How Much Longer Can Rod Rosenstein Protect Robert Mueller?

By Jeffrey Toobin, The New Yorker

24 May 18

n the latest of the complex machinations in the Russia investigation, and in the investigations of the investigation, it’s easy to lose the most important thread: that President Donald Trump is still scheming to rid himself of the meddlesome special counsel, Robert Mueller.

The latest chapter began when the Times reported, last week, on the origins of the F.B.I.’s investigation of possible connections between members of the Trump campaign and Russians. The Times said that, in the initial stages of the F.B.I. probe, “at least one government informant met several times” with people affiliated with the campaign, to draw them out about their ties, if any, to Russia. This was normal investigative behavior by the Bureau, a low-risk way to obtain information at an early stage. Notwithstanding the obvious propriety of the F.B.I.’s tactics, the disclosure prompted great fury on the part of the President.

“Reports are there was indeed at least one FBI representative implanted, for political purposes, into my campaign for president. It took place very early on, and long before the phony Russia Hoax became a ‘hot’ Fake News story. If true - all time biggest political scandal!” Trump wrote on Twitter. Two days later, he went on, “I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people in the Obama Administration!”

This demand for an investigation of the F.B.I.’s behavior, which was promptly joined by a number of congressional Republicans, is without precedent in modern American history. By custom and by norm, Presidents have allowed the Justice Department, which includes the F.B.I., to conduct its investigations without interference from the White House. This was especially true in cases, such as the Whitewater probe, during the Clinton era, in which those investigations touched on the President and his associates, where the conflicts of interest would be especially acute. Trump’s demand is so obviously improper that it’s possible to see it in a different way—not as a bona-fide attempt to gain information about the investigation but, rather, a dare to Rod Rosenstein, the Deputy Attorney General, to resign in protest. Rosenstein, of course, is the person who both hired Mueller as the special counsel and who supervises his investigation. As such, Rosenstein has been a special target of the President and his allies, and they would like nothing more than to depose him and install someone who could restrict, and ultimately dispatch, Mueller himself.

If Rosenstein were following the modern traditions of independence at the Justice Department, he would have rejected Trump’s request outright—but then he would have risked getting fired, and thereby potentially deprive Mueller of the protection that he has provided for the past year. So Rosenstein devised what was, under the circumstances, an artful finesse. He did not, as Trump seemed to demand, launch a criminal investigation of the F.B.I.; rather, Rosenstein took an intermediate step. He took advantage of the fact that the Justice Department’s inspector general is already conducting an investigation of the conduct of the F.B.I. in connection with its applications for surveillance of a Trump campaign adviser in 2016. Rosenstein just told the inspector general to add the issue of the use of informants in the Russia case to his existing investigation. This probe by the inspector general may well interfere with Mueller’s investigation, by subjecting its witnesses to another round of questioning, but Rosenstein probably figured, with reason, that it was the least bad alternative available to him. For the moment, at least, his offer seemed to mollify Trump, and an immediate crisis has been averted.

But no one should think that Rosenstein—or Mueller—is safe. Trump’s fake outrage about the nonexistent spy in his camp is just the latest assault on the independence of the Justice Department, the F.B.I., and the special counsel. At the same time that Rosenstein was brokering Trump’s demand for an investigation, the President directed his chief of staff to accommodate a request from House Republicans to view certain secret documents from the Russia investigation. Likewise, under modern ethical traditions, the House members should have been immediately refused; but, the White House wants to assist its congressional allies, and allowing them to see documents that they shouldn’t be allowed to see is part of that effort. In a similar vein, earlier this year, the Republicans on the House Intelligence Committee, with support from the President, released the so-called Nunes memo, which was a tendentious and misleading account of supposed F.B.I. misconduct. Later, the committee members released a report on their own investigation, which found no wrongdoing by the President.

Outside of government, too, the Republican coalition is mobilizing behind the attempt to discredit Mueller. Last week, Steven Calabresi, a professor at Northwestern Law School and a co-founder of the Federalist Society, the powerful conservative lawyers’ organization, wrote an op-ed piece in the Wall Street Journal arguing that Mueller’s investigation was unconstitutional and that his cases should be challenged and, perhaps, dismissed. Later this week, the Federalist Society is hosting a conference call for Calabresi to share his message with a broader audience. None of these attacks has succeeded in neutralizing Mueller—yet. That’s why they’re continuing. The final showdown between Trump and Rosenstein—and, thus, Mueller—hasn’t taken place; it’s just been postponed.