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Excerpt: "This president often publicly flirts with firing people, but the degree to which Trump has trolled this sub-Cabinet officer - taunting him in Twitter statements, ginning up audience for television shows in which the dismissal is then demanded, publicly attacking his character - is unprecedented."

Deputy Attorney General Rod Rosenstein. (photo: Andrew Hannik/AP)
Deputy Attorney General Rod Rosenstein. (photo: Andrew Hannik/AP)

Six Takeaways From Trump's Threats Against Rod Rosenstein

By Susan Hennessey, Matthew Kahn and Benjamin Wittes, Lawfare

13 April 18


he firing of James Comey happened without warning. , President Trump dismissed Comey in a shocking fashion. There was no time for other political actors, law enforcement officials, the commentariat, or the general public to prepare or to figure out how to react. Many people struggled to digest the implications over the following days amid shifting presidential stories about what had happened and why he had taken the action.

If the president fires Deputy Attorney General Rod Rosenstein, no one can plead a similar lack of notice. The warnings have been ample. On Tuesday, CNN that the president was considering firing Rosenstein with renewed “urgency following the raid of the office of the President's personal lawyer.” The Washington Post that ousted White House adviser Steve Bannon is pushing the idea of firing Rosenstein as a way to “cripple the federal probe into Russian interference in the 2016 election” led by Special Counsel Robert Mueller. According to the Post, Trump “ and has continued to complain about them since.” CNN reported Thursday that the White House has .

This president often publicly flirts with firing people, but the degree to which Trump has trolled this sub-Cabinet officer— in Twitter statements, for , —is unprecedented. If Rosenstein is dismissed—this week or next, this month or in six months—it would surprise only those who choose to be surprised.

The president could, of course, change his mind about firing Rosenstein; perhaps he already has done so. A Trump Thursday said:

This isn’t the first time Trump has contemplated firing Rosenstein—and the past episodes have blown over. In February, Trump considered canning Rosenstein in the wake of the by House intelligence committee Chairman Devin Nunes. When by a journalist if he planned to fire the deputy attorney general, Trump replied, “You figure that one out.”

Two months later, we still haven’t figured it out. Jack Goldsmith has “the cycles of panicked reactions” to fears that Trump might fire Rosenstein, Mueller or Attorney General Jeff Sessions. It is possible that Trump doesn’t really intend to fire Rosenstein but benefits from discombobulating his opponents as they continually scramble to respond. Alternatively, perhaps the outrage that follows has itself walked Trump back from the edge. Goldsmith writes: “The panic to Trump and the related Republican response might be the very mechanisms that are keeping him from acting on his natural impulses. The provocation at stage one might be a trial balloon that gets shot down every time by the panicked reaction. Absent the reaction, Trump might follow through.”

Rosenstein was . And on Wednesday evening, he with the House intelligence committee leadership over Nunes’s access to unredacted documents. So it is possible that the crisis is passing this time too.

In short, until Trump actually pulls the trigger, there is a chance he is bluffing or will back down or will change his mind.

There is at least some reason to believe, however, that this time is different and that Trump is prepared to follow through. The context for the newest round of reporting involves a . The , Trump’s personal attorney, which , represents a serious escalation of the investigation in a fashion that highlights the risk to the president himself. Cohen is very much within Trump’s inner circle. The New Yorker’s Adam Davidson describes him as “”: Cohen has and particularly in efforts to bring in international deals. Perhaps more importantly, he has also acted as Trump’s personal fixer, coordinating the non-disclosure agreement and $130,000 payment to the actress known as Stormy Daniels in the advance of the 2016 election (though Cohen has said he acted without Trump’s knowledge in that instance). So investigators stand to learn a great deal about the president by sorting through material seized from Cohen. And in critical respects, investigating Cohen is investigating Trump, since the investigation appears to be focused on activities Cohen undertook in service to Trump.

That said, it is not entirely clear what firing Rosenstein would mean operationally for the investigations—either the Russia investigation or the Cohen investigation—and who supervises them. The issue turns at least in part on whether Trump’s firing of Rosenstein renders Rosenstein a person “otherwise unable to perform the functions and duties” of his office for the purposes of the . If so, the president may designate any Senate-confirmed official to act as the deputy attorney general—perhaps someone more amenable to Trump’s aversion to the Russia investigation. Otherwise, both the and appear to make Solicitor General Noel Francisco the acting deputy—and thus acting attorney general for the Russia investigation.

Does a firing render an official unable to perform his duties? By its text, the standard described above is triggered when a Senate-confirmed official “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” and have speculated that Congress may have deliberately left out “fired” to avoid the moral hazard that would ensue if the president could circumvent the Senate confirmation process by firing an official and then naming an acting replacement. A 1994 from the Office of Legal Counsel notes that the law doesn’t give a clear answer; the memo does not endeavor to do so either, but it does say that the act’s Senate sponsor said in floor debates that firing should count.

In short, it is not only unclear whether Rosenstein will be fired, it is also unclear what precisely the consequences would be—at least in immediate legal terms—if he is fired.

With those caveats, here are six observations about the possible firing of Rosenstein:

First, firing Rosenstein is not the same as firing Mueller, but it would be borne of the same corrupt purpose.

Congressional Republicans have signaled that Mueller’s firing would constitute a red line. Sen. Lindsey Graham has it would be “the beginning of the end of [Trump’s] presidency.” But Trump doesn’t necessarily have to fire Mueller himself to undermine the special counsel’s investigation. With Sessions recused, the deputy attorney general oversees the Russia investigation and dictates its scope. In the ordinary course, the FBI director also directly reports to the deputy attorney general. On both matters, Trump would prefer in that role someone who displays more loyalty to him personally than to the relevant institutions (don’t believe us on this point; just ). If the president is looking for a way to cripple Mueller’s investigation while less directly courting congressional wrath, firing Mueller’s immediate boss is one way to get there.

The immediate practical, legal and symbolic consequences of firing Rosenstein are, to be sure, less catastrophic for the investigation than they would be were the president to dismiss Mueller. Firing Rosenstein would not, after all, alter the investigation. It might not even immediately disrupt it, depending on how Rosenstein’s successor behaved once installed. But the underlying intent is plainly the same. Firing Rosenstein would be an act intended to limit and ultimately enable the shutdown of the Russia investigation and other inquiries into the president, his family and his inner circle of business associates. This is a corrupt purpose, plain and simple.

Second, there is no non-corrupt reason to fire Rosenstein. Rosenstein is, to be sure, a complicated figure. His tenure as deputy attorney general has been marked by some ugly incidents, most significantly when he authored the memo designed to provide the president with a pretext for firing Comey as FBI director. But whatever criticisms of Rosenstein may be valid, none of them is related to the reason Trump wants to fire him.

Rather, the reasons for the president’s displeasure with Rosenstein are openly corrupt and self-interested: Trump doesn’t like the Russia investigation. He doesn’t like having his family and businesses investigated. He wants Hillary Clinton investigated instead. And he doesn’t like that Rosenstein is not facilitating these wishes. Whatever his other faults, Rosenstein has presided honorably over these investigations. He has worked to protect their integrity despite the president’s fervent efforts to undermine them and unrelenting congressional pressure.

Rosenstein is not being persecuted for his vices. If Trump fires him, it will be for his virtues.

Third, it would be no better for Trump to force Rosenstein’s recusal than to remove him from office entirely. Trump Wednesday encouraging people to watch Sean Hannity’s show on Fox News that evening. was largely dedicated to advocating that Rosenstein be fired. Alan Dershowitz, who has to the president, argued that rather than directly fire Rosenstein, he would “do it differently”—perhaps sidelining him from the investigation by insisting on his recusal. CNN has reported that the White House is in line with Dershowitz’s message, arguing that Rosenstein’s involvement in Comey’s firing makes him too conflicted to continue overseeing the investigation.

Substantively, the recusal question is complex. Why Rosenstein is not recused from supervising the Russia investigation . Rosenstein was involved in the Comey firing, after all. This means he is a witness to a key event that is the subject of the investigation into whether or not the president sought to obstruct justice. Ordinarily, that could be expected to result in a recusal.

The mere existence of this puzzle, however, does not offer Trump sincere justification for acting against Rosenstein. Questions of recusal are handled by career officials in the Justice Department based on department ethics guidelines. Those officials are certainly aware of the possible conflict, and the fact that Rosenstein continues to supervise the investigation suggests that they have concluded it is appropriate under the circumstances for him to do so. We do not have sufficient information to assess the merits of that decision—and neither does Dershowitz.

The demands for Rosenstein’s recusal are actually a matter of some irony given that Trump has expressed his that Sessions accepted the recommendation of career officials and did recuse himself from the Russia investigation.

Fourth, congressional pushback against the president if he fires Rosenstein is not a certainty. It isn’t accurate to say that Congress has done nothing to restrain the president. As Goldsmith noted in his piece on cycles of panic concerning firings,

One of the things that surprised me in looking at the examples above was how consistently Republican leaders in Congress have pushed back against Trump when the nation falls into panic mode. Not every leader, and not consistently. But in every cycle, an important cadre of senior Republicans push back and warn the president not to follow through on his ostensible inclinations to fire Justice Department officials related to the Russia investigation.

Indeed, congressional signaling may well have done much to restrain Trump from firing Mueller and Rosenstein to date. At each new round of reports that Trump wants to fire Mueller, Rosenstein or Sessions, some Republican lawmakers that the president would do no such thing. Some have gone so far as to say that . A number of “Mueller protection” bills have been proposed—their merits have been the of on and .

But nobody should be confident that Congress would take strong action in the event that Rosenstein is removed. In the wake of Comey’s firing, outraged Democrats found only some mild tut-tutting across the aisle. Comey’s firing didn’t even figure especially prominently in the confirmation hearings of his successor, Christopher Wray. And while certain Republicans have warned the president not to act against the law enforcement hierarchy, plenty of other Republican lawmakers have effectively hidden under their desks to avoid this issue. And some, most notably Nunes, openly agitate for Rosenstein to be fired and Trump in forming a pretext for precisely that. Nunes even on Tuesday after the Justice Department refused to turn over a set of unredacted documents that initiated the Russia investigation. Nunes and the Justice Department reached an accommodation only on Wednesday night—a turn of events that actually may have turned down the heat on Rosenstein.

Taken together, the congressional picture is not reassuring. It is possible that Trump’s moving against Rosenstein would jolt people into action. But don’t count on it.

Fifth, the courts are a non-option. The president unquestionably has the authority to dismiss Rosenstein. The Mueller case, where there is a as to whether the president has authority to directly dismiss a special counsel, is different. But with Rosenstein, there simply isn’t any issue to take to the courts. Rosenstein serves at Trump’s pleasure, and he can be dismissed at his displeasure.

To be sure, it is possible that Rosenstein’s dismissal would trigger a wave of resignations akin to the Saturday Night Massacre—albeit for slightly different reasons. It might also be the final straw for White House Counsel Don McGahn, who reportedly over past efforts to dismiss Justice Department officials. But these would be acts of conscience within the executive branch, not legally compelled. And in any event, it is not clear whether anyone will follow Rosenstein out the door or whether Trump would care if anyone does.

Finally, sixth, this is really all about political power. The only meaningful remedy to a Rosenstein firing is political. The clearest expression of political reaction, assuming Congress does not get meaningfully involved, will come in the midterm elections in November. If the president fires Rosenstein for openly corrupt reasons and his party does not pay a devastating electoral price, it will mean that in the American political system, at this moment in time, it is OK for the president to fire a law enforcement officer for openly corrupt reasons.

But the midterms are months away and the president’s action—if it takes place—would precipitate interim political measures too, measures of either acceptance or rejection. It will matter to the perceived legitimacy of the action how the democratic polity reacts. One of the most powerful statements in the Trump era has been citizens repeatedly taking to the streets to express their views on a diverse array of matters. In some ways, the most important reaction to a Rosenstein firing might come from the populace itself. And that raises a critical question: If the president fires the deputy attorney general, will people care? your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

-50 # Rodion Raskolnikov 2018-04-13 14:35
Sooner or later Rosenstein will be fired or otherwise removed from office. He was one of the signers of the FISA application for surveillance of Carter Pages and the whole Trump campaign. The basis of that application was the Steele Dossier. Rosenstein had close connections with Steele. Rosenstein is very deeply implicated in what appears to be a frame up of Trump. For that reason, he cannot be the final supervisor of the investigation into the allegations made by the Steele Dossier.

There's a move in congress to force Rosenstein to recuse himself. He's far more conflicted than Sessions ever was.

But it would be better to fire Sessions and hire a new Attorney General who would be charged to clean up the DOJ and FBI. The Inspector General's report should be the basis of the clean up. You just cannot have people in the "Justice" department who are suspects in a very massive conspiracy or collusion to rig and election and then to remove an elected president.

Most others in this collusion are now gone. Rosenstein remains. But my bet is not for long.

Mueller is not really a problem. He can't indict Trump and an impeachment won't go anywhere. All he can do is blackmail Trump and so far that isn't working. So he can leak up a storm to the media and search out every women Trump has ever screwed. But that's about it.
+17 # RnR 2018-04-14 06:29
That would depend on the age of the "women" in question.

Trump is nothing but an untethered gas bag that has been bullying his way through the law all his life due to his connections and money. He has no ability whatsoever beside his willingness to bullshit any and everybody within his line of sight. The republican party at this point is nothing more than a multi national corporation d/b/a the republican party ... hence their standard position of thumbs up their asses
0 # Jim Young 2018-04-14 10:27
Quoting RnR:
...The republican party at this point is nothing more than a multi national corporation d/b/a the republican party ... hence their standard position of thumbs up their asses

More likely they will fall back to a practice from almost 250 years ago, with a modern version of the equipment shown in the article at
-7 # Rodion Raskolnikov 2018-04-14 14:20
RnR -- I agree with you but I'd say the same about Mueller, Rosenstein, Comey and the rest of the bullying gasbags over at the FBI, CIA, NSA, DOJ, ETC. This is what the American political class is. This is sort of an internecine war. Mueller, Comey, McCabe, Rosenstein are all Bush republicans and they want to crush Trump because he is distrupting their hold on the party. Bush republicans are also very close to the Clintons, so they are also crushing Trump on Hillary's behalf.

The best thing for us all would be to see them all wipe each other off the map. All of them should go to jail.

We need to be freed from this criminal class.
+7 # Porfiry 2018-04-14 07:31
Again showing your true, Russia supporting, colors. For shame!
+4 # Diane_Wilkinson_Trefethen_aka_tref 2018-04-14 11:39
Quoting Porfiry:
Again showing your true, Russia supporting, colors. For shame!
The other guy that sometimes posts using RR's account has been absent for a while. Troll farms are like that.
+1 # librarian1984 2018-04-16 12:16
What are you talking about?
+4 # Texas Aggie 2018-04-14 13:24
He may not be able to indict drumpf himself, but he can find all the reasons why he should be indicted and share them with other prosecutors who do have the authority to indict drumpf. And uncovering the dirt under the drumpf rug and swept under the bed will be a good start in limiting his ability to cause more damage for his own fun and profit.
+7 # DongiC 2018-04-15 00:49
RR, king of the trolls, just how stupid do you think we are? You always find a way to ameliorate Trump's lamentable performance as Chief Executive. Your view of recent political events is myopic. You advocate a man and a philosophy that really celebrate the ruination of this country. Why do you hate America so?
-3 # draypoker 2018-04-17 04:51
I have long assumed he is a Russian troll, speaking for Putin, and supporting the malfunctioning Russian state.
-3 # worriedforusa 2018-04-15 14:42
RR ...The statements you make bear all the hallmarks of Dtrumpt: Outrageous lies, shameless since they are without even a modicum of truth and you guys don't even hint that your spouts are "in your opinion".

There is already grand jury testimony that the Russia/Trump investigation began months BEFORE the Steele dossier was ever written. The original FISA warrant was based information FBI gathered via Papandopolis et al. Subsequent warrants may or may not have included elements of the dossier.

What is it with you guys? You and Dtrump seem to think that "if you say it often enough, you'll make it true!" What idiot-fueled fantasies you two have! Your wishful thinking-and Dtrump's -is surpassed only by your egos.
+1 # librarian1984 2018-04-16 12:33
Why are so many posts attacking RR about being a dirty Russian lover when his post is mostly about how untrustworthy the intelligence agencies are -- a position most of us agreed with two years ago?

All of this is speculation. How long can CNN and others rev us up about THIS? Then we'll move on to the next outrage, anything to distract us from corrupt politicians and unprincipled 'journalists'.

Remember when Hillary brought Russia a big reset button? Or when Obama laughed at Romney for saying Russia was a threat? We were working well with Putin until it became politically expedient NOT to.

Europeans, who live much closer to Russia and do more business with them, are not as freaked out as we are. Or, more accurately, they're more freaked out about US.

In June of 2015 Jonathan Brodnitz issued a memo to the Clinton campaign after conducting a poll. He told them that Clinton was most vulnerable on Russia, that when likely voters learned the details of her okaying the Uranium One deal shortly after the Clinton Fdn received $140,000,000, they became less likely to vote for her. So, following Rove's playbook, they attacked Trump on Hillary's weak spot.

The book Shattered, about the Clinton campaign, documents a meeting between Mook, Podesta and the communications team almost immediately after Clinton gave her concession speech. Within a few hours they had determined to displace blame for the loss on Russian interference.

Wake up!
+1 # librarian1984 2018-04-16 13:08
Bill Clinton was president when NATO expanded, illegally, to Russian borders.

WE conduct full-scale war games ON THEIR BORDER. What would we do if Putin held military exercises in Vancouver?

There are many reasons not to trust the MIIC, so forgive me if I don't swoon at the word of perjurers like Clapper and Brennan about the Wikileaks documents, especially since Assange himself said it was an internal leak, not a hack, a scenario supported by the VIPS report, which the msm ignores, and particularly when using the bald-faced '17 intel agencies' meme.

MUELLER's indictment characterizes 13 Russian trolls as not much more than telemarketers working for a private marketing firm that ran campaigns both for and against Hillary, and about kittens and movies; furthermore, most of the $100,000 under discussion was spent AFTER the election was over; a financial analysis shows this company spent a whopping $7000 in swing states pre-election -- in a multibillion $ campaign.

There is no link to the Russian government so far and Mueller says not one vote was changed. But Mad Dog Mattis is talking to Congress about using low-yield nuclear weapons to retaliate FOR ELECTION MEDDLING. Is this worth a nuclear exchange?

Do you hate Trump so much you're willing to let my kids go up in a white hot explosion?

Since when are the Democrats the bloodthirsty maniacs? Since when are we intolerant sneering jerks? What the hell is wrong with everybody?
+1 # librarian1984 2018-04-16 13:36
-Criticizing the MIIC is not equivalent to loving Trump.

-Discussing what went wrong with the election is not the same as being happy Trump is president.

-Not buying RussiaGate isn't a declaration of love or admiration for Putin.

When your argument is based on conflation and denigration you are not winning that debate.

I can't remember this much heat and vitriol in political discussion in my lifetime. Even the usually rational left is caught up in it, a hysteria that characterized the Salem witch trials, vigilante justice, lynchings, McCarthyism .. now it seems it might drive us into a nuclear war. Mattis is talking about a 'winnable nuclear exchange' while we foam at the mouth over SMmarketers.

Republicans are dismantling the federal government and have set US on a course of economic disaster while the corporate media convinces us to hate Russia instead. Who else thinks this is counterproducti ve? Noam Chomsky. Cornel West. Glenn Greenwald. Naomi Klein. You know, that bunch of nobodies.

And in the meantime what have you got .. a year+ of wait-for-it pseudojournalis m by a press that specializes in mesmerizing you with bullcrap .. and you just eat it up?

This. Is. Bullshit.

RR has an opinion. He uses his words and makes sentances. You are free to read it or pass. You are able to vote. You are encouraged to discuss. I am really sick of the sniping and obsession with trolls.

+1 # librarian1984 2018-04-16 14:31
In the meantime support for a generic Democrap Congress is going DOWN. Trump CAN get re-elected if we don't WAKE UP!

This is the problem with being bamboozled. We're ignoring REAL problems -- corrupt politicians, dirty elections, entrenched political consultants, a neoliberal agenda -- in short, Democrap candidates not. worth. voting. for.

Polls show people STILL don't know what the Democrats are FOR. There are a hundred ways the party could inspire millions. We all know that. But they're not leading on peace, healthcare, policing, pipelines, climate, marijuana, guns, wages. None of it. They are deafeningly silent while Independents, youth, and half the eligible adults who don't vote are searching for someone to represent them.

And what are the Democraps focused on? Russia. Crushing progressives. Helping blue dogs.

What happened to journalism btw? Do we just accept that it's gone? Is it ever coming back? Pure corporate pap in the vein Orwell imagined, using its own misinformation to justify shutting down alternative information sources while we ogle Stormy.

Of all people the readers HERE should be intelligent and discerning, tolerant of ideas and willing to consider all points of view. Instead even the most sober here seem to have become irrational and nasty. Dang, if I wanted that I'd go to Reddit or YouTube.

I think rsn needs to worry less about 'hardened operatives' and more about what we're willing to do to ourselves.

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