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Marcy Wheeler: Rosenstein’s Ouster Would Not Necessarily Signal End of Mueller Investigation

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Drama unfolded Monday when Axios reported that Deputy Attorney General Rod Rosenstein verbally resigned over the weekend amid mounting tension over the investigation by special counsel Robert Mueller into Russia’s role in the 2016 presidential election. Last week, Rosenstein and White House Chief of Staff John Kelly met at the White House hours after The New York Times reported Rosenstein had suggested secretly recording Trump in the White House and discussed recruiting Cabinet members to invoke the 25th Amendment to remove Trump from office for being unfit. But on Monday, Trump confirmed Rosenstein still has a job, and said the two are scheduled to meet this Thursday. “I think that once Mueller got Paul Manafort’s testimony locked in, … to some degree, it was too late for Trump to completely undermine this investigation,” says Marcy Wheeler, in response to concerns that the Trump administration could shut down Mueller’s probe. Wheeler is an independent journalist who covers national security and civil liberties and runs the website EmptyWheel.net.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: We turn now to the drama that unfolded Monday when news outlet Axios reported that Deputy Attorney General Rod Rosenstein had verbally resigned amidst mounting tension over the investigation by special counsel Robert Mueller into Russia’s role in the 2016 presidential election. Some of the confusion began last week, when Rosenstein and White House Chief of Staff John Kelly met at the White House hours after The New York Times reported that Rosenstein had suggested secretly recording Trump in the White House and discussed recruiting Cabinet members to invoke the 25th Amendment to remove Trump from office for being unfit.

But for now, Rosenstein still has his job. White House spokeswoman Sarah Sanders tweeted Monday that Trump and Rosenstein, quote, “had an extended conversation to discuss the recent news stories.” Trump, who is in New York for the U.N. General Assembly, told reporters he would meet with Rosenstein on Thursday when he returns to Washington.

PRESIDENT DONALD TRUMP: I’m meeting with Rod Rosenstein on Thursday, when I get back from all of these meetings. And we’ll be meeting at the White House, and we’ll be determining what’s going on. We want to have transparency. We want to have openness. And I look forward to meeting with Rod at that time.

AMY GOODMAN: Rosenstein has denied that he ever planned to record Trump or weighed invoking the 25th Amendment. He called the Times report “inaccurate and factually incorrect.” Some have said his remark about wiring the president was sarcastic.

To talk more about this and what it could mean, we are continuing with Marcy Wheeler.

What does this mean for special counsel Robert Mueller’s Russia investigation, which Trump has called a witch hunt? Marcy Wheeler is an independent reporter with EmptyWheel.net. Explain what took place, what unfolded.

MARCY WHEELER: So, New York Times story comes out, makes these claims, leaves out key details, such as that this discussion, whether it happened or not, happened after, for example, Trump admitted firing Jim Comey because of the Russia investigation, gave the Russians Israeli intelligence, had a chummy meeting with the Russians with no U.S. press there. And then this whole furor comes out of whether or not Rosenstein is going to be fired or not. Some discussion of that Friday between John Kelly and him. Monday morning, something we’ve seen in the past from John Kelly, which is reports coming out that somebody has resigned in an attempt to stave off a firing. And that’s critically important in the case of Rosenstein. And the press picks it up, as if he’s already resigned, and then reports from DOJ saying, “No, he’ll be forced to be fired.”

What happens is, of course, Rosenstein is overseeing Mueller’s investigation. He gets to sign off on indictments. He gets to sign off on the scope of the investigation. And if he is fired, then it’s not entirely clear who becomes Mueller’s boss. Probably it’s the solicitor general, but it might be the OLC head.

AMY GOODMAN: Because Sessions has recused himself.

MARCY WHEELER: Because Sessions has recused himself. Or Trump could then fire Sessions and rebuild his entire DOJ around getting out of this investigation. Who knows? We don’t know what’s going to happen. But the key point is, if Rosenstein resigns, Trump has more flexibility about who oversees Mueller. If he is fired, then—

AMY GOODMAN: But if he resigns, he can hold—he can put in someone for eight months without them being approved by Congress. But if he’s fired?

MARCY WHEELER: Then you go to the line of succession. So then you have the very conservative solicitor general, who’s not a big fan of special counsel investigations but who does believe that, under certain circumstances, the president can be criminally investigated.

JUAN GONZÁLEZ: But then there are questions as to whether the solicitor general would have to recuse himself. Why?

MARCY WHEELER: Because he worked for the Trump campaign, Jones Day, so there’s a conflict with Trump’s one-time defense attorney and with the solicitor general’s past time. So then it would go to the OLC head.

JUAN GONZÁLEZ: But now you’ve also tweeted that Robert Mueller, who appears to be one step ahead of everyone, may have already factored this in to what might happen, and may already have developed a plan for rolling out future indictments.

MARCY WHEELER: Yeah. I mean, three things. One is they have known that they’re under threat of this happening for a year, and therefore it’s clear they are thinking about succession patterns. We’ve seen Mueller kind of handing off parts of the investigation, whether indictments that have already been taken are sent off to other prosecutors. Michael Cohen is now cooperating with Mueller, but also with SDNY, the federal prosecutors here in Manhattan, and also with New York state. And all of those are investigations that would target Trump, and only the Mueller investigation would be affected directly by a Rosenstein firing.

And then the question you’ve got to ask is, if you could decide who would make better use of a 3-day warning that Rosenstein was going to get fired, would your money go on Trump, or would it go on Robert Mueller? I mean, he’s got three days to put into place plans of what’s going to happen if Rosenstein is fired on Thursday. I think that once Mueller got Paul Manafort’s testimony locked in, which happened about 10 days ago, I think, to some degree, it was too late for Trump to really completely undermine this investigation.

AMY GOODMAN: And do you think he did that because he was afraid something like this could happen?

MARCY WHEELER: Well, I think the timing of that was largely dictated by Manafort’s second trial coming up and by whatever else the prosecutor showed him about what was coming down the pike on the conspiracy case in chief. But regardless, you know, back in January, Trump was telling people, “I’m safe because Paul Manafort is not going to flip on me.” Paul Manafort has now flipped on him. And so, it may be too late for Trump to—short of shutting down the entire DOJ, it may be too late for Trump to completely avoid, if not him, then people like Don Jr. and Roger Stone being in serious trouble.

AMY GOODMAN: If Rod Rosenstein leaves the DOJ, the person who would likely supervise special counsel Robert Mueller is the solicitor general, Noel Francisco, a Republican lawyer who once worked with Ted Cruz on the legal team supporting President George W. Bush during the 2000 Florida recount. Francisco’s old law firm, as you said, Jones Day, now representing Trump. He’s been described as a Trump loyalist, a skeptic of the FBI. In 2016, he co-authored an op-ed in The Wall Street Journal shortly before the election that accused the FBI of using a double standard for dealing with Democrats and Republicans, saying it was conducting, quote, “ambush interviews,” “immuniz[ing] only witnesses who can help deliver convictions” and “investigat[ing] and charg[ing] all potential crimes.”

MARCY WHEELER: Yeah. I mean, I think that, again, Mueller is probably far enough along such that Francisco can’t decide the scope of where you’re going. Mueller is already kind of spinning off parts of the investigation and, importantly, spun off both Greg Craig, a very senior Democratic lawyer, and Tony Podesta for investigation here in New York. And so, it’s not like Mueller is sparing the very, very prominent Democrats that come in his path, either.

I think that there certainly will be questions going forward if Rosenstein is fired, but don’t forget, I mean, Rosenstein is himself a very conservative person. He knows Brett Kavanaugh from back when they worked on the Starr investigation together, the Whitewater investigation, so it’s not like we’re dealing with any screaming liberals here. These are all conservative people, and they, I think, all will do things to prevent a runaway investigation, but I’m not clear that they’re going to overturn a very well-substantiated prosecution, and that seems to be what Mueller is running.

JUAN GONZÁLEZ: And what about the person who was supposedly the top law enforcement person in the land, Jeff Sessions, in terms of what he would do in the eventuality of Rosenstein leaving or being fired? Because he has said in the past that he would guess that he could not stay on if that happened with Rosenstein.

MARCY WHEELER: Yeah, I mean, I think everybody, on all sides, are sort—and I’ve heard this—I’ve actually heard this from a pretty senior Republican—everyone is just trying to get through the midterms. And I think everyone expected that Rosenstein would be fired shortly after the midterms. Trump didn’t want to do it before the midterms because it would dramatically affect the elections. And he may not fire him on Thursday—we’ll see—for that reason, because it will make Trump look more guilty as we go to the polls in November.

But I think that, you know, Mueller has always been four or five steps ahead of certainly where Trump is, and I do think that his investigation is at a point where, yes, I mean, the president has a tremendous amount of power, so, yes, he could find a way to shut that investigation down, but the steps he would have to take at this point to do so are going to be such that, particularly if he takes them before the election, there’s going to be some significant political repercussions, you know, aside from everything else that’s going on.

AMY GOODMAN: When you started by saying, you know, that report in The New York Times, which you’re referring to, Friday night, about Rod Rosenstein that has led to all of this—but you just said “that report in the Times,” I thought you were talking about that report not actually in The New York Times but The New Yorker on Sunday night. And the reason is—and that, of course, had to do with Kavanaugh—you have the second person accusing Kavanaugh of sexual assault, and on this day, you have this chaos. You don’t know if Rosenstein is resigning, if he’s fired, if he’s called the White House. And then Trump, they say, that Rosenstein, this will all culminate on Thursday. Of course, that is the day of the Kavanaugh-Ford hearing, that Trump will come back from being here in New York—he’s giving his U.N. General Assembly speech today—and he will come back Thursday and have this meeting with Rosenstein. And it has succeeded in at least dividing the news on all of the networks. It would have been 24 hours a day on Kavanaugh, which he couldn’t stand, and now Avenatti says another woman is going to come forward, and now you’ve got this Rosenstein thing, which may not lead to something on Thursday.

MARCY WHEELER: Right. And, I mean, that’s Trump’s only way of managing things that he can’t control, is creating this press chaos, right? There’s an entire day between here and Thursday. And who knows—I mean, Michael Avenatti says that the next victim is going to come forward on Wednesday. But it’s also not clear—I mean, ultimately, the Kavanaugh thing comes down to Senator Collins and Senator Murkowski. And Collins has come close to saying, “I’m really close to making a decision.” If she—

AMY GOODMAN: Even Jeff Flake, wouldn’t he? And he’s on the committee, the Judiciary Committee.

MARCY WHEELER: Right, he’s on the committee. And I’ve heard of at least one other Republican who is not necessarily a solid vote, for entirely different reasons. So—

AMY GOODMAN: Who is that?

MARCY WHEELER: I’m not going to say, because then Republicans will go after him. It’s a male senator who no one is talking about. But, you know, I think that we’ll see whether Thursday really matters anymore. If more victims come forward, if more Republicans come out and say, “We’ve heard too much about this candidate, and we need somebody who can be trusted by the American people,” who knows? It’s a whole day away, and given the news cycles these days, that seems like an eternity.

AMY GOODMAN: We’ll leave it there. I want to thank you so much for being with us, Marcy. Marcy Wheeler, independent journalist who covers national security and civil liberties, runs the website EmptyWheel.net, usually in Michigan, today in our New York studio.

This is Democracy Now! When we come back, we’ll talk about Puerto Rico. On this first anniversary of Hurricane Maria, President Trump still denies the number of people who died, and now has added a new comment in the swirl around Puerto Rico. Stay with us.

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