Would Rosenstein give Congress documents on Mueller probe or resign?
The Justice Department official in charge of overseeing the special counsel investigation has been flexible this week, bending to two difficult demands from President Donald Trump and conservatives in Congress. It is unclear how accommodating Deputy Attorney General Rod Rosenstein will be in the future as he faces congressional demands for information related to the special counsel probe.
On Monday, Rosenstein agreed to open an internal Justice Department investigation into possible political motivations behind the FBI's surveillance of Trump campaign officials and on Thursday, he honored a long-standing subpoena and provided classified briefings to members of Congress on similar matters.
The pressure is on Rosenstein to continue producing sensitive material related to the ongoing special counsel investigation. If he thwarts requests from Congress, he could be held in contempt without a guarantee the president will intervene to protect him. Or he could resign in protest.
For more than a year, Rosenstein has had a target put on his back by the president's allies. He holds the keys to the Trump-Russia special counsel. He originally appointed Robert Mueller after Attorney General Jeff Sessions recused himself and he is the one person with the authority to expand or limit the scope of Mueller's investigation or fire him, if there were cause.
Increasingly, Republican members of Congress have been coordinating with the president to subpoena information about the origin and scope of the special counsel investigation, claiming it is a "witch hunt" founded on "politically motivated" government surveillance of a political campaign.
After months of requesting documents, threatening to hold the attorney general in contempt of Congress and other measures, House intelligence committee Chairman Devin Nunes, R-Calif., and House oversight committee Chairman Trey Gowdy, R-S.C., may have finally been given access to sensitive documents related to government surveillance of the Trump campaign and at least one FBI informant reportedly working with Trump campaign associates.
The Justice Department thwarted their request for months. Typically, they refuse to honor requests for information related to an open criminal investigation. In this case they did so even when threatened by Congress with contempt. But Nunes and Gowdy's request was finally honored, reportedly after President Trump intervened.
"This is totally unusual," said Morton Rosenberg, a fellow at the Constitution Project. Rosenberg spent more than three decades at the Congressional Research Service as a law specialist in Congress' oversight and investigative authorities.
"In all the cases I cataloged, this is the first instance where there has been cooperation between a chairman of an oversight committee and a president," he said.
That cooperation could be a game-changer in the next months as other members of Congress subpoena information from DOJ about the origin and scope of the special counsel investigation.
Before Rosenstein agreed to provide Nunes, Gowdy and the so-called Gang of Eight congressional leaders with the classified information, the intelligence committee chairman told SBG's Michelle Macaluso the deputy attorney general was "in contempt of Congress."
"I believe the president has directed them to give us the information we've been asking for," Nunes said. "We have a right to the information just as the Department of Justice and FBI do."
Nunes is essentially correct, Rosenberg said. "Congress can get any information it wants, even if it's highly sensitive intelligence information or dealing with Department of Justice open cases," he explained. The issue is not whether Congress has a right to the information, he added, but whether it has weighed its need for transparency against the needs of a federal prosecutor in an open investigation.
There are three ways Congress can enforce a subpoena. They can hold an individual in contempt of Congress, which can lead to criminal prosecution. They can have a contempt hearing, which results in a trial by Congress and potentially criminal charges if the subpoena is still not honored. Or they can pursue a civil enforcement suit, which is typically a very lengthy process.
Over the past decade, Congress' enforcement of its subpoena power has been "totally stymied," Rosenberg said, because the president has stepped in to protect officials from criminal prosecution by claiming executive privilege to the information requested. It has made contempt charges a "theoretical threat."
President Barack Obama invoked executive privilege on more than one occasion, including to block contempt charges against Attorney General Eric Holder.
In the case of President Trump and Deputy Attorney General Rosenstein, it is not clear that the president would step in to claim information about the Mueller investigation was protected under executive privilege or stop the prosecution. At that point, it would be up to Attorney General Sessions, who has generally defended Rosenstein, in spite of political pressures.
The real question is whether Rod Rosenstein would sacrifice his job in order to protect information related to the Mueller probe that members of Congress are now demanding.
At least two groups of lawmakers in the Senate and House have demanded documents related to improper use of Foreign Intelligence Surveillance Act (FISA) authorities authorities in monitoring former Trump associates. This activity was done under a 2016 FBI counterintelligence investigation that later morphed into the Mueller probe.
The Justice Department and House Judiciary Chairman Bob Goodlatte, R-Va., reportedly reached an agreement in April for Congress to view those documents, but Goodlatte's office did not say whether the agreement had been honored yet.
In April, the head of the Freedom Caucus, Rep. Mark Meadows of North Carolina prepared articles of impeachment against Rod Rosenstein as a "last resort" to get him to produce documents related to the Trump-Russia probe.
After the impeachment threat fell flat and the Justice Department continued to ignore subpoenas, Rep. Meadows, Rep. Jim Jordan of Ohio and Ron DeSantis of Florida, enlisted help from the White House to pressure DOJ.
Among other things, the congressmen requested "the unredacted August 2017 memo written by Deputy Attorney General Rosenstein that articulated the scope of the Special Counsel's jurisdiction."
That particular document, Rosenberg said, "has the key to revelations about what Mueller is doing ... That's exactly what the president and his attorneys want to know."
That makes it increasingly unlikely for President Trump to invoke executive privilege to protect that information.
"Rosenstein will, I think, protect the information," Rosenberg said. "He'll take the chance of being fired," he continued, rather than honor a congressional subpoena to turn over documents that would jeopardize the special counsel investigation.
President Trump could fire Rosenstein and has reportedly considered it in recent months. In April, after an FBI raid on the office of former Trump attorney Michael Cohen, the president was reportedly considering ousting Rosenstein, according to numerous reports.
Former White House chief strategist Steve Bannon has also suggested the president should fire Rosenstein. In April Bannon was reportedly pushing for Rosenstein's ouster as a way to "cripple the federal probe into Russian interference in the 2016 election."
In an interview that will soon be aired on BBC, Bannon suggested the deputy attorney general could be fired "very shortly."
Bannon said the deputy attorney general is either "going to take the direct order of the president of the United States or I think Rosenstein will be fired," according to a report from The Hill.
While the president has the legal authority to dismiss the second-ranking official at DOJ, the political cost may be too high.
Attorney General Sessions reportedly threatened to resign if Trump fired Rosenstein and lawmakers have warned against it.
Senate Minority Leader Chuck Schumer, D-N.Y,recently warned the president that "any attempt to remove Rod Rosenstein will create the exact same constitutional crisis as if you fired special counsel Mueller."
Sen. Lindsey Graham, R-S.C., has suggested that Trump would not fire either Rosenstein or Mueller because "it would be the beginning of the end of his presidency."
When Trump was asked earlier this week if he still had confidence in Rod Rosenstein, he didn't give a response, telling reporters, "Next question."