The general reaction to Rod Rosenstein’s testimony yesterday was that he did a decent, even patient job explaining to feral Republican lawmakers why there was no reason to consider removing Bob Mueller from his post. Indeed, he said, it was difficult to think of anyone more qualified to serve in the position. But I want to direct your attention to a deeply disturbing aspect of yesterday’s hearing.
You’ve seen the on-going pseudo-controversy about two FBI employees who sent texts to each other trashing now-President Trump. The two were having an affair at the time and Special Agent Peter Strzok was reassigned off the Mueller probe and in essence demoted over the texts. Public employees are allowed to have political opinions. Indeed, there are laws specifically protecting government employees from being disciplined or having their work affected by their political views. The only real infraction here seems to be that the two used government devices to discuss their private political opinions when they should have reserved those for their personal devices – hardly a major infraction.
Nonetheless, defenders of the President have leaped from these emails to saying the entire Clinton emails probe – Strzok was involved in both probes – and the Mueller investigation are irreparably tainted. Others are going so far as to say the DOJ and the FBI need to undergo a political purge. The head of one prominent right-wing legal advocacy group went as far as to say the FBI should be shut down. It is a stark reminder of how many will go so far so quickly to prevent the enforcement of the law and lawful investigations when it comes to Donald Trump.
This is all nonsensical. Despite Strzok’s high-ranking role, he wasn’t in charge of either investigation. And no probes like this get decided on one person’s whim. It was probably right – as a matter of optics and prudence – for Mueller to reassign Strzok. But there is zero evidence he did anything wrong or tainted the investigation in any way. The entire controversy is an effort to discredit the Mueller probe and give President Trump and his associates legal impunity. It’s fine to have an investigation. I can’t prove the negative that Strzok did nothing wrong. So fine, investigate.
But before yesterday’s hearing, the DOJ invited reporters to review all the texts between the two FBI employees – seemingly far more access than Congress had even had. These were government documents – texts on government devices. So the formal privacy claim is limited. But let’s be honest. It’s still a massive breach of privacy. Political and personal chit chat and sounding off between two lovers?
The key point is there’s no evidence either did anything wrong. The only conceivable purpose of doing this was to humiliate the two, damage Mueller’s investigation and put wind in the sails of those pushing this pseudo-controversy. If it were found that the two had done something wrong, the emails might be evidence or context for their wrongdoing and the public interest in seeing the texts would change. But none of that has happened. And there’s little reason to think it ever will.
This is a transparently political move on the part of the Justice Department. And since all tied to the Mueller probe falls under Rosenstein’s purview, that’s on Rosenstein.
Here’s a portion of Ben Wittes’ response …
My enthusiasm for Rosenstein these days is altogether under control. And his behavior in this episode, in particular, has hardly done him credit. The release of private correspondence between two Justice Department employees whose correspondence is the subject of an active inspector general investigation is not just wrong. It is cruel. It is not the practice of the Justice Department to turn over to Congress—let alone to give to reporters—active investigative material related to the private communications of its own employees. Justice Department and FBI employees have the right to their political opinions. To the extent their private political expressions for some reason make it impossible for them to work on a certain matter, they certainly have the right to have that determined without having their careers ruined and their names dragged publicly through the mud by politicians who know nothing about the circumstances in question.
I don’t know whether agent Peter Strzok and attorney Lisa Page did anything improper, or merely engaged in ill-advised and foolish communications that did not impact their work. I have no quarrel with Mueller for removing Strzok from the investigation, whether for substantive or appearance reasons. But I do know this: these questions deserve to be adjudicated within the confines of a serious internal investigation, not a partisan circus.
Rosenstein here has, at a minimum, contributed to that circus—at the expense of his own employees. In throwing a career FBI agent and career FBI lawyer to the wolves by authorizing the release to the public of their private text messages—without any finding that they had done anything wrong—he once again sent a message to his workforce that he is not the sort of man with whom you want to share your foxhole. The DOJ and FBI workforces will not forget that. Nor should they.
As Wittes goes on to say, Rosenstein is clearly trying to thread the needle: protecting Mueller’s lawful and correct investigation while also kicking enough dirt and rubble into the gears of the rule of law to serve or perhaps keep at bay his ultimate master, President Trump. It’s comparable to his role in James Comey’s firing: writing a nominally reasonable memo which he knew would be used for an unreasonable, quite possibly illegal purpose. It is almost the definition of complicity – a largely passive and perhaps incomplete participation in corrupt acts.
My friend Eli Lake, who unfortunately, largely went along with the earlier Chairman Nunes ‘unmasking’ charade, also sees the disgrace of what happened here.
Here’s an admittedly lengthy excerpt from his column …
The inspector general’s investigation is ongoing. Perhaps more evidence will emerge that the privately held opinions of two investigators contributed to then-FBI director James Comey’s decision in July 2016 not to charge Clinton with a crime. (That was when the Republicans said the FBI was pro-Clinton. Before Comey called the finality of that inquiry into question just days before the 2016 election and the Democrats said the FBI was anti-Clinton.) Until charges are pressed and evidence is considered, however, Page and Strzok are owed some due process.
They aren’t getting it. This week, the Justice Department not only disclosed to Congress their private texts during an ongoing investigation, but then briefed their private texts to the media. This last point was first reported Wednesday by Natasha Bertrand of Business Insider. I was also able to confirm it.
When I asked Ian Prior, a Justice Department spokesman, about the due process rights of Strzok and Page, he said: “The Department ensures that its release of information from the Department to members of Congress or to the media is consistent with law, including the Privacy Act.” He went on to say that the information the Department provided to Congress in response to requests for the information was not subject “withholding exceptions,” that lawyers for Congress and relevant parties were informed of this beforehand and that “career officials determined that the text messages could be released under both ethical and legal standards.”
If that is the case, then the Justice Department is in need of reform. Let’s start with an obvious point. Publication of someone’s private texts — even if they are conducted on government phones — is an astonishing breach of privacy. How many of us say or write things intended for one person that we would not say in a public forum? Also consider how a snippet of one’s conversation in private can be taken out of context to misconstrue its meaning.
It’s not relevant whether the investigators held private political opinions. We should assume that all federal employees do. FBI officers and lawyers are American citizens with the same free speech rights as the rest of us.
These two will survive whatever embarrassment they experience. I suspect and hope – though I’m not sure – the Mueller investigation will survive. Much of this is intended to lay the predicate and create room for President Trump to end the probe. But this whole episode is simply a disgrace. It is an example of how much the gravitational pull of Trump’s corruption has already affected Washington, the federal government and the entire country. The corrupt and the desperate flock to him, the unprincipled defend him and even those who are I think mainly ethnical people under normal circumstances – I’m thinking of Rosenstein in this case – are bent and deformed by the pull.