Is Rod Rosenstein resigning or about to be fired? Media chaos as reports conflict

The Deputy Attorney General is responsible for overseeing the Mueller investigation. Reports Monday that he had stepped down appear to have been premature.

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Deputy Attorney General Rod Rosenstein, the official who appointed Robert Mueller as Special Counsel to head the Russia investigation, has resigned, according to Axios, potentially imperilling the investigation at a crucial political moment. Or has he?

Rosenstein verbally offered his resignation to White House Chief of Staff John Kelly in anticipation of being removed from the job by the president, stepping down because “he’s expecting to be fired,” a source told Axios.

A chaos of conflicting reports followed, with CNN and NBC reporting that Rosenstein had only discussed resigning but not officially tendered his resignation, and White House officials telling the Washington Post that Rosenstein had offered to step down but saying it was unclear whether the offer had been accepted.

It appears as if the story originated from sources around White House Chief of Staff John Kelly. Jonathan Swan, the Axios reporter who posted the original story, tweeted that “the latest line out of the Justice Department is that Rosenstein ‘offered’ his resignation to Kelly but it hasn’t been officially accepted.”

The White House confirmed on Monday that Rosenstein will be staying put in his job, at least for now. “Because the President is at the United Nations General Assembly and has a full schedule with leaders from around the world, they will meet on Thursday when the President returns to Washington, DC,” White House press secretary Sarah Huckabee Sanders told reporters Monday.

If Rosenstein had resigned, Trump would have been free to choose a successor who might shut down the investigation and fire Mueller. The Daily Beast is reporting that Jay Sekulow and Rudy Giuliani, the president’s personal lawyers, want a “time out”, or effective cessation of the Mueller investigation if Rosenstein resigns or is fired.

One possible candidate may be disgraced former Environmental Protection Agency chief Scott Pruitt, one of the most corrupt figures in an administration dogged by corruption and scandal. Pruitt, a Trump lackey, has long vied for the Attorney General job.

The difference between Rosenstein being fired and resigning is a crucial one for the Mueller investigation. If he resigned, then the Vacancy Act allows Trump to appoint his acting successor. If he is fired, then Solicitor General Noel Francisco will take over and oversee the Mueller investigation.

However, Francisco has previously indicated he would recuse himself. If he did so, the role would then fall to Steve Engel, the head of the Office of Legal Counsel, according to Neal Katyal, a former acting Solicitor General.

It is difficult to decypher any answers from the chaos. Certainly, Trump wants Rosenstein gone; this may have been a tactical misfire in an attempt to use the media to force the issue.

Senate Minority Leader Chuck Schumer said earlier this year that firing Rosenstein would cause a “constitutional crisis”, and firing Rosenstein has been considered a red line by some Republicans as well, some of whom supported a bill earlier this year to protect Mueller’s investigation from being shut down by the White House. They were told by Senate Majority Leader Mitch McConnell that there was no need for such a bill, but if the White House fires Rosenstein those worries will likely reignite.

Either way, the stakes could not be higher. Andrew McCabe, who became acting director of the FBI following Comey’s firing and served until August 2017, said in a statement that if the rumours of Rosenstein's departure were true, “I am deeply concerned that it puts that investigation at risk.”

Last week, the New York Times reported that Rosenstein had suggested wearing a wire around Trump and talked about invoking the 25th Amendment, which is a way of removing a president from office if they are unable to do the job. Rosenstein denied the allegations.

Rosenstein appointed Mueller to head the investigation into Russian interference in the 2016 elections after Trump fired the FBI director James Comey. He has long been the line of defence for the Mueller investigation, because his boss, Attorney-General Jeff Sessions, recused himself from the topic early on in the Trump administration. That has long been a cause for anguish for the President, who has often condemned Sessions for his recusal and called the investigation a “witch hunt”.

Nicky Woolf is the editor of New Statesman America. He has formerly written for the Guardian and the New Statesman. He tweets @NickyWoolf.