In sworn testimony before the Senate Judiciary Committee on Wednesday, Sen. Mazie Hirono (D-HI) asked former Deputy Attorney General Rod Rosenstein if he had suggested wearing a wire into the Oval Office to record his conversation with President Trump or if he had discussed the possibility of invoking the 25th Amendment to remove him from office.
Rosenstein’s first answer was, “The idea that I was involved in some conspiracy to get the president is ridiculous.” This is not a firm and clear denial.
Hirono then asked, “Did you suggest or hint at secretly recording President Trump?”
He responded, “I did not suggest or hint at secretly recording President Trump.” This was an unequivocal denial.
Finally, Hirono asked, “Have you ever discussed with anyone the possibility of invoking the 25th Amendment to remove this president from office?”
Rosenstein replied, “I have never in any way suggested that the president should be removed from office under the 25th Amendment.” Less direct.
When Rosenstein’s office was contacted about these allegations in February 2019, a spokesman issued a statement which said, ”The deputy attorney general never authorized any recording that Mr. McCabe references. As the deputy attorney general previously has stated, based on his personal dealings with the president, there is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.”
This is significant because fired FBI Deputy Director Andrew McCabe has said the exact opposite. In fact, he wrote about it in a post-meeting memo.
The story that Rosenstein had allegedly offered to wear a wire and had spoken about invoking the 25th Amendment was reported by The New York Times in September 2018. Their sources was “people who were briefed either on the events themselves or on memos written by FBI officials, including Andrew G. McCabe, then the acting bureau director, that documented Mr. Rosenstein’s actions and comments.”
McCabe did not include this topic in his book, “The Threat: How the F.B.I. Protects America in the Age of Terror and Trump,” which was released in February 2019. He did, however, discuss this “bombshell” during an appearance on “60 Minutes,” one of the stops on his book promotion tour. He told Scott Pelley that Rosenstein “raised the issue and discussed it with me in the context of thinking about how many other Cabinet officials might support such an effort.” He added that Rosenstein was “definitely very concerned about the President, about his capacity and about his intent at that point in time.”
McCabe tried to walk back his comments shortly afterward saying that Rosenstein was likely just “thinking off the top of his head.” He said, “I, at no time, got the impression that he’d actually sought support, or talked to those people about it, or asked people, you know, ‘Would you support this?’ or ‘Would you not?’ It was simply Rod thinking off the top of his head — this is a thing that could be done, are there people that would want to do that?”
The Washington Post’s Aaron Blake wrote at the time:
There were divergent views about just how serious Rosenstein might have been in the comments. The Washington Post also has sources who say the remark was sarcastic, but The Times’s account is dubious about that argument. The Times reported that Rosenstein assured others he was being serious and even talked about getting Attorney General Jeff Sessions and then-Homeland Security Secretary John F. Kelly on board with the 25th Amendment gambit. One source told The Post that Rosenstein mentioned recording Trump twice in one day, which would suggest it wasn’t just a passing joke.
Rosenstein said at the time that he had never “pursued” either measure, which seemed to allow for the possibility that he has indeed broached them in passing. But now he’s saying that he didn’t even “suggest or hint” at wearing a wire. And his under-oath denial about seeking to remove Trump is very difficult to reconcile with reporting that he brought this up on multiple occasions and had, in McCabe’s words, “discussed recruiting Cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.”
There is an additional potential conflict. A source told Fox News that former FBI lawyer Lisa Page was present at the meeting. However, McCabe’s post-meeting memo mentions only Rosenstein, and colleagues Deputy Assistant AG for Intelligence Tashina Gauhar and Principal Associate Deputy Attorney General Jim Crowell.
The source also told Fox that “Rosenstein, during the meeting, reportedly told McCabe that he might be able to persuade then-Attorney General Jeff Sessions and then-Homeland Security Secretary John Kelly to begin proceedings to invoke the 25th Amendment.” Maybe the same source had told both Fox and The Post.
McCabe’s Post-Meeting Note
In September 2019, conservative watchdog group Judicial Watch obtained a copy of a memo McCabe had written on May 16, 2017, through a FOIA request. This memo is McCabe’s “contemporaneous recollection” of the infamous meeting held in Rosenstein’s office during which he had allegedly proposed wearing a wire to record the President. (The document, which is lightly redacted, is printed at the bottom of the page.)
In addition to Rosenstein and McCabe, Tashina Gauhar and Jim Crowell attended the meeting.
McCabe touched only briefly on Rosenstein’s idea of wearing a wire. He wrote:
As our conversation continued the DAG proposed that he could potentially wear a recording device into the Oval Office to collect additional evidence on the President’s true intentions. He said he thought this might be possible because he was not searched when he entered the White House. I told him that I would discuss the opportunity with my investigative team and get back to him.
McCabe makes no mention of the 25th Amendment, likely because the idea was preposterous and he may have assumed his memo might be referenced in the future.
Rosenstein has publicly maintained that he was being sarcastic when he made this comment. But nothing in McCabe’s memo suggests Rosenstein was being sarcastic. Rather, McCabe wrote he told Rosenstein that he would “discuss the opportunity with my investigative team and get back to him.”
The fact that Rosenstein had gone as far as thinking about practical details such as ‘I am not searched when I enter the White House’ indicates his seriousness. This remark shows that Rosenstein had at least given the idea some thought.
The idea of wearing a wire comes up in the middle of the meeting, but the group discussed other topics as well.
McCabe began by telling Rosenstein that he “approved the opening of an investigation of President Donald Trump … to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice.”
He told Rosenstein that the predication for his investigation was based on Trump’s interview with NBC’s Lester Holt and “concurring statements” from Comey’s memos.
McCabe expressed concern that Rosenstein, “as a result of his role in the matter, I thought he would be a witness to the case.” (If Rosenstein had been considered a witness in the case, he would have had to recuse himself from overseeing a potential special counsel investigation as then-Attorney General Jeff Sessions had already done.)
Rosenstein then recounted his Oval Office meeting with Trump, Sessions and then-White House Counsel Don McGahn about Comey’s imminent firing. He said the President asked him to write a “memo explaining the reason” for Comey’s firing.
Rosenstein told McCabe he had a “credibility problem.” One of Rosenstein’s staffers had shown him photos of McCabe wearing his wife’s campaign t-shirt after “assuring” the DOJ he played no role in her campaign.
They discussed the possibility of appointing a Special Counsel to conduct the investigation. Rosenstein said he already had two candidates in mind and that one could start right away. In fact, on May 17, 2017, the very next day, Rosenstein appointed Robert Mueller to the Special Counsel.
Judicial Watch President Tom Fitton said, “This incredible memo details the conflicted and conniving coup effort against President Trump. It is astonishing and shocking McCabe thought he could have the FBI conduct a ‘counterintelligence’ operation on the president and Rosenstein thought it would be appropriate to wear a wire to secretly record President Trump in the Oval Office. That the DOJ and FBI sat on this smoking gun for a year shows the need for urgent housecleaning at those agencies.”
One of these men is lying. Rosenstein denied the allegation under oath. McCabe confirmed the allegation on “60 minutes” and again in his memo, neither time under oath.
Conflicts like this present opportunities which prosecutors can exploit. And I’m sure John Durham is on it.
Additionally, in his testimony before Congress in October 2018, former FBI general counsel James Baker told lawmakers, “I was being told by some combination of Andy McCabe and Lisa Page, that, in a conversation with the deputy attorney general [Rosenstein], he had stated that he — this was what was related to me — that he had at least two members of the president’s cabinet who were ready to support, I guess you would call it, an action under the 25th Amendment.”
Again, this raises the question of Lisa Page’s attendance at the meeting. A source told Fox News she was present. McCabe’s memo does not include her name.
Finally, in late April, Washington attorney Joe diGenova, a former U.S. Attorney for the District of Columbia, spoke to radio show host Howie Carr.
During their discussion, diGenova asked Carr, “You know Baker is now cooperating with Durham?” (James Baker the former FBI General Counsel.)
Carr replied, “He’s flipped?”
And diGenova responded, “He was a target, is now understandably cooperating because he was looking at a boatload of criminal charges…
I have heard rumors in the past that James Baker (FBI) has been cooperating with John Durham’s team. It’s likely that when officials involved in the massive conspiracy to bring down Trump’s presidency realize that it’s “Checkmate,” others will begin cooperating with Durham.
Excerpt from February 19, 2019 post (transcripts from FBI general counsel James Baker and FBI lawyer Sally Moyer had just been released):
Fox News reported some new developments in the case. Former top FBI lawyer James Baker testified before the House Oversight and Judiciary Committees in October behind closed doors. (Fox News has confirmed the following testimony with members of Congress.)
Baker: “I never did a legal analysis of this matter because after the conversation came up it was quickly dismissed.”
Baker was asked who dismissed the reported wire proposal.
Baker: “A, I don’t know, but, B, my belief is that it was just not something that made any sense to do. It was too risky. It just would not pay the benefits. It wouldn’t obtain the information that they thought it would obtain, so it just was one of these things that didn’t make sense from a commonsense perspective, despite any legal analysis.”
He was asked how long the wire issue was discussed.
Baker: “…A couple of days or something, yes.”
Congressional investigators asked Baker how he had heard about the talks.
Baker: “I was being told by some combination of Andy McCabe and Lisa Page, that, in a conversation with the Deputy Attorney General, he had stated that he — this was what was related to me — that he had at least two members of the president’s Cabinet who were ready to support, I guess you would call it, an action under the 25th Amendment.”
FBI lawyer Sally Moyer also testified in a closed-door hearing before Congress in October. Moyer said that she sometimes commuted to work with former FBI lawyer Lisa Page.
Moyer was asked what Lisa Page’s reaction was when Rod Rosenstein said he had been “sarcastic” when he said he should wear a wire to secretly record the president.
Moyer: “It was when the news hit about the wiretap and the department’s position and what they were saying happened, and she was indicating she did not believe that they were telling the truth,”
She was then asked if she thought the FBI would have received a warrant from the FISA Court without the dossier.
Moyer: “The chances of securing a 2016 surveillance warrant for a Trump campaign aide were only “50/50” without the controversial anti-Trump dossier.”
Investigators then asked “whether the FBI would have been able to establish probable cause if the application “did not have the Christopher Steele information in it?”
Moyer: “So I think it’s a close call, like 50/50, 51/49. I really think it’s a close call.”
Here is the full text of the redacted McCabe memo (via Judicial Watch):
Tuesday, May 16, 2017
At 12:30 pm on 05/16/2017, I met with Deputy Attorney General (DAG) Rod Rosenstein in his office at the Department of Justice. Also present were Tashina Gauhar and Jim Crowell. The following is a contemporaneous recollection of the main topics we discussed.
I began by telling him that today I approved the opening of an investigation of President Donald Trump. I explained that the purpose of the investigation was to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice. The DAG questioned what I meant by collusion and I explained that I was referring to the investigation of any potential links between the Trump campaign and the Russian government. I explained that counterintelligence investigations of this sort were meant to uncover any existence of any threat to national security as well as whether or not criminal conduct had occurred. Regarding the obstruction issues, I made clear that our predication was based not only on the president’s comments last week to reporter Lester Holt (that he connected the firing of the director to the FBI’s Russia investigation), but also on the several concurring comments the president made to Director Comey over the last few months. These comments included the President’s requests for assurances of loyalty, statements about the Russia investigation and the investigation of General Michael Flynn. I also informed the DAG that Director Comey preserved his recollection of these interactions in a series of contemporaneously drafted memos. Finally, I informed the DAG that as a result of his role in the matter, I thought he would be a witness in the case.
The DAG then related his experiences at the White House on Monday, 05/08/2017. He began by stating that he had the feeling that the decision to fire the Director had been made before he arrived. At the White House, he first met with White House Counsel Donald McGahn, who told him that the President had drafted a letter to Director Comey that McGahn did not want the President to send. Shortly thereafter they met with the President and Attorney General Jeff Sessions, and possibly others, in the Oval Office. President Trump told the DAG he had written a letter to Director Comey, asked the DAG if he had seen the letter, and instructed McGahn to provide the DAG with a copy. The DAG described the letter to me as being a long list, possibly several pages, of the President’s complaints with Director Comey. Among those complaints was a discussion about the FBI’s Russia investigation, as well as a paragraph about the FBI Deputy Director. The DAG indicated to me that he retained a copy of the President’s letter. The DAG said he told the President [redacted]. The President then directed the DAG to write a memo explaining the reasoning for Director Comey’s termination and that the DAG should include Russia. The DAG said to the President he did not think this was a good idea and that his memo did not need to include Russia. The President replied that he understood, but that he was asking the DAG to include Russia anyway. As our conversation continued the DAG proposed that he could potentially wear a recording device into the Oval Office to collect additional evidence on the President’s true intentions. He said he thought this might be possible because he was not searched when he entered the White House. I told him that I would discuss the opportunity with my investigative team and get back to him.
We discussed the issue of appointing a Special Counsel to oversee the FBI’s Russia investigation. The DAG said he has two candidates ready one of whom could start immediately. [Redacted] The DAG said that he left a copy of the delegation with Acting Assistant Attorney General for National Security Dana Boente to execute in the DAG’s absence if the DAG were suddenly removed from his position. [Redacted] He anticipated that he may be terminated when he puts the Special Counsel in place, in light of the president’s anger with AG Sessions when the AG recused himself from the Russia investigation. The DAG further stated that he was told that others heard the President tell the AG “you were supposed to protect me.”
The DAG related to me that on Sunday, 05/14/17, the AG asked him to participate in the interview of [redacted] for the position of FBI Director. [Redacted].
The DAG told me that he informed the AG that I should remain in my role as Acting Director until the permanent Director was chosen. The DAG opined that my only “problem” was that some people believe that I was involved in my wife’s 2015 campaign for State Senate in Virginia. The DAG said it was a “credibility problem” because after having told him during my May 13 interview that I played no role in her campaign and attended no campaign events, the DAG said a staffer had provided him with a photograph found on the internet of me and my wife wearing Dr. Jill McCabe campaign t-shirts. The DAG suggested that this photograph contradicted my statement that I had not campaigned for my wife. I pointed out to the DAG that the photograph he saw was taken not at a campaign event, but rather at [redacted] I further informed the DAG that I confirmed with my ethics counsel at FBI that the Hatch Act does not prohibit wearing a campaign button or shirt away from the office, and that attending [redacted] wearing such a shirt does not constitute proscribed political activity.