Monday, September 23, 2019

UPDATED: McCabe's Remarkable Rosenstein Memo

Judicial Watch has obtained a (redacted) copy of the memo that disgraced former Acting FBI Director Andrew McCabe wrote as a contemporaneous memorialization of the discussion he had on May 16, 2017, with then Deputy AG Rod Rosenstein. This was the famous meeting in which McCabe told Rosenstein that he, McCabe, had opened a counterintelligence investigation on the President of the United States. In response to that announcement Rosenstein eagerly offered to "wear a recording device into the Oval Office to collect additional evidence on the President’s true intentions."

First of all, my impression is that this is probably a truthful recollection of what actually transpired. It doesn't purport to be verbatim, but it has what could be called indicia of truthfulness.

Secondly, I'm very much struck by the fact that there appears to have been only the most perfunctory discussion of the predication for this extraordinary investigation. The FBI is only authorized to open such an investigation based on reasonable suspicion. McCabe stated to Rosenstein that

"counterintelligence investigations of this sort were meant to uncover any existence of any threat to national security as well as whether or not criminal conduct had occurred."

That's perfectly correct, as far as it goes. What's missing here is any indication that Rosenstein quizzed McCabe what evidence McCabe possessed that President Trump was a "threat to national security" and whether or not President Trump had engaged in "criminal conduct" in that regard. In other words, whether President Trump was acting as an agent of the Russian government. Absent evidence that would lead to a reasonable suspicion that this was, in fact, the case, there was no predication for such an investigation. And in fact we know from the Strzok/Page texts that the lead investigator in the Crossfire Hurricane investigation was of the opinion that there was "no there there." In other words, Strzok was basically of the opinion that there was no predication to continue the investigation, much less therefore to extend it formally to President Trump. Are we to believe that the elements of "predication" that McCabe does refer to--which appear to center around the firing of disgraced former FBI Director James Comey--really constitute a reasonable suspicion?

To review, the Lester Holt interview that McCabe refers to featured Trump saying that he fired Comey because of "Russia". That's the media narrative. This is what Trump actually said:

I said to myself -- I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should've won.

Does this statement alone, absent actual reasonable suspicion derived from Crossfire Hurricane, constitute predication for investigating the President of the United States? A protestation of innocence somehow becomes predication for an investigation? But we know that Comey knew at that time that nothing in the Steele Dossier--the basis for it all--could be corroborated. This had been known for no less than a half a year. Nor do Trump's statements to Comey regarding "loyalty, statements about the Russia investigation and the investigation of General Michael Flynn" amount to predication, to reasonable suspicion that President Trump was an agent of the Russian government.

What's remarkable in all this is not so much that McCabe had such a crackpot theory. He appears to be a rather unbalanced individual. What's truly remarkable is that such an experienced prosecutor as Rod Rosenstein did not systematically question McCabe regarding this obvious lack of predication. I cannot imagine having such a conversation with your average Ass't US Attorney and not being pushed to explain how any supposed predication I had to offer fulfilled the elements of the offense under discussion.

So, with that said, here's Judicial Watch:


(Washington, DC) – Judicial Watch announced today it obtained a two-page memo, dated May 16, 2017, by then-Acting FBI Director Andrew McCabe detailing how then-Deputy Attorney General Rod Rosenstein proposed wearing a wire into the Oval Office “to collect additional evidence on the president’s true intentions.” McCabe writes that Rosenstein said he thought it was possible because “he was not searched when he entered the White House.”

The Justice Department turned over the document last Friday at 5:27 pm in a Judicial Watch February, 2019 Freedom of Information Act (FOIA) lawsuit filed after the Justice Department and FBI failed to respond to September 2, 2018 FOIA requests for documents about any FBI/DOJ discussions regarding the 25th Amendment and plans to secretly record President Trump in the Oval Office (Judicial Watch v. U.S. Department of Justice (No. 1:19-cv-00388).

The memo, which is redacted in key sections, purports to serve as a “contemporaneous recollection” of a meeting that day (“12:30 pm on 5/16/2017”) in Rosenstein’s office. The meeting included Rosenstein, Deputy Assistant AG for Intelligence Tashina Gauhar and Principal Associate Deputy Attorney General Jim Crowell in Rosenstein’s Justice Department office. ...

Tuesday, May 16, 2017

At 12:30 pm on 05/16/2017, I met with Deputy Attorney General (DAG) Rod Rosenstein in his office at the Department of Justice. Also present were Tashina Gauhar and Jim Crowell. The following is a contemporaneous recollection of the main topics we discussed.

I began by telling him that today I approved the opening of an investigation of President Donald Trump. I explained that the purpose of the investigation was to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice. The DAG questioned what I meant by collusion and I explained that I was referring to the investigation of any potential links between the Trump campaign and the Russian government. I explained that counterintelligence investigations of this sort were meant to uncover any existence of any threat to national security as well as whether or not criminal conduct had occurred. Regarding the obstruction issues, I made clear that our predication was based not only on the president’s comments last week to reporter Lester Holt (that he connected the firing of the director to the FBI’s Russia investigation), but also on the several concurring comments the president made to Director Comey over the last few months. These comments included the President’s requests for assurances of loyalty, statements about the Russia investigation and the investigation of General Michael Flynn. I also informed the DAG that Director Comey preserved his recollection of these interactions in a series of contemporaneously drafted memos. Finally, I informed the DAG that as a result of his [Comey's?] role in the matter, I thought he [Comey?] would be a witness in the case.

The DAG then related his experiences at the White House on Monday, 05/08/2017. He began by stating that he had the feeling that the decision to fire the Director had been made before he arrived. At the White House, he first met with White House Counsel Donald McGahn, who told him that the President had drafted a letter to Director Comey that McGahn did not want the President to send. Shortly thereafter they met with the President and Attorney General Jeff Sessions, and possibly others, in the Oval Office. President Trump told the DAG he had written a letter to Director Comey, asked the DAG if he had seen the letter, and instructed McGahn to provide the DAG with a copy. The DAG described the letter to me as being a long list, possibly several pages, of the President’s complaints with Director Comey. Among those complaints was a discussion about the FBI’s Russia investigation, as well as a paragraph about the FBI Deputy Director. The DAG indicated to me that he retained a copy of the President’s letter. The DAG said he told the President [redacted]. The President then directed the DAG to write a memo explaining the reasoning for Director Comey’s termination and that the DAG should include Russia. The DAG said to the President he did not think this was a good idea and that his memo did not need to include Russia. The President replied that he understood, but that he was asking the DAG to include Russia anyway. As our conversation continued the DAG proposed that he could potentially wear a recording device into the Oval Office to collect additional evidence on the President’s true intentions. He said he thought this might be possible because he was not searched when he entered the White House. I told him that I would discuss the opportunity with my investigative team and get back to him.

We discussed the issue of appointing a Special Counsel to oversee the FBI’s Russia investigation. The DAG said he has two candidates ready one of whom could start immediately. [Redacted] The DAG said that he left a copy of the delegation with Acting Assistant Attorney General for National Security Dana Boente to execute in the DAG’s absence if the DAG were suddenly removed from his position. [Redacted] He anticipated that he may be terminated when he puts the Special Counsel in place, in light of the president’s anger with AG Sessions when the AG recused himself from the Russia investigation. The DAG further stated that he was told that others heard the President tell the AG “you were supposed to protect me.”


The DAG related to me that on Sunday, 05/14/17, the AG asked him to participate in the interview of [redacted] for the position of FBI Director. [Redacted].

The DAG told me that he informed the AG that I should remain in my role as Acting Director until the permanent Director was chosen. The DAG opined that my only “problem” was that some people believe that I was involved in my wife’s 2015 campaign for State Senate in Virginia. The DAG said it was a “credibility problem” because after having told him during my May 13 interview that I played no role in her campaign and attended no campaign events, the DAG said a staffer had provided him with a photograph found on the internet of me and my wife wearing Dr. Jill McCabe campaign t-shirts. The DAG suggested that this photograph contradicted my statement that I had not campaigned for my wife. I pointed out to the DAG that the photograph he saw was taken not at a campaign event, but rather at [redacted] I further informed the DAG that I confirmed with my ethics counsel at FBI that the Hatch Act does not prohibit wearing a campaign button or shirt away from the office, and that attending [redacted] wearing such a shirt does not constitute proscribed political activity.

UPDATE: Tucker Carlson interviews about what Matt Whitaker calls, yes, this "extraordinary" memo:

Note that Whitaker, who worked side by side with Rosenstein, isn't willing to defend him. And he says "a lot more" investigation is necessary.


  1. The most remarkable thing about that memo is McCabe thinking the problem with his wife's state senate campaign was it might be a violation of the Hatch Act. How stupid is McCabe? How stupid does he think everyone else is? The problem was the funding of his wife's campaign by Clinton supporters while McCabe was involved in investigating her tenure as Secretary of State.

  2. I'm currently reading Andy McCarthy's book where he offers what appears to be (one of) the FBI's explanations for opening Crossfire Hurricane, as ultimately an "insurance policy."

    McCarthy: "Furthermore, as we shall see presently, the FBI viewed the investigation as an 'insurance policy.' That is, in the unlikely event that Trump won the election, the investigation would give the Bureau a vehicle to monitor the new president and limit the damage FBI officers claimed to fear he would otherwise do to their institution and to the country. Clearly, this was not just an investigation of Page and Papadopoulos." pp. 222-223.

    I'm not certain to whom this outline should be attributed, but it is a screaming obscenity if anyone thinks it the FBI's place to pass on the acceptability of the peoples' elected representative.

    Talk about lack of predication!

    1. Right. That's why I spent so much time in the past going over and over the Guidelines and so forth. It's not their place to do that, and there are Guidelines in place that should prevent that. Since they went ahead anyway, there should be false statements at some step of the way and hopefully that can be fit into an overall conspiracy to defraud the government theory.

  3. Daniel Lazar, in an article titled The Plan to Trip Up Trump, published yesterday by Consortium News makes some interesting comparisons between the FBI's plans to trip up Donald Trump and the plan to trip up Michael Flynn.

    In both cases, the FBI fooled the two targets into relaxing with the false understanding that the FBI questionings were merely friendly information-gathering and did not intend to trap the targets into incriminating statements.

    The article prompts me to make my own observation. In both cases, the FBI arranged the questioning so that the targets were not accompanied by lawyers or advisors. In the case of Flynn, he was deliberately not advised that he might need to invite a lawyer to be present during the FBI's questioning.

    In the case of Trump, Comey isolated Trump for their conversation on January 6, 2019. Right after their conversation, Comey wrote a detailed memo about the conversation, but Trump did not understand that he too might need to memorialize the conversation concurrently. As a result, Comey did have a concurrent memo, whereas Trump lacked a concurrent memo.

    I wonder whether Trump was unfairly tricked out of his own advisors and concurrent memos during the various meetings with Rosenstein and other officials in May 2017, related to the firing of Comey and the hiring of Mueller.

    In other words, I suppose (do not know for sure), that Rosenstein and the others asked to speak with Trump extremely confidentially, and therefore Trump did not include his own advisors (witnesses) in the meetings. Then, Rosenstein and the others secretly recorded the conversations and immediately afterwards wrote detailed memos about the conversations. In the meantime, Trump did not understand that he too should memorialize the conversations concurrently.

    1. ... for their conversation on January 6, 2017 (not 2019)

    2. Thanks Mike, I'll read that. I'll be leaving within the half hour--unfortunately, from the standpoint of getting a post on this out. That'll have to wait till later.

      Your point is excellent, and I think you're right re Rosenstein--in fact, I'm just now reading CTH who's making basically the same point.

      Which raises the question, is it possible that we'll find out that this Ukraine Hoax followed a similar plot line?

      Fortunately, it appears Trump doesn't trick easily. I believe Pence was present in the OO when Rosenstein/Mueller came, and probably a very good thing.

    3. Trip-up seems to be a euphemism for entrapment. All throughout this circus the FBI is primed for appearances, then to get the "story" into the media for creation and enforcement of The Narrative--Orange Man Bad. Because politically, appearances are all that mattered--to handcuff, and eventually impeach.

      Reading McCarthy's book it becomes tedious at points where he repeats that FBI and other gov't officials are entitled to their political opinions, but those opinions shouldn't encroach on their jobs--precisely when he's just reported incidents where the partisanship is screaming and professional integrity is completely lacking.

      FusionGPS is a smear merchant who plants stories in the media. By engaging Steele, Fusion leveraged Steele's relationships (FBI/DOJ, and elsewhere) in order that leaked stories made it into media that investigators were "looking into" some aspect of Trump or the Trump campaign in order to tarnish the candidate and influence the election by rumor and innuendo. So far, the FBI/DOJ have been willing to pretend their ignorance of this FusionGPS operating reality, with a compliant and willing media to act as stenographers for this stench.

      Only when it became public knowledge that Steele was sharing his work product with the media did the FBI terminate his relationship--that he continued by feeding it to DOJ (Bruce Ohr).

      Trip-up, set-up, entrapment, are all just games to be played so the G-man gets his man--only those hiding something wouldn't want to cooperate, and assist with the inquiry. A helpful attitude and candid responses are the expected response...

    4. All very true. Comey and his gang knew exactly with whom they were engaging: Steele meant Fusion meant Simpson meant Michael Sussman meant Hillary. They knew what they were doing.

      By the way, note how it's supposed to be bad for Giuliani to talk to people who might somehow tarnish Biden, but we're supposed to think that it was OK for the FBI to deal with and trust Sussman. Sussman was/is for many years the top Dem legal operative in the US. He came to the FBI as Hillary's and the DNC's lawyer and Baker and Comey knew that. They knew he was there to trash Trump. They knew they were in over their heads in politics.

    5. Exactly. The more one looks at the execrable media coverage, the more it resembles Sherlock Holmes' "the dog that didn't bark in the nighttime."

      It's not what they report, it's the details that are (omitted) not reported.

      The dog that didn't bark IS the evidence.

  4. In May of 2017, McCabe was the ringleader of a deadly serious palace coup attempt and he knew that this was going to be the biggest battle of his life. He also clearly believed that they stood an excellent chance of success, which implies that he had extensive support from many powerful allies in DC (including Congressional GOPe leadership and Obama Fifth Columnists in the Executive Branch). That Trump has prevailed thus far over this onslaught is stunning. He is truly a rare man and much stronger than his adversaries believe. History will portray him well.

    1. Nice summation. Notice in the video the way Whitaker keeps repeating the word "extraordinary." It really is. That's why I used it to begin with. But either of us could have used your word: "stunning." That works, too.

  5. If you examined Rosenstein's comments when these reports came out, he parsed his words very carefully with a non-denial denial. It was very lawyerly, as if confirming it was true.

    1. True. He was very circumspect. And the circumstances--McCabe seemed truly outraged at Rosenstein's double dealing.