I have been tweeting on the hearing of former Deputy Attorney General Rod J. Rosenstein. I will continue to update on the blog as newsworthy points are raised. Update: the hearing is now over but further analysis is available here.
Thus far we have had a lively hearing with Rosenstein who admitted that he would not have signed off on the Carter Page FISA application if he knew about the false statements and underlying misconduct from the FBI.
Rosenstein also stated that former Deputy FBI Director, Andrew McCabe, failed to inform him of critical and important information until “just a few hours” before they appeared in the New York Times.
He also acknowledged that there is evidence that the Steele dossier contained disinformation from Russian intelligence or other sources and that the Russians were trying to harm both Clinton and Trump.
Earlier Sen. Cornyn questioned Rosenstein on the reports within the FBI that the Steele dossier may have been a vehicle of the Russian intelligence services to spread disinformation. He does not disagree with footnote 350 of the IG. He does not go beyond acknowledging the evidence that it might have been a vehicle for Russian disinformation and that it needs to be investigated.
This was the exchange:
John Cornyn: (59:45)
Well, we know that Bill Priestap, who’s in charge of the counter intelligence division, said they did consider the possibility that Steele was a part of a Russian disformation campaign. But then thanks to the diligence of Senator Grassley and Senator Johnson and the director of national intelligence, we now have a copy of the less redacted footnote 350 to the inspector general report, which points out, if you can see it, that not only did a Steele have regular interaction with Russian oligarchs, but that there was a potential for Russia disinformation influencing Steele’s election reporting. It did not have high confidence that the sub-sources for Steele’s reporting and assessed that the reference subset was part of a Russian disinformation campaign to denigrate US foreign relations.
John Cornyn: (01:00:50)
Mr. Rosenstein, it strikes me that Mr. Putin must be extraordinarily pleased with how this all played itself out. Not only was Hillary Clinton and her campaign disparaged, not only was President Trump and his campaign disparaged and put through what can only be described as hell for the last three-and-a-half years of an investigation, when in fact the source of some of the information that was used not only to secure a FISA warrant but to conduct a counterintelligence investigation, may in fact have been part of a Russian disnformation campaign. Does that concern you?
It concerns me very much, Senator. I’m in a bit of a disadvantage. As you know, I was in the job for only two years. I’ve been gone now for about 13 months, so I don’t have access to any information that’s been generated through the Durham investigation. I do not know what Attorney General Barr has discovered with regard to that, but I think it’s important, senators, for us to keep in mind that it is established, I believe, that Russia’s efforts included disparaging Hillary Clinton, as you said, that that doesn’t mean Russia is on the other candidate side. Russia is on Russia’s side. I think we should be just as concerned if there’s evidence that they were disparaging or attacking, trying to undermine President Trump as we were about their activities with regard to Secretary Clinton. I don’t know the answer to it, but I am concerned about it.
John Cornyn: (01:02:20)
I agree with you. The point I was trying to make is the Crossfire Hurricane investigation based almost entirely on the allegations of Christopher Steele and the sources he provided, which may have in fact been part of a Russian disinformation campaign, which has successfully divided the country and created a lot of chaos in the ensuing three-and-a-half years.
Rod Rosenstein: (01:02:45)
If I could just follow up on that. Senator, whether it’s Russian disinformation or other disinformation, I think the FBI needs to figure out where did it come from, why was it submitted and were any crimes committed. I think that’s an appropriate area of investigation. I just don’t know what the evidence reflects.
Sen Cruz just said that he believes Rosenstein was grossly negligent in his handling of the investigation. Rosenstein said that he did not know about the discrediting of the Steele dossier or the fraudulent filings of an agent or the fact that the Steele dossier was paid for by the Democratic National Committee and the Clinton campaign.
Cruz just asked Rosenstein about the Logan Act which he correctly described as a flagrantly unconstitutional act and its reliance by the FBI. He is right that its use should have been laughable. I have repeatedly written on the aspect.
Rosenstein responded that Flynn was targeted because they believed that Flynn had lied to the Vice President. He entirely failed to respond to the Logan Act question.
Sen. Klobuchar is up and vehemently objecting to the comparison of Obama to Nixon by Sen. Cruz.
Klobuchar again refers to the fact that the Russians interfered with the election and former Trump associates were convicted of other crimes.
Sen. Hawley is raising the FISA courts own statements against false statements to the court. Hawley confronted Rosenstein for signing off on an application with at least 17 false statements.
Rosenstein made his first misstep in saying that four judges signed off on the application. That is hardly an answer. Those judges do not actively pressed the FBI on whether the facts are true.
Rosenstein said that there is a legitimate question of “why it happened?” That would seem to support the hearing that Democrats are denouncing.
Rosenstein agreed that the conduct of the FBI in the case was “certainly a threat” to the system of justice and court process with regard to FISA.
Rosenstein agreed that “we need to find out what went wrong.” He did a good job in dealing with Hawley who repeatedly interrupted him in saying that he is appearing today to be “accountable.” Rosenstein insisted that “yelling at me will not solve the problem.”
Sen. Coons did a better job in getting Rosenstein to say that he does not agree that the Russian investigation was a “witch hunt” and that he does believe that it has a valid purpose.
Rosenstein contradicted Coons on his statement that there is no precedent for withdrawing a plea like Flynn. He said that he did not know on specific precedent but that there have been prior cases of withdrawing from prosecutions. I have written on that point.
I thought Coons did well but I will do not understand the opposition to the hearing given Rosenstein’s own testimony that he believes that there is still a need to get to the bottom of these issues, including new information released after the IG investigation.
Sen. Tillis is up. He is now defining “hoax” under the Oxford dictionary as well as a “witch hunt.”
Tillis noted that Page, Strzok and others were on what he described as his “hand-picked teams.” Rosenstein says that those people should be “held accountable.”
Tillis is again pressing on Rosenstein calling McCabe’s omissions as a lack of candor. Rosenstein did not respond beyond saying that he would not speculate on McCabe’s state of mind.
Rosenstein just told Sen. Blumenthal that “he is open to the possibility” that he might not have appointed Mueller but, what he knows today, he would still have appointed him.
What is interesting is that Blumenthal noted that he did not vote for Rosenstein because he refused to say that he would appoint a Special Counsel at his confirmation. He was the only vote against Rosenstein in Committee. His position at the time was entirely improper. He was demanding, as a condition for confirmation, that Rosenstein agreed to take an official action without knowing the full facts. Later he would appoint a Special Counsel. However, Blumenthal’s position at the time was outrageous given the need to review the record before making such a decision.
Sen. Ernst is up.
She raised his extension of surveillance on Page on June 29, 2017 but the fact of the surveillance was already in the media and Page knew it. Yet, the FBI continued the surveillance. Rosenstein just said that “it is a valid question” but that he was told that they still believed the third extension of the original warrant was needed. He confirmed that he raised that fact that they would be continuing to monitor and surveil despite that fact that Page was fully aware that he was being monitored and surveilled.
Rosenstein said that he did not view Page’s surveillance as intruding into political discussions because Page was no longer working on the campaign.
Sen. Hirono is up.
She is discussing the Floyd case.
Hirono raised reports that he discussed wearing a wire or using the 25th Amendment to remove Trump.
Rosenstein denied he was involved in any conspiracy against Trump but Hirono cut him off to ask about specific statements.
Rosenstein denied secretly recording President Trump and “never in any way suggested the President could be removed under the 25th Amendment.”
Hirono seems to be making a case for the Administration. She just prompted Rosenstein to say that he agreed with the view that there was no evidence of obstruction of justice. She then dug deeper and Rosenstein just said that “he agrees that there was no evidence of a crime” by Trump.
Hirono continued to dig deeper. She pressed Rosenstein on how a 1000 prosecutors disagreed with him. Rosenstein just said “we have a lot more than 1000 former prosecutors.” He said that while they did not know the full record, he did. Hirono cut him off again. Rosenstein said it was unfair. “Nobody was in favor of prosecution.”
Sen. Crapo is up.
He got Rosenstein to agree that the Inspector General did in fact find bias but that he could not prove that bias was the reason for decisions.
Crapo noted that the IG could only ask the people if their bias impacted their decision and there is obviously no documentary evidence to prove how the bias impacted decisions. Crapo noted that the IG said it was “inapplicable” that all of these errors could occur without bias.
Rosenstein agreed that this was “an important issue.” He then deflected the question on his view. He agreed that bias was found. Rosenstein said that he felt Attorney General needs to still address the issue.
Sen. Booker is up.
He is also opposing any continuing inquiry into the misconduct in the Russian investigation. He is questioning Rosenstein on whether he watched the Floyd killing and prior task forces.
Sen. Kennedy is up.
He is going through the emails on hostile writings against Bernie Sanders and Trump form Page and Strzok. Not a family show on the language.
He has said that they were decision makers “navel deep” in Crossfire Hurricane. Not sure I would call Page a decisionmaker or even particularly “senior.”
Kennedy noted it is “easier to divorce a spouse than get someone fired.” However, he pressed Rosenstein on why he did not ask harder questions. Rosenstein said that he is correct on Horowitz’s conclusion on bias. He said that when he saw the evidence, they transferred Strzok and Page left the department voluntarily.
Sen. Graham followed up on why there was no “Woods procedure.” [A Woods Procedures (named for Michael Woods, the FBI official who drafted FISA rules) are designed for a review to “ensure accuracy with regard to … the facts supporting probable cause” after recurring instances.]
Rosenstein said it was a fair question but that they did conduct some review.
Kennedy returned with a question about Flynn and the threat of Mueller to indict Flynn’s son to pressure him to plead guilty. Rosenstein said that he was under the impression that Flynn had lied. He said he was unaware that the agents actually said that they did not believe that Flynn intentionally lied to them. He said that this is something for Barr to investigated.
Sen. Blackburn is up.
She went to McCabe and the finding that he lied three times according to career investigators. She asked why McCabe was not criminally charge like Flynn. Rosenstein refused to give an opinion.
She then turned to Flynn. Rosenstein said that he does not accept that Flynn was a target because he was a close adviser to Trump.
She raised the Stevens case that we previously discussed. Rosenstein refused to discuss what should be done in Flynn.
Blackburn said that she still does not know if the Obama Administration intercepted her calls in working on the transition team.
Graham did say that he does not believe that Rosenstein was part of a conspiracy but asked him to respond to a statement from McCabe. McCabe called Rosenstein’s claims of being mislead are “completely false” and that Rosenstein was “fully briefed.” McCade calls it a “sad attempt” using Rosenstein as a “willing accessory.’
Rosenstein said that he has not accused McCabe of “misrepresentations” but that he was “not forthcoming” and withheld important information. He stands by the statement that “for whatever reason” he withheld information that he (Rosenstein) had a “right to know.” Graham said that he will ask McCabe to testify.
Graham gaveled the hearing to a close at 1:17.
Ironically, the most damaging testimony against the Justice Department came from the questioning by Sen. Hirono who is proof of the long-standing rule in litigation to avoid questions that you do not know the answer to.
It was also curious to have Sen. Sheldon Whitehouse criticizing the holding of a hearing on the conduct of the Justice Department while criticizing the lack of transparency at the Justice Department. I have long taken a simple approach to oversight. The more the better. The motivations of oversight may be partisan but these hearings (as with today’s hearing) offer needed insights into alleged abuse. Whitehouse is entirely correct that his own questions and inquiries need to be answered. However, that point would be more powerful if he was steadfastly opposed to pursuing these very allegations of bias and abuse, even as the witness says that there is more to be investigated and resolved.