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Rosenstein discussed replacing Comey at FBI before joining Trump administration

  • Author: Emmarie Huetteman, Rebecca R. Ruiz, The New York Times
  • Updated: December 2, 2017
  • Published May 19, 2017

Deputy Attorney General Rod Rosenstein arrives for a closed briefing for members of the House of Representatives to discuss the firing of former FBI Director James Comey, on Capitol Hill in Washington, May 19, 2017. REUTERS/Joshua Roberts

WASHINGTON — Rod Rosenstein, the deputy attorney general, talked with Attorney General Jeff Sessions about replacing James Comey as FBI director last winter, before either man had been confirmed for their positions in the Trump administration.

In a briefing memorandum to members of Congress released Friday by the Justice Department, Rosenstein indicated that he had long believed Comey should be dismissed because of his public statements related to the investigation of Hillary Clinton. It had not been previously known that Rosenstein then discussed the matter with Sessions as he was being considered for his position.

"Among the concerns that I recall were to restore the credibility of the FBI, respect the established authority of the Department of Justice, limit public statements and eliminate leaks," he said, echoing the concerns he had outlined in a May 9 memo that the White House released publicly that day and has cited as the basis for the ouster.

But on May 8 — the day before Rosenstein drafted that three-page memo, he told lawmakers — he had learned of Trump's intention to remove Comey from the job.

"I thought it was appropriate to seek a new leader," he said, expressing more direct support for the firing than he had in his more measured memo, which stopped short of endorsing a particular action but rather outlined what he called Comey's "serious mistakes" and noted that any possible decision to dismiss Comey "should not be taken lightly."

Before submitting his memo, Rosenstein said, he solicited feedback from several career lawyers at the Justice Department, including one specializing in ethics issues. He told that lawyer President Donald Trump planned to fire Comey, and that he was a writing a memo addressed to Sessions "summarizing my own concerns." The other lawyer was not identified.

The release of the memo followed what was otherwise an unremarkable appearance on Friday that left many House members frustrated by Rosenstein's refusal to answer questions about the investigation into Russian election meddling.

Rep. Seth Moulton, D-Mass., said there was "considerable frustration" among lawmakers as Rosenstein declined to answer more detailed questions about the events leading to the abrupt termination.

"This renewed my confidence that we should not have confidence in this administration," Moulton said. Asked whether that included Rosenstein, he said, "I don't think he did a lot to bolster our confidence in him."

According to lawmakers and Rosenstein's prepared remarks, the deputy attorney general offered little clarity about how related congressional inquiries may proceed in light of Rosenstein's appointment Wednesday of a special counsel, Robert Mueller, to examine the possibility of collusion between Trump's associates and Russian officials.

The fact that Mueller's inquiry is focused on possible crimes is almost certain to limit the cooperation of potential subjects of the investigation who might otherwise testify before Congress or share documents.

"Congress is going to want to look over the shoulder of this investigation," said Rep. Darrell Issa of California, a Republican who was an aggressive chairman of the House Oversight Committee during the Obama administration. "The executive branch will always try to limit that for fear it will contaminate potential criminal investigations, or leaks."

"I don't expect this to be any different," he added.

Rosenstein instead delivered careful characterizations about the inquiry and deferred to Mueller's autonomy as special counsel, and a pending investigation into Comey's conduct by the Justice Department's Inspector General. He said that his memo had not been a legal brief, or a finding of official misconduct by Comey or "a statement of reasons to justify a for-cause termination."

Rep. Jackie Speier of California, a Democrat on the House Intelligence Committee, said Friday that Rosenstein had made it clear that Mueller would have "carte blanche authority," but he also reassured lawmakers that he understood the role of Congress.

"I think he's very respectful of the role that the Congress is playing in doing its investigation," she said, "and the separate and distinct role that the Department of Justice is pursuing."

Rosenstein signed the legal order naming Mueller special counsel Wednesday before informing Sessions or the White House of that decision. Democrats were simultaneously heartened by the selection of a respected former FBI director and prosecutor to lead an investigation that they feared had been tarnished by Trump's interference, while also concerned about the possibility of losing their grip on the information coming out of their own investigations.

The New York Times has reported that Trump asked Comey for his "loyalty" during a private dinner and requested he drop the investigation into Michael Flynn, his former national security adviser, who is under scrutiny regarding his ties to Russia and Turkey.

Nicholas Fandos and Thomas Kaplan contributed reporting.

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