There seems now to be a widespread belief, if not quite a consensus, among critics of President Trump that Deputy Attorney General Rod Rosenstein, who submitted his letter of resignation yesterday, turned out to be just another hack. He’s provided plenty of grist for that appraisal over the last month. But that doesn’t quite capture the full picture. We must always be open to new evidence, constantly be in a process of revising or at least revisiting our settled opinions. But we must resist the temptation to toss out old evidence or settled opinion when new evidence cuts against our assumptions or is contradicted. The evidence that doesn’t fit is always the most important.
Rosenstein remains the greatest enigma in this whole drama. The denouement has been an embarrassment. He stood there vouching for Bill Barr in what now can only be called a legal cover up. His public statements have been petulant and prissy, topped off by yesterday’s letter of resignation, which managed to be both fulsomely sycophantic and grindingly defensive.
Really none of this final chapter should surprise us. Rosenstein kicked off this drama by literally writing the memo President Trump used to justify the firing of James Comey. He wrote a memo justifying Comey’s dismissal for one set of reasons even though simple logic and the President’s own words confirmed that Comey was being fired for a different and corrupt reason. This sprawling Trump-Russia drama didn’t begin with Comey’s dismissal. It began with events at least back into 2015. But it was the key inflection point, the act that escalated a still largely secret counter-intelligence probe into a full fledged national story that dominated the news for two years. Rosenstein wasn’t just present for that bad act. He was the key player in helping President Trump do it.
Yet in short order he turned around and appointed Robert Mueller as Special Counsel. That was a critical decision and Mueller was never going to be an easy choice for Trump. We still don’t know the full story of Rosenstein’s management of the probe. We may learn more from subsequent congressional investigations or books. But based on what we do know it seems that Rosenstein consistently refused to rein in or scale back or interfere with Mueller’s probe. (Indeed, reports of his offering to wear a wire to record the President suggests a wild series of oscillations as Rosenstein struggled to grapple with the situation.) A constant stream of harassment from the President’s top toadies on Capitol Hill and the President’s own public attacks seem to confirm that.
From his letter and various reporting it seems that Rosenstein refused to buckle on the big things but also sought to protect himself and the investigation by courting members of the White House staff with various personal and bureaucratic pleasantries and coddling, yessing and reassuring the President whenever possible. In other words, Rosenstein’s behavior appears to have been unlovely but effective in preserving his job while he, apparently, allowed the probe go forward untrammeled. We cannot and should not write off what appears to be a fact: that he protected the Mueller investigations in the fact of considerable pressure for more than 18 months.
It isn’t a satisfying portrait and it’s not entirely consistent, at least not on the first appraisal. But if you sit with it I think it all fits together. The denouement, rather than surprising or contradictory, confirms the general picture.
It seems clear, based on the evidence we have, that when in a position of executive authority Rosenstein would go to great lengths and incur some personal or professional risk not to break the law or act in clearly unethical ways – in this case, not interfering with a lawful law enforcement investigation. Indeed, he seems to have defended it consistently. This is certainly not the highest bar of conduct. But we shouldn’t discount the pressure the President, his White House, the Congress and a big chunk of the national media can bring to bear.
However, when under someone’s else’s constitutional authority (whether it be President Trump and Jeff Sessions with the Comey firing or Bill Barr today) he does everything he can to follow orders, even to the point of doing things that sure look substantively unethical.
Indeed, today we see a return of the same kind of super-fine distinction drawing Rosenstein used to justify things that certainly look wrong while holding out for nominal distinctions that allowed them to appear right. The Comey firing memo seems like a case in point which foreshadows the recent shenanigans with Barr.
Trump made clear he wanted to fire Comey because of the Russia probe. He hardly needed to make it clear. That was obvious. But he made it crystal clear in his meetings with Rosenstein and Sessions. He asked Rosenstein to write a memo justifying Comey’s firing. Rosenstein agreed to do so on the basis of Comey’s decisions during the 2016 election. He doesn’t seem to have been pushed into this. He volunteered it. He found a way to obey his superior and give him what he wanted while inflecting it in a way that he felt could justify it. When Trump pushed him to include Russia in his memo, Rosenstein pushed back. All of this amounts to a focus on the formal and nominal as opposed to substantive good conduct.
I strongly suspect we would see comparable reasoning in Rosenstein’s recent collaboration with Bill Barr. Did Barr do or ask Rosenstein to do anything illegal? Barr didn’t hide the report. He didn’t clearly lie about it in his letter to Congress. Misled, yes. Lie, no. The decision not to bring an obstruction charge was pretty straightforward. Standing DOJ policy forbids it. Rosenstein – and certainly Barr – likely has a theory of executive power which may make presidential obstruction pretty hard to accomplish.
It is a complicated and to me fascinating picture. Rosenstein is a company man and a bureaucrat and someone who wants to say yes to those he serves and will find all manner of ways to accomplish that end. But if possible, not by clearly breaking the law or the narrowest definitions of ethical responsibility. When he is in a position of executive authority, needing to make the decisions himself, the calculus is different. I think Rosenstein’s sullen and defensive comments over the last couple weeks shows he thinks he managed to thread the needle but also knows it was quite ugly.
