The Memo: Trump critics and allies unite: Don’t fire Rosenstein

Critics and supporters of President Trump have found surprising unanimity on one topic: Both groups say it would be a big mistake for the president to fire Deputy Attorney General Rod Rosenstein, who oversees special counsel Robert Mueller’s probe.

After a day of high drama surrounding Rosenstein’s fate on Monday — including morning reports that he was in the process of resigning — much remains uncertain. Rosenstein met with chief of staff John Kelly at the White House, but there was no resignation or firing. 

Instead, Rosenstein is to meet with Trump on Thursday, when the president returns from New York, where he is attending the United Nations General Assembly. 

White House aides were tight-lipped about Rosenstein’s likely fate on Monday. In brief remarks to reporters, Trump said “we will be determining what to do” on Thursday. “I spoke with Rod today and we’ll see what happens,” Trump added, according to pool reports.{mosads}

But others in the broader Trump circle were less reticent.

One former White House official told The Hill that “firing Rosenstein before the election would be a tremendous political mistake, regardless of the merits. If the president wants to guarantee a Democrat majority and an impeachment trial, firing Rosenstein now is the way to do it.”

Republicans fear that a Rosenstein ouster would make an already difficult gradient even steeper in November’s midterm elections. It would take the focus off the economy, which most in the GOP consider their strongest card, and would further energize Democrats, who are already fired up to deliver a rebuke to a president whom many of them detest.

Democrats, meanwhile, warn of a constitutional crisis if Rosenstein is replaced.

Rep. Elijah Cummings (D-Md.), the ranking member of the House Oversight and Government Reform Committee, said in a statement the removal of Rosenstein “would plunge our nation into uncharted territory and pose a serious and profound threat to the continued work of the Special Counsel.”

One crucial Republican also expressed anxiety. Late Monday afternoon, Sen. Susan Collins (Maine) tweeted: “I’m very concerned by reports that Deputy AG Rosenstein will either be fired or forced to resign.”

Collins is a critical vote on the week’s other big issue — whether Trump Supreme Court nominee Brett Kavanaugh will be confirmed, despite a second woman having come forward with allegations of sexual misconduct against him.

Trump allies poured cold water on media reports that the Rosenstein drama was intended to distract from Kavanaugh’s troubles.

Joe diGenova, a former U.S. district attorney for the District of Columbia who occasionally offers informal legal advice to the president, said that firing Rosenstein “would not be helpful.”

“It would be potentially damaging not only to Republicans in general but it would be damaging to the Kavanaugh nomination, which needs to be gotten through,” he said.

DiGenova, an especially harsh critic of Rosenstein, said the smarter move for the president would be not to fire him — at least for now.

“It is quite clear that the president is not going to fire him, he is going to let him dangle,” diGenova asserted. “He will stay there until it is appropriate for him to leave, which is after the election.”

Fox News host Sean Hannity, who regularly communicates with the president, said on his show Friday that Trump shouldn’t fire anybody. He added that the president’s enemies want him to fire Rosenstein so that it would turn into a scandal, calling the situation a “setup.”

Predicting Trump’s next move has long been a perilous endeavor, however — especially when it comes to personnel moves. His first chief of staff, Reince Priebus, was ultimately fired via tweet from Air Force One. The denouement of Priebus’s successor, John Kelly, has been predicted for months, but Trump has publicly said Kelly will stay in his post through 2020.

The catalyst for the current crisis was a New York Times story on Friday reporting that Rosenstein had at one point mulled secretly recording the president and had wanted to gauge support among the Cabinet for invoking the 25th Amendment to remove him from office.

Rosenstein pushed back against the report.

As for Thursday’s meeting, “it is hard to know how to react until you know how it is going to play out,” said Robert Litt, who served as general counsel to the Office of the Director of National Intelligence during former President Obama’s administration.

“If this is simply a requirement that Rod Rosenstein go and apologize to the president that’s one thing,” Litt added. “If this is going to be an occasion where the president tries to extract some commitments from Rosenstein in exchange for not firing him, that’s another kettle of fish.”

Such a move could backfire in the worst way for Trump, since it would pique Mueller’s interest further as to whether the president has engaged in obstruction of justice.

The extent to which Rosenstein’s removal would impact Mueller is disputed.  

Many legal experts believe that Mueller’s probe is so far advanced that it cannot be quashed — a point that is also strengthened because there are offshoots from the original probe, including the investigation of Trump’s former personal attorney, Michael Cohen, by prosecutors in the southern district of New York.

“I think Mueller is proceeding until he is told not to,” said Justin Levitt, a former deputy assistant attorney general and a professor at Loyola Law School, Los Angeles. “He is doing the job with zero leaking, as far as anybody can tell, and with fairly dramatic success. So his job is to ignore the turmoil around him.”

Harry Litman, a former U.S. attorney, said he had been surprised last week by the number of Trump allies who had weighed in against the firing of Rosenstein. 

“I don’t see what would have happened [on Monday] to change the political calculus for the White House,” Litman said.

“While we do know that the president is capable of firing someone very precipitously, there seemed to be some kind of theatrical element to [Monday’s events.] My sense is that, if Rod Rosenstein doesn’t resign, he will still be in office through the midterms.” 

The former White House official said that firing Rosenstein would be such a bad idea for Trump, there were few things worse. 

“The only thing worse would be to fire Mueller,” the person said.

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.