The McCabe Memo

The McCabe Memo

Last Friday, the New York Times ran a story. The Times,quoting memos written by then Deputy FBI Director Andrew McCabe, claimed that Deputy Attorney General Rod Rosenstein spoke about wearing a “wire” when talking to the President, and mentioned using the 25^thAmendment process for removing Mr. Trump from office.

The Times article stated that McCabe wrote the memos to “memorialize” events at the time, which was immediately after the firing of Director James Comey and before the appointment of Special Counsel Robert Mueller.  Rosenstein at first denied the article, then claimed that the “wire” comment was sarcasm.

The facts of the article raise the questions:  was the Deputy Attorney General of the United States looking to remove the President of the United States?  Was he also trying to get evidence from the President to use in some kind of legal proceeding against him?  If that was the case, was he acting to protect the country, or was he acting as part of a “deepstate” conspiracy to stop the Trump Presidency?

At the time, a Rosenstein “joke” about a wire might have made sense. Right after the firing of Comey, Trump blamed Rosenstein’s memo for the firing.  Rosenstein was “betrayed” by the claim, and supposedly considered resigning at the time. In that context, a joke about “wearing a wire” might have been ironic, if not funny.

And Rosenstein, a career attorney with the Justice Department, was well aware that the 25^th Amendment is a burdensome and technical process, and also one in which Deputy’s had no place.  The 25^th requires the Vice President and half of the Cabinet members, something that Rosenstein had no control or say about. In addition, he certainly knew that “wearing a wire” would make him a witness against the President, and force him to recuse himself from the investigation.  It seems unlikely that he would even bring it up.

So what were the reasons for the New York Times getting the story?  Who were the anonymous sources that gave them the McCabe memos?

The memos were controlled by three entities.  The FBI and the Department of Justice of course had possession of the memos, as did McCabe himself.  The Mueller investigation team also was given copies of the memos when McCabe was fired from the FBI.  Other than that, the memos were held “in secret.”

The memos were part of the information subpoenaed by the House Intelligence Committee Republicans, led by the Freedom Caucus members.  This has been a “bone of contention” between the Committee members and Rosenstein, who has withheld the memos and other information as part of an ongoing investigation.  Supposedly then, the House members didn’t have access to the memos, yet.

That leads back to the three entities that did have access.  There have been NO leaks from the Mueller Team, and it is unlikely they would have broken precedent in this case. Rosenstein has been the “air cover” for the Mueller investigation; taking the heat from Congress and the President.  There is no value for the Mueller team to put Rosenstein in jeopardy.

McCabe himself has the memos, and knows what “he knows.” McCabe may also be bitter about what happened to him at the FBI; fired just twenty-four hours before earning a full retirement.  Rosenstein as Deputy Attorney General was ultimately in charge of the Department and therefore the firing.  The problem with this scenario, is that McCabe himself was a fierce advocate for the Russian investigation of the Trump campaign.  Attacking Rosenstein is likely to result in compromise in the investigation, presumably a result McCabe wouldn’t want.

This leaves us with the FBI and the Justice Department itself. If the memos were leaked by them, who would they have given them to, forces for or against?

Forces in the Department against the President, might have used the memos to further the narrative that the President was erratic and out of control.  This was in the Times anonymous letter from inside the White House, and the  Bob Woodward book, Fear.  The memos might add to the pressure to “invoke the 25^th.”

The problem with that theory is that the removal of Rosenstein, a foreseeable result of the memos publication, removes protection from the Special Counsel and puts the entire investigation in jeopardy.

The President’s allies, particularly his advisors on Fox News, have urged him NOT to fire Rosenstein.  They believe that removal will precipitate a crisis in Congress, ultimately resulting in a more protected Special Counsel investigation.  They argue that the memos must have been leaked by those opposed to the President.

On the other hand, the Freedom Caucus has made it clear that they want to see Rosenstein removed; in fact, they have filed a motion of impeachment in the House of Representatives.  The memos further their conspiracy theory that the “deep state” Department of Justice was working to remove the President.   The Freedom Caucus also act as if “…blowing everything up” is to their advantage, and starting this crisis might be there way to light the fuse. So if they got their hands on the memos, it might make sense for them to leak it to the press.

It is likely that someone in the Department of Justice accessed and leaked the memos to one side or the other.  Either side might have fed them to the Times, (though I’d bet on the Freedom Caucus.)

What happens next?  Trump now has some cover to fire Rosenstein; those Republicans who called for Rosenstein’s protection will be placed in the “deepstate” conspiracy. But if Trump fires Rosenstein, the Federal Vacancies Act will not apply.  That Act allows the President to temporarily (ten months) fill a vacant position with any executive branch member who was approved by the Senate (see Mick Mulvaney’s appointment to the Consumer Protection Board after Rich Cordray resigned.)  Trump could pick someone who would restrict or even end the Mueller investigation. But to do that, Rosenstein needs to resign, not be fired.

On Thursday the President and Rosenstein will meet (in part a distraction from the Kavanaugh hearings.)  The result of that meeting will determine what happens next.  In all likelihood, Rosenstein won’t resign even if asked, and Trump won’t add to obstruction of justice by firing him.

And the games go on.