Rosenstein roller-coaster: Safe until after the midterms?

Consider this a reminder of the wisdom of keeping your arms and hands inside the ride at all times until it comes to a complete stop. Tomorrow was supposed to be the next scheduled ride of the Rod Rosenstein roller coaster as the deputy Attorney General meets with Donald Trump, presumably about his job status. On Monday, every major news outlet had Rosenstein fired or quitting under duress, until … he went back to work after leaving the White House.


This time, the Washington Post is hedging its bets:

Rod J. Rosenstein’s departure seemed so certain this week that his boss’s chief of staff told colleagues that he had been tapped by the White House to take over as second-in-command of the Justice Department, while another official would supervise the special counsel probe into Russia’s interference in the 2016 election, people familiar with the matter said.

But by Monday afternoon, the succession plan had been scrapped. Rosenstein, who told the White House he was willing to quit if President Trump wouldn’t disparage him, would remain the deputy attorney general in advance of a high-stakes meeting on Thursday to discuss the future of his employment. The other officials, too, would go back to work, facing the prospect that in just days they could be leading the department through a historic crisis. …

While it remained possible that Rosenstein could still resign or be fired imminently, people inside and outside the department said it seemed increasingly more likely that Rosenstein would stay in the job until after November’s elections and then depart, probably along with the attorney general. Two White House officials said Tuesday that Trump is unlikely to fire Rosenstein until after the midterms.

Forcing out the deputy attorney general in the next month could motivate Trump’s detractors to turn out for elections in which dozens of congressional seats are in play and Republicans are fearful they are at risk of losing control of the House. And those who have observed Trump and Rosenstein together or have been told of their interactions said the president seemed to hold Rosenstein in somewhat higher regard than he did Sessions.


This makes more sense than any of the speculation on Monday. What would be gained by firing Rosenstein now, or even having him resign under his own steam, that couldn’t be gained by doing it in November or January? As I wrote in my column for The Week, figuring out a cui bono might be more difficult than locating Waldo:

To some extent, how Rosenstein leaves matters just as much as whether he leaves at all. If he resigns, that would allow Trump to use the Federal Vacancies Reform Act of 1998 to appoint a temporary replacement who has already been confirmed by the Senate for another position. That would allow him to cherry-pick someone within the administration who would end Mueller’s probe. But if Rosenstein is fired, that strategy would go out the window, as the FVRA does not apply to terminations. That would put Solicitor General Noel Francisco in charge of Mueller’s fate. Francisco is a Trump appointee, but he has a long track record in Washington and is not historically inclined toward populist impulses.

Swan reported later Monday afternoon that the Justice Department had already drafted an announcement of Rosenstein’s departure. “The statement does not include the word ‘resignation,'” Swan wrote, but he noted that Rosenstein was willing to resign and had made that offer to Chief of Staff John Kelly. Nevertheless, the announcement would have declared Francisco the acting deputy AG, and as such, would give him the duty of “overseeing the special counsel investigation.”

But is Rosenstein actually leaving? Given all the headaches a Rosenstein departure would cause the Trump administration and the little it would actually accomplish, it’s very possible he’ll remain in his role. NBC News later reported that Trump had already decided not to fire him during the weekend discussions. Both Trump’s White House advisers and his “outside allies” had counseled him to refrain from letting Rosenstein go, perhaps mindful of the war that his departure might start. If that’s the the case, then Thursday’s meeting might end up being just as anti-climactic as Monday’s White House visit, even if it does have “a real doomsday feel,” as one Department of Justice source put it to The Daily Beast.


Even Robert Mueller isn’t much of a reason to can Rosenstein at this point. Even if Trump appointed a new deputy AG quickly, it would take weeks for the Senate to get around to confirming him, if it could be done at all. If Francisco or an FVRA appointee fired Mueller in the intervening time, all hell would break loose — and Congress would likely fund Mueller long enough to finish up under their oversight authority. The time to fire Rosenstein and Mueller was at the beginning of the special-counsel process, not near the end.

If Rosenstein sticks around, though, Congress might have something to say about that, too. The House Freedom Caucus wants a subpoena for Rosenstein, or a resignation if he doesn’t comply:

The conservative House Freedom Caucus wants Deputy Attorney General Rod Rosenstein to testify before the House Judiciary Committee or step down from his role at the Department of Justice (DOJ).

“We took an official position that Rod Rosenstein needs to come in and testify before the Judiciary Committee within the week or he should resign,” HFC Chairman Mark Meadows (R-N.C.) told The Hill on Tuesday evening, adding that he believes “hearings without consequences are a waste of the American taxpayer dollars.” …

Rep. Jim Jordan (R-Ohio) – a leading voice in the powerful conservative group who is seeking to be the next Speaker – echoed Meadows sentiments.

“What would be the downside [of a hearing]?” he told reporters ahead of the meeting. “The American people would like to know, was the guy running the Justice Department actually talking in front of subordinates about recording conversations with the President of the United States, with the commander in chief. Even if it was done in a sarcastic way it’s kind of weird.”


House Republican leadership seems mainly inclined to stay out of it for now. Majority whip Steve Scalise thinks Rosenstein should step down if he really discussed the 25th Amendment option, but says, “we have a lot of things going on this week.” Ryan was more direct:

Ryan said Republicans “shouldn’t get in the way” of Trump and Rosenstein. He noted that Rosenstein is meeting with Trump Thursday and said, “I think we shouldn’t step in the way of that.”

“We should let the president work it out with Rod Rosenstein,” Ryan said. “I hope they have a good productive conversation, and I hope that’s helpful.

Congress does have an oversight role, of course, but this looks like a fight between the president and a subordinate executive-branch officer … or at least that’s how they’d like to leave it for now. Trying to axe Rosenstein over this a few weeks before the midterms is a recipe for disaster, especially for vulnerable House Republicans hoping to retain the majority.

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John Sexton 7:00 PM on December 09, 2023