Two Big Takeaways From the Rosenstein Bombshell by Charles Lipson
https://www.realclearpolitics.com/articles/2018/09/24/two_big_takeaways_from_the_rosenstein_bombshell_138146.html
What should we make of the New York Times’ shocking story that Rod Rosenstein, the second highest official in the Department of Justice, wanted to “wear a wire,” secretly record President Trump, and gather evidence to oust the president via the 25th Amendment? Rosenstein has effectively admitted that he did say something like that, but he has termed it scathing sarcasm, mocking colleagues who pushed him to investigate Trump more aggressively. All this happened when the administration was young and Rosenstein had only been in office a couple of weeks.
The Times’ story has huge implications, both for its substance and for its provenance (who leaked it and why). The two most important takeaways are these:
- First, the insiders who tried to nail Trump before the election and afterwards are now turning on each other as they try to wriggle out of their own criminal exposure.
- Second, the leak sets a dangerous trap for Trump. He is bound to be infuriated and might be tempted to fire Rosenstein before the Senate votes on Brett Kavanaugh for Supreme Court justice and before the American people vote in November. Walking into that trap would be political malpractice.
Let’s look closer at each implication. At this stage, we don’t know who leaked the damaging comments. But we do know they must have come from a top law-enforcement official present at a very contentious meeting with Rosenstein. Parts may have come from a one-on-one meeting between Rosenstein and Andrew McCabe, who was then the FBI’s second-in-command and whose boss, James Comey, had just been fired.
These are the same insiders from Loretta Lynch’s DOJ and Comey’s FBI who cleared the gonna-be-president Hillary Clinton of her legal liabilities and then tried to pin those liabilities on her opponent. Their weapon against Trump was America’s powerful counter-intelligence surveillance capabilities. Those are supposed to be used only against suspected spies and require warrants from a secret court created by the Foreign Intelligence Surveillance Act (hence, FISA).
The safeguards broke down because they were deliberately—and cleverly—evaded. To get the court’s authorization, top DOJ and FBI officials relied on opposition research paid for by the Clinton campaign and Democratic National Committee without clearly informing the court about their biased source. Instead, they hid the vital information in an indirectly worded footnote. They failed to tell the court that key supporting evidence (a news article) actually came from the same source. It wasn’t additional evidence at all. Nor did they disclose that the FBI had officially severed its ties to this source for leaking but that the DOJ’s Bruce Ohr was still meeting with him and providing the bureau with his information. They apparently failed to tell the FISA court that the subject of the warrant, Carter Page, had willingly cooperated with U.S. authorities when they asked to interview him.
All this is sleazy and dishonest, at best. More likely, it was a fraud on the court and evidence of a coherent plot inside senior law enforcement and intelligence agencies to affect an American election and then undermine a duly elected president. If so, those are truly high crimes against America, whether you like President Trump or not.
After Trump was sworn in, the same officials worked assiduously to strangle his presidency in the crib, partly because they loathed him, partly because they knew that their previous actions could now be exposed. That exposure is exactly what is happening—slowly and grudgingly, to be sure, but inexorably.
The walls are closing in on McCabe, Comey, Ohr, and others. What the public is seeing are text messages, illegal leaks to the media, flimsy and misleading court filings to wiretap an American, and omissions of exculpatory evidence. The text messages do more than show how much Peter Strzok (the FBI’s second highest counter-intelligence officer) and Lisa Page, an FBI lawyer and Strzok’s paramour, hate Trump. They give investigators an hour-by-hour timeline to understand how pro-Clinton, anti-Trump officials acted in their official capacities. That’s invaluable to prosecutors.
As documentary evidence of wrongdoing mounts, some key figures have decided the only way to save their skin is to cooperate with the DOJ’s internal watchdog and the grand jury, convened to examine whether McCabe lied to FBI agents about leaking secret materials to the media. He apparently does not deny the leaks but says Comey authorized them. Comey says “no, I didn’t,” though he does admit leaking other material to the press through a law professor at Columbia University. Comey claims his own leaks were personal materials, but FBI rules and federal laws say otherwise. Documents created by bureau personnel in their official capacity belong to the government and cannot be leaked or mishandled. If the bureau’s views prevail, as seems likely, then Comey’s own admissions put him in legal jeopardy.
Comey and McCabe have already turned on each other. A clever prosecutor could turn them and their colleagues into a Deep State Donner Party, eating each other’s flesh in a desperate effort to stay alive. Their only hope now is for weak federal prosecutors to settle for evidence against McCabe rather than squeezing him ruthlessly, the same way Special Counsel Robert Mueller has squeezed his targets, and then follow the evidence up the food chain. The latter is the only chance of seeing how deep and wide this corrupt network was, whether it included U.S. intelligence agencies, and whether it was ultimately directed by the Obama White House.
The second takeaway from the Rosenstein leak is nakedly political. It’s a trap for Trump. It tempts him to fire Rosenstein immediately, before the midterms and perhaps before the Kavanaugh vote for the Supreme Court. The president has the constitutional authority to do that. But doing it before November would be a serious mistake.
The Democrats would immediately claim the president was obstructing justice. After all, Rosenstein is the Department of Justice’s sole supervisor of Mueller and his team. The Democrats could plausibly argue that Trump’s motives are corrupt, that he just wants a toady to step in and block a full, fair investigation by the special counsel. That reinforces the Democrats’ “obstruction narrative,” which is their current line of attack now that the “collusion with Russia narrative” is in tatters (since there is little public evidence of such collusion after two years of investigation; Bob Woodward also found none in researching his book, “Fear”).
Why would firing Rosenstein before November be such a mistake? Because the Democrats would use it to muddy the Supreme Court nomination, attack Trump’s motives, and demand Kavanaugh recuse himself from any future matters involving the president. That might be enough to sway some wobbly Republican senators or at least delay the vote and protect vulnerable Democratic incumbents in red states. Those senators are torn between their voters, who want Kavanaugh on the court, and their liberal donors and energized base, who want him defeated.
These are purely political calculations. Their logic is essentially the same as Sen. Dianne Feinstein’s late hit on Kavanaugh, the leak of the alleged victim’s redacted name (which could only have come from Democrats), and interviews with the Washington Post, followed by calls for extensive investigation and a delayed vote. Flip a few Republican centrists, if possible, or at least delay, delay, delay.
Chuck Grassley and Mitch McConnell understand this game perfectly. They are too disciplined to walk into the trap or to delay the vote too long (without appearing unfair to Kavanaugh’s accuser). My guess is that they can persuade the president to hold off any firings, just as they have persuaded him to hold off on firing Attorney General Jeff Sessions.
But my friendly advice to both Sessions and Rosenstein is: Do not sign any leases that run into 2019.
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