Gregg Jarrett: Jeff Sessions and Rod Rosenstein should leave their top Justice Department jobs soon

Editor’s note: This op-ed is based in part on the author’s New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump.”

Fortunately for our country, Attorney General Jeff Sessions doesn’t have much more time left in his job. Once the Nov. 6 midterm elections are over, President Trump is widely expected to belatedly accept the letter of resignation tendered by Sessions in May 2017.

Hopefully, Deputy Attorney General Rod Rosenstein will also leave the Justice Department when Sessions heads out the door.

Both Sessions and Rosenstein have done enormous damage to the Trump presidency, our nation and our system of justice. We will all be better off with them out of their jobs. As the old saying goes, “good riddance to bad rubbish!”

The Washington Post is reporting that Trump recently spoke with Sessions’ Chief of Staff Matthew G. Whitaker about replacing Sessions as attorney general. It is unclear whether Whitaker would take the helm temporarily or permanently.

There are others who should be considered to replace Sessions. Rep. John Ratcliffe, R-Texas, would be an excellent choice. So would Solicitor General Noel Francisco.

In a recent interview, President Trump remarked that “I don’t have an attorney general.”  He is absolutely right.

On his first day in office, Sessions recused himself from any involvement in the investigation of possible “collusion” between the Trump presidential campaign or Donald Trump and Russia to win the 2016 presidential election. This was like a fire chief running away from the scene of a major blaze.

Sessions made it official three weeks later, shirking his duty to supervise a critically important investigation and instead relegating himself to become a meaningless bystander as events threatened to overtake the new administration.

The attorney general deliberately concealed his intent to disregard his responsibility and duty from President Trump, betraying the president’s trust and poisoning their relationship from the outset.

If not for Sessions’ deceit, it is unlikely that a special counsel – Robert Mueller or anyone else – would have ever been appointed.

Since we don’t have a real and competent attorney general at the helm of the Justice Department, our nation has been forced to endure a continuing investigation of the president and the Trump Campaign that has produced no publicly known evidence that the president “colluded” with Russia to win the 2016 presidential election.

I explained this in my book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump.” As I wrote, Sessions misread or misinterpreted the Code of Federal Regulations (28 C.F.R. 45.2) when he testified before Congress that he was “required” to recuse himself.

In fact – and this is critically important – the attorney general was not required to bow out of the Russia probe.

Sessions was either duped by holdovers from the Obama Justice Department, or simply failed to comprehend the plain meaning of the regulations. If Sessions knew what he was doing, he would have ended the Russia investigation at its outset, saving our nation millions of dollars and the continued national discord the probe has spawned.

The American people elected Donald Trump as our president to revive our economy, oversee our relations with foreign friends and foes alike, defend our nation, work with Congress to pass legislation, appoint judges, and carry out other enormously important work. They didn’t elect Trump to spend a big chunk of his time dealing with an investigation that goes on and on and on, desperately seeking something – anything – to pin on the president.  

After Sessions unnecessarily and improperly recused himself from supervising the Russia probe – and failed to halt the unwarranted investigation entirely – Rosenstein took it upon himself to oversee the operation and appointed Mueller as special counsel.

This played neatly into the anti-Trump scheme admittedly devised by fired FBI director James Comey, who was Mueller’s close friend and long-time professional ally.

Rosenstein misconstrued – and thereby misused – the special counsel regulation authorizing Mueller’s appointment. The case at that point was a counterintelligence probe, not a criminal investigation.

The appointment of a special counsel does not apply to counterintelligence matters. Nowhere in Rosenstein’s authorization order does he bother to identify a suspected crime. Thus, Mueller began an investigation in search of a crime – turning the legal process on its head.

Moreover, a special counsel can only be named if there is a conflict of interest at the Justice Department. That is the whole point of an independent investigator.

Since Sessions had already recused himself, albeit mistakenly, no such conflict of interest existed for Rosenstein or others at the Justice Department.

Indeed, the authorization order signed by Rosenstein to launch the Muller investigation discloses no conflict of interest – because there was none.

Since we don’t have a real and competent attorney general at the helm of the Justice Department, our nation has been forced to endure a continuing investigation of the president and the Trump Campaign that has produced no publicly known evidence that the president “colluded” with Russia to win the 2016 presidential election.

Mueller and his team of partisans have peered furiously into every obscure corner and crevice for some proof. None of the cases prosecuted thus far have anything whatsoever to do with the unverified alleged Trump conspiracy with Russia.

There is, however, compelling evidence that top officials at the FBI and Justice Department tried to frame Trump.

Comey and the FBI had no legal basis to initiate their investigation of Trump. There was never any credible evidence of crimes, no plausible intelligence justifying a counterintelligence probe, and no probable cause that Trump was “colluding” or conspiring with Russia.

The officials launched their investigation in the summer of 2016 using an anti-Trump “dossier” as a pretext. That document, which appeared fabricated on its face and was never verified by the FBI, was paid for by the Hillary Clinton campaign and the Democratic National Committee.

The dossier relied on triple and quadruple hearsay from supposed anonymous Russian sources. At roughly the same time, a lawyer on the payroll of the Clinton campaign and the Democratic National Committee was passing documents and computer storage devices to James Baker, the top lawyer at the FBI, as reported by Catherine Herridge of Fox News.

The Clinton-funded documents were also exploited to spy on the Trump campaign.

In gaining a warrant to wiretap Trump campaign associate Carter Page, the FBI and Justice Department concealed from the Foreign Intelligence Surveillance Court that the bulk of their evidence came from Clinton and Democrats.

The officials also concealed that the dossier was composed by a former British spy who had told a top Justice Department official, Bruce Ohr, that he was “desperate that Donald Trump not get elected and was passionate about him not being president.” 

The end result was the judges on the Foreign Intelligence Surveillance Court were deceived and a fraud on the court was perpetrated.

Ironically, it was not Trump who consorted with Russians. It was Hillary Clinton. Her campaign paid ex-British spy Christopher Steele to gather phony information from Russia in order to damage her political opponent. And a lawyer working for her campaign provided information about alleged Russia meddling in the election.

All of this phony information was then passed to the FBI to be used against Trump. In its zeal to destroy Trump, the bureau didn’t care that the Russian sources were likely non-existent or that the dossier was paid for by Trump’s political opponent. It should have.

Last week, lawmakers were stunned to hear a confession from Baker in his closed-door testimony that the Russia investigation was handled in an “abnormal fashion” reflecting “political bias.”

Indeed, it was.

Comey and the FBI had no legal basis to initiate their investigation of Trump. There was never any credible evidence of crimes, no plausible intelligence justifying a counterintelligence probe, and no probable cause that Trump was “colluding” or conspiring with Russia.

Supposed “facts” were instead falsehoods that were invented or exaggerated. Laws and regulations were perverted or ignored. The law enforcers became the lawbreakers. In fact, the entire Russia investigation was a hoax manufactured by high-ranking officials within the FBI and Justice Department.

Innumerable text messages exchanged between FBI investigator Peter Strzok and bureau lawyer Lisa Page (who were having an extramarital affair) provide a powerful narrative of how severe bias against Trump drove top officials to target him in an effort to “stop” his ascension to the White House.

When the illicit scheme failed, these same people pursued a contrived investigation in an attempt to undo the election results and remove Trump as president.

This invites the question: Who is investigating the investigators? Congress is attempting to do so, but is being obstructed by Rosenstein, who refuses to comply with lawful subpoenas demanding that the FBI and Justice Department produce relevant documents on the origins of the Trump investigation and subsequent Foreign Intelligence Surveillance Act abuse.

Rosenstein affixed his signature on the last FISA renewal application, apparently without valid or verified evidence, as federal regulations require. It seems he is covering up his own misconduct by hiding the incriminating documents.

In the wake of a New York Times report last month that Rosenstein solicited people to secretly record President Trump in the White House and recruited Cabinet members to invoke the 25thAmendment to remove Trump from office, Congress asked Rosenstein to appear in a closed-door session with members of the House Judiciary and Oversight Committees.

The session was tentatively scheduled for Thursday. It did not happen. Rosenstein reportedly did not want the questioning to be transcribed or recorded, nor did he want to provide answers under oath.

Rosenstein’s demand for these conditions is revealing. Without a record, he would be free to give deceptive answers or even lie without putting himself in serious legal jeopardy. If he gave a false or misleading statement, he could always deny it later. In other words, he could compound an original lie with more lies.

People who are falsely accused are often eager to tell the truth “on the record.” If Rosenstein has nothing to hide, why is he hiding? His denial of the accusations through a spokesperson to the media is not reliable. It is not a crime to lie to the media. If it were otherwise, just about every politician in Washington would be behind bars. Americans deserve an answer under oath.

Congress should never have given Rosenstein the option of voluntarily appearing before its committees. He should have been served with a subpoena compelling him to appear on a specific date. The silly game by Congress of pretend politeness only serves to waste time and allows Rosenstein to evade or delay testifying.

As I noted in another column this week, Rosenstein should have recused himself from the special counsel investigation as soon has he appointed Mueller. The deputy attorney general is a pivotal “fact witness” who has been interviewed by his subordinate.

Yet, Rosenstein presides over the case in which he is a witness. This violates federal regulations and the Code of Professional Responsibility for attorneys.

But none of this seems to matter to Rosenstein. This is one of many reasons why he should be pushed out of the Department of Justice the moment the midterm elections are concluded.

Rosenstein’s conduct seems to fit the very definition of malfeasance. His wrongful actions have been intentional. Sessions, by comparison, seems to be the personification of misfeasance or nonfeasance. His actions, or lack thereof, are born of incompetence.

I’ve argued before that it is no wonder that President Trump has frequently expressed impatience, disgust and frustration with his attorney general.

Sessions has failed to take aggressive action against those who appear to have broken the law with impunity. He has ignored pleas from members of Congress to reopen the Clinton email case, including her destruction of documents under congressional subpoena.

On top of this, Sessions failed to launch an investigation of Clinton’s role in paying for Russian information that was then fed to the FBI for the sole purpose of damaging her political opponent.

The actions of Comey, Strzok, Page and others should have been presented to a grand jury. FISA abuse to gain wiretap warrants should have been pursued. Instead, Sessions’ Justice Department has spent more than a year refusing to produce documents in response to lawful subpoenas.

The only thing Sessions has accomplished is to alienate his boss by his actions and inactions. Trump was right when he said that choosing Sessions as attorney general was one of the “worst” decisions he has made.

Once Sessions and Rosenstein leave the Justice Department, perhaps the rule of law and the word “justice” can be restored to the department’s name. It can’t happen soon enough.