On Predication And Being A Weasel

CNN and Buzzfeed won their FOIA lawsuit and have made publicly available the 295 pages of "witness memoranda and notes from FBI interviews that were part of the special counsel's probe." One document that has already drawn interest is an FD-302 of a lengthy interview of Rod Rosenstein on 5/23/17--in other words, shortly after the appointment of Robert "Bob" Mueller as Special Counsel. The overall impression--highlights of which can be found here: Rosenstein, Sessions discussed firing Comey in late 2016 or early 2017: FBI notes--is in my opinion highly unflattering toward Rosenstein.

Here are the main takeaways.

Before either Sessions or Rosenstein were ever confirmed for the AG and DAG positions, they began discussing the removal of disgraced former FBI Director James Comey. Those discussions took place in late 2016 or early 2017. Rosenstein (and presumably Sessions) was disturbed by Comey's handling of the Clinton email investigation, believing that Comey had violated pretty much all of the DoJ rules and established procedures in handling that case. Rosenstein consulted with various DoJ officials who all shared the same opinion and even began sounding out people who might replace Comey. However, he stopped doing so when President Trump expressed public confidence in Comey. The bottom line is that Rosenstein as well as Sessions believed that Comey should be fired for cause and made that issue one of the earliest topics they considered before being confirmed. Here is Rosenstein's account of that:

Rosenstein also recalled being invited late 2016 or early 2017 to Sessions' senatorial office for coffee. During this conversation, Rosenstein told Sessions he was friends with Comey but believed there should be a change in FBI management because the FBI's reputation had been damaged "because of 2016." Rosenstein agreed with Sessions it would be "appropriate to have a fresh start."

Note that Rosenstein appears to present the Comey firing issue as his own idea.

However, in the interview, Rosenstein related to the FBI agents that he was "angry, ashamed, horrified and embarrassed" by the way the Comey firing was handled. Apparently, even though he had long believed that Comey should be fired for cause, and had written a memorandum detailing all the reasons why Comey should be fired, Rosenstein objected to: 

1) The characterization of Comey's firing as his idea--even though it essentially was--was, he told the agents, "inconsistent with my experience and personal knowledge." Here is Rosenstein's understanding of it:

Rosenstein reiterated his goal in drafting his memorandum was not to "fire Comey." It never occurred to him he "would be responsible for determining whether to remove him." It never crossed his mind the removal of Comey would impact the Russia investigation. Rosenstein "doesn't know what the White House was thinking." The notion that removing Comey would impact the FBI's Russia investigation never crossed his mind.

Rosenstein was comfortable with Comey either being fired or not fired. Rosenstein did not believe staffing decisions were his to make; the deputy attorney general was only to make recommendations. 

And yet, he had discussed firing Comey months earlier.

2) The fact that the firing was accomplished by email.

While these aren't unreasonable objections per se, or at least are reasonable grounds for being unhappy, what followed--the appointment of a special counsel--becomes highly problematic in light of all that preceded it.

First of all we learn that when Rosenstein contacted Mueller about the Director position, Mueller stated that he wasn't interested. Yet somehow or other Mueller was brought to the Oval Office--to be interviewed for the Director position. Now, Mueller has said that he was only offering ideas on how to manage the FBI, but that's not exactly what Rosenstein says in the interview--he clearly presents Mueller's visit to the Oval Office as a job interview but pushes the responsibility for that off on Jody Hunt. Despite Mueller's already stated lack of interest. It doesn't totally add up when we look at the timeline.

Rosenstein makes it clear that virtually immediately after the Comey firing he began considering not only a replacement for Comey but also a special prosecutor. Why? In fact, he says that "of course" he had been considering a special counsel "before that time". Why "of course"? The "of course" appears to reflect Rosenstein's concerns "in light of all the controversy surrounding the investigation", and "public perception of the process." "It did not," he said, "reflect a lack of confidence"--presumably in the FBI and DoJ. But are we supposed to believe that the idea of getting Mueller to be special counsel hadn't already occurred to him?

This is truly remarkable. Throughout the interview Rosenstein presents himself as upholding DoJ standards--with regard to others. But when he's making the decisions, well, not so much.

The regulations governing the appointment of a special counsel are very clear: There needs to be a determination that there is a conflict of interest involving "a United States Attorney's Office or litigating Division of the Department of Justice." That's not optional. It's required. And yet Rosenstein speaks only of "public perception" rather than any supposed conflict of interest. He even states that his decision didn't "reflect a lack of confidence"--which would, in the circumstances, indicate that he saw no conflicts.

That impression is strengthened by Rosenstein's repeated statements that he understood and had been briefed that there was "no evidence the President was involved personally" and that the prosecutors "confirmed for Rosenstein the President was not a suspect." That being the case, where was the conflict of interest in investigating people who were no longer associated with the President? No conflict is referred to in Rosenstein's actual appointment memorandum and Rosenstein even tells the interviewing agents that the prosecutors specifically told him there was no need for additional investigative resources.

And yet, with all his sensitivity for "public perception" when he was the one involved, Rosenstein apparently cared not at all regarding the public perception that this appointment would have with regard to the POTUS. If Rosenstein failed to understand the effect on public perception his decision would have, he would have been the only person in the world who was unable to see that. The clear impression is that Rosenstein, who acknowledges that he was "stressed", was thinking only of his own position.

Also notable is that neither in the appointment memorandum nor in this interview does Rosenstein raise the issue of predication for the investigation. If we're to believe Rosenstein, the Mueller appointment was simply to allay "public perceptions" while the investigators carried on as before--without even a need for additional resources! How things changed, and rapidly. From the outset it was apparent that Trump was Team Mueller's real target. Could Rosenstein really have been as naive as he seems to portray himself?

I doubt it. After all, we know that he and others at both DoJ and the FBI were meeting and kicking around ideas about how to charge Trump with obstruction for firing Comey--a move that Rosenstein himself had raised months earlier. And Rosenstein had, by all accounts, sounded out a number of cabinet members regarding the possibility of using the 25th Amendment to remove Trump.

In light of all this and of later events, such as Rosenstein's own volte face, one is left with a portrait of a guy who was in way over his head, was totally self absorbed, and had few scruples about looking out for Numero Uno--taking the heat off himself. Concern for a properly predicated investigation and for the trauma to the country just didn't factor in.

Here are excerpts from the 302 regarding the Mueller appointment:

Rosenstein first contacted Mueller on May 10 at 7:34 am, but "of course" he was thinking about the issue of appointing a special counsel before that time. 

Then, at 11:30 am, Rosenstein attended a previously scheduled meeting with the prosecutors assigned to the FBI's Russia investigation. This was the first regularly scheduled meeting on the matter. During this first meeting, and in light of all the controversy surrounding the investigation, Rosenstein declared, "In my acting capacity as the Attorney General, leave no stone unturned" or words to that effect. However, those assigned to the case are career prosecutors, so in his personal opinion, telling them to do so was unnecessary because he knew they would do the right thing.

During his May 10 briefing, the team confirmed for Rosenstein the President was not a suspect. This was also Rosenstein's impression from his initial April 28 briefing he received from then Director Comey. Carl Ghattas may have attended this briefing, as well as several prosecutors.

Rosenstein elaborated that based on his May 10 briefing, "there appeared to be no evidence the President was involved personally." Rosenstein inquired whether they needed additional resources, and was informed there was no such need.

[Paragraph redacted]

...

Rosenstein's main reason for appointing a special counsel was due to public perception of the process. It did not reflect a lack of confidence. Rosenstein was inclined to appoint a special counsel immediately the morning of May 10. Rosenstein was concerned about his position at the Department of Justice and it caused him stress, but it did not influence his decision.