Judicial Watch: Records Show DOJ Effort to Craft Response to Reports on Rosenstein Wearing Wire, Invoking 25th Amendment

‘Thanks! Hopefully we are being successful, and the reporters are having difficulty finding anybody to comment about things’ – Rod Rosenstein

(Washington, DC) – Judicial Watch today released 14 pages of records from the Department of Justice showing officials’ efforts in responding to media inquiries centering on talks within the DOJ/FBI allegedly invoking the 25th Amendment to “remove” President Donald Trump from office and former Deputy Attorney General Rod Rosenstein offering to wear a “wire” to record his conversations with the president.

The records show that, following a September 21, 2018, report on Rosenstein suggesting he would wear a wire to secretly record Trump and his discussions on using the 25th Amendment, Rosenstein sought to ensure the media would have “difficulty” finding anyone in the DOJ to comment and a concerted effort within the DOJ to frame the reporting as “inaccurate” and “factually incorrect.”

The records show DOJ officials had also discussed characterizing Rosenstein’s reported offer of wearing a wire to record Trump as merely “sarcastic.”

Additionally, the records show DOJ Public Affairs officer Sarah Isgur Flores, after conferring with other top DOJ officials and Rosenstein’s office about her email exchange with New York Times reporter Adam Goldman, waited 12 hours to forward the email exchange to DOJ Chief of Staff Matthew Whitaker. Former White House Chief of Staff John Kelly had referred to Whitaker as the president’s “eyes and ears” in the DOJ.

Judicial Watch obtained the records through a Freedom of Information Act (FOIA) lawsuit filed after the Justice Department failed to respond to three separate FOIA requests dated September 21, 2018 (Judicial Watch v. U.S. Department of Justice (No. 1:19-cv-00388)). The lawsuit seeks all written and audio/visual records of any FBI/DOJ discussions regarding the 25th Amendment and plans to secretly record President Trump in the Oval Office.

The records obtained by Judicial Watch include a September 21, 2018, email from Assistant U.S. Attorney (DOJ/NSD) Harvey Eisenberg to Rosenstein informing the DAG that Washington Post reporter Ellen Nakashima had called inquiring about a New York Times report on the 25th Amendment/wire discussion, Rosenstein responds: “Thanks! Hopefully we are being successful, and the reporters are having difficulty finding anybody to comment about things. [Remainder of email redacted.]” Apparently in response to the redacted portion of Rosenstein’s reply, Eisenberg responds, “I’m aware. Besides letting you know, [redacted]. My best to you and the family.” Rosenstein replies, “I don’t mean about me. [Redacted.]”

The emails also detail the DOJ’s response to the initial story as it was being prepared by the New York Times. On September 20, 2018, the Times’ Goldman emails DOJ’s Flores that he and fellow reporter Mike Schmidt were working on a story and wanted a DOJ response to certain questions, including that at a May 16, 2017, meeting of senior federal law enforcement officials, Rosenstein offered to wear a “wire” to record his conversations with Trump. “He also said McCabe could wear a wire.”

In a second request for comment, Goldman alleges that in a separate conversation between Rosenstein and McCabe, they discussed using the 25th Amendment “to remove President Trump” and “Rosenstein said that he may be able to get (then-Attorney General Jeff) Sessions and Kelly to go along with the plan.”

In a third request for comment, Goldman said he’d learned that Rosenstein in a May 12, 2017, conversation at the DOJ Command Center “appeared ‘upset’ and ‘emotional’ over the Comey firing.”

In a fourth request for comment, Goldman said that in a May 14, 2017, conversation with McCabe, “Rosenstein asked McCabe to reach out to Comey to seek advice about appointing a special counsel. McCabe believed that was a bad idea.”

In a fifth and final request for which he sought DOJ comment, Goldman wrote, “Rosenstein considered appointing (former Deputy Attorney General) Jim Cole as the special counsel.”

On Sept 20, 2018, Flores forwarded the Goldman email to “Annie” and “Bill” — apparently White House Deputy Counsel Annie Donaldson and White House Communications Director Bill Shine — telling Donaldson, “Boss calling Don re the below – if you think appropriate, share with Don [presumably referring to White House Counsel Don McGahn]”. She tells Shine, “We’ve sent a response from the DAG that’s below and had someone in the room dispute the ‘wire’ part noting the dag was being sarcastic.” She then includes the DAG response, which reads, “The New York Times’s story is inaccurate and factually incorrect. I will not further comment on a story based on anonymous sources who are obviously biased against the Department and are advancing their own personal agenda. But let me be clear about this: based on my personal dealings with the President, there is no basis to invoke the 25th Amendment.”

Shine thanks Flores and asks her to “share with Elliott ASAP.” Flores responds that if Shine is directing her to share with Elliott, “I don’t think I know who that is referring to.” Flores sent that response at 10:09 PM on September 20, but Flores waits until 10:00 a.m. the next day to forward the entire exchange to DOJ Chief of Staff Whitaker, saying: “Should have sent this to you last night.”

In a mostly redacted email exchange on the evening of September 20, 2018, shows the efforts of officials in the Public Affairs and DAG’s office to produce a response to the impending news article. DOJ Official Bradley Weinsheimer forwarded to Flores the “DAG response” to the allegations in the article, saying “DAG has cleared this, which is what we just discussed.” He then provides the official DAG response about the allegations over Rosenstein wanting to invoke the 25th Amendment against Trump as being “inaccurate and factually incorrect.” Deputy Attorney General’s office official Ed O’Callaghan responds, “Think good.” The rest of his response is redacted under (b)(5) – deliberative process.

In the final draft of the official DAG response approved by O’Callaghan, the statement is changed from “Based on my dealings with the President, there is no basis to invoke the 25th Amendment” to “Based on my personal dealings with the President, there is no basis to invoke the 25th Amendment.”

“It is remarkable that Judicial Watch has done more to investigate the DOJ/FBI’s discussions about overthrowing President Trump than the DOJ or Congress,” said Judicial Watch President Tom Fitton. “These documents essentially confirm the coup discussions about wearing a wire when speaking with President Trump and plans to remove him under the 25th Amendment.”

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