Last week, lawyer Paul Rosenzweig wrote a piece for the Atlantic titled “Firing Rosenstein Won’t Save Trump.” Trump hasn’t yet fired Rod Rosenstein, the deputy attorney general who is also functioning as acting attorney general for the Russia investigation (after Attorney General Jeff Sessions recused), but last weekend was full of reports about the president’s rage at Rosenstein and others in the Department of Justice, and it feels like it’s only a matter of time. However, as the New York Times reported on Friday, Trump’s allies believe the biggest threat to his presidency may arise from matters seemingly unconnected to Russia: specifically, the DOJ examination (via the U.S. Attorney’s Office for the Southern District of New York) of his lawyer and fixer, Michael Cohen, whose office and residence were raided last week and who is expected to appear in court Monday.
I recently spoke by phone with Rosenzweig, a former senior counsel in the Starr investigation of President Clinton and a senior fellow at center-right think tank the R Street Institute, to try and decipher what moves Trump might contemplate as his legal situations worsens.
Isaac Chotiner: Your piece essentially said that firing Rosenstein would not solve Trump’s Russia-related problems because a new deputy attorney general would not oversee the Russia probe. As you write, “even if Trump were to appoint a loyalist to replace Rosenstein as acting deputy attorney general, until that person were confirmed by the Senate, he or she would not actually be the deputy. As a result, he or she could not be the acting attorney general for purposes of supervising the Mueller investigation.” Instead, it would be the next-in-line person for the role of acting attorney general, Noel Francisco. But now that Trump and his allies are saying that potentially his biggest legal issue is the Southern District of New York raid on Michael Cohen’s office, and given that Rosenstein in his deputy role oversaw those raids, are you worried about Rosenstein being fired?
Paul Rosenzweig: You are correct to say that the deputy’s oversight of criminal investigations generally is stronger and that any acting deputy attorney general [Trump installed] would have some role. On the other hand, U.S. attorney’s offices traditionally have a fair amount of independence. The U.S. attorney himself is also a Senate-confirmed individual, and the Southern District of New York is unique in the degree to which it both asserts and exercises that independence. Its nickname is the “sovereign district” of New York because it is well-known for ignoring the Department of Justice whenever it wants to.
In general, the deputy would have to affirmatively reach out to disrupt the U.S. attorney’s office investigation in ways that are not normal and would be called into question if he did.
Was the reason that Rosenstein oversaw the Cohen warrant because Sessions had recused himself from all campaign-related activity and not just all Russia-related activity, or was it because that’s just a job that the deputy attorney general usually takes?
My understanding is it’s the latter. The deputy attorney general has a role in FISA warrants and in warrants that search attorneys’ [offices]. He would have a similar role if the investigation were ever to ask about issuing a subpoena or conducting a warrant to the media, for example. Those types of actions require high-level departmental approval, and Rosenstein does that not in his capacity of acting attorney general but in his capacity of the deputy who has the final say in most of the day-to-day operations of the department.
Let’s say Rosenstein is replaced. You’re saying it would be difficult for a new deputy to meddle in the SDNY investigation of Michael Cohen—but if someone wanted to do that, what forms could that take?
Well any number of forms ranging from the simple forms of refusing approvals when requested to the more-intrusive forms like moving around resources, telling the FBI that it should reassign—of the 30 investigating agents, [sending] 20 of them to go do bank fraud in South Dakota tomorrow. Things of that nature. He could certainly play some games in that regard. At his strongest, he could direct the U.S. attorney’s office to close the investigation, but that would be one of these really strong acts that would certainly generate a lot of notice and would be highly unlikely, even for a Trump loyalist.
You’ve laid out a pretty convincing case for why firing Rosenstein would not make Trump’s troubles go away. The other possibility we’ve read about is that Trump could fire Jeff Sessions and install someone who’s already been confirmed by the Senate for another position, and who could take over the attorney general job without another confirmation battle that Trump would have trouble winning, especially for a crony. Trump would then have an attorney general who had not recused himself from anything and would be able to meddle at will with both the Mueller investigation and other investigations. Is that something that you’re concerned about?
Well, it’s certainly feasible and an avenue that one could take. I’m less worried about it now than I was a month ago, because a month ago, the leading candidate for that appointment to replace Sessions was Scott Pruitt, and Pruitt is now damaged goods for independent reasons unrelated to Mueller or Sessions or anything like that. If you look around, amongst the senatorial confirmed people who are also lawyers capable of taking the job, you have to think to yourself, who amongst them is such a loyalist, such a sycophant that Trump would trust him with this job?
And correct me if I’m wrong, but wouldn’t that person be at risk of being charged with obstructing justice?
That’s one of the reasons why they would be unlikely to take it. If they were to fire Mueller, they could be impeached, they could be investigated for obstruction by somebody else. There’s lots of ways this could go wrong. I could have imagined Mr. Pruitt doing this, doing the president’s bidding. If you look around the Cabinet, most of the rest of them aren’t lawyers, so that kind of is the first essential qualification.
You have to be a lawyer? Trump couldn’t just say who cares if the person is not a lawyer?
That’s a great question. The statute says that the attorney general is the chief legal officer of the United States. I have always assumed that that means that you have to be a lawyer. I don’t know.
When you were working with Ken Starr, were there times when you came across things or people in your office came across things that were then referred to other parts of the Justice Department, as appears to have happened here with Cohen?
Yes, but it was less frequent because we were independent. But we did run across some information that related to the then-ongoing investigation of foreign contributions to the [Bill] Clinton campaign, mainly the Clinton finance investigation, which was run by the Department of Justice, not by an independent counsel. My recollection is that we, or the FBI more accurately, shared that information when they found it as part of our investigation with the relevant parts of the FBI that were conducting the John Huang investigation—John Huang being the name of the Chinese person who was making the contributions.
So despite what Trump allies are saying, Mueller referring it is the normal course of events for something like this?
I think it is absolutely the normal course of events. Far from being abnormal. I mean the abnormal was that … perhaps this is a deeper dive than you care for, but the abnormality was the constant expansion of Ken Starr’s jurisdiction. It started with Whitewater, and then it became Travelgate and then it became, there was another gate there. He had four separate investigations before he got to Lewinsky. Oh, the Vince Foster suicide, right? Essentially Janet Reno kind of treated him as the ombudsman for all things Clinton, which in my personal opinion, now reflecting on 20 years, was a mistake on Reno’s part to ask him and a mistake on Ken Starr’s part to accept.
You mention in the piece that you know Noel Francisco, who would be next in line to oversee the Russia investigation if Rosenstein is fired. What’s your sense of him and do you have any larger concerns?
I don’t know him well enough to be very sure of this, but my general sense of him is that he will be like Rosenstein, which is to say that if he actually takes the reins, he won’t be doing anything different from what Rosenstein has been doing, which has been essentially letting Mueller go appropriately where he should. That’s my guess. My larger fear is simply that whenever these events happen, instead of reacting appropriately and negatively, Congress yawns, and thus implicitly validates the president’s misconduct and emboldens him to the long-term detriment of accountability in the executive branch.