The Battle Between Deputy AG Rod Rosenstein and Andrew McCabe

October 11, 2018 Updated: October 11, 2018

News Analysis

Deputy Attorney General Rod Rosenstein has proven himself a polarizing figure. Depending on who you speak to, Rosenstein, appears to occupy one of three rather varying roles.

According to some, Rosenstein is part of the problem, actively working against President Trump’s Administration. To others, he occupies a slightly more grey area, compromised but with the capability to adjust to a new political climate. Not actively bad, but not to be trusted either.

To add to the confusion, there are those who see Rosenstein as something of a quiet hero, a man who intentionally took control of the Russia Investigation out of the FBI’s hands and has been operating with honorable, or at least fully legal, intentions.

An examination of underlying facts and timelines may help to establish a more complete picture.

Rosenstein Appointed, Comey Fired

On April 26, 2017, Rosenstein found himself appointed as the new Deputy Attorney General. He was placed into a somewhat chaotic situation as Attorney General Jeff Sessions had recused himself from the ongoing Russia Investigation a little less than two months earlier on March 2, 2017. This effectively meant that no one in the Trump Administration had any oversight into the ongoing investigation being conducted by the FBI and the DOJ.

Additionally, the FBI’s leadership by then-Director Comey was increasingly coming under question as the result of actions taken leading up to and following the election, particularly Comey’s handling of the Clinton email investigation.

On May 9, 2017, Rosenstein wrote a letter recommending FBI Director Comey be fired. The subject of letter was: Restoring Public Confidence in the FBI. Comey would be fired that day.

Unknown to everyone in the Trump Administration, that same day Deputy FBI Director Andrew McCabe was being interviewed by Agents from the FBI’s Inspection Division (INSD) regarding apparent leaks that occurred in an Oct. 30, 2016 Wall Street Journal article, “FBI in Internal Feud Over Hillary Clinton Probe” by Devlin Barrett.

McCabe would lie to the INSD Agents regarding his participation in the leaks as later disclosed in the Inspector General report, “A Report of Investigation of Certain Allegations Relating to Former Deputy FBI Director Andrew McCabe.” McCabe would be fired for lying under oath at least three different times and is currently the subject of a Grand Jury investigation.

McCabe held a pivotal role in what has become known as Spygate. He directed the activities of FBI Agent Peter Strzok and Lisa Page and was involved in all aspects of the Russia Investigation. He was also mentioned in the famous “insurance policy” text message:

“I want to believe the path you threw out for consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take the risk. It’s like an insurance policy in the unlikely event you die before you’re 40,”

At the time, nobody, including the INSD Agents, knew that McCabe had lied, nor were the darker aspects of McCabe’s actions fully known. In light of Comey’s firing, McCabe was now the Acting FBI Director and was immediately under consideration for the permanent position.

Two days later, on May 11, 2017, President Trump addressed the Russia investigation in an interview given to Lester Holt of NBC News.

During the interview, the President made some surprising remarks regarding Comey’s firing and the impact on the Russia Investigation, noting he wanted the investigation to be “done properly.” He admitted the firing of Comey “probably will confuse people” and as a result, he might “expand” the Russia Investigation and possibly “even lengthen out the investigation.”

Then acting FBI Director Andrew McCabe testifies before the Senate Intelligence Committee on May 11, 2017. (Alex Wong/Getty Images)

He concluded by saying “I have to do the right thing for the American people.” As for Comey, President Trump noted, “he’s the wrong man for that position.”

Mueller Appointed

In the week following his firing, Comey leaked some memos of his interactions with President Trump to his friend Daniel Richman. The leaks happened on May 15 or 16, 2017. Comey would later state he did so with the intention of forcing the appointment of a special counsel.

For the last six months, DOJ Official Bruce Ohr had been secretly communicating with Christopher Steele. Ohr became the conduit between Steele, Fusion GPS, and the FBI after Steele was formally terminated by the FBI in late October or early November 2016. Ohr occupied the position directly below the newly installed Rosenstein.

Ohr had been transmitting his communications with Steele through a series of interviews with the FBI that were documented in FD-302s, which serve as summarizing memos. The meetings between the FBI and Ohr came to an abrupt stop on May 15, 2017.

On the morning of May 16, 2017, Rosenstein reportedly suggested that he secretly record President Trump to Acting FBI Director McCabe. This remark was reported in a New York Times article that was sourced from memos from the now-fired McCabe, along with testimony taken from former FBI General Counsel James Baker, who relayed a conversation he had with McCabe about the occurrence. Rosenstein issued a statement denying the accusations.

Baker, who was part of McCabe’s group, was communicating with journalist David Corn and has admitted to receiving a copy of the Steele dossier from Corn in the days following the election. Baker has also admitted to secretly meeting with Perkins Coie lawyer Michael Sussmann, who provided Baker with documents and electronic media related to Russian meddling in the election. Perkins Coie is the law firm for the DNC and the Hillary Clinton campaign.

The alleged comments by Rosenstein occurred at a meeting where McCabe was “pushing for the Justice Department to open an investigation into the president.”

An unnamed participant at the meeting, in  comments to The Washington Post, framed the conversation  somewhat differently, noting Rosenstein responded sarcastically to McCabe saying; “What do you want to do, Andy, wire the president?”

Later, on the same day that Rosenstein had his meetings with McCabe, President Trump met with former FBI Director Robert Mueller, reportedly as an interview for the FBI Director job. The idea that Mueller would be considered for the FBI Director role seems highly unlikely, although not entirely impossible.

FBI Director Christopher Wray (L) and Deputy Attorney General Rod Rosenstein arrive to testify before a congressional House Judiciary Committee hearing on ‘Oversight of FBI and DOJ Actions Surrounding the 2016 Election,’ in Washington on June 28, 2018. (NICHOLAS KAMM/AFP/Getty Images)

Mueller had previously served as the FBI Director from 2001 to 2013—two years beyond the normal ten-year tenure for an FBI Director. In 2011, Obama requested that Mueller stay on as FBI Director for an additional two years, which required special approval from the senate. We still don’t know what was actually said at the meeting between Mueller and President Trump.

On May 17, 2017, the day after President Trump’s meeting with Mueller—and the day after Rosenstein’s encounters with McCabe—Rosenstein appointed Mueller as Special Counsel.

Regardless of one’s opinion of Rosenstein, the May 17 appointment of Mueller accomplished one very significant thing. It shifted control of the Russia Investigation from the FBI and McCabe to Mueller. Rosenstein would retain ultimate authority for the probe and any expansion of Mueller’s investigation required authorization from Rosenstein.

McCabe Neutralized

Interestingly, without Comey’s memo leaks, a special counsel might not have been appointed—the FBI, and possibly McCabe, would have remained in charge of the Russia investigation. McCabe was probably not going to become the permanent FBI Director but he was reportedly under consideration. Regardless, without Comey’s leak, McCabe would have retained direct involvement and the FBI would have retained control.

Somewhere around June 29, 2017, Rosenstein signed the final FISA surveillance renewal on then-former Trump campaign adviser Carter Page. Later, during June 28, 2018 Congressional testimony, Rosenstein made some specific comments regarding the FISA signing:

“We sit down with a team of attorneys from the Department of Justice. All of whom review that and provide a briefing for us for what’s in it. And I’ve reviewed that one in some detail, and I can tell you the information about that doesn’t match with my understanding of the one that I signed.”

Rosenstein’s comments imply that the FISA he was formally briefed on is different from the FISA materials put before the House and Senate Intelligence Committees by the DOJ. While some have made much of the fact Rosenstein didn’t actually read the materials himself, I’ve been told this is the normal process. What is not normal is receiving a deceptive briefing from DOJ lawyers.

On July 27 2017, Inspector General Horowitz notified Mueller of the discovery of thousands of text messages sent between Page and Strzok which immediately resulted in Strzok being removed from the special counsel investigation. Horowitz had found the texts some time earlier, on or before July 14, 2017.

Lisa Page, former legal counsel to former FBI Deputy Director Andrew McCabe, arrives on Capitol Hill July 13, 2018. (Andrew Caballero-Reynolds/AFP/Getty Images)

McCabe had authorized Page to leak information to then-Wall Street Journal reporter Devlin Barrett—and Page did so thinking she had been granted legal/official authorization to do so. Page, when confronted with McCabe’s denials, produced texts refuting the Deputy FBI Director’s deception. This is what likely led to the Inspector General uncovering the thousands of texts between Strzok and Page.

On July 28, 2017, McCabe lied to IG Horowitz while under oath regarding authorization of the leaking to the Wall Street Journal. At this point, Horowitz knew McCabe was lying, although Horowitz did not yet know of the May 9 INSD’s interview with McCabe.

On Aug. 2 2017, Rosenstein secretly issued Mueller a revised Scope of Investigation & Definition of Authority memo that remains heavily redacted. The full purpose of this Memo remains unknown. On this same day, Christopher Wray was named the new FBI Director.

Two days later, on Aug. 4, 2017, AG Sessions announced the formation of a newly established Leak Task Force. Rosenstein and Wray were tasked with overseeing all leak investigations.

There’s been a lot of speculation as to the content of Rosenstein’s memo, but consider the title: Scope of Investigation & Definition of Authority,and do so in the context of events.

That memo was probably specifically designed to remove any residual FBI influence—specifically that of McCabe, from the Russia investigation. The appointment of Wray as FBI director helped cement this. McCabe was finally completely neutralized.

McCabe-Rosenstein Feud

Two other important events would take place.

On Oct. 5, 2017, former Trump campaign adviser George Papadopoulos pleaded guilty to lying to the FBI. On Oct. 27, 2017, former Trump campaign chairman Paul Manafort and his business partner Rick Gates were indicted on FARA violations relating to a period under the Obama administration involving Ukraine. The Manafort indictment appears to lead straight to connections with the Podesta Group as well as Russian oligarch Oleg Deripaska. The indictments were made public on Oct. 30, 2017.

Tony Podesta, the brother of former Hillary Clinton campaign manager John Podesta, immediately stepped down as chairman of the Podesta Group, and the firm was effectively dismantled. Meanwhile, the Manafort case continues, and Deripaska had new sanctions imposed on him this week.

Russian billionaire Oleg Deripaska attends the St. Petersburg International Economic Forum in Saint Petersburg on June 1, 2017. (OLGA MALTSEVA/AFP/Getty Images)

Deripaska’s lawyer, Adam Waldman, appears to have represented Christopher Steele and Julian Assange in addition to Deripaska. We know this from texts sent between Waldman and Senator Mark Warner. Reference is also made in these texts to Daniel Jones, a former intelligence staffer to Senator Dianne Feinstein (D-Calif.). His company, the Penn Quarter Group retained Steele and Fusion GPS at some point in 2016 or possibly earlier.

Finally, on Feb. 16, 2018, another Mueller Indictment was issued. This was related to Russian interference in our election and the indictment of twelve Russians. Overlooked in the whole affair was the crucial fact that no U.S. citizen or member of the Trump campaign was found to have been involved in any collusion. It also showed that the Steele dossier was inherently false.

That same day, Rosenstein made some comments at a press conference on the matter:

“There’s no allegation that any American was knowingly involved in the conspiracy.

“Nor was there an allegation that the efforts of the defendants affected the outcome of the election.”

More recently, on Sept. 17, 2018, President Trump issued a declassification order. Three days later, he reversed that order and pushed the declassification process back onto IG Horowitz.

Rosenstein was a deciding factor in the reversal process:

“Trump decided to reverse course after talks with intelligence officials, including Rod J. Rosenstein, the deputy attorney general, who engaged in conversations with the president with the aim of informing him of all the ramifications of his order.”

The same day the news broke regarding President Trump’s reversal decision, the New York Times ran its story about Rosenstein allegedly having offered to record the President. McCabe was the source of the accusations, and the allegations came at a critical juncture.

Most of the reporting on  The Times article presented it as more trouble for Rosenstein. Somehow overlooked was who was making the accusations.

The feud between McCabe and Rosenstein continues to this day. The Washington Post published an article on Oct. 10  detailing an episode that took place between McCabe and Rosenstein just days after Rosenstein’s appointment of Mueller as Special Counsel:

“Rosenstein wanted McCabe out of the Russia probe, and McCabe felt differently, arguing that it was the deputy attorney general, not the head of the FBI, who should step away from the case.”

An honest examination of facts make one thing perfectly clear. At every juncture of Rosenstein’s involvement, McCabe was completely outplayed.

Deputy Attorney General Rosenstein may be owed a long-deserved apology from his critics.

Jeff Carlson is a CFA® Charterholder. He worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He runs the website  TheMarketsWork.com

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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