The controversy swirling around Supreme Court nominee Brett Kavanaugh has remained at the top of the headlines for more than a week now. But for a brief time on Monday, Deputy Attorney General Rod Rosenstein stole the spotlight after a report from Axios hinted at his impending departure. The news set the political world abuzz over congressional interventions, the Federal Vacancies Reform Act of 1998, and constitutional crises. The chaos left us with more questions than answers about what’s going on in the Justice Department.
«Rod Rosenstein has verbally resigned,» Jonathan Swan initially reported, «in anticipation of being fired by President Trump.» Not so, reported NBC’s Pete Williams, who said Rosenstein had gone to the White House to tell Trump that he wouldn’t resign and that the president would have to fire him to get rid of him. The Washington Post told its readers that Rosenstein «felt very compromised» over a New York Times report that alleged he had floated an invocation of the 25th Amendment to remove Trump. That had prompted negotiations over Rosenstein’s departure that had lasted «all weekend,» according to The Wall Street Journal.
By afternoon, the five-alarm sirens and obsessive coverage had ended. Rosenstein did go to the White House, as was reported. He went not just to discuss the New York Times report, but also, believe it or not, to do some actual work. He attended a regularly scheduled meeting of principals involving national security, and then went back to his job at the Department of Justice. The one he kept — at least for now.
«Where do I go to get my refund on the last 2.5 hours?» joked Washington Post editor Natalie Jennings.
But we might all still get our money’s worth later this week. White House Press Secretary Sarah Huckabee Sanders announced that the meeting between Rosenstein and Trump didn’t take place because the president was in New York for the United Nations General Assembly. The two men have scheduled a meeting for Thursday to discuss the issues surrounding The New York Times’ reporting. «I look forward to meeting with him,» Trump told reporters.
The stakes for this meeting are sky high. It’s no secret that Trump wants to end Special Counsel Robert Mueller’s probe into Russian meddling in the 2016 election, which he has often called a «witch hunt.» After Attorney General Jeff Sessions recused himself from the investigation, it fell to Rosenstein to supervise the probe. So far, he has remained steadfast in supporting the investigation. But if Rosenstein departs, the possibility of a Mueller firing goes up — as does the confrontation with Congress over it, as members of Congress from both parties want the probe to wrap up on its own.
To some extent, how Rosenstein leaves matters just as much as whether he leaves at all. If he resigns, that would allow Trump to use the Federal Vacancies Reform Act of 1998 to appoint a temporary replacement who has already been confirmed by the Senate for another position. That would allow him to cherry-pick someone within the administration who would end Mueller’s probe. But if Rosenstein is fired, that strategy would go out the window, as the FVRA does not apply to terminations. That would put Solicitor General Noel Francisco in charge of Mueller’s fate. Francisco is a Trump appointee, but he has a long track record in Washington and is not historically inclined toward populist impulses.
Swan reported later Monday afternoon that the Justice Department had already drafted an announcement of Rosenstein’s departure. «The statement does not include the word ‘resignation,'» Swan wrote, but he noted that Rosenstein was willing to resign and had made that offer to Chief of Staff John Kelly. Nevertheless, the announcement would have declared Francisco the acting deputy AG, and as such, would give him the duty of «overseeing the special counsel investigation.»
But is Rosenstein actually leaving? Given all the headaches a Rosenstein departure would cause the Trump administration and the little it would actually accomplish, it’s very possible he’ll remain in his role. NBC News later reported that Trump had already decided not to fire him during the weekend discussions. Both Trump’s White House advisers and his «outside allies» had counseled him to refrain from letting Rosenstein go, perhaps mindful of the war that his departure might start. If that’s the the case, then Thursday’s meeting might end up being just as anti-climactic as Monday’s White House visit, even if it does have «a real doomsday feel,» as one Department of Justice source put it to The Daily Beast.
In other words, the roller coaster ride isn’t over yet. But at least it’s not the train wreck that awaits Brett Kavanaugh and the rest of us in Thursday’s Senate Judiciary Committee hearing.