have been lying. It is no wonder he resisted all efforts to be questioned under oath by Congress. Lying to the president is not a prosecutable crime, but lying to Congress during an investig
ative hearing is.
McCabe’s book made it clear that Rosenstein was emotional, upset, and even angry at Trump when he made the reckless decision to appoint a special counsel to investigate the president. He also knew that what he was doing was fundamentally wrong. Given Sessions’s recusal, the deputy attorney general was now acting attorney general for all matters involving Russia. He resolved to retaliate without notice to the White House.
Mueller had met with Trump on May 16 to discuss replacing Comey as FBI director, an interview arranged by Rosenstein. The president had been uninterested in naming Mueller to the same position he had previously held and immediately dismissed the idea. In more than one conversation, Trump told me that he had felt Mueller had a serious conflict of interest because the two men had been involved in a previous business dispute over membership fees when Mueller had resigned from one of Trump’s golf clubs. “I didn’t think he’d be fair, so I rejected him,” said Trump.68 Little did the president know that Rosenstein was secretly discussing with Mueller the possibility of his serving as special counsel to investigate Trump. Such duplicity was appalling.
The next day, Sessions was in the Oval Office with Trump, conducting more interviews for Comey’s replacement, when he took a call from Rosenstein advising that he had named Mueller as special counsel. As the Mueller Report recounted, the president was understandably shocked and angry. He said, “Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won’t be able to do anything.”69
Trump’s assessment was correct, and that was surely what the acting AG had in mind when he appointed Mueller. It was the ultimate reprisal against Trump by the scheming Rosenstein. The embarrassed Sessions said he would prepare his resignation letter, although the president declined to accept it.
Attending these events was Sessions’s chief of staff, Joseph “Jody” Hunt, who took fastidious notes. When he returned to the DOJ, he marched into Rosenstein’s office. Trump’s lawyer John Dowd told me he had reviewed Hunt’s notes before they were provided to the special counsel and that the notes included the following confrontation:
Rosenstein was literally cowering . . . hiding behind and somewhat below his desk. “Am I gunna get fired?” blubbered Rosenstein. Hunt replied, “What you did was despicable and unprofessional!” Hunt then stormed out of Rosenstein’s office.70
Dowd’s account is consistent with Rosenstein’s erratic and unhinged behavior as depicted in McCabe’s book. It is also congruous with other actions taken by Rosenstein that reflect a vindictive nature.71
In January 2018, he allegedly threatened to subpoena emails, phone records, and other documents from lawmakers and staff on the House Intelligence Committee in what was described as “retaliation” for the committee’s inquiries into the Russia probe.72 A similar episode happened in May, when Rosenstein launched a “very personal and very hostile attack” on the same committee staff and its chairman, Representative Devin Nunes (R-CA), according to a congressional email documenting the meeting and corroborated by two additional sources.73 In both instances, a Justice Department spokesperson claimed Rosenstein’s remarks had been mischaracterized.
Either Rosenstein is persistently misunderstood and his words are forever being misinterpreted, or he is a petulant bully, who tries to cover up his misconduct by peddling the same deceptive excuse again and again. The answer should be obvious. Rosenstein has a history of abusing his position of power. When caught, he claims that everyone else is mistaken and confused. That was also his excuse when reports surfaced that he had schemed to secretly record his conversations with the president and depose him under the Twenty-fifth Amendment. It was the same pattern of conduct that underlay his vindictive decision to name a special counsel to investigate Trump.
Conflicts of Interest and an Unnecessary Special Counsel
Rosenstein’s misconduct and malfeasance were set into motion when Attorney General Jeff Sessions wrongfully removed himself from the FBI’s Russia case. As explained in The Russia Hoax, neither the facts nor the law required it.74 Ethical rules demand a recusal in criminal cases and prosecutions.75 But at the time, the FBI’s investigation into Russia was a counterintelligence matter, not a criminal case. That was confirmed by the Bureau’s director, James Comey, when he testified before Congress.76 A recusal under federal regulations has no application to counterintelligence probes. Sessions’s decision to remove himself was illogical and mistaken. There was no legitimate reason for it. There must first be an identified crime for a recusal to arise. When Sessions announced his decision on March 2, 2017, the FBI had no evidence of any crimes.
Even worse, Sessions had not advised the president that that was his intention when he was sworn in. The attorney general later informed Congress that he had taken preliminary steps to recuse himself on his first full day in office.77 He deceived his boss by concealing that. Failing to disclose such a matter was a serious betrayal. The president was entitled to know the truth, but Sessions actively hid it from him. Trump was understandably disgusted and angry. Sessions’s deception also deprived him of the president’s confidence and trust, which are essential to the job of attorney general. That ethical impropriety rendered Sessions unfit to serve. But for his deceit and wrongful recusal, it is unlikely that a special counsel would have been appointed.
Sessions’s incomprehensible actions left Rosenstein in charge of the Russia investigation as acting attorney general. He had been on the job a scant two weeks when Comey was fired. A week later, he named Robert Mueller as special counsel. Hence Rosenstein’s knowledge of the FBI’s nearly ten-month-long counterintelligence investigation into Russian activities had to have been at best superficial. Yet that did not give him pause, as it should have. He promptly misconstrued—and thereby misused—the special counsel regulations authorizing the appointment of Mueller. He did so in not one but four ways.
First, the Code of Federal Regulations (28 C.F.R. § 600.1) specifically states that a special counsel is to be appointed in cases where an investigation or prosecution “would present a conflict of interest for the Department of Justice. [author’s italics]”78 If there is no identifiable conflict of interest, there can be no special counsel. But where exactly was the conflict? Who had it? Attorney General Jeff Sessions had already recused himself, albeit mistakenly, from any matters involving Russia. No other known conflicts of interest existed for Rosenstein or others at the Justice Department that would have prevented the department’s regular prosecutors from handling the case. Indeed, the authorization order signed by Rosenstein discloses no such conflict of interest because none existed.79 He has never offered an explanation for that fundamental defect in the appointment.
Proof that a conflict was nonexistent is the fact that Mueller enlisted top prosecutors from within the DOJ to serve as his primary staff. If there had been a conflict, all of the lawyers on the team should have been culled from private law firms or elsewhere. Additionally, the special counsel investigated and/or charged at least fourteen matters that he then referred to the Justice Department itself for prosecution or disposition.80 Transferring cases to the presumably conflicted department would have been highly improper. All of this confirms that the necessary predicate of a conflict of interest was never present at the outset. That made the appointment of Mueller illegitimate at the outset.
The same code section alternatively provides for a special counsel in the event of “other extraordinary circumstances.” However, none existed at the time or was cited in the appointment order. Comey’s firing did not alter or end the FBI’s counterintelligence investigation, which still had uncovered no evidence in support of the “collusion” allegations.
Second, the operative regulation states that the attorney general or acting attorney general must “determine that criminal investigation of a person or matter is warranted. [author’s italics]”81 An “articulable criminal act” must be identified.82 This, too, is a necessary predicate for a special couns
el. Evidentiary support for a criminal investigation must antecede the appointment, not vice versa.83 But on May 17, the FBI had developed no such evidence. That was confirmed by the subsequent testimony of both Comey and FBI lawyer Lisa Page, as noted earlier. Nowhere in Rosenstein’s authorization order did he bother to identify a suspected crime because the FBI had no evidence of one. It is not a crime to talk to, or have a relationship with, a Russian. There would have to have been some evidence of espionage or a conspiracy to commit an illegal act. The FBI had no such evidence in its possession. The evidentiary premise of a crime was conspicuously missing. Thus Mueller began an investigation in search of a crime, reversing the legal process mandated under the regulations.
Former US attorney general Michael Mukasey, who was also chief judge of the US District Court for New York, noted that prior investigations utilizing independent counsels “identified specific crimes” and “the public knew what was being investigated.”84 The whole point of the special counsel regulation was to avoid limitless investigations by unaccountable prosecutors and to apprise the public of what potential crimes were being pursued. The public, after all, has a right to know if its tax dollars are being used or misused for an unbounded search for unidentified crimes. But with Mueller’s appointment, Americans were given no idea what the special counsel was up to because Rosenstein’s assignment order violated the regulation that demanded the identity of a specific crime to be investigated.
As the Mueller Report grudgingly admitted, “collusion is not a specific offense . . . nor is it a term of art in federal criminal law.”85 It was, however, a potent word that journalists and pundits could toss around ad infinitum to defile the president as a purported Russian agent. As Mukasey observed, “[it] may sound sinister, but it doesn’t define or suggest the existence of a crime.”86
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