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People Have Panicked Every Time Rod Rosenstein Was Reportedly Leaving His Job. This Time It's Different.

As the top Justice Department official overseeing the Mueller probe, Rosenstein became something of a liberal folk hero. Now that he no longer has the power to fire Robert Mueller, reaction to a possible departure is more muted.

Posted on January 9, 2019, at 11:19 a.m. ET

Deputy Attorney General Rod Rosenstein
Alexander Drago / Reuters

Deputy Attorney General Rod Rosenstein

WASHINGTON β€” Rumors that any day could be Deputy Attorney General Rod Rosenstein's last at the Justice Department have swirled for nearly as long as he's been on the job. As the official overseeing special counsel Robert Mueller's investigation, he was constantly in President Donald Trump's crosshairs, and each round of reports that he might be fired or forced out triggered fears among liberals, and some conservatives, of presidential interference.

In the year and a half since Rosenstein appointed Mueller in May 2017, he became something of a folk hero of the left β€” the singer-songwriter Ben Folds even wrote a song in his honor called "Mister Peepers," based on Trump's reported nickname for Rosenstein. It began: "God bless the bureaucrat and the lawyer, too / They’re public punching bags / But someone’s gotta do it." Groups on the left demanded Rosenstein be protected against presidential meddling, and occasionally threatened to take to the streets if he were ousted.

But reaction was more muted to reports Wednesday from multiple outlets that Rosenstein plans to leave after Trump's attorney general nominee William Barr is confirmed. For one thing, Rosenstein no longer has the power to remove Mueller β€” a December letter from a Justice Department official to Congress indicated acting Attorney General Matthew Whitaker declined to recuse himself from supervising the investigation, meaning he took over that responsibility from Rosenstein. There are pending lawsuits challenging Whitaker's appointment, but no judge has ruled yet.

"It does feel different this time," said Austin Evers, executive director of watchdog group American Oversight and a member of the board of Protect the Investigation, a group supporting Mueller's independence. "In previous instances where there were rumors he was going to leave, it was after reports that the president was deeply unhappy with him and was essentially threatening to fire him and he was looking at the door. ... This feels like more like Rosenstein trying to leave on his own terms."

Rosenstein, confirmed in April 2017, assumed responsibility for the investigation into Russian interference in the 2016 election after then-attorney general Jeff Sessions recused himself. Trump's anger at the investigation was at times directed at Rosenstein, and following a New York Times article in September that said Rosenstein had talked about wearing a wire around Trump and raised the possibility of removing Trump from office, there were reports that Rosenstein was out. He wasn't.

Assuming the reports are true that Rosenstein is now preparing to leave voluntarily β€” a Justice Department spokesperson did not return requests for comment by BuzzFeed News β€” his departure would be more in line with normal practice for senior administration officials. His nearly two-year tenure as the second-ranking official at the Justice Department squares with the average length of service for his predecessors.

Leadership changes are expected when there's a change at the very top, so Barr's confirmation as attorney general would be a natural departure point for someone in Rosenstein's position.

Many on the left also see the new Democratic control of the House of Representatives β€” and the subpoena power that comes with it β€” as another check on Trump interfering with Mueller's work, even if Rosenstein is gone.

"People haven't let down their guard and they're not relaxing about it, but the fact that there's now House oversight beginning does mean that Whitaker and Trump's other minions in the Justice Department can't do as much damage without somebody paying attention," said Caroline Fredrickson, president of the American Constitution Society, a liberal lawyers group.

Still, members of government watchdogs and liberal advocacy organizations say they do have concerns about Rosenstein leaving now, before Mueller is finished; a judge recently extended the service of the special counsel's federal grand jury in Washington, DC. ABC News reported in December that Rosenstein continued to oversee day-to-day operations of the probe, even if he no longer has authority to remove Mueller.

"[Rosenstein] has a significant amount of cachet with the public and on the Hill on both sides of the aisle as the steward of the Mueller investigation. Even if he does not have the ability to block the firing of Mueller by Whitaker, he is without question a force for protecting Mueller within the Department of Justice," Evers said.

Once Barr is confirmed, he would take over supervision of Mueller's investigation, assuming he isn't blocked from doing so for ethical or other reasons. Democrats are expected to aggressively question him about his thoughts on the probe. The Wall Street Journal reported that last year Barr wrote a memo to the Justice Department critical of any effort by Mueller's office to explore potential obstruction of justice by Trump. He was also quoted in a 2017 article questioning Mueller's decision to hire attorneys who contributed to Democratic candidates, and has written in defense of the president's decision to fire former FBI director James Comey.

Fredrickson said that if Rosenstein is leaving, "the onus is on the Senate to demand that Barr protect the Mueller investigation before allowing any vote to go forward" on his nomination.

Liz Hempowicz, director of public policy at the Project on Government Oversight, said the close attention paid to Rosenstein's comings and goings spoke to the need for broader protections for the Special Counsel's Office β€” she said she hoped the possibility of Rosenstein's departure would push Congress to pass legislation allowing a court to review any decision to remove a special counsel. The independence of a special counsel shouldn't rise or fall with one person, she said.

"If there wasn't this ambiguity of who was overseeing the investigation, will it be able to go through to its natural conclusion, I don't think we'd be having this same conversation and watching what's going on with individuals at the Department of Justice at the deputy attorney general level," Hempowicz said. "It's natural for people to cycle out of government after a few years."

CORRECTION

Caroline Fredrickson is president of the American Constitution Society. A previous version of this story misstated its name.

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