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What happened between Rosenstein and McCabe before Mueller was appointed?

Posted at 1:12 PM, Sep 21, 2018

The staggering revelations of memos documenting Deputy Attorney General Rod Rosenstein's discussions of surreptitiously recording President Donald Trump and of the 25th Amendment raised fresh questions Friday about the eight-day stretch between the time former FBI Director James Comey was fired last year and Robert Mueller was appointed as special counsel to lead the Russia investigation.

A vastly complex and somewhat divergent picture of key moments during that time has emerged based on what sources familiar with the events tell CNN.


At the time of Comey's dramatic firing on May 9, 2017, Rosenstein, a career prosecutor, had only recently started his tenure as the No. 2 official at the Justice Department. Officials at the FBI, especially within top leadership, were devastated. Former FBI Deputy Director Andrew McCabe, who became the acting director after Comey was ousted, was particularly disturbed by how it happened and Rosenstein's role.

Rosenstein wrote a memo outlining ways Comey had flouted Justice Department protocols leading up to the 2016 election and Trump initially used the memo to justify firing Comey.

In the days that followed Comey's firing, McCabe proceeded to push Rosenstein to recuse himself from overseeing the Russia investigation and Rosenstein resisted.

One source made a point to emphasize that after Rosenstein appointed Mueller, it effectively removed the Russia investigation from McCabe's hands. And in the days leading up to Mueller's appointment, Rosenstein's desire to remove McCabe from the investigation was a point of contention between the two men.

Overall, there was significant mistrust on both sides, and sources suggested to CNN that heightened suspicion colored the conversations that are now documented in contemporaneous notes.

"The relationship was new and forming at a time when objectively the facts would suggest that they wouldn't trust each other," another source said.

CNN and others previously reported that McCabe has turned over to Mueller his contemporaneous notes on what Comey told McCabe about his private interactions with Trump, McCabe's own interactions with Trump and McCabe's impressions of meetings with Rosenstein.

May 16

There were at least two different meetings at the Justice Department that May 16 that have now landed Rosenstein in hot water.

During what as been characterized as the first meeting, Rosenstein raised the prospects of wearing a wire and of the 25th Amendment, according to sources familiar with McCabe's contemporaneous account -- though people disagree about Rosenstein's intent and McCabe's motivations. Later that day, McCabe went back to the Justice Department and this time then-FBI lawyer Lisa Page, with whom he worked closely at the time, joined him.

According to text messages reviewed by CNN, just after 7 that evening, Page texted then-FBI counterintelligence agent Peter Strzok, saying, "Headed over with Dd now," their typical reference to McCabe as deputy director. Strzok wished her "good luck" and over the course of the next hour, he eagerly awaits her return "for an update."

At what has been described as the second meeting, McCabe, Page and other Justice officials were present and Rosenstein again raised the prospect of a wire, but did not mention recruiting Cabinet officials to invoke the 25th Amendment to remove Trump from office.

A source who was in the room for the second meeting told CNN that the wire comment was "non-serious," "sarcastic and was never discussed with any intention of recording a conversation with the President." Another source familiar with the matter told CNN that Rosenstein was joking.

Nevertheless, Page memorialized the conversation in a contemporaneous memo herself, which corroborated McCabe's version of events and remained at the FBI when she left the bureau in May 2018.

Page's representative declined to comment to CNN.

Rosenstein issued two separate denials of the reports Friday.

"The New York Times's story is inaccurate and factually incorrect. 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," Rosenstein said in a statement. "But let me be clear about this: based on my personal dealings with the President, there is no basis to invoke the 25th Amendment."

He later said: "I never pursued or authorized recording the President and any suggestion that I have ever advocated for the removal of the President is absolutely false."

'Careful and meticulous'

One of the sources who was familiar with the key events that followed after May 16, 2017, cautioned that if Rosenstein were seriously considering wearing a wire himself or having McCabe do so, there would have been at least been some follow-up, but there was none.

A former Justice Department official said it was unlikely Rosenstein was being serious about wearing a wire.

"When you are in a tense meeting he's able to dial down the tension with a well-timed joke," said the former official. "It's 100% in character. It's not 100% in character to suggest that seriously. He's careful and meticulous."

On the 25th Amendment remark, the former official said that "just doesn't seem like him to ever say anything like that. The idea that he'd discuss some half-baked plot with someone he's just working with for the first time" seemed improbable.

Separately, another former official said he never heard anything like this from Rosenstein during their time working together.

In the end, one source suggested that the level of mistrust, combined with the fact that the two had worked together for only a short time, created an unfortunate recipe for misunderstandings and mischaracterizations when tensions were running high.