Deputy Attorney General Rod Rosenstein will resign from the Justice Department following the likely confirmation of William Barr to the position of attorney general, according to multiple reports from anonymous sources familiar with the details of the situation. Rosenstein, who has headed the Russia investigation since former Attorney General Jeff Sessions recused himself, appointed Special Counsel Robert Mueller himself and is widely considered to be a buffer between the president and the investigation.
The news is the latest development in the fallout from Trump’s decision to fire Jeff Sessions the morning after the midterm elections in November — a widely anticipated firing that was timed to spare his party the potential political damage the move would cause Republican candidates. Sessions’ temporary replacement, Acting Attorney General Matthew Whitaker, has played a quiet role so far despite previous criticisms of the Mueller investigation. Opponents of the president feared that Whitaker — appointed to the temporary position without Congressional approval or oversight — would himself wrest control from Rosenstein and bring an end to the investigation. While Whitaker refrained from recusing himself as Sessions did — ignoring, in the process, the advice of ethics officials — there has been no evident interference on his part into the probe so far.
While Barr, the president, and Rosenstein himself have so far remained silent on the subject, Rosenstein’s departure has been widely interpreted as a sign of the beginning of the end for the Russia probe. With direct control over its progress, Barr, who like Whitaker has publicly criticized Mueller’s efforts, could potentially bring the investigation to an abrupt end.
Last June, Barr — a private citizen then as now — took the step of sending a 19-page unsolicited memo to the Justice Department criticizing the Mueller investigation. In it, Barr argues that Mueller’s pursuit of the president on grounds of obstruction is untenable “unless the President and his campaign were actually guilty of collusion,” in which case, he says, the obstruction theory would be a “sideshow” to the real crime. Barr goes on to argue that until the investigation can provide evidence of collusion they should not be allowed to issue subpoenas to the president to answer questions about obstruction.
At the start of the letter, however, Barr concedes that he is “in the dark about many facts,” including, of course, whatever evidence Mueller might have on either of those counts. In his effort to build a constitutionally tenable argument that subpoenaing the president for obstruction — presumably for the firing of FBI Director James Comey — is illegal, he ignores the possibility that the subpoena may also be for the allegations of collusion against the Trump campaign. Insofar as the memo lays a framework for dismissing the looming threat of subpoenas from Mueller against Trump, it is suspiciously easy to interpret as a job application.
After a meeting with Barr, however, Republican Senator Lindsey Graham said that the incoming attorney general would not interfere with the progress of the Mueller probe. Barr, said Graham, has a “very high opinion of Mr. Mueller and is committed to seeing Mr. Mueller complete his job,” indicating that he would allow the investigation to come to a natural close.
It is not yet evident whether or not Barr would (or could) interfere with the special counsel’s ability to subpoena the president.
Despite having appointed Rosenstein himself, President Trump has lobbed repeated criticism at the deputy attorney general and on occasion expressed in public his temptation to fire him. In November, the president retweeted a picture of Rosenstein, accompanied by notable Democrats and opponents of Trump, behind bars. “He should never have picked a special counsel,” said Trump, when asked about the post. He did not answer the question of whether or not he would in reality fire Rosenstein.
Trump’s hostility towards the deputy attorney general reached its peak towards the end of September, when it was reported that Rosenstein, in a conversation with then-acting director of the FBI Andrew McCabe, had suggested secretly recording the president. Another source, however, said that Justice Department officials at the meeting had interpreted the comment as sarcastic, although that did not help to lighten the mood between the president and the Justice Department.
Rosenstein denied the report in the New York Times, arguing that the story was factually wrong. “I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda,” he said. “But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.” The 25th Amendment deals in part with the process for removing a president unfit for office.
Weeks before announcing his retirement,Deputy Attorney General Rosenstein sought to reassure the public in a press conference that the investigation would continue as usual despite Barr’s nomination. “Mr. Barr will be an outstanding attorney general when he is confirmed next year,” he said. Of Barr’s June memo, Rosenstein said that it reflected Barr’s “personal opinion” and had no impact on the case whatsoever.
“We have very experienced lawyers [at the Department of Justice], and obviously our decisions are informed by the actual facts of the case which Mr. Barr didn’t have,” he added. “I didn’t share any nonpublic information with Mr. Barr, he never requested that we provide any nonpublic information to him.”
At least one source, however, has told reporters that Rosenstein is not being forced out by the incoming attorney general, but instead had always prepared for a two-year tenure at the department. Another possibility is that the Mueller investigation itself is independently approaching its conclusion, which Rosenstein has reportedly told other officials is the time when he would like to step down.
“I know that the deputy attorney general had always planned to stay around two years,” said Press Secretary Sarah Sanders, who has throughout the ups and downs of Trump’s own public relationship with Rosenstein maintained a friendly posture towards the deputy attorney general. “He would like to help with the transition of bringing the new attorney general in. We hope that happens relatively soon. I know he wants to allow him to build a new team. He’s doing a great job and we’ll let him make any further announcements on that from here.”