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Rosenstein suggested he secretly record Trump and discussed 25th amendment

WASHINGTON -- The deputy attorney general, Rod Rosenstein, suggested last year that he secretly record President Donald Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting Cabinet members to invoke the 25th Amendment to remove Trump from office for being unfit.

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Rosenstein Suggested He Secretly Record Trump and Discussed 25th Amendment
Adam Goldman
Michael S. Schmidt, New York Times

WASHINGTON — The deputy attorney general, Rod Rosenstein, suggested last year that he secretly record President Donald Trump in the White House to expose the chaos consuming the administration, and he discussed recruiting Cabinet members to invoke the 25th Amendment to remove Trump from office for being unfit.

Rosenstein made these suggestions in the spring of 2017 when Trump’s firing of James Comey as FBI director plunged the White House into turmoil. Over the ensuing days, the president divulged classified intelligence to Russians in the Oval Office, and revelations emerged that Trump had asked Comey to pledge loyalty and end an investigation into a senior aide.

Rosenstein was just two weeks into his job. He had begun overseeing the Russia investigation and played a key role in the president’s dismissal of Comey by writing a memo critical of his handling of the Hillary Clinton email investigation. But Rosenstein was caught off guard when Trump cited the memo in the firing, and he began telling people that he feared he had been used.

Rosenstein made the remarks about secretly recording Trump and about the 25th Amendment in meetings and conversations with other Justice Department and FBI officials. Several people described the episodes, insisting on anonymity to discuss internal deliberations. The people were briefed either on the events themselves or on memos written by FBI officials, including Andrew McCabe, then the acting bureau director, that documented Rosenstein’s actions and comments.

None of Rosenstein’s proposals apparently came to fruition. It is not clear how determined he was about seeing them through, though he did tell McCabe that he might be able to persuade Attorney General Jeff Sessions and John Kelly, then the secretary of homeland security and now the White House chief of staff, to mount an effort to invoke the 25th Amendment.

FILE -- Deputy Attorney General Rod Rosenstein testifies before the House Judiciary Committee in Washington on June 28, 2018. (T.J. Kirkpatrick/The New York Times)

The extreme suggestions show Rosenstein’s state of mind in the disorienting days that followed Comey’s dismissal. Sitting in on Trump’s interviews with prospective FBI directors and facing attacks for his own role in Comey’s firing, Rosenstein had an up-close view of the tumult. Rosenstein appeared conflicted, regretful and emotional, according to people who spoke with him at the time.

Rosenstein disputed this account.

“The New York Times’ story is inaccurate and factually incorrect,” he said in a statement. “I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.”

A Justice Department spokeswoman also provided a statement from a person who was present when Rosenstein proposed wearing a wire. The person, who would not be named, acknowledged the remark but said Rosenstein made it sarcastically.

FILE -- President Donald Trump speaks with Rod Rosenstein, the deputy attorney general, at a forum on immigration policy and gangs in Bethpage, N.Y., on May 23, 2018. (Tom Brenner/The New York Times)

But according to the others who described his comments, Rosenstein not only confirmed that he was serious about the idea but also followed up by suggesting that other FBI officials who were interviewing to be the bureau’s director could also secretly record Trump.

McCabe, who was later fired from the FBI, declined to comment. His memos have been turned over to the special counsel investigating whether Trump associates conspired with Russia’s election interference, Robert Mueller, according to a lawyer for McCabe. “A set of those memos remained at the FBI at the time of his departure in late January 2018,” the lawyer, Michael R. Bromwich, said of his client. “He has no knowledge of how any member of the media obtained those memos.” The revelations about Rosenstein come as Trump has unleashed another round of attacks in recent days on federal law enforcement, saying in an interview with the Hill newspaper that he hopes his assaults on the FBI turn out to be “one of my crowning achievements” and that he only wished he had terminated Comey sooner.

“If I did one mistake with Comey, I should have fired him before I got here. I should have fired him the day I won the primaries,” Trump said. “I should have fired him right after the convention. Say, ‘I don’t want that guy.’ Or at least fired him the first day on the job.”

Days after ascending to the role of the nation’s No. 2 law enforcement officer, Rosenstein was thrust into a crisis.

On a brisk May day, Rosenstein and his boss, Sessions, joined Trump in the Oval Office, where the president informed them of his plan to oust Comey. To the surprise of White House aides who were trying to talk the president out of it, Rosenstein embraced the idea, even offering to write the memo about the Clinton email inquiry. He turned it in shortly after.

A day later, Trump announced the firing, and White House aides released Rosenstein’s memo, labeling it the basis for Comey’s dismissal. Democrats sharply criticized Rosenstein, accusing him of helping to create a cover story for the president to rationalize the termination.

“You wrote a memo you knew would be used to perpetuate a lie,” Sen. Christopher Murphy, D-Conn., wrote on Twitter. “You own this debacle.”

The president’s reliance on his memo caught Rosenstein by surprise, and he became angry at Trump, according to people who spoke to Rosenstein at the time. He grew concerned that his reputation had suffered harm and wondered whether Trump had motives beyond Comey’s treatment of Clinton for ousting him, the people said.

A determined Rosenstein began telling associates that he would ultimately be “vindicated” for his role in the matter. One week after the firing, Rosenstein met with McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation.

During their discussion, Rosenstein expressed frustration at how Trump had conducted the search for a new FBI director, saying the president was failing to take the candidate interviews seriously. A handful of politicians and law enforcement officials, including McCabe, were under consideration.

To Rosenstein, the hiring process was emblematic of broader dysfunction stemming from the White House. He said both the process and the administration itself were in disarray, according to two people familiar with the discussion.

Rosenstein then raised the idea of wearing a recording device or “wire,” as he put it, to secretly tape the president when he visited the White House. One participant asked whether Rosenstein was serious, and he replied animatedly that he was.

If not him, then McCabe or other FBI officials interviewing with Trump for the job could perhaps wear a wire or otherwise record the president, Rosenstein offered. White House officials never checked his phone when he arrived for meetings there, Rosenstein added, implying it would be easy to secretly record Trump.

FILE -- Former FBI Director James Comey appears before the Senate Select Committee on Intelligence in Washington on June 8, 2017. (Doug Mills/The New York Times)

The suggestion itself was remarkable. While informants or undercover agents regularly use concealed listening devices to surreptitiously gather evidence for federal investigators, they are typically targeting drug kingpins and Mafia bosses in criminal investigations, not a president viewed as ineffectively conducting his duties.

In the end, the idea went nowhere, the officials said. But they called Rosenstein’s comments an example of how erratically he was behaving while he was taking part in the interviews for a replacement FBI director, considering the appointment of a special counsel and otherwise running the day-to-day operations of the more than 100,000 people at the Justice Department.

Rosenstein’s suggestion about the 25th Amendment was similarly a sensitive topic. The amendment allows for the vice president and majority of Cabinet officials to declare the president is “unable to discharge the powers and duties of his office.”

Merely conducting a straw poll, even if Kelly and Sessions were on board, would be risky if another administration official were to tell the president, who could fire everyone involved to end the effort.

McCabe told other FBI officials of his conversation with Rosenstein. None of the people interviewed said that they knew of him ever consulting Kelly or Sessions.

The episode is the first known instance of a named senior administration official weighing the 25th Amendment. Unidentified others have been said to discuss it, including an unnamed senior administration official who wrote an op-ed for The New York Times. That person’s identity is unknown to journalists in the Times news department. Some of the details in McCabe’s memos suggested that Rosenstein had regrets about the firing of Comey. During a May 12 meeting with McCabe, Rosenstein was upset and emotional, McCabe wrote, and said that he wished Comey were still at the FBI so he could bounce ideas off him.

Rosenstein also asked FBI officials on May 14, five days after Comey’s firing, about calling him for advice about a special counsel. The officials responded that such a call was a bad idea because Comey was no longer in the government. And they were surprised, believing that the idea contradicted Rosenstein’s stated reason for backing Comey’s dismissal — that he had shown bad judgment in the Clinton email inquiry.

Rosenstein, 53, is a lifelong public servant. After graduating from the University of Pennsylvania and Harvard Law School, he clerked for a federal judge before joining the Justice Department in 1990 and was appointed U.S. attorney for Maryland.

Rosenstein also considered appointing as special counsel James M. Cole, himself a former deputy attorney general, three of the people said. Cole would have made an even richer target for Trump’s ire than has Mueller, a lifelong Republican: Cole served four years as the No. 2 in the Justice Department during the Obama administration and worked as a private lawyer representing one of Clinton’s longtime confidants, Sidney Blumenthal.

Cole and Rosenstein have known each for years. Cole, who declined to comment, was Rosenstein’s supervisor early in his Justice Department career when he was prosecuting public corruption cases.

Trump and his allies have repeatedly attacked Rosenstein, who oversees the Russia investigation because Sessions recused himself because of his role as a prominent Trump campaign supporter. Many of those same critics also have targeted McCabe, who was fired in March for failing to be forthcoming in a Justice Department inspector general investigation. McCabe’s actions were referred to federal prosecutors in Washington.

The president’s allies have seized on McCabe’s lack of candor to paint a damning picture of the FBI under Comey and assert the Russia investigation is tainted.

The Justice Department denied a request in late July from Trump’s congressional allies to release McCabe’s memos, citing an ongoing investigation that the lawmakers believed to be Mueller’s. Rosenstein not only supervises that investigation but is considered by the president’s lawyers as a witness for their defense because he also sought the dismissal of Comey, which is being investigated as possible obstruction of justice.