The Rosenstein Conundrum

Rod Rosenstein

A comedy skit performed during a recent podcast episode of Slate’s Trumpcast pinpointed one of the most disorienting features of the Trump era for those who oppose it. Comedians Steve Waltien, Kate James, and Asher Perlman held a mock meeting of liberals to reevaluate their political and social opinions given the topsy-turvy happenings of our national moment (among their new verdicts: Rex Tillerson good, Kombucha bad). Beyond the laugh-lines, it’s a deeply resonant concept for those moved by the endless contortions and contradictions of our president. It calls to mind the Mother Jones report from last month that liberal feminist women were congregating at Stormy Daniels strip shows. Life can be confusing when your mantra is “the enemy of my enemy is my friend.”

Perhaps no one embodies this push and pull like Deputy Attorney General Rod Rosenstein. He’s a Trump political appointee. But he’s a career Justice Department lawyer with a reputation for integrity. Yet, he authored a deeply disingenuous memo that served as the pretext for James Comey’s firing. But he appointed a Special Counsel to investigate Russia’s election interference and coordination with the Trump campaign. Yet, he has acquiesced in Trump’s efforts to discredit the Russia investigation by releasing misleading FBI agents’ text messages. But he spoke out defiantly against congressional Republicans attempting to derail that investigation. Yet, he gave in to GOP demands to disclose highly confidential investigation materials. Hey liberals, where do we stand on Rosenstein again?

Now, there’s a greater conundrum at the center of the Rosenstein riddle coming to a head in the coming months. The deputy attorney general appears to be the only Trump-appointee insulating the Special Counsel investigation from the president’s meddlesome hands. Yet, that very supervision is becoming one of the Mueller investigation’s greatest threats.

Rosenstein’s threat to the Mueller investigation derives from the interaction of two consequential decisions made more than a year ago. The first was Attorney General Jeff Sessions’s choice in March 2017 to recuse himself from the Russia investigation given his history as a top Trump surrogate and his repeated meetings during the 2016 campaign with the Russian ambassador to the U.S. That move left Rosenstein in control of the FBI’s Russia probe as the number two official in the Justice Department. The second was Rosenstein’s inexplicable authorship of the infamous Comey termination memo—a letter that laughably suggested that Comey’s dismissal was justified by his handling of the Hillary Clinton email investigation. Laughable, that is, because Trump had spent the better part of a year criticizing Comey for not going far enough in targeting Clinton, while the memo argued that Comey had mishandled the email investigation to Clinton’s detriment. Indeed, Trump had criticized Comey for going easy on Clinton less than a month earlier in an interview with Maria Bartiromo—a subject purportedly on Mueller’s list of questions for the president.

The confluence of these two events poses an immense threat to the efficacy of the Russia investigation because it places Rosenstein in a very uncomfortable situation—as both supervisor of and witness to the same investigation. The precariousness of this balancing act only increased when days after Comey’s firing, Rosenstein appointed the Special Counsel. Now, the deputy attorney general is responsible for both the existence and direct oversight of an office solely focused on conduct of which he was a material part. Depending on how you view him, that position either gives Rosenstein the ability to impede further scrutiny of Trump or gives Trump a basis to argue that the obstruction investigation is conflicted and biased against him.

The issues with Rosenstein’s oversight of the Russia investigation have been apparent from the moment the door hit Comey on his way out. Donald Trump, in his own way, hit on the irony of the situation, if not its full import, in a June 16, 2017 tweet: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt[.]” That same day, noted Comey-ologists and national security law experts Jack Goldsmith and Benjamin Wittes of the Lawfare blog analyzed the situation as though Rosenstein’s recusal was a foregone conclusion. Indeed, Rosenstein himself reportedly discussed his possible recusal with Justice Department officials in June of last year, implying that he would recuse if Mueller concluded that Comey’s firing was part of a Russia investigation cover-up. That was a sensible wait-and-see approach at the time, but now we know Mueller is focused on multiple potential acts of obstruction by the president for which Rosenstein had a front row seat. The Special Counsel is investigating not only the Comey firing, but also Trump’s reported efforts to get Sessions to un-recuse himself and Trump’s aborted efforts to fire Mueller.

Yet, Rosenstein has not only remained in charge of the Special Counsel investigation but has also refused to explain his reasoning for not recusing. And what’s striking about outside reaction to this two-step is its fluid nature. The public’s views on recusal are shifting along with their perception of Rosenstein.

Take two Slate articles written on the subject a year apart. Both conclude that Rosenstein must and should recuse. Each articulates the legal threats and prudential concerns associated with the deputy attorney general maintaining control over an investigation into events with which he was so meaningfully involved. Yet, consider their respective tones. The first, from May 2017, questions Rosenstein’s credibility and frames the recusal question as an indicator of his integrity in shielding the Russia investigation from the president. The second, from a few days ago, worries that Rosenstein’s management of the investigation will sully its findings but also credits the view that his departure might jeopardize the investigation’s independence. Even granting that these pieces were written by different authors, the difference in emphasis is profound especially since they both come from a pro-resistance perspective. It’s not hard to imagine the reason: timing. In May of last year, those concerned with Trump’s perversion of the rule of law were wary of Rosenstein’s actions and skeptical of his independence. Now, the consensus has shifted, what with congressional Republicans floating articles of impeachment against Rosenstein and Rosenstein’s defiant pushback.

This flip-flop has reached official Washington. On May 31st, Senator Lindsey Graham, presumably in aid of the president, sent a one-page letter to Rosenstein asking him if he considers himself “a potential witness in the Mueller investigation regarding the firing of Director Comey by President Trump” and, if so, whether he should recuse himself “from further interactions with and oversight of the Mueller investigation.” On the other side, three prominent ethics lawyers involved in multiple lawsuits against the president, including President Obama’s ethics counsel Norm Eisen, concluded that legal ethics rules did not require Rosenstein’s recusal because his supervision of the investigation was not akin to appearing in court, because Trump later disclaimed reliance on Rosenstein’s memo as a basis for firing Comey, and because Rosenstein is not a target of the Mueller investigation. The weaknesses with these arguments clearly derive from presuming that Rosenstein has benign motives in acting as he has.

But look solely at Rosenstein’s conduct and ignore everything we think we know about the Special Counsel investigation—why couldn’t Rosenstein be not just a witness to the Mueller probe but also a subject of it? As Goldsmith wrote in January of this year in wondering how Rosenstein could possibly remain in charge of the Special Counsel, revelations that Rosenstein reviewed an unsent, Trump-written Comey termination letter that referred to the Russia investigation before drafting his memo means that Rosenstein “appears to have contributed to the firing and provided a seemingly neutral basis for it, with the knowledge that the president was motivated at least in part by the Russia investigation. If the president abused his power in firing Comey due to the Russia investigation, Rosenstein appears to have knowingly contributed to it.” Even contemporaneously it was clear Rosenstein’s conduct was indefensible. Could it be, then, that Rosenstein remains in control to improperly steer Mueller away from his own bad acts?

Of course, everything we’ve learned about both Rosenstein and Trump’s efforts to influence the course of the investigation since then should meaningfully change the public’s views on those events. The president has been on a months-long pressure campaign against the deputy attorney general, aided in part by soulless congressional GOP backbenchers. Rosenstein has pushed back forcefully against improper efforts to politicize the Special Counsel investigation. Mueller has continued an aggressive roll-up of Trump operatives and appears to still be investigating multiple strains of presidential obstruction. But acknowledging these facts simply makes the pendulum swing back: if Rosenstein need not recuse because he’ll actively undermine the Special Counsel, shouldn’t he still do so to avoid giving Trump, Graham, and the rest of the GOP attack dogs their first legitimate basis to claim bias and conflicts of interest?

The only true justification for Rosenstein’s continued stewardship of the Russia probe is a troubling one—that he is the only person keeping the United States from full authoritarianism. If Rosenstein recused, supervision for the Mueller investigation would pass to Solicitor General Noel Francisco as fourth in command at DOJ since the associate attorney general position remains vacant (Rachel Brand stepped down in February after less than a year on the job, perhaps to avoid being thrust into the role of Special Counsel supervisor herself). Francisco has a more political background and has already given indications he is more prone to Trump debasement. Recusal would also allow Trump the ability to fill the no. 3 spot and essentially hand-pick Mueller’s new boss, subject to whatever minimal oversight Senate Republicans want to give at a potential confirmation hearing. But whoever would replace Rosenstein, the potential threats to the Russia investigation’s integrity are real albeit uncertain. We simply don’t know how much undue influence Rosenstein has kept at bay or the true reasons he authored the Comey memorandum.

As Wittes wrote in a January Lawfare post defending Rosenstein’s continued control of the Special Counsel investigation despite recusal concerns:

There will come a time to litigate the question of Rosenstein’s handling of the many bizarre questions he confronted in his role as deputy attorney general. Today is not that day. Today is a day to understand that apolitical law enforcement is stronger with him than without him, and that it would suffer a genuine blow if the president and the House Intelligence Committee chairman can lie the deputy attorney general out of government.

Perhaps that’s correct, but it depends on two assumptions that we can’t be sure are true. One, that Rosenstein is fully committed to an investigation that appears destined to take down his boss and intimately examine the legal and ethical basis for his own conduct. And two, that even if so, there isn’t someone else equal to the task without the serious conflicts of interest that will unquestionably be a central focus of any Trump obstruction defense. And so, the question remains: How should we feel about Rod Rosenstein? It’s a confusing time.

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