In May 2017, then Deputy Attorney General Rod Rosenstein agreed to assist President Trump in an effort to fire James Comey as FBI director despite Rosenstein’s knowing beforehand that the president had devised a false cover story to conceal the fact that he was firing Comey for his oversight of the FBI’s Russia investigation, according to previously confidential White House records and interviews with former and current government officials familiar with the matter.
In this previously unreported episode, President Trump gave Rosenstein a draft of a letter to then FBI Director Comey, in which the president justified his firing of Comey with a concocted story claiming that, at the beginning of his presidency, Trump had retained Comey on a probationary or trial period only, because of what he described as poor job performance by Comey. After reading this draft letter, Rosenstein agreed to write a memorandum for the president severely criticizing Comey’s handling of the FBI’s investigation of Hillary Clinton’s use of a private email server while she was secretary of State. The White House used Rosenstein’s memo as its initial public rationale for Comey’s firing.
The Mueller Report mentioned this draft letter that Trump gave to Rosenstein, but quoted only portions of two sentences of its text. Trump stated in the letter that Comey had “asked [the president] at dinner shortly after inauguration to let [Comey] stay on in the Director’s role, and [the president] said that [he] would consider it,” but the president ultimately had “concluded that [he had] no alternative but to find new leadership for the Bureau—a leader that restores confidence and trust.”
I was able to read the full draft of that letter, and two earlier drafts, as well as notes made by Stephen Miller, a senior policy adviser to President Trump, who helped the president write the various drafts. The Trump administration has refused to provide these records to Congress, citing claims of executive privilege.
In these documents, President Trump claimed that Comey sought a private dinner with the president in an effort to keep his job. In one early account, Trump quoted Comey vowing to earn the president’s trust to retain his job, with the president concluding that Comey had underperformed in a number of ways, including failing to have the FBI more aggressively identify and prosecute leakers. Mueller’s investigators were later able to discount most of these claims—a conclusion that Trump’s own advisers seemed to have drawn themselves, since the claims were largely absent from the letter that Trump ultimately sent to Comey firing him.
The documents are clearly relevant to Congress because they demonstrate that Rosenstein was a far more crucial witness for the special counsel’s office than was previously believed—creating a conflict of interest since Rosenstein also oversaw the special counsel’s work. They also raise additional questions about whether Justice Department ethics officials understood the full extent of this and other conflicts of interest for Rosenstein while they allowed him to continue to oversee the special counsel’s inquiry, and whether Rosenstein provided those officials with a full account of those conflicts as they made their assessment.
The most consequential decision that Rosenstein made in overseeing Mueller’s work was to join with Attorney General William Barr, after the special counsel finished his work, in determining that the Justice Department would not bring criminal charges against President Trump for obstruction of justice—even though, as I previously reported, some of the special counsel’s own staff believed that the president may have violated the law. By joining Barr in deciding that there was insufficient evidence to charge the president on obstruction of justice, Rosenstein helped foreclose any possibility that Trump would face criminal charges once his term of office was over.
The same decision by Barr and Rosenstein also made it far more difficult for members of Congress to begin an impeachment inquiry of President Trump. Rarely in American history has a decision by two non-elected public officials had such consequential impact.
Much of Mueller’s investigation focused on whether President Trump obstructed justice while attempting to derail and sabotage investigations by the FBI and Justice Department, and later, the special counsel’s investigation into Russian interference in the 2016 presidential election. One episode in particular that the special counsel scrutinized as a potential obstruction of justice by the president was the firing, in May 2017, of James Comey as FBI director.
At Trump’s request, Rosenstein wrote a memo asserting that Comey’s alleged mishandling of the FBI’s investigation of Hillary Clinton’s use of a private email server made it “unlikely” that the FBI would be able to “regain public and congressional trust” until Comey was removed as FBI director. The president, Vice President Mike Pence, and other senior administration officials exploited Rosenstein’s letter as the pretext for the firing of Comey. Only after Rosenstein told then White House Counsel Don McGahn that he would not continue to support such a cover story did the president admit that he’d fired Comey for his role overseeing the Russia investigation.
Rosenstein’s dual capacity as both the senior Justice Department official overseeing the special counsel’s investigation and a crucial witness to that very same investigation led several former senior Justice Department and FBI officials, as well as leading experts on legal ethics, to question Rosenstein’s refusal to recuse himself from overseeing the Mueller investigation. These comments from Daniel Hemel, an assistant professor at the University of Chicago Law School, summarize that view:
It goes without saying that no Justice Department employee should participate in a criminal investigation if he is himself substantially involved in the conduct that’s under investigation. The subject of Mueller’s investigation (or at least, one significant subject) is whether Trump fired Comey to obstruct justice and then tried to cover it up by enlisting Rosenstein. How is Rosenstein not a person “substantially involved” in that?
Despite this, many Justice Department officials did believe that, irrespective of the rules, Rosenstein should continue to oversee the investigation because he was the best placed and most qualified person to protect the autonomy and integrity of the probe from interference or sabotage by both President Trump and the White House.
In deciding whether to oversee the investigation, Rosenstein consulted with a wide array of officials. Among them were the Justice Department’s ethics officers, his own senior advisers, and other career Justice officials whose advice he valued. The ethics officials, Rosenstein has publicly said, supported his overseeing the investigation, even though neither Rosenstein nor the department has made public relevant information about that decision-making process or the reasoning and legal rationale that went into it.
In at least two meetings with then FBI Deputy Director Andrew McCabe shortly after Comey’s firing, McCabe strenuously urged Rosenstein to recuse himself from overseeing the Russia investigation, advice that Rosenstein ignored. Rosenstein and McCabe also clashed over whether Rosenstein should appoint a special counsel to take over the investigation—with Rosenstein initially resisting the idea. But McCabe found an ally in James Crowell IV, Rosenstein’s then chief of staff, two people familiar with the matter told me, and within days Rosenstein came around to their point of view and appointed Mueller as special counsel.
Two Justice Department officials who were party to the decision to allow Rosenstein to oversee the Russia investigation told me that they and other officials involved were not given certain crucial pieces of information at the time—knowledge that would have led them and others, they said, to push for Rosenstein to recuse himself from the investigation.
The first piece of this missing information concerns Rosenstein’s knowledge of Trump’s fabricated story about why he was firing Comey. In the draft letter Trump gave Rosenstein, the president directed his invective at Comey for refusing Trump’s repeated calls on Comey to say that the president wasn’t personally under investigation as part of the Russia investigation. During a May 3, 2017, Senate Judiciary Committee hearing, Comey declined to answer specific questions from senators about the Russia investigation, but also refused to “rule out anyone in the Trump campaign as potentially a target of the criminal investigation,” including “the president of the United States.” This was the exact opposite of what Trump had wanted—and expected—Comey to say.
In fact, these comments that so enraged the president had been pre-authorized by Rosenstein and other Justice Department officials. Two federal law enforcement officials with first-hand knowledge of the matter told me that a senior Justice official, Dana Boente (who is now the general counsel of the FBI), advised Comey that he should not in his congressional testimony deny either that the president was under investigation or that such an investigation could be ruled out in future. Rosenstein, who had begun his new job as Deputy Attorney General on April 26, also signed off on Comey’s May 3 testimony. As best I could determine, Rosenstein never informed the president that he himself had approved the statements Comey gave to Congress that so aggravated Trump and made him more determined to fire the FBI director. Six days later, Trump did so.
Trump gave a copy of the draft letter to Rosenstein during a May 8, 2017, meeting in the Oval Office at which Trump outlined his plans to fire Comey. Present at the meeting were several senior officials then in office: White House Chief of Staff Reince Priebus, White House Counsel Don McGahn, Attorney General Jeff Sessions, and Deputy Attorney General Rosenstein. At some point, it was proposed that Rosenstein draft a memorandum questioning Comey’s tenure as FBI director. Rosenstein returned to the Justice Department with Trump’s draft termination letter.
Since 1976, when FBI directors began to serve ten-year terms, no FBI director had ever been placed on a probationary period by a president. Any longtime federal law enforcement official like Rosenstein would have found extremely implausible the notion that Comey would have accepted such an arrangement as a condition for remaining in his job. Rather than make such a claim, Trump instead used the memo that Rosenstein wrote about Comey’s alleged mishandling of the FBI’s investigation of Clinton as a pretext to fire Comey.
Investigators for the special counsel later concluded that the “probationary” gambit was a cover story devised by Trump to conceal the fact that he had fired Comey because of the Russia investigation. The president’s own advisers had removed that assertion from the draft letter because they, too, believed it to be implausible and untrue. Although it is unclear whether Rosenstein knew in May 2017 that Trump’s draft letter was a falsehood, Rosenstein was certainly told this later when he was briefed on the matter while overseeing the special counsel’s investigation.
Even if Rosenstein had any lingering doubt, this should have been resolved when he read a draft of the Mueller Report before it was officially delivered to Attorney General Barr, for the report also described the genesis of the claim. In doing so, the Mueller Report paraphrased White House senior policy adviser Stephen Miller, who worked with President Trump to draft the letter firing Comey, as saying that “the President wanted to establish as a factual matter that Comey had been under a ‘review period’ and did not have an assurance from the President that he would be permitted to keep his job.”
The second piece of missing information for some of the Justice Department officials who advised Rosenstein that he need not recuse himself from overseeing the Mueller investigation was that they did not know that the special counsel was investigating then Attorney General Jeff Sessions for perjury and lying to Congress about meetings with a Russian diplomat during the 2016 presidential campaign. (The special counsel later concluded that there was “insufficient” evidence to charge Sessions, though, as I reported recently for the Daily, Sessions had sufficient anxiety about the matter when he was still attorney general that he ordered subordinates to make misleading statements to the media about it.) In fact, Rosenstein had—in an order that was confidential at the time and has since been declassified—explicitly authorized the special counsel on October 20, 2017, to investigate “allegations that [Attorney General Jeff Sessions] made false statements to the United States Senate.”
Thus Rosenstein, as deputy attorney general, was overseeing the work of a special counsel conducting a criminal investigation of Rosenstein’s immediate supervisor, the attorney general of the United States. Department of Justice ethics regulations say that “no DOJ employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.” Undoubtedly, such a rule applied in this instance: Rosenstein was overseeing a “criminal investigation”—authorized by his own order—of Sessions, clearly a person with whom he had “a personal or political relationship.” Yet Rosenstein did not recuse himself at that point, either.
The final version of the president’s public letter to Comey, firing him, was all of six sentences long. “It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission,” Trump wrote, echoing Rosenstein’s memo, which said that the “FBI [was] unlikely to regain public and congressional trust” while Comey was still FBI director.
Annie Donaldson, then chief of staff to White House Counsel Don McGahn, wrote in her contemporaneous notes, apparently based on what McGahn had told her, that it would be better for the White House to offer “no other rationales” for Comey’s firing besides Rosenstein’s memorandum and Attorney General Jeff Sessions’s endorsement of it. As for the president’s draft letter firing Comey, she hoped that it would “not [see the] light of day.”
Then Donaldson pondered: “Is this the beginning of the end?”