Benjamin Wittes has written his version of a “recap” of the testimony of Rod Rosenstein Wednesday before the Senate Judiciary Committee.
The “story” (accurate for a work of fiction, correct?) includes some general descriptions of Rosenstein as a DC Swamp Creature, not too far off from the points I made in this article.
But Wittes’ purpose behind his take-down of Rosenstein’s credibility is a part of his effort to resurrect the credibility of Andrew McCabe, and by implication, Wittes’ BFF James Comey. Wittes never gets far away from the fact that it was Rosenstein who recommended that Comey be fired, a sin for which Rosenstein can never be forgiven at Lawfareblog.
After trashing Rosenstein in generalities that apply equally to both McCabe and Comey, Wittes then gets to the two points he really wants to drill down on. The goal of these points is to undercut Rosenstein’s foundation for finding fault with the FBI conduct under both Comey and McCabe. They also demonstrate what is likely going to turn out to be information used by Durham and Jensen to call into serious question the work and conclusions of the Special Counsel’s Office (SCO) led by Robert Mueller. The bulk of Wittes’ “story” deals with the conversations between McCabe and Rosenstein in regard to invoking the 25th Amendment, and about the idea of Rosenstein wearing some form of recording device to a meeting with President Trump in order to record what he might say about his true motives in firing Comey.
For a little comedic relief, I want to juxtapose two observations – one made by Wittes in his “story”, and one I would make if ever in a position to do so, with the context of mine being obvious from the content.
First, consider this language from Wittes’ “story”:
“Hirono apparently didn’t have time to let Rosenstein explain, which is a bit of a shame. Perhaps had she given Rosenstein a chance to give his more detailed explanation, we would have learned how his claim might be reconciled with the rather significant evidentiary record that Rosenstein did, in fact, suggest that he might wear a wire to surreptitiously record the president and did, in fact, also raise the subject of invoking the 25th Amendment.”
It’s a shame (or not) that Wittes continues to use phrases he’s heard lawyers use, but clearly doesn’t understand himself. When you go through the rest of his “story” you realize that the “significant evidentiary record” he is referencing is Andy McCabe. And here is my hypothetical line of questioning to establish for a jury that Mr. McCabe is a liar willing to throw others under the bus to escape problems he creates for himself
Q: Mr. McCabe, while you were serving as Deputy Director of the FBI, there was a secure video conference on October 30, 2016, involving you, the Assistant Director-In-Charge of the Washington Field Office, and the Assistant Director-In-Charge of the New York Field office concerning the subject of a leak to the Wall Street Journal about the Clinton Foundation investigation published that day, correct?
A: I don’t remember.
Q: And isn’t it true that the IG report of the investigation into FBI leaks found that during that conversation you expressed your anger to each of those supervisors about leaks published by the Wall Street Journal that same day, and attributed them to one or both of their offices?
A: I don’t remember.
Q: Isn’t it true that the IG report found that you told the WFO Supervisor to “Get your house in order” in terms of instructing him to put a stop to leaks coming out of his office?
A: I don’t remember.
Q: Well, you do remember that you instructed your Special Counsel, Lisa Page, on Oct. 29, 2016, to communicate the information to the Wall Street Journal reporter who wrote the article that was the subject of the controversy on Oct. 30, 2016, and she did as you instructed, correct?
A: I don’t remember.
Q: And on October 31, 2016, you met face-to-face with Director Comey, and in that meeting he raised with you the problem of leaks and how they were hurting the organization – according to Lisa Page’s notes of that meeting?
A: He did.
Q: And isn’t it true that you told the OIG investigators that you told Comey in that meeting that you authorized Lisa Page to disclose the information to the Wall Street Journal reporter.
A: I did tell them that.
Q: And isn’t it true that Jim Comey told the OIG investigators that you never told him during the Oct. 21 meeting that you had authorized Page to give the information to the Wall Street Journal, and Comey said to the OIG investigators that you gave him the exact opposite impression?
Q: Isn’t it true that you told the OIG investigators that several FBI executive managers were aware generally that you had authorized the disclosure of information to the Wall Street Journal reporter based on things you said to them, and that the Special Counsel’s contact with the Wall Street Journal was not a secret – and gave the OIG investigators several names of such FBI managers?
Q: How many of those persons who you named confirmed that they were aware you authorized your Special Counsel’s contacts with the Wall Street Journal reporter?
So, there is the “source” of the “significant evidentiary record” that supposedly contradicts Rod Rosenstein’s testimony yesterday about his conversations with McCabe on the issue of the 25th Amendment and secretly recording POTUS during a meeting.
I hope Andy McCabe is given the opportunity soon to say UNDER OATH what he said in his book and to ’60 minutes’.
But let us move the ball down the field a bit and look at what it is precisely that Andy McCabe has said in Wittes’ “substantial evidentiary record.”
Regarding the 25th Amendment, McCabe refers to Rosenstein as repeatedly referencing “other Cabinet officials”.
That’s odd phrasing given that Rosenstein was not himself a “Cabinet official”. Rosenstein was Deputy Attorney General, not the Attorney General.
And then there’s this:
Pelley: “How did he bring up the 25th Amendment to you?”
McCabe: “Honestly I don’t remember.”
Whaaat?? You don’t remember???
In the second video included in the “story”, the subject is the issue of Rosenstein wearing a recording device. To support McCabe’s version – and push back against Rosenstein’s denial in yesterday’s hearing on the subject, Wittes quotes from testimony by James Baker, former FBI General Counsel, before House Judiciary and Oversight Committee joint hearing in October 2018.
But Baker says right in his testimony that he was not present at the meeting where the subject of wearing a recording device came up, and all he knows about the subject is what he was told by McCabe and Page when they discussed the meeting with him.
We also know that respected long-time DOJ career officials – notably Scott Schools who has the current distinction of being the most senior career official in the entire Department – were also in the meeting, and none have come forward with a description of Rosenstein’s comment that aligns with McCabe and Page.
This CNN article from Sept. 2018 says McCabe authored memos regarding the conversations with Rosenstein on both the 25th Amendment and wearing a recording device. It says those memos were turned over to Mueller
An NBC News story bylined to Pete Williams, with great DOJ contacts, among others – gives a very specific accounting of the events. It says on May 16, 2017, McCabe was meeting with Rosenstein in a SCIF at DOJ, and they were “arguing” about President Trump “according to a senior Justice Department Official.”
“Well, what do you want me to do Andy, wear a wire?” Rosenstein asked at the meeting, which also included FBI lawyer Lisa Page and four career DOJ officials, according to the senior official. One of the four career civil servants was Scott Schools, who would later go on to sign off on the firing of McCabe, the official said.”
This official and a source who was in the room characterized Rosenstein’s remark as “sarcastic.”
A couple of things are significant here – starting with the date, May 16, 2017.
In that regard, note the following from the hearing as well: As Rosenstein explained, also on May 16, 2017, he was with Robert Mueller at the White House Counsel’s Office, discussing who might be suitable to serve as FBI Director. Mark Filip was someone Rosenstein was encouraging to step forward and be a candidate. That was the context of his email to Filip.
Leave aside for a moment whether Mueller was or was not offered the FBI Director job – the more significant fact is that Mueller and Rosenstein were together the same day as the “I’ll wear a wire” meeting between McCabe and Rosenstein. And it was certainly not later than this meeting or just thereafter that Mueller agreed to accept appointment to be SCO; that was announced the next day, May 17, 2017.
In the meeting in the SCIF, McCabe and Page see it all slipping away – their crusade over the prior 9 months is about to be taken away from them by Rod Rosenstein, just days after he fired their patron, mentor, Svengali James “The Saint” Comey (just ask him!!!!).
The other very notable part of the NBC News/Pete Williams story is the very specific reference to there being 4 career DOJ prosecutors in the same meeting – suggesting they wanted a complete briefing from the FBI on where things stood post-Comey given they knew Mueller was being appointed the next day. One of the four was Scott Schools.
In DOJ there is a “special” slot reserved for the career prosecutor with the longest length of continuous service. For many years it was a man named David Margolis, a revered legend in DOJ with absolute integrity beyond question. He passed away at age 76 in July 2016, having served in DOJ for 51 years. Scott Schools inherited the honor as most senior career DOJ official from Margolis.
Schools served as a top Assistant Deputy Attorney General for Rosenstein, so it makes sense he would have been in the meeting with McCabe.
Schools served as a top Assistant Deputy Attorney General for Sally Yates when she was DAG.
Schools played a major role in recommending the firing of James Comey to Rosenstein, which Rosenstein then advocated to POTUS.
Schools played a major role in recommending both the appointment of a Special Counsel, and the selection of Robert Mueller for the position.
Schools signed the determination to fire McCabe for lack of candor, a signature that is required on any such recommendation indicating that the senior career official in DOJ concurs with the determination made by the politically appointed officials.
Where is the statement from Scott Schools – retired himself from DOJ since 2018 – supporting anything Andy McCabe has said about that meeting on May 16 in the DOJ SCIF?
Where is the support from any of the other three senior DOJ officials supporting McCabe’s version of the conversation?
Andy McCabe is a liar whose own career at FBI is a case study in how a largely talentless bureaucratic ladder-climber can ascend on the backs of others to positions of authority in the FBI while being a duplicitous, narcissistic, ass-covering dullard.
Stick with him Ben, he’s got a lot he can teach you.
Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew