Skip to content Skip to footer

The Fate of Rod Rosenstein Will Impact Every Branch of Government

It all comes down to Thursday.

Deputy Attorney General Rod Rosenstein arrives for the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Brett Kavanaugh in the Hart Building on September 4, 2018.

So that happened.

If one unexpurgated example were needed to show how severely Donald Trump’s presidency has overheated the national engine, yesterday’s lunchtime four-valve blowout would serve nicely. Some breathlessly slipshod reporting, a pair of dueling leaks and a deliberate two-year White House campaign to keep the country’s RPM dial deep in the red came together to produce sound, fury and, for the moment, nothing at all.

The paroxysm began before noon with an Axios headline that read, “Exclusive: Rod Rosenstein Is Resigning.” Rosenstein, of course, is the embattled deputy attorney general who has been overseeing Robert Mueller’s ongoing Russian collusion investigation after Attorney General Jeff Sessions recused himself. Trump has been growling at Rosenstein from the beginning, threatening to fire him with drearily metronomic regularity.

Removing Rosenstein without due cause is fraught with political and legal ramifications for Trump. Beyond the price Republicans would pay at the midterm election polls for engaging in an obvious cover-up, firing Rosenstein in order to blow up the Russia investigation would very nearly be the dictionary definition of obstruction of justice.

Late on Friday, Donald Trump seemed to receive the dynamite he needed to blast Rosenstein out of the Justice Department, in the guise of a highly convenient, dubiously sourced New York Times hatchet job on the deputy AG. The article accused Rosenstein of attempting to arrange clandestine recordings of Trump to be used as a means of removing him from office, and of conspiring to invoke the 25th Amendment for the same ends.

Rosenstein hotly denied the allegations, but the balloon was up and soaring in the breeze. The political pundit class spent the weekend chewing over the fate of the deputy AG while the White House stayed mostly mum … and then on Monday, the cork popped.

“He’s resigning!” proclaimed Axios. The Associated Press countered, “He expects to be fired!” A Justice Department leak then claimed Rosenstein would not resign and intended to make Trump fire him, and all of this was popping off like firecrackers as the man himself made his way to the White House for what promised to be a final reckoning.

Constitutional thunderclouds gathered over 1600 Pennsylvania Ave. as TV reporters chewed over various possible outcomes, while the print and online journalists struggled to keep up because the internet still isn’t faster than live television yet. The tension mounted as this high-stakes game of chicken played out, and the ultimate disposition of all three branches of the federal government appeared to hang in the balance.

That appearance was not without substance. The executive, legislative and judicial branches all had skin in the game being played out at high noon on Monday. The ongoing Mueller investigation has placed the White House at the nexus of serious constitutional chaos, which in turn could dramatically affect Congress in the upcoming midterm elections. An abrupt disruption or termination of the investigation would vividly escalate that chaos.

The politics of a Rosenstein departure could also impact the Supreme Court. The nomination process of Brett Kavanaugh does not need any additional help to become a miserable debacle, but Senate Republicans — already roiled by the ongoing spectacle — would be forced to contend with yet another political firestorm if Rosenstein leaves, and all on the eve of the midterms. The combined political cost of both could swing some Republican votes to “No,” either in the hearing or in the final confirmation, leaving Justice Kennedy’s seat unfilled while handing Trump a towering defeat.

The nuts and bolts are no less convoluted. If Rosenstein resigned, Donald Trump would be free to replace him with Noel Francisco, who is next in the line of succession at Justice. This would thrill Trump to no end, as Francisco is a conservative activist and, like Kavanaugh, a firm believer in the Unitary Executive theory of presidential invincibility.

From his new perch, Francisco would have a free hand to damage or derail the Russia investigation in all the ways Rosenstein has thus far refused to. The replacement process would be more complex if Rosenstein were fired, but Trump would still view his removal as a personal victory, as it would be the end of Robert Mueller’s most effective defender at Justice.

And then … nothing, for now. Rod Rosenstein and Chief of Staff John Kelly shared the handshake seen ‘round the world after the meeting ended yesterday, and the White House tersely announced that no decisions would be made until Trump and Rosenstein meet in person. Trump, deep in preparations to embarrass the nation and shame the whole concept of democracy (again) at the UN this week, was unable to personally attend Monday’s festivities.

Thus, the stage was set for maybe the most consequential Thursday in living memory. Rod Rosenstein will meet with Trump at the White House to decide his fate. The Russia investigation and the midterm elections will be in the room with them, perhaps alongside Trump’s entire future. His lawyers are already pushing for a pause of Mueller’s investigation if Rosenstein quits.

Across town, embattled Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, the first woman (but not the last) to accuse Kavanaugh of sexual assault, will testify before a Senate Judiciary Committee filled with rightly furious Democrats and petrified Republicans. The ideological balance of the Court, along with the eventual balance of power in the chamber itself, will also be in the room with them.

The presidential administration of Donald Trump already enjoys a well-earned reputation for mayhem, be it deliberate or accidental. This week, however, promises to be a whole new phenomenon. Monday was what it was: another trembling example of a nation on hair-trigger alert. If Rosenstein resigns on Thursday and leaves Trump free to replace him with an ideological crony, the political and constitutional fallout will be extreme. The noise will be equally deafening if Rosenstein is fired. Punting the question until after the midterms would be the least impactful of all possible outcomes; nothing would be resolved as all eyes turn to Ford and Kavanaugh.

One way or another, this will be a different country on Friday morning. Don’t blink.

Update 9/28/2018: The meeting between Rod Rosenstein and Donald Trump has been postponed.