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Rosenstein expects to leave Justice Dept. if new attorney general is confirmed

Republican senators spoke to reporters on Jan. 9 about the news that Deputy Attorney General Rod J. Rosenstein may leave the Justice Department. (Video: Rhonda Colvin, Jorge Ribas/The Washington Post)

Deputy Attorney General Rod J. Rosenstein has told people close to him that he expects to leave the Justice Department if a new attorney general is confirmed, though there are no concrete plans in place or a timeline for him to do so, according to people familiar with the matter who spoke on the condition of anonymity to disclose details of sensitive conversations.

Rosenstein has been the No. 2 Justice Department official since April 2017, his tenure defined by his appointment of Robert S. Mueller III to lead the investigation into Russian interference in the 2016 presidential election and the attacks he incurred from President Trump for doing so. Incensed by Mueller’s work, Trump periodically toyed with the idea of ousting his deputy attorney general, though Rosenstein managed to avoid the ax time after time.

Rosenstein’s expected departure — whenever it occurs — will probably spark fears about the future of the Mueller probe, though even now Rosenstein is not technically in charge of it. Rosenstein appointed Mueller to investigate whether the president’s campaign had coordinated with the Kremlin because then-Attorney General Jeff Sessions recused himself from the matter. Special counsels, though, normally answer to the attorney general, so when Sessions was forced out in November, supervision fell to Matthew G. Whitaker, whom Trump chose to serve as acting attorney general.

Whitaker, who had been publicly critical of the Mueller probe, resisted recusal from the start, and Justice Department officials recently made it known that he had rejected the advice of ethics officials to step aside. That left him nominally in charge, though Rosenstein seemed to maintain his regular involvement, and Whitaker has not taken any steps that have become public to impede Mueller’s work as some feared he might.

Trump on Rod Rosenstein: ‘He should have never picked a special counsel’

People familiar with the investigation say that Rosenstein works as the hands-on supervisor of the Mueller probe, and that Whitaker has largely stayed out of the particulars of that work, though he has been notified on at least one occasion when a significant court hearing was about to occur.

A person familiar with the matter said Rosenstein is not being forced out but instead that he always saw the deputy attorney general job as one that would probably last two years. The person said Rosenstein will probably stay on until after William P. Barr, a former attorney general whom Trump nominated to take the job again, takes office, assuming he’s confirmed by the Senate.

A hearing on Barr's confirmation is scheduled for next week, and lawmakers could vote on the nomination in early February.

Barr met Wednesday with a number of Senate Republicans, including incoming Judiciary Committee Chairman Sen. Lindsey O. Graham (R-S.C.), who said Barr assured him he “is committed to allowing Mr. Mueller to finish” the investigation.

Sen. Dianne Feinstein (Calif.), the Judiciary Committee’s top Democrat, is scheduled to speak with Barr on Thursday, according to her spokeswoman. But other Democrats on the panel have complained that Barr is refusing to meet with them due to the ongoing government shutdown.

Sen Richard Blumenthal (D-Conn), a member of the committee, said the administration cited the “truncated schedule” as the reason Barr would not be available. An aide to another Democratic senator on the Judiciary Committee confirmed that the senator was similarly denied a meeting, with the administration citing the shutdown.

Kerri Kupec, a Justice Department spokeswoman, noted that Barr is meeting with both Democrats and Republicans “despite the holidays, reduced DOJ staff and resources due to the partial government shutdown, and the compressed timeline to prepare for the upcoming hearing.”

Rosenstein has told people he would stay on board to ensure a “smooth transition,” a person familiar with the matter said. Another factor that could complicate Rosenstein’s departure is the timing of any report from Mueller about his findings.

The expectation that Rosenstein would depart was first reported by ABC News.

In some ways, Rosenstein’s departure is unsurprising. Barr has told people he would like to select his own deputy attorney general — which is normal for the Justice Department's top leaders. The deputy attorney general is like a chief operating officer, managing much of the department’s day-to-day activities and mediating disputes between its many sprawling parts.

In the Trump administration, though, Rosenstein had taken on a unique importance because of his central role in the Russia investigation, and the fear among Democrats that removing him could lead to catastrophic consequences for Mueller — particularly given the public statements made by both Whitaker and Barr about Mueller’s work.

As a television pundit in 2017, Whitaker suggested an acting attorney general could starve the Mueller probe of funding so “his investigation grinds to almost a halt.”

Barr, for his part, has written an op-ed defending Trump, and sent a long memo to Rosenstein last year excoriating what he viewed as Mueller’s “fatally misconceived” approach to investigating the president for possible obstruction of justice.

Barr’s op-ed and the memo have become a sticking point for Senate Democrats, who question whether he will be truly impartial in overseeing the Mueller investigation, and some Democrats have pressed for him to recuse himself.

McCabe memos say Rosenstein considered secretly recording Trump

Rosenstein’s job security has frequently been in doubt, as the president who appointed him constantly attacked him privately and publicly. Speculation that he could be fired or resign reached a fever pitch in September, following revelations that in May 2017, shortly after the firing of FBI Director James B. Comey, Rosenstein had suggested senior law enforcement officials might secretly record the president.

That explosive suggestion — which Rosenstein’s defenders insist was never serious, but more of a sarcastic comment — came amid tense conversations with then-acting FBI director Andrew McCabe, according to people familiar with the discussions. Immediately after Comey was fired, the FBI had opened an obstruction of justice investigation into Trump. Tensions were high between McCabe and Rosenstein over Rosenstein’s support of Comey’s firing and how to proceed with the politically explosive task of investigating the president, these people said. At one point, the two had an angry confrontation in which each argued that the other should be recused from the Trump investigation, these people said.

After the New York Times reported on Rosenstein’s suggestion of secretly recording the president, it seemed Rosenstein would be ousted. The news outlet Axios reported that he had “verbally resigned,” though that would turn out not to be true. Instead, Rosenstein talked with Trump and stayed in his job — the president apparently having been mollified by whatever Rosenstein told him.

White House press secretary Sarah Sanders said Wednesday that Rosenstein “had always planned to stay around two years” and that he would like to help with the new attorney general’s transition.

“He’s done a great job,” she said.

Karoun Demirjian and Seung Min Kim contributed to this report.