If this is true, I’m extremely disappointed in Rosenstein. He should be fighting this tooth and nail. First, my understanding is that his remarks about recording Trump were sarcastic, but even if they weren’t, there’s no harm in discussing various contingencies in the face of a crisis which is where the DOJ found itself after the firing of Comey.
Anyone who has worked in business, politics, or the military knows that contingencies are discussed all the time – it’s called brainstorming. A group charged with finding a solution for an intractable problem is, in fact, remiss in its duties if it doesn’t brainstorm. At the beginning of the path toward a viable solution many possible courses of action are be placed on the table and then, by a process of elimination and creative thinking, the best solution is selected – it’s simply good process management to do so. It would be another matter if Rosenstein went further down the path of recording Trump (for example, a detailed memo or Powerpoint presentation was produced that showed an actual plan for doing so), but my understanding is, this is not the case.
This morning, some commentators are trying to put a good face on Rosenstein’s possible departure, saying it wouldn’t really affect the Mueller investigation that much. I strongly disagree. Mueller reports to the Attorney General (or in the present case, the Deputy AG, since Sessions has recused himself – for the purposes of this discussion, I’ll just call that person “Mueller’s boss”).
Mueller’s boss can interfere with the investigation in many ways, for example reducing the budget, denying requests to follow leads that may extend beyond the initial scope of the investigation, etc. And ultimately Mueller’s boss can fire Mueller. (see footnote 1)
In addition, following the normal line of succession, Rosenstein’s replacement replacement would be Noel Francisco, "a longtime conservative lawyer with ties to the White House. You can bet he will do Trump’s bidding.
And just as importantly, when Mueller produces his report, it goes to his boss who then decides whether or not it will be made public. I’m not sure that Rosenstein would make it public, but I’m darn sure his replacement would not. I want to read every single word of that report! (see footnote 2)
So I feel there is really no way to put a good face on this. Rosenstein’s departure would, at the least, impede the investigation and, at worst, bring it to a virtual halt and keep the findings secret.
Come on, Rosenstein, stand up and fight this!
- From Politico:
As the Justice Department authority overseeing the investigation, Francisco could narrow its parameters or deny specific requests to prevent Mueller from looking into Trump’s personal and business affairs. He would also assume control of Mueller’s budget.
(A shout out to @hippopotatomus and @dragonfly9 for calling attention to this way back in April.)
- Also from Politico:
Under the special counsel regulations guiding his appointment, Mueller would submit his report to Rosenstein, not to Congress or the public. And under those regulations, his report will remain confidential unless Rosenstein decides to release it.