President Trump is hoping the newly declassified GOP memo alleging bias in the FBI’s Russia investigation will help him build a public argument against how one official handled the case: Deputy Attorney General Rod J. Rosenstein.
Rosenstein is the one who appointed special counsel Robert S. Mueller III to investigate Russian meddling in the 2016 presidential election shortly after Trump fired James B. Comey as FBI director, and reports suggest he has been in Trump’s crosshairs ever since.
But if the president wants to fire Rosenstein, it’s not clear how this memo would help him do it, legal experts say. Rosenstein wasn’t a part of the original decision to spy on Trump campaign adviser Carter Page, which happened before Rosenstein was in the job. And he’s not the one who approved subsequent spying; only federal judges on a secret court can do that.
But the memo wastes little time mentioning the deputy attorney general. His name is cited in the third paragraph as one of six FBI and Justice Department officials who signed off at least one application to continue to spy on Page.
Again, though, Rosenstein isn’t the one who approved the spying. Rosenstein approved an application to ask a federal court to renew the surveillance on Page, and he was just one in a dozen-ish officials and layers of security required to sign off on the surveillance of a U.S. citizen.
A secret court must renew surveillance on a U.S. citizen every 90 days. Former FBI agent Asha Rangappa said the Justice Department must prove to those judges that the surveillance is providing useful, ongoing intelligence showing their subject is acting on behalf of a foreign power. “The bar is very high,” she told The Fix earlier this week.
About halfway through the four-page memo, Rosenstein’s name is mentioned for the second and final time, as someone who worked “closely” with a Justice official whose wife worked for the same company that hired ex-British spy Michael Steele.
The memo alleges that Steele told Ohr he was “desperate that Donald Trump not get elected and was passionate about him not being president.” The memo also alleges that intelligence officials knew of Steele’s professed bias but didn’t include that information in any of its applications to spy on Page.
So why is Rosenstein’s name mentioned here? The memo doesn’t directly make the connection, but it leaves open the possibility that Rosenstein might have known of Steele’s bias.
It’s a very open-ended insinuation, one that’s barely there at all.
And whatever case the memo might be trying to make against Rosenstein is blunted by the memo itself. It is being criticized by legal experts, Democrats, intelligence officials and even some Republican members of Congress as inaccurate and misleading.
In fact, the memo draws such shaky lines between Rosenstein and Russia that it’s worth asking whether it was drawn up for the purpose of firing Rosenstein.
Trump has talked about it before. He has tweeted his displeasure with Rosenstein’s role in appointing the special counsel as far back as June.
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt
— Donald J. Trump (@realDonaldTrump) June 16, 2017
Hours before the memo was released Friday, he tweeted again, attempting to explain that the memo should be released because it proves bias at the top of the Justice Department.
The top Leadership and Investigators of the FBI and the Justice Department have politicized the sacred investigative process in favor of Democrats and against Republicans – something which would have been unthinkable just a short time ago. Rank & File are great people!
— Donald J. Trump (@realDonaldTrump) February 2, 2018
So, was this memo put together to fire Rosenstein? That’s almost certainly a question that Mueller, the special counsel Rosenstein appointed, will want to answer, said white-collar lawyer Jeffrey Jacobovitz.
“Mueller would likely wonder whether this memo is pretextual in an effort to fire Rosenstein,” Jacobovitz said.
But if Trump wants to use this memo to fire Rosenstein, he would have a lot more explaining to do.
Or not. As president, Trump can fire people who work in the executive branch for whatever reason he wants. Take FBI Director James B. Comey, whom Trump fired in May because of, he said, “this Russia thing.”
“Trump and this administration see little reason for justifying their actions,” said Carl Tobias of the University of Richmond law school. “And so any excuse, however trivial and unpersuasive, can be enough to support a substantive decision or one to dismiss a high-ranking public official.”
Trump certainly hasn’t ruled it out. When reporters asked him point blank Friday in the Oval Office whether he was going to fire Rosenstein, Trump responded cryptically: “You figure that one out.”