Rosenstein’s Departure Is a National Emergency
Special Counsel Robert Mueller’s investigation is now in mortal peril.
Updated on September 24 at 2:06 p.m. ET
You know those signs that say In case of emergency, break glass?
This is that emergency.
President Donald Trump will reportedly soon fire Deputy Attorney General Rod Rosenstein, the man who has most directly protected the independence of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election. Trump’s efforts to compromise that inquiry mean that Rosenstein’s position has been in peril for some time, but a report last week in The New York Times that Rosenstein had suggested wiretapping the president—potentially sarcastically—made it likely that Trump would seek to push Rosenstein out.
After a morning of contradictory reports, it now seems that Deputy Attorney General Rod Rosenstein will remain on the job at least until Thursday. The topsy-turvy story—and the still uncertain ultimate outcome—remind of a core lesson of the Trump years:
What happens to U.S. institutions is not something only to watch. An energized public can deter the administration’s worst instincts—whether those are to browbeat a woman alleging sexual abuse or to fire Rosenstein and suppress the Mueller investigation. Since the firing of James Comey at the beginning of his administration, President Trump has flinched from direct confrontations with those trying to uphold the rule of law. It all depends on his sense of the risks of public outcry in the media and at the polls.
If the president can browbeat Rosenstein into resigning—or even plausibly misrepresent the firing as a resignation—Trump gains the power to bypass the Senate confirmation process under the Federal Vacancies Reform Act. He can replace Rosenstein with any serving official previously confirmed by the Senate to any other job.
The issue of “Did he resign or not?” is likely to end up being adjudicated by the Senate Judiciary Committee—the same body that has proven itself so uninterested in getting to the true bottom of the allegations against Brett Kavanaugh, Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court.
The Trump White House has spread confusion in the past about whether appointees quit or were fired. After Secretary of State Rex Tillerson purportedly resigned, Chief of Staff John Kelly told a roomful of reporters an especially humiliating account of how he had in fact terminated Tillerson.
At Veterans Affairs in March, the Trump White House executed an opposite maneuver, claiming that ousted Secretary David Shulkin had resigned when in fact he was fired.
But those past confusions were motivated usually by spite, vengefulness, or ordinary political butt covering. This time, the highest political and constitutional issues are at stake. If Trump can sell the claim that Rosenstein resigned, he can buy himself substantial impunity for many months—months in which the GOP may lose control of the Senate altogether. By the time a new Senate can reassert authority over the Department of Justice, the Mueller investigation may be long dead.