Imagine Trump, Rosenstein, and Chris Wray all in a room together trying to have something resembling a civilized conversation over whether the DOJ did or didn’t “spy” on Trump’s campaign.
You don’t have to imagine it, actually. It happened this afternoon! And the conclusion was … pretty much what Rosenstein had already promised to do yesterday.
That is to say, the “nuclear scenario” has been avoided for now. And in this case, the nuclear scenario doesn’t mean Rosenstein or anyone else gets fired.
Just in: White House statement on this afternoon's meeting between Trump, Rosenstein, and Wray: pic.twitter.com/ywLABy6Sh6
— Kevin Liptak (@Kevinliptakcnn) May 21, 2018
The nuclear scenario was that Trump would order — not “recommend,” not “urge,” but explicitly and directly order — the DOJ to open a criminal investigation into whether it used a spy/informant/whistleblower to help built the Russiagate case. Could a president do that? Under the unitary executive theory, sure: He’s the head of the executive branch, they work for him, QED. It’s not illegal. But it would be unusual for the president to order the DOJ to investigate anyone or anything, and it would be really, really, really unusual for him to do it for his own obvious political reasons. By custom if not law, DOJ investigations are supposed to operate independently of the White House for exactly this reason, for fear that the federal government’s investigative power will be abused to serve the president’s political interests. Although of course Trump would turn that around by saying that’s what he’s concerned about too: Did Obama or his political underlings exert improper influence on the DOJ to investigate the Republican nominee in 2016?
Comey pal Benjamin Wittes gamed out the nuclear scenario this morning, expecting that Rosenstein and Wray would quit if Trump insisted on dictating to the Department that they had to open a criminal investigation into the informant. Hopefully, he reasoned, a compromise solution would be reached. It looks like that’s what happened: No criminal investigation, rather a referral to the IG. Wittes:
The department, in an apparent effort to head off a confrontation, preemptively yesterday evening kicked the question to the department’s inspector general. “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action,” Rosenstein said in a statement. This action may allow the department to respond to the president’s “demand” by noting that the matter is, in fact, already under review—albeit not the sort of review Trump probably has in mind. It’s unclear whether this will satisfy Trump, and it is itself an unpleasant concession. But it’s a concession that stops short of doing violence to the principle that the government doesn’t open criminal investigations without a proper factual predicate and doesn’t use criminal investigations for political purposes.
“Trump wimped out,” tweeted Quinta Jurecic, one of the editors at Wittes’s Lawfare blog, in response to this afternoon’s news. Eh, we’ll see. POTUS is a man of many moods. What do you suppose his mood will be like when he reads this tonight?
President Trump’s top trade adviser, Peter Navarro, recommended appointing Stefan Halper, an academic and suspected FBI informant on the Trump campaign, to a senior role in the Trump administration, Axios has learned.
Behind the scenes: During the presidential transition Navarro recommended Halper, among other people, for ambassador roles in Asia. A White House official said Halper visited the Eisenhower Executive Office Building last August for a meeting about China.
Picture the current standoff, except with Halper currently Trump’s ambassador to Japan or South Korea. And suddenly, a month out from the North Korea, summit, he’s suddenly all but publicly outed as the FBI’s informant against Team Trump in 2016. Think the president would be irritated that, unbeknownst to him, one of his ambassadors had quietly worked with the FBI two years ago to investigate him and no one ever thought to tell him?
I wonder, in fact, if it’s because Halper’s name has been circulated so widely online over the last few days that Rosenstein and Wray seem newly amenable to meeting with congressional leaders to review “highly classified” Russiagate info, which I assume includes naming the informant. Now that he’s effectively been outed, the risk of sharing the info is less. And maybe the two have resigned themselves to the reality that (a) there’s really no ducking congressional demands for information on an investigation like this and (b) if any sensitive info like informant identities leaks, all fingers are going to point directly at Trump, Devin Nunes, and House Republicans anyway. That is to say, the phase of this standoff in which the DOJ tries to protect its sources may be over. Now comes the phase when people are outed, other sources in other matters stop cooperating with the DOJ for fear that they’ll be outed for political reasons too, and POTUS has to live with the consequences of other investigations losing that cooperation.
One lingering question as we wait for news of the White House meeting today to leak: Did Rosenstein and/or Wray threaten to quit at any point? Sources told Axios yesterday that Trump’s threat to order the DOJ to criminally investigate itself was a perfect way to “set the predicate” for Rosenstein or other DOJ leaders to resign in protest. Except, as it turns out, Trump didn’t follow through. Rosenstein hasn’t quit and Trump evidently didn’t order an investigation, sufficing instead to let the IG probe the issue. If this was all a power play to dump Rosenstein, what happened?
Update: Not surprisingly, Steve Bannon and Corey Lewandowski want #WAR.
NEW: A loose and informal group of Trump advisers outside the White House have been aggressively campaigning to attack Deputy Attorney General Rosenstein as part of a "deep state" plot against the President; @jaketapper reports https://t.co/YCfZrc8yXg pic.twitter.com/55cbg6DA6S
— CNN (@CNN) May 21, 2018