President Donald Trump woke up on Friday and decided to publicly confirm that he is under criminal investigation—and to put his deputy attorney general in the line of fire.
After 48 hours of Trump’s allies lobbing allegations of illegal “deep state” leaks and fake-news hit jobs, Trump took to Twitter and corroborated a Wednesday report by The Washington Post that he is the target of a federal investigation into potential obstruction of justice after firing FBI Director James Comey.
“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” Trump wrote, apparently referring to Deputy Attorney General Rod Rosenstein. Since Rosenstein is the senior Justice Department official overseeing the inquiry after Attorney General Jeff Sessions recused himself.
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Trump has stewed with anger at the Justice Department over the Russia probe, to the point where Sessions had reportedly offered his resignation. For his part, Sessions testified to the Senate on Tuesday that he was merely concurring with Rosenstein when he assented to firing Comey.
“He’s furious at Rosenstein, but the list of his people who enrage him is ever-growing,” a longtime Trump confidant, who recently spoke to the president, told The Daily Beast. “He has no qualms about throwing [Rosenstein] under a bus.”
That single tweet threatens to upend the administration’s legal and public-relations strategies surrounding an FBI probe into alleged Russian election-meddling that has expanded in recent months to include an obstruction investigation and a probe of the finances of Trump aides and associates.
A frustrated senior Trump administration official quipped in response to the tweet, “Has anyone read him his Miranda rights?” The implication being that Trump would do well to remain silent on the issue of his own criminal investigation.
Officials spoke on the condition of anonymity so as to speak freely.
Trump digs hole, keeps going
The escalation of the probe is packed with irony. Trump’s insistence that he was not personally under investigation led him to fire the man leading the probe, which ensured a special prosecutor, which ensured Trump came personally under investigation. Now, in raging against circumstances his actions brought about, Trump has given Mueller another building block for the investigation.
“It’s clear that this tweet has not been vetted by his [Trump’s] attorney,” said former federal prosecutor Renato Mariotti. “In addition to confirming that he is under investigation, the tweet makes a factual statement regarding the president’s decision to fire James Comey, which is a subject of the investigation. You can bet that when the president testifies regarding his role in Comey’s firing, he will be asked about this tweet.”
Mueller will inevitably investigate the exact circumstances leading to the Comey firing, which he is likely to interview both Trump and Rosenstein—now in conflict with each other—about.
Even Trump’s senior aides blame the president for bringing the obstruction inquiry upon himself and the White House.
“The president did this to himself,” one senior administration official told The Daily Beast on Wednesday.
In recent weeks, the president has become increasingly convinced that forces in the FBI and the “deep state” are “out for his scalp,” as one White House aide described it. This sentiment is shared by some of his closest advisers, including his chief strategist Steve Bannon.
One senior White House official told The Daily Beast that the Trump tweet was directed, of course, specifically at Rosenstein. The official noted that it reflects what the president has been venting privately for the past couple of days regarding the “irony” of Rosenstein having a role in the sacking of Comey and his current role in the investigations that have taken over as Trump’s main obsession.
The line, according to the White House official, is emerging as one of President Trump’s preferred talking points and complaints.
Another White House official said Friday morning that they are not shocked anymore whenever the president goes off script during early-morning tweetstorms, and for “all the heartburn and misery” they might cause internally, senior aides and advisers should all have a tough callus at this stage in the presidency.
“If you haven’t made this a settled factor in your morning routine, why are you still here?” the official asked, rhetorically.
But while the president is stewing, the White House is still trying to maintain its official separation from dealing with the fallout from the investigation. Instead they’re directing press inquiries to Trump’s personal lawyer.
Asked to clarify that Trump’s tweet was referring specifically to Rosenstein, White House deputy press secretary Sarah Sanders told The Daily Beast: “Best to contact Marc Kasowitz and his team for all questions related to this matter.”
Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee, took it as a direct threat to the deputy AG.
“I’m growing increasingly concerned that the president will attempt to fire not only Robert Mueller, the special counsel investigating possible obstruction of justice, but also Deputy Attorney General Rosenstein who appointed Mueller," she said in a statement.
Can or should Rosenstein stay?
Former Justice Department officials said that Trump’s tweet has put Rosenstein, who just months ago enjoyed a sterling reputation, in an untenable position. At the minimum, Rosenstein is likely to come under overwhelming pressure to recuse himself from his role overseeing special counsel Robert Mueller’s investigation of Trump.
A former senior DOJ official said Trump’s tweet accuses Rosenstein of lying to Congress. Trump claims Rosenstein “told me to fire the FBI Director!” Shortly after Comey was fired, Rosenstein said in a statement to Congress that the memo said was "not a statement of reasons to justify a for-cause termination," even though he “thought it was appropriate to seek a new leader" for the FBI.
"The question is, is this a bridge too far for Rod?" the former official said.
The last time the White House characterized Rosenstein as the hatchet man, he “drew a line in the sand,” as the official put it, and reportedly threatened to resign. Shortly after, Trump told NBC News that he would have fired Comey regardless of Rosenstein’s memo.
Still, it's undeniable that Rosenstein's memo aided Trump in firing Comey. That means the senior Justice Department official responsible for Mueller's investigation is also a likely witness in that investigation.
“It’s long seemed to me that Rosenstein would inevitably have to recuse himself in this investigation, because he was a witness to the events surrounding the firing of James Comey and may have participated in the firing of Mr. Comey,” Mariotti continued.
“This latest statement by the president may hasten Rosenstein’s recusal or put pressure on Rosenstein to step aside or step down.”
Rosenstein has quietly acknowledged that he may need to step aside, according to ABC News. He has already testified to a House panel that he is in consultation with Justice Department ethics officials to determine if his recusal is necessary.
“You don’t recuse yourself from an investigation because a subject of the investigation is accusing you of misconduct,” said Ed Dowd, a former U.S. Attorney who helped run the special counsel investigation of the Waco raid. “This may be putting pressure on Rosenstein to say, ‘Do I really need this?’ It may be putting pressure on him to get out, but that is not a proper reason to recuse himself, there’s no question about that.”
“It should not have an effect on him in terms of recusing himself. He should not recuse himself based on tweets by someone who’s under investigation”
It has been a spectacular fall for Rosenstein. As recently as February, pillars of the legal establishment breathed a sigh of relief when the highly respected prosecutor became deputy attorney general. Instead, they have watched in horror as he wrote a legal memo in May at Trump’s request that was widely seen as a pretext for firing the FBI chief. Brookings Institution scholar Ben Wittes, editor of the influential legal blog Lawfare and a friend of Comey’s, has speculated that Rosenstein might have given Trump the “loyalty” assurance the president sought unsuccessfully from the ex-FBI director.
As respected as Rosenstein was, he also has a reputation for ambition. The view of him in legal circles, according to a former Justice Department official who wished to remain anonymous, is, “he’s wanted to be the DAG [deputy attorney general] for a long, long time.”
Should Rosenstein recuse himself—or lose his job—the next Justice Department official in line to oversee the Mueller probe is Associate Attorney General Rachel Brand, who was legal-policy chief in the George W. Bush-era department and more recently served on the government’s privacy watchdog, the Privacy and Civil Liberties Oversight Board. The conservative Brand has a reputation, former colleagues say, for extreme intelligence and integrity. Of course, the same used to be said of Rosenstein.
