Will Rod Rosenstein Keep His Promises?

Rod Rosenstein was only confirmed as deputy attorney general a little over two weeks ago, on Tuesday April 25th, 2017. The vote in the Senate was 94-6, with the only opposition coming from Richard Blumenthal (D-CT), Cory Booker (D-NJ), Catherine Cortez Masto (D-NV), Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), and Elizabeth Warren (D-MA). The main reservation the Democrats had about Rosenstein was his refusal to commit to naming a special prosecutor to look into the question of cooperation between the Russians and the Trump campaign during the 2016 election. Sen. Blumenthal spoke for the dissenters when he stated that Rosenstein “is, in some senses, what we value in the Department of Justice: someone committed to the rule of law. That’s why I have been surprised and disappointed that he has failed to heed my request.”

Most Democrats were satisfied with Rosenstein’s testimony before the Judiciary Committee, as well as by the private assurances he gave them that he would appoint a special prosecutor if he ever concluded one was necessary. Senate Minority Leader Chuck Schumer made it clear that he was voting to confirm based on that commitment:

In a floor speech earlier this week, Senate Minority Leader Chuck Schumer (D-N.Y.) stressed that Rosenstein had made that commitment to him personally.

“He had developed a reputation for integrity,” Schumer said. “He has promised to give this issue careful consideration. I believe if he studies the department regulations, he will come to the same conclusion many of us have: that a special counsel is merited.”

Because Attorney General Jeff Sessions concealed his multiple contacts with Russian Ambassador Sergey Kislyak during his own confirmation hearings, he has recused himself from any dealings with the investigation or any possible prosecutions in the Russian affair, which means that Rosenstein assumed those responsibilities two weeks ago. And at some point in the last fifteen days, Rosenstein was tasked with finding a justification for firing James Comey, the director of the FBI. He provided that justification yesterday (if the date stamp is to be believed) and was joined by Sessions in sending it along to the president who promptly used it as the casus belli for terminating Comey.

Sessions could hardly have failed to join in. Had he backed out citing his promise to recuse himself, that would have been an admission that the termination was related to the Russian investigation. But the rationale provided was different. Essentially, Comey was fired for announcing that Clinton would not be locked up and that no prosecutor would bring charges based on the facts the FBI had assembled in the investigation of Clinton’s private email server. The problem was that the FBI doesn’t make prosecutorial decisions and Comey had overstepped his bounds. Of course, most liberals remember that press conference differently, since Comey also took the opportunity to call Clinton “reckless” and to otherwise trash her, and the Justice Department doesn’t trash people who they will not be charging with a crime.

At the time, Trump was upset that Clinton wouldn’t be going to jail but was generally happy that the FBI director had taken her to task. He utilized the reprimand as much as he could on the campaign trail. In truth, Comey had managed to make everyone angry, and he of course made the left much angrier when he interjected himself into the campaign only ten days before Election Day to besmirch Clinton’s character all over again.

Whether Trump fully appreciated the favor or not, it was enough to keep Comey in his good graces and to continue on in his job as director. It didn’t take long for Trump to regret his decision, however, and some time in the last few weeks he decided that Comey needed to be replaced. It was probably a decision that built up to a breaking point. During the transition, Comey presented Trump with the dossier produced by former MI6 Russian desk officer Christopher Steele that alleged strong cooperation between Trump’s campaign and the Russian hacking efforts, as well as the theory that Trump had hired prostitutes to pee on each other while the Russians secretly recorded the episode. Comey later refused to clear Trump of any suspicion, contradicted him when he accused President Obama of having surveilled Trump Tower, confirmed for the world in a congressional hearing that Trump associates were the subject of an ongoing counterintelligence investigation, and said (by implication) that it made him “nauseous” to contemplate the idea that his actions may have made Trump our president. It’s not hard to understand why Trump’s anger grew and grew.

Of course, there’s the possibility that Trump was motivated more by fear than by anger. Reports that grand juries are in full swing in the Northern District of Virginia looking into the financial dealings of Michael Flynn could have created a flash point. It was, after all, the Department of Justice and the FBI who forced Flynn out as Trump’s National Security Adviser by leaking about his contacts with the Russian ambassador. From that point on, Trump tried to turn the conversation from the investigation into his campaign into a debate about the leaks. He fired the Acting Attorney General, Sally Yates. He fired the U.S. Attorney for the Southern District of New York. He installed Jeff Sessions as the new Attorney General and was furious when he recused himself from the Russian investigation. It may have been only a matter of time before he closed the loop and fired Comey.

Of course, for the very reason he was ostensibly fired, Comey never had any say in whether the information gathered by the FBI would lead to any prosecutions. That decision will now be made by the man who made the case for firing him, Rod Rosenstein.

When (most of) the Senate Democrats voted to confirm Rosenstein, they did so despite their dissatisfaction with his lack of a commitment to a special prosecutor, but also because he promised to assign one if it became clear one was needed. That Rosenstein then proceeded, almost immediately, to recommend the termination of the man overseeing the investigation is a jarring turn of events. He not only cut the head off of the investigation but is in a position to make the decision whether to bring any charges. That’s not what the Democrats thought they were signing up for when they gave him their confidence.

People seem to think that Rosenstein has good character. They thought that fifteen days ago, anyway. Maybe people have been misjudging him, but if he actually does have good character, he cannot fail to recognize that he can’t be seen as impartial in this case anymore.

The White House has been as clear as they can be that they want the Russian investigation to go away. They chose Rosenstein to head the inquiry, and he promptly shitcanned the FBI director when the Democrats were expecting him to be seriously considering the merits and necessity of a special prosecutor.  His independence is obviously doubted, and for reasons so obvious that they can’t be denied in good faith by anyone.

Maybe Trump acted impulsively and truly didn’t understand that the Democrats’ mutual displeasure with James Comey would not lead them to applaud his dismissal. But that’s largely irrelevant. All that matters now is that Rosenstein does the only decent and rational thing and takes himself out of the decision making process when it comes to whether charges will be brought or not.

I think that means a special prosecutor is now the only option, although there may be other solutions that haven’t occurred to me.

I also think Trump is walking a fine line in terms of obstructing justice. Clearly, he’s violating norms by opining on an ongoing investigation into his associates and perhaps himself. He’s coming pretty close to suborning perjury and has definitely been tampering with witnesses. Because he’s the president and not an ordinary citizen, some of these things are probably legal in a strict sense even if they’re brazenly unethical. He’s providing reasonable grounds for impeachment even if the definition of high crimes and misdemeanors is determined at the caprice of Congress. What can’t be allowed is for this naked power play to succeed in quashing a legitimate investigation that bears on the health and integrity of our representative system.

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