Rosenstein Slams McCabe, Obstruction Theories, and “1000 Former Prosecutors”

Screen Shot 2020-06-03 at 11.31.11 AMYesterday, we did our first live blogging on a hearing with former Deputy Attorney General Rod Rosenstein.  There was a lot of broken china after the hearing was over. Indeed, the most interesting aspect was that some of the greatest damage for the Democratic narrative occurred during ill-considered questions from Sen. Mazie Hirono (D., HI) who elicited a series of answers supporting the Trump Administration and the purpose of further hearings.  Rosenstein ultimately supported the need for further investigations into FBI misconduct, supported the Durham investigation, categorically dismissed claims that Trump committed obstruction of justice, and most importantly stated that he would not have signed off on the continued surveillance under the FISA for Carter Page if he knew the truth about claims of Russian collusion.  That was just a few of the highlights.  He also dismissed objections from former FBI Deputy Director Andrew McCabe and the “1000 prosecutors” who were so widely cited as claiming that there was clear criminal conduct by Trump.

The most important moment came at the beginning of Rosenstein’s testimony when he acknowledged that there were serious flaws and misconduct involved in the Russian investigation and that, if he knew then what he knows now, he would have put a stop to it, including refusing to sign off on the continued of the FISA surveillance on Page.

He also repeated said in contradiction to the Democratic senators that he believed that there was a need for further investigation and that much more needs to be known about what occurred, including the source of “disinformation” in the Steele dossier and whether Steele was used by Russian intelligence and other sources for nefarious purposes.

On the investigation of U.S. Attorney John Durham, Rosenstein repeatedly endorsed the need to look into the entire Russian investigation and added “Attorney General Barr is trusting US attorney Durham to do that. I think that’s a reasonable decision.”

Rosenstein also acknowledged that we still need to know more about the disinformation and that an investigation is warranted on the Steele dossier and other related issues:

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 disinformation campaign. Does that concern you?

Rod Rosenstein: (01:01:33)
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.

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.

The questioning by Hirono was the Matinee moment. Hirono raised widely cited reports that Rosenstein thought Trump was so unstable that he considered wearing a wire and the removal of Trump under the 25th Amendment.  Rosenstein expressly and unequivocably denied those stories. He then supported Attorney General Barr in the determining that nothing in the Mueller report supported a criminal charge of obstruction, a view widely reported by legal experts on networks like CNN and MSNBC.

Hirono asked “did Attorney General Barr accurately present your view regarding the obstruction of justice … offense?” Rosenstein replied “Senator, I do not … believe that the evidence collected by the Special Counsel warrants prosecution of the president, that is correct.”

Thus, it was not just Barr but Rosenstein, who has been heralded by Democrats, who rejected the obstruction claim.

Hirono again interrupted him but Rosenstein persisted:

“I’m sorry, senator, that’s what I tried to answer the first time. The answer is yes, I do not believe that the president committed a crime that warrants prosecution. That’s the issue that we review as prosecutors, but-“

That is when Hirono cited the “1000 prosecutors” who signed a letter contradicting that conclusion. Many of those individuals supported other rejected claims of crimes.  Rosenstein body slammed the prosecutors and the use of such letters as some type of authoritative source. As Hirono tried to stop him, Rosenstein added that “no one” supported that view. Here is the exchange:

Rod Rosenstein: (02:29:06)
Well, senator, we have a lot more than 1,000 former DOJ prosecutors, and I don’t know whether all those people read the entire report or were familiar with all the evidence, but I was, and I believe Attorney General Barr has already explained his conclusion. Senator, I think it’s very important when we complete investigations, we reach conclusions, and the department either determines a case merits prosecution or it does not, and we determined that that case does not merit prosecution. Now, people are free to express contrary opinions, and because the report is probably-

Senator Hirono: (02:29:33)
I think I have to repeat myself again. I’ve read the Mueller report. They did not say that there was not enough evidence with regard to obstruction of justice.

Rod Rosenstein: (02:29:43)
[crosstalk 02:29:43]-

Senator Hirono: (02:29:43)
They [inaudible 02:29:43], and I disagree with Mueller. I don’t know why he didn’t come to the conclusion that there was actually enough evidence on the obstruction of justice issues but that they could not-

Mr. Chairman: (02:29:53)
Senator-

Senator Hirono: (02:29:54)
… they could not indict the president. That part is really clear.

Mr. Chairman: (02:29:57)
Thank you. Thank you very much.

Rod Rosenstein: (02:29:58)
I think, senator-

Senator Hirono: (02:29:58)
Thank you.

Rod Rosenstein: (02:29:59)
… if I may explain-

Mr. Chairman: (02:29:59)
Thank you.

Rod Rosenstein: (02:29:59)
… Mr. Chairman.

Mr. Chairman: (02:30:00)
No. That’s good. That’s-

Rod Rosenstein: (02:30:01)
I think that’s unfair, senator, because the investigation was concluded. It was appropriately reviewed. No one recommended in favor prosecution, the Attorney General and I determined the prosecution was not warranted, and that is-

Rosenstein also reaffirmed his view that McCabe was not “candid” with him while trying to avoid a direct allegation of lying.

Rod Rosenstein: (26:58)
Well, I believed, Senator, that Mr. McCabe was not fully candid with me. He certainly wasn’t forthcoming. In particular, Senator, with regard to Mr. Comey’s memorandum of his interviews with the President and with regard to the FBI’s suspicions about the President, Mr. McCabe did not reveal those to me for at least a week after he became Acting Director despite the fact that we had repeated conversations focusing on this investigation. And for whatever reasons, Mr. McCabe was not forthcoming with me about that. He has subsequently said publicly in public comments he’s made about the investigation that his team had been leading up to certain important decisions for some time. From my perspective, Senator, they’d been conducting this investigation for, I believe, approximately nine months.

There was also this statement:

Senator Mike Lee: (01:19:27)
Thank you. Now, you indicated moments ago that Mr. McCabe did not lie to you, but you also acknowledged that he was not fully candid. What’s the difference?

Rod Rosenstein: (01:19:37)
Well, lying is when you ask somebody a direct question, you get a false answer. Candor is when you are forthcoming with information that somebody needs to know, and I believe, Senator, that Mr. McCabe should have recognized that when I became acting Attorney General, I needed to know about Mr. Comey’s memos. He didn’t understand that, and he did not tell that to me until a couple of hours before they showed up in the New York Times.

Senator Mike Lee: (01:20:04)
So what and when did he tell you about the Comey memos, and when should he have done that? And also, he waited for at least a week before telling you about some of the intel-related concerns? Weren’t you his boss?

Rod Rosenstein: (01:20:19)
Correct.

Senator Mike Lee: (01:20:20)
And so he had an obligation to tell you.

Rod Rosenstein: (01:20:23)
I don’t know if he had a legal obligation, Senator, but my philosophy as a manager was that you have a responsibility to tell the boss things that you know they need to know.

Chairman Lindsey Graham then read an attack from McCabe and asked for a response. Rosenstein noted the McCabe did not reveal the information until just before an New York Times story hit.

“Lindsey Graham: (03:05:38)
“Mr. Rosenstein’s claim to have been misled by me or anyone from the FBI regarding our concerns about President Trump and the Trump campaign’s interactions with Russia are completely false. Mr. Rosenstein approved of and suggested ways to enhance our investigation of the president. Further, I personally brief Mr. Rosenstein on Jim Comey’s memos, describing his interactions with the president mere days after Mr. Rosenstein wrote the memo firing Jim Comey. Mr. Rosenstein’s testimony is completely at odds with the factual record, looks to be yet another sad attempt by the president and his men to rewrite the history of their actions in 2017. They have found in Mr. Rosenstein, then and now, a willing accessory in that effort.”

Lindsey Graham: (03:06:31)
Would you like to respond?

Rod Rosenstein: (03:06:32)
Yes. Thank you, Senator. I think one thing you need to appreciate, Senator, is that I had a very strong team working with me at the Department of Justice. I had some of the finest lawyers that I’ve ever met working with me at the Department of Justice. It was a team including Trump appointees, it included career people, I’m sure there were Republicans and Democrats and that’s why I’m confident, Senator, in what I did because I spoke with my team, not Mr. McCabe, I didn’t rely on Mr. McCabe, I spoke with my team about the actions that I was taking to make sure that they were appropriate. I did not say that Mr. McCabe misled me. Those were not my words, I think he’s responding to somebody’s question.

Rod Rosenstein: (03:07:10)
What I said was, he did not reveal the Comey memos to me for a week and that is true. And he revealed them to me only a couple of hours before they showed up in the New York Times. And he did not reveal to me that he was having internal deliberations with his team about whether to target very high profile people for investigation. And his position is he didn’t have to do that until after he had signed off on it. And that may be true under the rules as they were written at the time. But my view, Senator, was that’s the kind of thing that I needed to know. And so I haven’t accused him of making misstatements to me, I’ve simply said that he wasn’t fully forthcoming. And I think that’s accurate and I’m confident, Senator, that the folks who work with me will back me up on that.”

McCabe’s attack of course ignores that career investigators and attorneys recommended his firing for repeatedly lying to them. The Inspector General referred his case for possible criminal charges. In a glaring contradiction to the Flynn case, McCabe was never charged.

Here is the full transcript: Rosenstein testimony

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