With Rod Rosenstein Leaving the Justice Department, What’s Next for the Mueller Investigation?

Summary

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The Political Scene | The New Yorker

Episode: With Rod Rosenstein Leaving the Justice Department, What’s Next for the Mueller Investigation?
Date: January 10, 2019
Host: Dorothy Wickenden
Guest: Jeffrey Toobin

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Episode Overview

This episode examines the imminent departure of Rod Rosenstein as Deputy Attorney General and considers its implications for the Mueller investigation into Russian interference in the 2016 U.S. presidential election. Host Dorothy Wickenden and staff writer Jeffrey Toobin discuss the shifting dynamics within the Justice Department, the potential appointment of William Barr as Attorney General, executive privilege, Congressional oversight, and recent critical developments in the Russia probe.

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Key Discussion Points & Insights

1. Rosenstein’s Departure and Justice Department Dynamics

• Rosenstein as Protector: Rosenstein has been a key figure insulating Mueller from White House interference.
  • “Presumably, Rosenstein has been a really singularly effective bulwark between Trump and Mueller. It's got to be one of the toughest jobs in Washington.” (02:58)
• Barr’s Incoming Role: William Barr's anticipated confirmation as Attorney General could mean a change in how the Justice Department handles the Mueller probe.
  • Query over whether Barr, based on his past writings, might restrict the investigation or the release of its findings.

2. Mueller Investigation’s Fate and Potential Report Release

• Mueller Nearing Completion: The investigation appears to be concluding; focus shifts to the fate and form of the final report.
  • “Under the regulation under which Mueller was appointed, he has the obligation to file some sort of report... The question of what happens to the report then... would be up to the attorney general.” (03:25)
• Role of the Attorney General: The AG has broad discretion over if, when, and how much of Mueller’s report is made public or sent to Congress.

3. Executive Privilege and Public Disclosure

• Possible White House Objections: Rudy Giuliani, Trump’s lawyer, asserted that the White House may object to the release of information on executive privilege grounds.
  • “We reserve the right to object to public disclosure on the grounds of executive privilege... It will be up to the attorney General to make the determination...” (05:03)
• Political Dimension: With Democrats now leading the House, pressure mounts for full disclosure, but Republican backing for public release is uncertain.
  • “There have been some clearings of throat and tut tutting from Republicans about the need for public disclosure. But I have not heard any outright opposition to Trump on this issue.” (06:33)

4. Significant Russia Probe Developments

• Manafort–Kilimnik Revelations: Paul Manafort’s mistakenly revealed sharing of confidential campaign polling data with Konstantin Kilimnik (believed Russian intelligence) is flagged as crucial evidence of potential collusion.
  • “In political campaigns, the internal polls are the most secret and valuable material any campaign has... Manafort gives this to this Russian figure.” (08:36)
  • “Did they use this material to decide how to use their social media? That's why this material was valuable.” (09:54)
• Timing of Events: The sharing happened as Russian operatives hacked the DNC and ramped up social media influence campaigns.

5. Trump’s Business Ties and Shifting Explanations

• The narrative from the Trump camp has evolved from complete denial of Russian involvement to limited acknowledgment, without admitting candidate knowledge.
  • “Remember, at first it was, we had nothing to do with Russia... the explanation evolves to. Well, maybe. Maybe he was doing that, but the candidate had no idea.” (10:25–11:46)
• Multiple Trump Allies Tied to Russia: Several Trump associates had contacts with Russians, details of which were misremembered or denied.

6. Sanctions and Oleg Deripaska

• Sanctions Relief: Oleg Deripaska, linked to Manafort, had U.S. sanctions on some businesses lifted by Treasury, despite congressional concerns.
  • “Despite everything, Putin and his allies are still winning in the United States, that they are getting the sanctions lifted on the oligarch who was at the core of this... Democrats now are getting Mnuchin to testify... about why Deripaska is getting this relief from American sanctions.” (12:21)

7. William Barr’s Legal Views and Historical Precedent

• Barr’s Memo: Barr previously sent a memo challenging Mueller’s obstruction theories, hinting he believes the President has wide latitude over DOJ actions.
  • “He wrote this extraordinary memo... saying the idea that the president could be investigated for obstruction of justice... was constitutionally flawed.” (14:27)
• Toobin’s Rebuttal: Toobin strongly disputes Barr’s (and Alan Dershowitz’s) interpretation regarding presidential immunity from obstruction.
  • “Suppose, for example, someone walked into the Oval Office and gave the President a suitcase of cash in order to fire James Comey. Would that be proper? I think clearly not.” (15:45)

8. Presidential Power and the Border Wall

• National Emergency Powers: They also discuss Trump’s possible use of emergency powers to secure funding for the border wall, a constitutionally dubious move that would set a precedent in circumventing Congressional authority over spending.
  • “There's a law from 1974 called the National Emergencies act... But it has never been used as an end run around Congress exercising its lawful powers under the Constitution.” (17:06)
  • “By using this National Emergencies act, he will be directly refuting the commands of the Constitution... I think he may well get away with it.” (18:17)

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Notable Quotes & Memorable Moments

• On the shifting political climate at the DOJ:
  • Dorothy Wickenden: “The dynamic at the Justice Department is about to change a lot. Presumably, Rosenstein has been a really singularly effective bulwark...” (02:58)
• On the ambiguity surrounding Mueller’s report:
  • Jeffrey Toobin: “...the fate of the report, I think is likely the big new subject that will be before the Attorney general sometime in 2019.” (04:17)
• On campaign secrets and collusion:
  • Jeffrey Toobin: “In political campaigns, the internal polls are the most secret and valuable material any campaign has.” (08:36)
• On presidential obstruction:
  • Jeffrey Toobin: “Suppose... someone walked into the Oval Office and gave the President a suitcase of cash in order to fire James Comey. Would that be proper? I think clearly not.” (15:45)
• On national emergency powers:
  • Jeffrey Toobin: “...he will be directly refuting the commands of the Constitution. And based on at least my preliminary analysis, I think he may well get away with it.” (18:17)

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Important Timestamps

• 01:16 — Episode opening and introduction of main theme
• 02:58 — Rosenstein as a bulwark between Trump and Mueller
• 03:25 — Fate of Mueller’s report with new DOJ leadership
• 05:03 — Giuliani’s position on executive privilege
• 07:50 — Significance of Manafort’s sharing of polling data
• 09:54 — Context of this information relative to Russian hacking
• 12:21 — Oleg Deripaska sanctions relief discussion
• 14:27 — Barr’s legal arguments and his memo
• 15:45 — Toobin’s Watergate analogy rebuffing Barr’s position
• 17:06 — Discussion of presidential emergency powers for the wall
• 18:48 — Key issues for Barr’s confirmation hearings

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Conclusion

This episode spotlights the immense uncertainty facing the Mueller investigation as DOJ leadership shifts, and addresses the complex legal, political, and constitutional questions at play. The hosts dissect the practical and symbolic ramifications of executive privilege, public transparency, and the independence of the Justice Department—all set against the newly Democratic House, recent revelations of deeper Russian campaign ties, and ongoing battles over presidential authority.

Transcript

[A]

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[B]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Thursday, January 10th. I'm Dorothy Wickenden, executive editor of the New Yorker. President Trump is finally rid of the two men he holds responsible for launching the Mueller investigation. Jeff Sessions was ousted as attorney general in November, and yesterday administration officials said that Deputy Attorney General Rod Rosenstein would step down when Sessions replacement takes office. Some months ago, Trump's nominee for his new attorney general, William Barr, wrote a 19 page memo to Rosenstein that criticized the investigation into possible obstruction of justice by President Trump as fatally misconceived. Yesterday, Republican Senator Lindsey Graham, the new chair of the Senate Judiciary Committee, assured reporters that Barr will not hinder the Mueller investigation.

[C]

I think the main thing that people want to know is what's his view of the Mueller investigation. And I can assure you, based on what I heard, that his high opinion of Mr. Mueller believes that Mr. Mueller is doing a professional job, will do a professional job, it will be fair to the President, the country as a whole, and has no reason for Mr. Mueller to stop doing his job and is committed to allowing Mr. Mueller to finish.

[B]

Jeff Toobin joins me to discuss how the administration could limit fallout from the investigation even without firing Mueller, and whether Trump's executive privilege could be used to successfully drive his agenda in this and other areas of governance. Hey, Jeff.

[D]

Hi, Dorothy.

[B]

Welcome back.

[D]

Nice to talk to you.

[B]

You, too. As always, if Barr is as good as his word, Mueller will not be fired. But the dynamic at the Justice Department is about to change a lot. Presumably, Rosenstein has been a really singularly effective bulwark between Trump and Mueller. It's got to be one of the toughest jobs in Washington. By the way, what kinds of pressure will Barr and Rosenstein's replacement be under in the months ahead to limit the damage of the Mueller report?

[D]

Well, the. The big issue with Mueller for these almost two years that he's been appointed has been will he be fired? And that issue, I think, is sort of moving off the table now because from all that we've been able to see, Mueller is sort of wrapping up the investigation. And it does seem that Barr will make a commitment to allow Mueller to finish the job. Under the regulation under which Mueller was appointed, he has the obligation to file some sort of report. It's pretty vague, but some sort of report with his supervisors at the Justice Department, who would be, presumably in the next few months, William Barr, the new Attorney General. The question of what happens to the report then, whether it is released to the public, to Congress, not at all. In what form? Redacted, unredacted, that would be up to the attorney general. And that question of the fate of the report, I think is likely the big new subject that will be before the Attorney general sometime in 2019.

[B]

So I want to ask you about Rudy Giuliani, because you talked to him at some length last year. You wrote a big piece about him, one of Trump's lawyers, he denied reports this week that he had told a friend that the report would be horrific and said, as he has before, that the report should be public because there's nothing, nothing to hide. What's your response to that?

[D]

Well, Rudy, to put it mildly, has said a lot of things.

[B]

Yes, he has.

[D]

And he has also said that the administration, the White House, will protect its institutional rights and obligations, including executive privilege. And the other thing Rudy said to me when I wrote the piece about him, and he has since said it to others at some length, is that at the beginning of the Mueller investigation, one of the conditions on which the administration agreed to cooperate was we, the White House, will allow you to interview White House officials, will allow you to review White House documents. But we reserve the right to object to public disclosure on the grounds of executive privilege. That means that if and when Mueller files a report, they may say, we object to the disclosures of some or all of it on the grounds of executive privilege, at least as an initial matter. It will be up to the attorney General to make the determination of whether that's a legitimate invocation of executive privilege and whether to censor the report before any sort of public disclosure or stop all public disclosure of the report altogether together.

[B]

Well, it's also a political question. Do congressional Republicans, where do they stand on that? I mean, there will be huge public outcry if they try not to deliver the report to Congress and make it public.

[D]

Correct? I mean, there will be a huge public outcry, but as usual, there have been some clearings of throat and tut tutting from Republicans about the need for public disclosure. But I have not heard any outright opposition to Trump on this issue. Or to put it another way, I have not heard outright support for full disclosure of the report. That issue hasn't yet come to fruition because there is no report. What's, of course, very different now from most of the time Mueller was working is that there are now Democrats in charge of the House of Representatives, and they, of course, want to see the full report, both for themselves and for the public. Public. And they may actually have some tools at their disposal to get at it.

[B]

So early this week, amid all the drama about the government shutdown, a really damning report came to light about Paul Manafort, Trump's former campaign manager, showing that he shared polling material about the campaign with Konstantin Kilimnik, who's believed to be a member of the Russian intelligence agency. What is particularly important about that disclosure, which wasn't supposed to be disclosed, by the way.

[D]

Right. It was through an error by Manafort's lawyers. I have a great deal of sympathy for ordinary citizens who are trying to follow the Russia story and figure out what's important and what's not. The story has not come out in a linear or chronological or often comprehensible format. So I would like to say that this is really important and this is why. The issue at the heart of this investigation was did the Russian government or Russian interests conspire collude with the Trump campaign to get Trump elected president and prevent Hillary Clinton from being president? I mean, that's the core accusation here. So what is this story? This story is that Paul Manafort, who was the campaign chairman at the time, apparently sometime in July of 2016, goes to this guy Kilimnik, who he had worked with in his consulting business when he was working for pro Russian factions in the Ukraine. And he went to him and he said, look at here's our secret polling material. And let me just pause and say, in political campaigns, the internal polls are the most secret and valuable material any campaign has. It's how you decide to campaign. It's how you decide to campaign in Ohio instead of Michigan. It's how you decide to decide to put money into Facebook as opposed to television commercials. It's how you decide to allocate all your resources, including the candidate's time. So this is very precious material. And even within the campaigns, it's very closely held. So Manafort gives this to this Russian figure. What does he do with it? We don't know.

[B]

And didn't his conversation, Manafort's conversation with Kilimnik occur basically just as Russians were hacking into the DNC's email server?

[D]

Yes, that's one part of it. But perhaps even more significantly, it was while the Internet Research Group in St. Petersburg, Russia, was using social media to help Trump. Did they use this material to decide how to use their social media? That's why this material was valuable.

[B]

Well, and then Trump this morning apparently had to, as he got on the plane to go down to the border, had to say that he had no knowledge that this is what Manafort was up to.

[D]

Right. And, you know, that explanation is certainly going to be the party line, because, you know, it is true that Manafort did have all these business dealings. He was apparently simultaneously owed money by these Russian affiliated figures and owed them money. I mean, he had very complicated, and we now know, corrupt financial dealings. So he had his own personal financial incentives to ingratiate himself with Kilimnik. And Kilimnik's associates, including Oleg Deripaska, who was one of the big Russian oligarchs, who also figures in the news this week. It's worth pausing again to recall how the Trump explanations have evolved over time. Remember, at first it was, we had nothing to do with Russia. Then, of course, the Trump Tower meeting comes out in June of 2016. It's like, well, there were dealings with Russia, but they had no impact on Russia.

[B]

And there was news this week about Veselnitskaya, the Russian lawyer who was at.

[D]

That meeting, who was indicted on not exactly related charges. Now, the campaign chairman was giving internal documents, internal research material from the campaign to Russian officials. And the explanation evolves to. Well, maybe. Maybe he was doing that, but the candidate had no idea.

[B]

And that's not even mentioning all of Trump's personal business ties with Russia over the years.

[D]

Right. And the 15 other members of Trump's entourage, including Jeff Sessions and Jared Kushner, who have had other dealings with Russia during the campaign, most of which they either forgot about saying or lied about when they were asked about it later.

[B]

So I have to ask you about Deripaska, because that did escape me this week. What's happened there?

[D]

Well, here, I mean, again, I sympathize. It's hard to keep track with all this.

[B]

But bear with us.

[D]

Bear with us. After these Russia disclosures, the administration was forced by Congress to impose sanctions on several of the people involved, including Deripaska, who was Manafort's client. Deripaska has moved to have the sanctions lifted on some of his businesses. The Treasury Department, led by Secretary Mnuchin, has agreed to lift the sanctions on Deripaska's business. So despite everything, Putin and his allies are still winning in the United States, that they are getting the sanctions lifted on the oligarch who was at the core of this, I think it's safe to say conspiracy. And Democrats now are getting Mnuchin to testify, perhaps in secret, about why Deripaska is getting this relief from American sanctions.

[E]

I'm Katie Drummond. I'm Wired's Global Editorial director.

[D]

I'm Michael Kollori, Wired's Director of Consumer, Tech and Culture.

[B]

And I'm Laura Lauren Good. I'm a senior correspondent at Wired. And our show, Uncanny Valley, is about the people, power and influence of Silicon Valley.

[E]

And right now, Silicon Valley and Washington have never been more intertwined. So each week, we get together to talk about a big story, often at the intersection of tech and politics.

[D]

Right. So whether we're talking about Trump, Coin, Doge, or Elon Musk, we will always explain how these Silicon Valley forces are.

[E]

Affecting Washington and how they affect you. Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode.

[B]

So let's get back to William Barr, who was Attorney general under George H.W. bush and I believe oversaw Mueller as part of his responsibilities there.

[D]

He was head of the Criminal division at one point.

[B]

Give us just a quick synopsis of what you know about him and his time there the first time around.

[D]

Well, Barr was a figure of the Republican establishment. He comes out of corporate law. He worked in the Justice Department early in his career. He was general counsel. Later to Verizon and a partner at Kirkland and Ellis, which is one of the big law firms. And he's really been sort of out of public life since he served as Attorney general. And I think it was somewhat of a surprise that he resurfaced in this way. We have subsequently learned perhaps why the president chose to resuscitate. Well, he wrote this extraordinary memo to Attorney General Sessions attacking Mueller, saying the idea that the president could be investigated for obstruction of justice was for firing James Comey, the director of the FBI, was constitutionally flawed, that the President had the right to fire Comey and it is improper for Mueller to investigate the motives behind that.

[B]

And what about that? What do you say as a former prosecutor?

[D]

I think it's wrong. I mean, this is an argument that has been advanced in public mostly by Alan Dershowitz on cnn, that once the president has some power, he can exercise it for any reason he wants. And I think that's disproved in part by how Watergate unfolded. I mean, if you remember, the smoking gun tape in Watergate was about the President telling the CIA to invent a reason to stop the Watergate investigation in 1972. The president had supervision over the CIA, the right to tell them to investigate or what not to investigate. What made it corrupt was his motive. And just think about it another way. Suppose, for example, someone walked into the Oval Office and gave the President a suitcase of cash in order to fire James Comey. Would that be proper? I think clearly not. So I think the idea that the president's motives are unworthy or not appropriate to be investigated is wrong.

[B]

Well, and this whole question about presidential power, of course, we're in the midst of this big dilemma right now. Trump is still considering invoking emergency powers to break the stalemate with Congress over the wall. And Barr, if he's confirmed, will oversee immigration policy at Justice.

[D]

Well, and he will oversee the Office of Legal Counsel, which decides, you know, on constitutional issues for the executive branch. And they will be the part of the Justice Department that has to weigh in on the question of whether the President has the right to invoke a national emergency. There's a law from 1974 called the National Emergencies act, and it allows the president to do things under emergency powers. And it's been used more than 40 times. In fact, there are 31 emergencies currently underway, all of which are in relatively uncontroversial areas, sort of invocation of sanctions on people in Africa and Congo and Sudan. But it has never been used as an end run around Congress exercising its lawful powers under the Constitution. And this is what makes this controversy so profound, is that there is no more basic power allocated to the legislative branch in our system of government than the power of the purse, which is to decide where the government is going to spend money and where the government is not going to spend money. And that's what this whole fight is about. The Senate and the House are saying you can't spend money on this wall. But the President is not taking no for an answer, it appears. But by using this National Emergencies act, he will be directly refuting the commands of the Constitution. And based on at least my preliminary analysis, I think he may well get away with it.

[B]

So that'll be a really interesting part of the hearings next week, presumably.

[D]

Absolutely.

[B]

And what else are you most interested in watching out for next week?

[D]

Well, the issue of public disclosure of the Mueller report. I think, you know, what standards Barr will apply and how broadly he conceives of executive privilege in the manner of congressional hearings. I assume he will dodge and weave and not commit himself, you know, and also, you know, one of the things I always find sort of amusing about these confirmation hearings is they make a commitment. They don't make a commitment. So what, what are they going to do about it once they're confirmed? I mean, you know, they, you know, so I mean, it will be interesting to see what Barr says, but I am not under the illusion that it's going to make any difference in how he actually decides the resolution of the release of this report.

[B]

Thanks so much, Jeff.

[D]

Sure, Dorothy.

[B]

Jeff Toobin is a staff writer and the author of the Oath about the Obama White House and the Supreme Court. This has been the political scene from the New Yorker. You can subscribe to this and other New Yorker podcasts by searching for the New Yorker in your podcast app and find more political analysis and commentary on new yorker.com feel free to rate and review the political scene on Apple Podcasts. Our theme music is by Russell Gillespie. This program is produced by Alex Barron and Hannah Wilentz. For newyorker.com I'm Dorothy Wickenden.

[E]

What the hell is going on right now and why is it happening like this? At Wired, we're obsessed with getting to the bottom of those questions on a daily basis. And maybe you are, too, Katie. I'm Katie Drummond, the global editorial director of Wired, and I'm hosting our new podcast series, the Big Interview. Each week I'll sit down with some of the most interesting, provocative and influential people who are shaping our right now Big interview conversations are fun. I want a shark that that eats the Internet, that turns it all off, unfiltered and unafraid.

[D]

So in a lot of ways, I try to be an antidote to the unimaginable faucet of reactionary content that you see online. To the best of my ability, every.

[E]

Week we're going to offer you the ultimate luxury of our times, meaning and context. True or false? You, Brian Johnson, the man sitting across from me, one day, at some point as of yet undefined in the future, you will die. False. Tell me more. Listen to the big interview right now, in the same place you find WIRED's Uncanny Valley podcast. Subscribe or follow wherever you get your podcasts.

[B]

From.

[D]

PRX.