UPDATED: Rosenstein's Day In The Senate

The Rosenstein testimony before the Senate Judiciary Committee is over. Overall, I found the questioning to be rather unimpressive. Unlike many commenters on blogs and Twitter, I found the hammering away at FISA related issues to be, in the main, fairly pointless. 

The important takeaway can be summarized fairly quickly. While numerous commenters on Twitter (including John Cardillo and Jonathan Turley) picked up on two major and closely related points, John Solomon does so in readable style. Both of what I consider to be the most important points were brought up by Senator Graham. The first major admission had to do with the lack of any basis for the claim of "Russian Collusion" that was the basis for his authorization of the Team Mueller witchhunt:

Former Deputy Attorney General Rod Rosenstein conceded on Wednesday that by August of 2017 there was no evidence that the Trump campaign had colluded with Russians to sabotage the 2016 election, even though the investigation into that allegation would persist for another year and a half.  

The jaw-dropping admission came during a contentious hearing before the Senate Judiciary Committee, which is actively investigating the F.B.I.'s Crossfire Hurricane investigation that sought to uncover whether Trump campaign officials had colluded with Russian agents to sabotage the 2016 election. 

Addressing Rosenstein during the hearing, committee member Sen. Lindsey Graham asked him: "The whole concept, that the campaign was colluding with the Russians, there was no 'there' there in August of 2017, do you agree or not?" 

"I agree with the general statement," Rosenstein replied. 

The second major admission by Rosenstein is related to the first and concerned Michael Flynn:

[Rosenstein] also told the committee he was unaware that an F.B.I. field office had recommended that Gen. Michael Flynn be dropped from the investigation. Rosenstein was asked by Graham if he knew that "in January of 2017, the F.B.I. field office said, 'we recommend General Flynn be removed'" from the F.B.I.'s investigation into Russian interference in the 2016 election. 

"I did not," Rosenstein responded.

As I've repeatedly emphasized, the Team Mueller witchhunt was, by the terms of Rosenstein's own authorization letter, simply a continuation of the FBI's Crossfire Hurricane investigation--but considerably ramped up by the appointment of a Special Counsel.

In his first statement (above) Rosenstein admits that within 3 months of authorizing Team Mueller it was clear that the entire conceptual basis for the investigation--the idea that the Trump campaign had colluded with "the Russians"--was totally discredited. Graham references the famous Strzok text: "there was no 'there' there in August of 2017." And Rosenstein agrees! Stop and think about that for a moment.

Three months is a pretty short time frame for such a major investigation. If the entire conceptual basis for the investigation was thoroughly discredited--no 'there' there--in such a short time, that demands some searching followup questions: What made Rosenstein think there was any factual basis to begin with--just three months previously?

The nub of the authorization of the Special Counsel is this:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump; ...

The authorization of a General Counsel such as this--one which the whole world knew was directed at the POTUS--was an incredibly momentous decision. It authorized the investigation of allegations that an American president had been elected in whole or in part as a result of collusion with a hostile foreign power. By the terms of the regulations covering the appointment of a Special Counsel, the public is entitled to believe appointment of a Special Counsel means that "criminal investigation of a person or matter is warranted." And yet there is no statement in the authorization letter that would lead anyone to reasonably believe that Rosenstein had conducted a searching review of the evidence that such an investigation was in fact warranted. There is no statement, for example, that Rosenstein had consulted with anyone else, whether in the DoJ or the FBI, or had reviewed any documentation whatsoever.

In the circumstances I would have expected Rosenstein to have been grilled on that topic. If within three months the entire conceptual basis for the investigation had been exposed as without any actual foundation--a fraud--what made him think there was any foundation in the first place? Should he not then have gone back and challenged the people who told him that there was a real foundation to defend that position? And what exactly was the process that he went through in deciding to authorize the Special Counsel investigation, to ensure that he was doing so on the basis of the best possible information? Did he demand to see the opening EC for Crossfire Hurricane--with its laughable excuse for predication? If not, why not? Did he demand that a concise statement of the predication for the investigation be drawn up for his consideration? If not, why not? If he did, who wrote it and where is that document?

Consider. The FBI is able to open their own investigations, although at crucial steps along the way they need DoJ authorization to continue. However, only the Attorney General can authorize a Special Counsel investigation. Given that the FBI is required to state the predication for its investigations, why would the Attorney General not state the predication for a Special Counsel investigation? It defies reason that there should be no such concise statement of what was known at the very point of authorization. By the time Team Mueller had been set up, Crossfire Hurricane had been ongoing for nine months. Why would Rosenstein not ask for a written statement of progress on the investigation--on what basis it had been started and what, if anything had been learned? In long running FBI investigations that is a required practice. When renewal FISA applications are prepared, the same procedure is followed. How could it possibly be that no such document was prepared for Rosenstein's consideration before authorizing a Special Counsel?

The failure to take such basic steps points beyond incompetence to actual conspiracy to abuse official authorities.

Considerations pertaining to the second admission--that Rosenstein was unaware that SSA Pientka had intended to close the Flynn investigation as early as January 4, 2017--follow the same pattern. Why would Rosenstein not have demanded to view the supposed predication for each of the named subjects of the Team Mueller witchhunt? Never mind the closing EC in the Flynn case, that didn't actually go out--what about the opening EC? On what basis did Rosenstein make the decision to continue the investigation of Flynn, months after the Logan Act pretext had been laughed at? This isn't rocket science. Why did Rosenstein not demand a concise statement of the predication regarding Flynn, which the FBI always prepares for each of its investigations? It was there for the asking (Opening And Closing The Flynn Case), and Rosenstein was the one guy making this decision that depended totally on the actual existence of predication. Did he really open a Special Counsel investigation, sign off on the predication, notify the United States Senate that a criminal investigation was warranted--without checking the basis for such an investigation? Again, that defies all reason and points beyond incompetence. Even if Rosenstein were truly that mind numbingly stupid, surely some subordinate would have pointed out these issues to him. We know he consulted with other officials on related matters, so there has to be more here.

The bottom line for me is this. If Rosenstein is let off the hook without at least being named as an unindicted co-conspirator, then there better be some really major indictments in which Rosenstein is the witness.

UPDATE: I imagine there will be more updates, but Paul Mirengoff sums up well. After calling Rosenstein a "snake," which does seem to be a pretty fair characterization, he concludes:

... the Democrats say there’s nothing to see here. 

There’s plenty to see. However, the Senate Judiciary Committee isn’t the best vehicle for dealing with it. 

John Durham is.

The Senate simply isn't a prosecutive body. It's more suited to broad brush style investigations, and in that sense they made some progress--if anyone was actually listening.