Earlier this week, amid reports that President Trump was thinking about removing Robert S. Mueller III as special counsel in charge of the Russia investigation, Deputy Attorney General Rod Rosenstein told the Senate Intelligence Committee in no uncertain terms that he did not know of a legitimate reason for such a drastic measure to be taken.
“I appointed him,” Rosenstein said, in reference to his game-changing decision last month to bring Mueller in to lead the Russia probe. “I stand by that appointment. I think it was the right thing to do under the circumstances, and I’m going to defend the integrity of that investigation.” Later, when Democratic Sen. Chris Van Hollen of Maryland asked Rosenstein if his calculus would change if Trump ordered him to fire Mueller, Rosenstein answered with his back all the way straight: “It doesn’t matter who the order comes from. Good cause would be based on the reasons for the proposed removal.”
Predictably, Trump did not like that show of open defiance, and on Friday morning he took direct aim at Rosenstein on Twitter:
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt— Donald J. Trump (@realDonaldTrump) June 16, 2017
This tweet—which refers to the infamous memo Rosenstein wrote at Trump’s behest that Trump then disingenuously trotted out to justify then–FBI Director James Comey’s firing—did not arrive in a vacuum. In fact, it came on the heels of a bewildering communication from Rosenstein himself: a press release, issued late Thursday evening, in which he warned in vague and ominous terms that the American people should not trust media reports quoting anonymous officials.
What an odd statement - that feels consistent with the White House's recent war on leaks pic.twitter.com/Ci1CZ3uE7I— Jonathan Lemire (@JonLemire) June 16, 2017
DOJ watchers had never seen a press release quite like it come out of the department, and talk immediately turned to what might have prompted Rosenstein—a man not known for making careless public pronouncements—to issue it. According to one theory, at some point after the Washington Post broke the news Wednesday that Trump was being personally investigated by Mueller for obstruction of justice, Trump might have asked—or told—Rosenstein to publicly knock down the story. Maybe Rosenstein’s statement about the folly of trusting anonymous sources was as far as he was willing to go in responding to such a directive. If so, the fact that Trump woke up on Friday barking mad at Rosenstein would suggest it wasn’t far enough.
That’s all speculation though—an attempt to explain a sequence of events that no one, including multiple ex–DOJ officials I spoke to on Friday, can claim to really understand. What we do know is this: Trump has always hated the fact that Rosenstein—a guy he realizes he can’t count on for the kind of “loyalty” he expects—was given oversight of the Russia investigation after the president’s most reliable ally at the Justice Department, Attorney General Jeff Sessions, recused himself from the case in March. According to the New York Times, Trump has never forgiven Sessions for that decision, which he apparently—and perhaps accurately—believes is responsible for the fact that a fearsome and unforgiving special prosecutor is now threatening him and his family with possible criminal charges.
Until Friday morning, Trump had refrained from publicly directing his anger over the situation at Rosenstein. So when he did, it immediately raised questions about whether the deputy attorney general was about to lose his job and what the consequences of such a development would be for Mueller’s investigation. The reality, however, is that Trump does not need to do anything so dramatic in order to get Rosenstein out of his hair. The much more likely scenario is that Rosenstein will step away from the Russia investigation on his own volition by recusing himself and putting someone else in charge. Indeed, according to an ABC News report published Friday, Rosenstein has been considering the possibility of recusal and discussing it in private with colleagues.
Why would Rosenstein choose to recuse himself? Because his interactions with Trump—including the conversation the two men had with Jeff Sessions about Comey’s future at the FBI just days before Comey was fired—are directly and unavoidably relevant to Mueller’s obstruction of justice probe. As Daniel Hemel, an assistant professor at the University of Chicago Law School, wrote in Slate last month, “Rosenstein is both a central character in the story Mueller is investigating and the man responsible for supervising that investigation.”
It’s always possible that Trump will decide to fire Rosenstein out of pure vindictiveness. But if we allow ourselves to read anything more than pure rage into the tweet he sent on Friday morning—if we grant the possibility that the president and his advisers are capable of sometimes acting strategically—it seems just as likely that Trump wants Rosenstein to recuse himself and is trying to push him in that direction by publicly accusing him of having a conflict. Writing at Lawfare, Benjamin Wittes and former DOJ official Jack Goldsmith suggest that the mere fact of being accused by Trump of perpetuating a “witch hunt” against him makes Rosenstein’s recusal more likely.
Based on an executive order issued by the Trump administration earlier this year, a recusal by Rosenstein would result in Associate Attorney General Rachel Brand taking his place as the top DOJ official overseeing the Russia probe. (According to one ex–DOJ official I spoke to Friday, it’s technically possible Rosenstein could put someone else in charge but doing so would come with certain practical and political complications.) Brand, a deeply conservative lawyer who was confirmed as the DOJ’s third-in-command last month, began her career in Washington working for the powerhouse lawyer Charles Cooper—a close friend of Jeff Sessions’ whom the Trump administration was at one point considering for solicitor general. Later in her career, Brand joined the DOJ’s Office of Legal Policy, where she focused on national security, working on the reauthorization of the Patriot Act and playing a key role in preparing both John Roberts and Samuel Alito for their Supreme Court confirmation hearings.
Would Rachel Brand agree to fire Mueller if Trump tells her to? Almost definitely not. But I wouldn’t trust anyone who says they know for sure. There’s just no telling what a person—any person—might do when faced with a choice as politically charged as firing a special counsel at the direction of the president. Though Brand would know she was taking a major hit to her professional credibility by following Trump’s order, it’s at least possible she could talk herself into agreeing with the chorus of Trump loyalists who say Mueller and his team are too biased to carry out a legitimate investigation. Then again, it’s much more likely she’d decide her integrity was worth more to her than her job and would walk out of Trump’s administration untainted. In that case, the work of overseeing the Russia investigation—and deciding whether to fire Mueller if Trump insists on it—would fall to the next person in the line of succession: a U.S. attorney named Dana Boente, who is currently serving as the acting head of the DOJ’s national security division. And on it would go from there. (As Hemel points out, Trump could change the order of succession for acting attorney general at any point by simply issuing a new executive order.) More to the point, notes Maggie Wittlin, the relevant statute suggests that Trump could put any member of his Cabinet on the list, meaning he could find someone he trusted to do the job of cutting Mueller loose without too much trouble.
I know this all seems like crazy conjecture. But crazy things are happening. Knowing what we know about Trump, we can safely speculate that he wants very badly to fire Rosenstein, if only to show him and every other deep state institutionalist who’s boss. But if the president can bottle up his rage for long enough, there’s a good chance Rosenstein will relinquish control of the investigation himself, giving Trump exactly what he wants without immediately setting off a stressful and politically damaging Saturday Night Massacre. While there’s no guarantee that Rosenstein’s replacement at the top of the Russia investigation would prove any more docile or pliable, Trump knows the situation can’t possibly be any worse for him than it is right now. The operative question now might just be whether Rosenstein is willing to give him the opening to improve his lot.