1. A few thoughts on the Rosenstein story:
First, the Times headline and lede are surprisingly, and regrettably, far too credulous and unequivocal, asserting that RR in fact made serious suggestions about wearing a wire and moving toward use of the 25th.
@adamgoldmanNYT @nytmike
First, the Times headline and lede are surprisingly, and regrettably, far too credulous and unequivocal, asserting that RR in fact made serious suggestions about wearing a wire and moving toward use of the 25th.
@adamgoldmanNYT @nytmike
2. As @adamgoldmanNYT and @nytmike explain, however, their account is not based on interviews w/anyone who actually heard RR, but instead with "people briefed either on the events themselves or on memos written by F.B.I. officials, including Andrew G. McCabe."
@just_security
@just_security
3. Perhaps RR meant those things--but there's no particular reason in the Times account to think so, and it's almost inconceivable he'd be so stupid and/or naive to make such suggestions seriously in that setting.
4. Whether he meant the comments seriously or was speaking facetiously doesn't really matter now, however, because the leak has already served both of its evident purposes: (i) to further discredit anything Mueller/DOJ/FBI does in the eyes of the Trump base; and ...
5. ... to give Trump a facially plausible pretext to remove RR. And what happens if Trump does fire RR? Unless & until the Senate confirms a new DAG, *most* of RR's duties/functions would be performed by PADAG Ed O'Callaghan. But *not* oversight of the Russia/SDNY investigations.
6. Those are ordinarily the AG's functions, not the DAG's, and unless there's been a change, DOJ's view is that the AG's functions/duties can't be performed by an "acting" officer (i.e., no "double-acting"). So the responsibility to oversee those investigations would fall to ...
7. ... Solicitor General Noel Francisco. Francisco, however, is probably recused from the Russia investigation (at a minimum), because Jones Day, his former firm, represents the Trump Campaign (unless there's been a change). NF has recused from all SCOTUS cases ...
8. ... where Jones Day represents a party, including in the new Term. If NF recuses from supervising Mueller, and any other investigations involving the Trump campaign, those AG functions presumably would be performed by Assistant AG for OLC Steve Engel.
9. Sessions, by the way, can't fire Rosenstein--only Trump can. But of course an AG can always *ask* a DAG to step down, and such a request is virtually always honored.
10. What if Trump fires RR *and* Sessions? Well, if he removes Sessions, the default would be that RR performs the AG functions--and if there's no confirmed DAG (e.g., because RR is fired, too), then it's Francisco, except Engel where NF is recused. HOWEVER, ...
11. DOJ has almost surely advised Trump that he can alternatively replace Sessions "temporarily" under the VRA with *any* Senate-confirmed officer from *any* Executive branch agency/office, e.g., Mick Mulvaney. That Acting AG would then supervise Mueller/SDNY (and all else).
12. And he or she could do so for at least seven months, and perhaps much longer if the Senate doesn't confirm a new appointed AG. To be sure, there are two or three serious, unresolved legal questions about the legality of such use of the VRA, but it's unlikely any court ...
13. ... would rule on them for many months, if at all, and no certainty that the "acting" VRA appointment would be declared invalid. In the meantime, the Acting AG probably couldn't, as a practical matter, shut down the investigations, but he/she certainly could ...
14. ... gum up the works by, e.g., refusing to approve decisions about prosecutions/pleas/subpoenas/reports/etc. that RR would have permitted Mueller and SDNY to make.
1a/ In response to many reader reactions: I *don't* think it was wrong for @adamgoldmanNYT and @nytmike to run the story, even if they knew their sources were anti-RR--it's an important account of how flummoxed and outplayed he was early on (which he's overcome, by all accounts).
1b/ My criticisms are only (i) that the second- or third-hand sourcing isn't revealed until four grafs in; and (ii) that the headline and lead three grafs don't reflect the authors' uncertainty of the seriousness/facetiousness of RR's statements.
7a/ UPDATE: If today's (Monday's) tea leaves are any indication, it appears Francisco would supervise the Russia investigation, which might mean, e.g., that Francisco was recusing from Jones Day client matters for only one year (he just passed that milestone).
