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

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.

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)

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)

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

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.