The New York Times’s blockbuster report that Deputy Attorney General Rod RosensteinRod RosensteinWashington still needs more transparency House Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week MORE broached the subject of seeking President TrumpDonald TrumpGraham says he hopes that Trump runs again Trump says Stacey Abrams 'might be better than existing governor' Kemp Executive privilege fight poses hurdles for Trump MORE’s ouster cannot be separated from his appointment of a special counsel.
From the start of the Trump administration, politics has overwhelmed law enforcement. It was the political uproar stoked by the May 9, 2017, firing of FBI Director James ComeyJames Brien ComeyGiuliani told investigators it was OK to 'throw a fake' during campaign DOJ watchdog unable to determine if FBI fed Giuliani information ahead of 2016 election Biden sister has book deal, set to publish in April MORE that induced Rosenstein to appoint a special counsel, Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE, to investigate President Trump. There was insufficient basis in law to do this. But that turned out to be of no more moment than the complete absence of any basis to remove the president under the 25th Amendment, the harebrained proposal the Times reports Rosenstein was floating at exactly the same time.
To be clear, the special counsel regulations require the existence of a factual basis for a criminal investigation — a crime — before a prosecutor is assigned. Moreover, a special counsel, who by regulation is recruited from outside the government, is not supposed to be assigned absent a Department of Justice (DOJ) conflict of interest so profound that the department is ethically barred from investigating the crime in question.
Deputy Attorney General Rosenstein could satisfy neither of these conditions. To this day, he has never specified a crime the president is suspected of committing. And there is no conflict; Mueller not only recruited prosecutors from the Justice Department, he has transitioned the two Russia indictments he’s brought to Justice Department components.
Both of these actions would be improper if there were an actual conflict. But, of course, there isn’t one because, again, Rosenstein has not specified a crime. It is the crime allegedly committed by a president that creates a conflict for the president’s Justice Department and calls for an outside prosecutor.
Nevertheless, Rosenstein also knew that the regulations expressly create no enforceable rights against the Justice Department — i.e., no one, not even a federal court, can compel DOJ to follow the rules. So, despite the mandate that there be a basis for a criminal investigation, the deputy attorney general assigned Mueller to conduct a counterintelligence investigation, which the regulations do not authorize. Counterintelligence is not prosecutor work; it is about gathering information on the potentially threatening activities of foreign powers, not prosecuting criminal suspects.
What does this have to do with the Times’s revelations that Rosenstein contemplated invoking the 25th and wiretapping the president of the United States at the White House? Everything — if you pay attention to the timeline.
On May 9, 2017, Rosenstein authored the memo he well knew would be used by the president to justify Comey’s firing. The memo overflows with sympathy for Hillary ClintonHillary Diane Rodham ClintonDemocrats worry negative images are defining White House Heller won't say if Biden won election Whitmer trailing GOP challenger by 6 points in Michigan governor race: poll MORE (whom Comey wronged by going public with evidence against an uncharged person). The memo relies heavily on Democratic as well as Republican critiques of Comey’s performance. The memo is consistent with the political narrative that Comey may have cost Mrs. Clinton the 2016 election. Rosenstein obviously expected to be lauded for writing it.
Instead, he was widely condemned. Rosenstein had miscalculated. Democrats were no longer focused on Comey’s role in Clinton’s loss. They had moved on to portraying Trump as corrupt, and Comey had proved useful in that effort when, in March 2017 House testimony, he made the astonishing announcement that the FBI was investigating the Trump campaign for possible “coordination” in Russia’s election interference.
Comey’s firing was thus a golden opportunity for Democrats to claim that the president was obstructing the Russia investigation — especially when, on May 16, the Times published a blockbuster report, based on Comey’s leak of a memo-to-self, that Trump had pushed the FBI to close the investigation of former national security adviser Michael Flynn. Consequently, far from applauding Rosenstein, Democrats savaged him for helping Trump cashier the FBI director.
This was stunning to Rosenstein. He had always cultivated good relations with Democrats. Indeed, at a time when the Republicans’ razor thin 51-49 majority made it hard to get Trump appointees confirmed by the Senate, Rosenstein sailed through, with broad Democratic support, by a vote of 94-6.
The Times describes Rosenstein as an emotional wreck after Comey’s firing, worrying about the damage to his good reputation. He became desperate to show that his sympathies lay with those portraying Trump as unfit for the presidency.
Immediately after Comey was dismissed, Rosenstein let it be known that Trump seemed incompetent in interviews of candidates to run the FBI. Though he had shredded Comey in his May 9 memo, Rosenstein reportedly began telling FBI officials that he wished Comey were still running the FBI, and even contemplated consulting Comey on appointment of a special counsel.
And when was he doing that? The Times tells us it was in the period May 12 to 17. That is, at precisely the time Rosenstein reportedly was floating the idea of wiretapping Trump and ousting him under the 25th Amendment, he decided to appoint a special counsel. Rosenstein even contemplated appointing former President Obama’s deputy attorney general, James Cole, before ultimately appointing Robert Mueller, the former Obama and Bush FBI director — Comey’s predecessor and longtime colleague.
The absence of grounds for appointing a special counsel apparently was beside the point. Imposing a special counsel on Trump, like absurdly suggesting that the president should be removed from office, signaled to the audience that Rosenstein cared about — Washington insiders — that he was with them: If Trump could not be ousted, Rosenstein would at least have him monitored by a prosecutor.
The Times tells us that on May 16, Rosenstein raised the idea of invoking the 25th Amendment. Less than 24 hours later, he appointed Mueller.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor.