Bang, Bang, Boom: The Risks Of Firing Rod Rosenstein


Below is my column in The Hill newspaper on the danger of President Donald Trump firing Deputy Attorney General Rod Rosenstein. Reports still indicate that Trump is pushing to fire Rosenstein — a move that would seriously undermine both his political and legal position.

Here is the column:

There is an old military adage that, if you only have a hammer, every problem looks like a nail. In the case of President Trump, he has a myriad of options but he seems to constantly reach for the same blunt tool. That much is obvious from the chatter in the White House that Trump is actively looking for someone to fire after the FBI raid on the office and hotel room of his personal attorney, Michael Cohen.

It is a recurring theme throughout the Russia investigation. Now, Steve Bannon, the man Trump has described as someone who “lost his mind,” is reportedly encouraging Trump to fire Deputy Attorney General Rod Rosenstein, stop cooperating with special counsel Robert Mueller, and bunker down for an open fight on executive privilege.

It is dangerous advice not only because it could be an unmitigated disaster for Trump, but he might actually do it. Bannon and others know which tool Trump prefers. Despite the catastrophic decision to fire FBI director James Comey, and thereby triggering Mueller’s appointment, various advisers are suggesting that this proven self-destructive tactic might improve with repetition. We have heard it before. Bang, bang, boom.If Trump is seriously considering firing Rosenstein, or even Mueller, this would be the longest, steepest learning curve in history. Like many, I am no fan of Comey, who I thought could have been legitimately fired when Trump took office and has, since being fired, acted in highly unprofessional ways. Indeed, Comey faces serious contradictions with his prior testimony and may have violated federal laws in his leaking of information to the media.

Moreover, I was opposed to the appointment of a special counsel for months because I failed to see the basis for a specific crime by Trump. That changed when Trump fired Comey after a series of meetings in which he purportedly pressured Comey on the Russia investigation. Reports indicate that the vast majority of top advisers opposed the firing, including Bannon. One exception was Jared Kushner, who supported the ruinous move. That was all Trump needed. Out came the hammer and bang, bang, boom.

I still do not see the criminal case against Trump on allegations like collusion. Had Trump left the investigation alone and allowed Comey to finish it, it likely would have been completed by now without a criminal charge for Trump or close associates. Instead, it has consumed his administration because this was never a nail problem. The idea of many is that Trump could fire Rosenstein and put someone in his place who would be hostile to Mueller and his investigation. While many have noted that Attorney General Jeff Sessions might also resign in protest, that could be an inducement rather than a deterrent for Trump.

The problem is that Trump would have succeeded in recreating Nixon’s “Saturday Night Massacre” without the underlying crime. After a year, there is little direct evidence of a crime by Trump of any kind. However, what evidence has been cited on obstruction is largely due to Trump banging away at this investigation. It is like a guy who bolts every time a car alarm goes off. Police have a reason to pursue. With both houses now at risk of switching parties, Bannon and others are setting up Trump for an impeachment trial. While I still question the basis for either an indictment or impeachment, that will not matter if Trump hands his critics what they most desire: a direct act to curtail or end the Russia investigation.

I have previously written that I view the referral of the Cohen matter to the U.S. attorney for the Southern District of New York to be a threat to Trump because it could induce Trump to make a reckless move. Before the referral, Trump was in a good place legally. His status had not changed, and he was not a target of the investigation. He was listening to counsel and prepping for a sit-down with Mueller on four well-defined points. Now he appears unlikely to do so and could move aggressively into the open, when he should stand still under ample legal cover.

It is no accident that this turn of events is driven, again, by Cohen, the very personification of a blunt tool. Trump appears to like Cohen not for his undemonstrated legal talent but for his demonstrated loyalty. He also is someone who has a long history of threatening people and charging ahead without thinking of the consequences. His decision to activate the arbitration clause in the Stormy Daniels controversy is an example of taking a hammer to your client’s own head. The last place Trump needs to be is in court with a former porn star, litigating one of the worst-drafted nondisclosure agreements ever put to paper.

Now various political supporters in the media want more of the same. It will not work. First, Mueller still would have to be terminated for cause by the attorney general or his designate. If Trump tried to fire Mueller directly, Mueller could refuse to recognize the act under existing regulations and force a court fight. Second, even if the special counsel investigation ended, the Southern District investigation would continue against Cohen. Third, even if Trump combined firings with pardons, all of this evidence likely would be sought by a congressional impeachment committee and could trigger the reinstatement of the Independent Counsel Act.

It would be better to have prosecutors conclude that there was no obstruction or collusion under objective standards of the criminal code. If you force all of this into the impeachment process, members of Congress are allowed to reach their own conclusions on what constitutes a high crime and misdemeanor, including nebulous theories of obstruction. Without the investigation, they would be unburdened by a countervailing finding by the prosecutors.

In the movie, “Thor: Ragnarok,” the Norse god Thor is distraught because he cannot use his signature hammer and his incredulous father, Odin, asks, “What are you, Thor, god of hammers?” The same question could be raised with equal force to Trump. We did not make him “president of hammers.” He has more powerful and sophisticated tools available to him. Of course, Trump can listen to Bannon and others and just bang away, but he may build a criminal case against himself even though there was no original crime. Fire Rosenstein, fire Sessions, fire Mueller, and more nails will appear. In the end, his presidency could end to a familiar cadence of bang, bang, boom.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

267 thoughts on “Bang, Bang, Boom: The Risks Of Firing Rod Rosenstein”

  1. Enigma, I have another video for you to think about the next time you start to put on your activist hat.

  2. Mr. Turley’s shameful failures to speak out about the heinous abuse of civil liberties renders any of his commentary useless and pointless. He will say anything, and I mean anything, to promote the Deep State anti-American agenda.

    However, there ARE some attorneys that manage to have a voice in the mainstream media who do have some integrity, such as Alan Dershowitz and Joe DiGenova. Their views are far more meaningful and relevant than any gutter-tripe from Mr. Turley.

    1. If, in your opinion, Mr Turley expresses “gutter tripe” what are you doing here? Punishing yourself?

      Cordially, Bill

      Note: That I did not bother to point out that the “Deep State” is a myth perpetuated by addled adherents of our depraved and demented President does in no way mean that I now endorse it.

      1. While it is true that Mr. Turley has a propensity to deliver gutter-tripe opinion pieces, I otherwise have the highest respect for him.

  3. What are the risks of the leadership of the DOJ/FBI “deep state” imposing an “insurance policy” against a duly elected President as a coup d’etat?

    1. Internally you have to wonder if they knew someone else was going to monitor their communications or at the very least dig those texts up later. I assume their arrogance was couched in a smug feeling that they could break the law as long as it helped the white hat players, aka the Clinton team.
      I’d say if impeachment starts I’d push for treason charges against those you have mentioned.

    2. George

      The risks are nil since the “Deep State’ is a fiction put forward by the none too bright minions ( see Hannity, Sean) of our depraved and demented President.

      You can come out from under your bed in perfect safety.

      Cheers, Bill

      1. Actually, the ‘Deep State’ was a term IIRC used by students of Turkish politics. It hasn’t been current here, but it is an academic or quasi-academic term.

        Here, you used to see the term ‘permanent government’. What was interesting in Wisconsin a half-dozen years ago and is dismaying here, is the degree to which institutions of state with real missions were turned into lawfare operations against the political opposition, so you had the Milwaukee District attorney and the Government Accountability Board in Wisconsin and you have Andrew McCabe and his crew here, now transferred to Robert Mueller’s command. Again Mueller, Comey, and Rosenstein have spent the bulk of their careers at the Department of Justice. Ditto McCabe. Without a doubt, the interests of their fraternity is what they’re pursuing. With scant doubt, Clan Bush is pleased with this turn of events, as well as fragments of the Capitol Hill nexus in the Republican Party and the Republican commentariat.

        1. The “deep state,” nowadays, is a racket run by disgruntled malcontents who call themselves whistleblowers because they used to work for the dreaded “deep state” before they were reduced to earning a living by feeding fake news to the tin-foil hat conventioneers. They get away with it because every last classified tidbit up in the known universe would have to be declassified in order to refute every last lame-brained conspiracy theory that the tin-foil hat conventioneers crank out with the fake news that the disgruntled deep-state whistleblowing malcontents feed them. And that is the necessary price we must all pay for keeping the vital national security interests of The United States of America safe and secret.

          1. …And if what Diane contends to be true about DNC computers then the DNC is directly responsible for our national security teams inability to get to the source of the problem. The DNC didn’t turn over its computers to the proper authorities that could see how Russia was obtaining our secrets or determine the hack was from a party other than Russian intelligence.

        2. Nutchacha,

          Here’s a current definition, and IMHO the way the term is in general use today:

          “The Deep State is believed to be a clandestine network entrenched inside the government, bureaucracy, intelligence agencies, and other governmental entities. The Deep State supposedly controls state policy behind the scenes, while the democratically-elected process and elected officials are merely figureheads.”

          http://www.dictionary.com/e/politics/deep-state/

          In other words, a whacky conspiracy theory.

          Cordially, Bill

            1. Were these four conspiring together, or just exchanging emails on what a disgraceful lout Trump is?
              Were they aiming at an overthrow of the government?

              Not unsurprisingly, I find that far fetched…

      2. Wildbill, if you don’t recognize the reality of the Deep State, then you’re simply uniformed or you chose to remain ignorant. The term “Deep State” is a relatively new one, but the underlying apparatus for which it’s been named has been around for a long, long time. I’d say that the best original study of the subject was performed by David Wise and Thomas Ross in the 1963 classic, “The Invisible Government.” The Invisible Government was one of the original terms. You may still be able to get the book at your local library, but it’s also available at Amazon: https://www.amazon.com/Invisible-Government-David-Wise/dp/0394430778/ref=sr_1_1?s=books&ie=UTF8&qid=1523780357&sr=1-1&keywords=the+invisible+government+david+wise.

        1. “The Invisible Government”. and the “Deep State”. are not interchangeable terms. Wise’s book concerned clandestine operations by the CIA and other intelligence organizations during the Cold War. No one doubts that these occurred, but to extrapolate that into a interlocked conspiracy to secretely control the government is, I’m afraid, tin beanie-Infowars territory.

          Cordially, Bill

  4. We had to put the Genie back in the bottle after Nixon, we’ll have to do it post Trump. In any case let’s put some stress on the system to see what it can handle and then back down from there. The actually stroke fest for attorneys is part of their job.
    All congress seems capable of ,with the exception of Rand Paul, is to be subservient courtesans to whomever they drag before their committees to give themsleves more slack for their own criminal behavior.

          1. The Kagan, brothers, David Addington, Bill Kristol, John Yoo, anyone related to Richard Bruce Cheney to challenge the parameters of presidential power and stick it to congress and the DOJ.
            He’s the President of the United States. The most powerfull badass on the planet.
            When Trump said grab them by the pussy he can reuse that staement to mean Congress, the male members.
            Who cares if he uses a hammer?

              1. I have said this before and I’ll say it again, you should call yourself SMS, Sister Mary Stigmata, aka “The Penguin”.
                I’ve been waiting for you to fly accross the room to rap my knuckles.
                So gald you’re back.

            1. Jay, I’ve noticed that too.

              Plus there seems to be a depressing lack of morals or decency in Trump.

              Have a fine Sunday, Bill

  5. Here’s an interesting revelation that has been under-reported due to the drama in Syria.

    It turns out Michael Cohen has been the subject of a months-long Federal probe by the Federal Attorney’s office for Southern New York. Cohen, it appears, is being heavily scrutinized for activities unrelated to the Russia Probe.

    In other words, the raid on Cohen’s office wasn’t just a Hail Mary Pass by Robert Mueller.

    https://www.npr.org/2018/04/13/602278477/trump-attorney-cohen-is-subject-of-months-long-federal-criminal-investigation

    1. PeterHill..,
      – Some of the emails between Felix Sater and his close friend Michael Cohen have been leaked.
      Sater evidently was the “man on the ground” in Moscow trying to put together a deal for a Trump Tower in Moscow.
      It’s been reported that Cohen emailed a Putin aide in early 2016 in an effort to advance the stalled Moscow project.
      At this point, we don’t know what other emails there might be, and what the investigators have in their possession.
      Pushing for the deal in Moscow, by itself, doesn’t seem to be illegal. Just counter to what Trump said about” having nothing to do with Russia”.
      But if there’s additional evidence/ emails mentioning Russian officials in the context of the election campaign, or any evidence of a quid pro quo type of arraigment uncovered, that would be central to the investigation.
      So far, none of the indictments have directly linked any kind of conspiracy with Russia to the Trump campaign itself.
      Sater’s history as an informant could turn out to be another factor in the investigation.
      Mueller team member Andrew Weissman was involved in Sater’s 1998 plea deal, so that history might influence how this investigation proceeds.

      1. Congratulations, Tom Nash. Your use of the little big word “if” is most impressive. You could be on a roll. If so, keep in mind that business meetings can function as cover stories “plausibly deniable cash payments to Russian hackers”–an allegation against Cohen from the Trump-Russia dossier, not to mention one of Cohen’s “specialties” as a lawyer. Oops. Maybe Cohen was better at NDA’s with Russian hackers than with American porn stars. Or not.

        1. L4D,..
          -When there is a solid basis to start with, then I will look at where things might be heading.
          In this case, we have as a starting point leaked emails that raise suspicions.
          That is known, not conjecture.
          Then I followed that by stating a reasonable assumption that there are likely to be more emails, given the nature of the roles and relationship of the two people involved in the project ( Moscow Trump Tower).
          When I point out that there is excessive conjecture, it’s because the starting point is based on nothing but speculation.
          Followed by more speculation.
          Then a pyramid of a house of cards, which all starts and ends with guesses.
          That is the key difference to me; if there are known factors, not guesses, as a foundation for projecting where things might be heading, I don’t mind seeing or expressing views about “what comes next”.

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