At the time of the confrontation in mid-May 2017, tensions were running high at the FBI and Justice Department, and between Rosenstein and McCabe. Trump had just fired James B. Comey as the bureau’s director, and almost immediately afterward, FBI officials had opened a case into whether the president had obstructed justice.
Some in the bureau eyed Rosenstein warily, because he had authored a memo that was used by the administration to justify Comey’s termination. If the president had obstructed justice, they reasoned, Rosenstein may have played a role in that. Justice Department officials, meanwhile, were concerned that the FBI — and McCabe in particular — may have acted too hastily to open an investigative file on the president after Comey was fired and that the move could be painted as an act of anger or revenge.
The previously unreported episode involving Mueller, Rosenstein and McCabe — which occurred within days of Mueller’s becoming special counsel — underscores the deep suspicion between senior law enforcement officials who were about to embark on a historic, criminal investigation of the president. That mistrust has continued to this day, with defenders of each offering conflicting accounts of exactly what was said and meant in the days surrounding Mueller’s appointment.
The people familiar with the meeting spoke on the condition of anonymity to discuss internal Justice Department deliberations.
The meeting came just days after a gathering of senior Justice Department officials — including McCabe and his key deputy — in which Rosenstein, according to McCabe, suggested secretly recording the president’s conversations to gather evidence against him.
According to a memo McCabe wrote after that meeting, Rosenstein had also suggested trying to muster support among Cabinet members to invoke the 25th Amendment to remove the president from office. Rosenstein’s defenders have denied that he tried to support a constitutional move against Trump and say his comment about recording the president was not meant seriously and wasn’t pursued.
Days later, there was another meeting, smaller and more tense.
McCabe was summoned to meet with Rosenstein and Mueller to talk about his possible recusal, these people said. While the accounts of current and former officials familiar with the confrontation differ in some key respects, they agree on the basic terms of the discussion — Rosenstein wanted McCabe out of the Russia probe, and McCabe felt differently, arguing that it was the deputy attorney general, not the head of the FBI, who should step away from the case.
One person said part of Rosenstein’s argument was that, because McCabe had years earlier worn a T-shirt supporting his wife’s campaign for a state Senate seat in Virginia, he could not be considered objective in a political probe. A photo of McCabe wearing the shirt had been posted on social media during the campaign, leading some to later question whether he had violated rules that limit government employees’ advocacy for political candidates.
McCabe’s wife had run unsuccessfully as a Democrat in 2015, with major financial support from a key ally of Hillary Clinton — an issue that prompted Trump to publicly and privately attack McCabe when he learned of it in late 2016.
Two people familiar with the meeting said McCabe brought with him to the meeting a document from FBI ethics officials that said McCabe had abided by ethics rules.
One person familiar with the confrontation denied that the T-shirt or his wife’s campaign was part of Rosenstein’s rationale, saying the proposed recusal had to do with McCabe’s recent public and private statements expressing deep loyalty to Comey and unhappiness over his firing.
McCabe argued that Rosenstein’s authoring of a memo — which criticized Comey’s handling of the earlier investigation of Hillary Clinton’s use of a private email server when she was secretary of state — meant that the deputy attorney general was the one who should step away from the case.
“Andy was angry,” said one person familiar with the matter, adding that McCabe slapped the document down in front of Rosenstein at one point in the discussion.
Representatives for all three of the meeting’s participants declined to comment for this story.
In the end, neither Rosenstein nor McCabe recused from the Russia investigation, and it was clear in that meeting and after that Mueller would have a great degree of independence and control over his investigation, including management of Justice Department prosecutors and FBI agents detailed to him. Mueller previously served as FBI director from 2001 to 2013.
The McCabe-Rosenstein relationship has only worsened with time. McCabe was fired earlier this year over what the Justice Department’s inspector general said were falsehoods he told to internal FBI investigators. That matter is now the subject of a grand jury investigation.
The contentious meeting between Mueller, Rosenstein and McCabe did not settle the public questions about who should or shouldn’t be involved in the Russia probe.
Some lawyers have argued that Rosenstein should have recused, given his central role in the Comey firing and conversations with White House officials leading up to that moment. Typically, Justice Department recusals are done at the recommendation of the department’s ethics lawyers.
Rosenstein has remained the acting attorney general for the Russia probe, and people close to the case said that is in large part because Mueller is comfortable with that arrangement.
The Rosenstein-McCabe relationship has come under renewed scrutiny as lawmakers have demanded answers about memos written by McCabe and his then-senior counsel, FBI lawyer Lisa Page, about the discussions on May 16, 2017, in which McCabe wrote that Rosenstein suggested recording the president and discussed the 25th Amendment.
Lawmakers had sought a private question-and-answer session with Rosenstein on the issue to be held Thursday, but on Wednesday officials announced that the meeting had been postponed indefinitely. The session was to follow closely on the heels of news reports that a top FBI lawyer, James Baker, had been told of Rosenstein’s comments in real time and took them to be serious — though he was not present when they were made.