Acting AG Whitaker, Mueller’s Investigation, and the Rosenstein Memo

November 8, 2018 Updated: November 13, 2018

News Analysis

Attorney General Jeff Sessions resigned on Nov. 7, at President Donald Trump’s request, and was replaced on an acting basis by Matthew G. Whitaker, who had been Sessions’ chief of staff.

Deputy Attorney General Rod Rosenstein, however, remained in his current position.

An anonymous official with the Department of Justice (DOJ) told The Washington Post that Whitaker would assume authority over the probe by special counsel Robert Mueller into Russian interference in the 2016 presidential election. Rosenstein had previously been responsible for overseeing the special counsel investigation as the result of Sessions’ prior recusal on all matters relating to Russia.

Sessions technically wasn’t fired. He resigned at the president’s request in an undated letter.

Some people have suggested that the resignation request was designed to prevent Rosenstein from succeeding Sessions, per DOJ succession processes.

Deputy Attorney General Rod Rosenstein walks to his vehicle after a meeting at the White House on Nov. 7, 2018. (Mark Wilson/Getty Images)

But there are two problems with this logic. First, Sessions didn’t resist Trump’s resignation request. More importantly, it wouldn’t matter if Sessions had done so. Per a March 31, 2017, executive order, the president retains the full authority to appoint whomever he desires as acting-attorney general within the boundaries of the Vacancy Act:

“(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Attorney General.”

Trump’s executive order was a last-minute reversal of an executive order issued by President Barack Obama on Jan. 13, 2017, that altered the line of succession within the DOJ. Obama’s action wasn’t done in consultation with the incoming Trump administration.

The president clearly needed an attorney general who isn’t hindered by recusal issues. Rosenstein would have been an unlikely choice precisely because of his prior involvement with all things Mueller.

Transition Prepared?

On Oct. 8, 2018, following reports that Rosenstein reportedly suggested that he secretly record the president in May 2017, Trump said he had no plans to fire Rosenstein and the two traveled to Florida together on Air Force One.

The alleged comments by Rosenstein reportedly occurred at a meeting where then-acting FBI Director Andrew McCabe was “pushing for the Justice Department to open an investigation into the president.” The remark, disputed by Rosenstein, was reported in a New York Times article that was sourced from memos from the now-fired McCabe.

On Oct. 15, Sessions announced the formation of a new working group known as the Transnational Organized Crime Task Force, that was created to focus on five specific groups:

  • MS-13
  • Cartel de Jalisco Nueva Generacion (CJNG)
  • Sinaloa Cartel
  • Clan del Golfo
  • Lebanese Hezbollah

Rosenstein was appointed to lead the newly created task force. Working underneath Rosenstein are separate subcommittees for each of the target groups, each led by an experienced prosecutor.

This was a major assignment, given the priority that Trump has given to the topic. It appeared to indicate a shifting of responsibility as Sessions had previously been leading the prosecutorial effort on MS-13. Notably, the appointment occurred after Trump’s Oct. 8 affirmation of Rosenstein, following their meeting on Air Force One.

This appointment hints at a pre-planned succession occurring in the weeks prior to Sessions’ formal resignation.

Rosenstein, along with FBI Director Christopher Wray, was already heading up the DOJ’s Leak Task Force, which was initiated on Aug. 4, 2017.

Scope of Mueller Probe

Two days prior to Rosenstein’s appointment to the Leak Task Force, on Aug. 2, 2017, Rosenstein secretly issued Mueller a revised Scope of Investigation & Definition of Authority memo that remains heavily redacted. On this same day, Wray was named the new FBI Director.

The full purpose of the Rosenstein memo, which was disclosed in an April 2 court filing by the special counsel, remains unknown. But we have been given some hints.

On Aug. 6, 2017, Rosenstein gave an interview to Fox News’ Chris Wallace. Toward the end of the interview, Wallace asked about reports that Mueller had expanded his investigation. Rosenstein had this response:

“The special counsel is subject to the rules and regulations of the Department of Justice, and we don’t engage in fishing expeditions. Now, that order that you read, that doesn’t detail specifically who may be the subject of the investigation because we don’t reveal that publicly.”

“But Bob Mueller understands, and I understand, the specific scope of the investigation and so, it’s not a fishing expedition.”

Special Counsel Robert Mueller (R) leaves a meeting with senators at the U.S. Capitol on June 21, 2017. (Chip Somodevilla/Getty Images)

Wallace then asked about limitations on Mueller’s investigative boundaries and the ability for Mueller to pursue additional crimes. Rosenstein responded:

“If he finds evidence of a crime that’s within the scope of what Director Mueller and I have agreed is the appropriate scope of the investigation, then he can. If it’s something that’s outside that scope, he needs to come to the acting attorney general, at this time, me, for permission to expand his investigation. But we don’t talk about that publicly. And so, the speculation you’ve seen in the news media, that’s not anything that I’ve said. It’s not anything Director Mueller said.”

The contents of the Rosenstein memo remain classified and most, including members of Congress, don’t know what is contained within the redacted sections. One individual has seen the contents, U.S. District Judge T.S. Ellis III, who presided over the trial of former Trump campaign chairman Paul Manafort. He received a copy on May 17, following the April disclosure by the Mueller team.

The disclosure was made to Ellis following assertions by the Mueller team that “its authorities are laid out in documents including the August 2017 scope memo—and that some powers are actually secret because they involve ongoing investigations and national security matters that cannot be publicly disclosed.”

Ellis has accepted whatever was laid out in the Rosenstein memo, as he noted in a June 26 ruling:

“The August 2 Scope Memorandum made clear that the May 17 Appointment Order “was worded categorically in order to permit its public release” and that the August 2 Scope Memorandum “ provide[d] a more specific description” of the Special Counsel’s authority.”

“The August 2 Scope Memorandum reflects that the Special Counsel was acting within his authority when he sought and obtained the Superseding Indictment against defendant in February 2018.”

With the appointment of Whitaker and his assumption of authority over the Mueller investigation, it can be presumed that Whitaker has also seen the August 2, 2017, memo, particularly given its critical nature with regard to the Mueller probe.

Given that Rosenstein remains in his position, it seems likely, that similarly to Ellis, Whitaker found nothing untoward in the Aug. 2, 2017 memo.

On Aug. 6, 2017, Whitaker penned an op-ed for CNN that has been widely read, where he discussed the potential scope of the Mueller investigation:

“Investigating Donald Trump’s finances or his family’s finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.”

While Whitaker has been attacked for these views, people should read the article. Whitaker references the Rosenstein interview discussed above and closes with this:

“It is time for Rosenstein, who is the acting attorney general for the purposes of this investigation, to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel.”

Whitaker simply requested that Rosenstein require that the Mueller investigation be held to the confines of its agreed intent.

Whitaker also made another, less-reported comment regarding Mueller, in the summer of 2017, while on CNN:

“There is no honest person that sits in the world of politics, in the world of law, that can find anything wrong with Bob Mueller,” he said, adding that if “something’s wrong with Bob Mueller,” then “our republic is in more trouble than we might imagine.”

Worth noting in all of this is a simple fact: None of the indictments put forth by Mueller have hurt the president. In fact, the opposite holds true thus far. The Mueller investigation, intentionally or otherwise, has three times confirmed there was no collusion on the part of the Trump campaign.

This has been publicly stated by Rosenstein each time.

“There is no allegation in this indictment that any American citizen committed a crime. There is no allegation that the conspiracy changed the vote count or affected any election result,” Rosenstein said at a press conference on July 13, making similar statements on Feb. 16 and Oct. 19.

In a July 15 interview with Fox News’ Maria Bartiromo, House Intelligence Chairman Devin Nunes (R-Calif.) pointed out a startling fact: The Mueller indictment in July contains the same information as the March 22 House Intelligence Committee Russia report.

“All that Mueller did was validate our report…Almost everything in the indictment, we knew about. On March 22, we released our findings that you have in front of you right there. All you had to do was get Page 4, and you only had to read Chapter 2, and you would have had nearly everything that’s in the indictment. … There’s more in this report than what’s in the indictment.”

This is a statement full of potential ramifications—and worthy of lengthy consideration. Mueller’s July 13 indictment against 12 Russian officers related to hacking, affirmed part of the House investigation.

On Nov. 7, Rep. Trey Gowdy (R-S.C.) offered his opinion on Rosenstein’s tenure: “I don’t think anything is going to happen to Rod [Rosenstein] until after Mueller finishes his investigation. And then what happens after that will be between [the president] and Rod.”