Why It Makes Sense for Rod Rosenstein to Appease Trump

Rod Rosenstein.
Deputy Attorney General Rod Rosenstein in New York on May 9. Drew Angerer/Getty Images

On Sunday, in an extraordinary series of tweets, President Donald Trump declared that “I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!” This was in response to stories about the FBI’s use of an informant to examine ties between the Trump campaign and Russia—although the stories pointed out this was not done for political purposes. In response, the Justice Department—in what the Washington Post called “a remarkable step officials hoped might avert a larger clash between the president and federal law enforcement officials”—announced that its inspector general would look into the matter.

For perspective on what all this means for the Mueller investigation and the integrity of the Justice Department, I exchanged emails with Jack Goldsmith, a professor at Harvard Law School and a senior fellow at the Hoover Institution who served in and then resigned from the George W. Bush administration’s DOJ. A lightly edited version of our conversation is below.

You have warned against overly panicked reactions to Trump tweets and Trump threats to do things like fire Robert Mueller or Rod Rosenstein. Did Trump’s tweets feel different to you this time?

Jack Goldsmith: They all seem ominous. But yes, Trump’s bullying has grown louder and his threats and demands more concrete. ​On the other hand, the investigation has been conducted for a year now and no matter what the president does, it will be very hard to kill the investigation, and especially the many fruits of it that we do not yet know about. Also, the political fallout from firing someone connected to the investigation is greater now than a year ago, and will continue to be significant until the midterms, which are still six months away. Trump could fire Rosenstein or [Christopher] Wray or have Mueller fired at any moment. But I still think his main aim, and the aim of his surrogates, is to undermine the investigation’s credibility, and not to dismiss anyone.

You tweeted that we should cut Rosenstein and Wray slack as they negotiate this sort of thing. But are there any red lines you have in mind about how far they should go to accommodate him?

Some people think they already should have resigned because of the president’s attacks on the integrity and independence of DOJ and FBI. They would certainly have plenty of reason to resign in protest. But the main reason they appear to be staying on is to see the investigation through. It would disrupt the investigation for an uncertain period, and in an uncertain but probably bad way if Rosenstein, Wray, or Mueller left for any reason. That’s why I think we should support them in their decision to stay on, take the heat, and see the investigation to its completion, or at least as far towards completion as possible. ​I am sure there are red lines, but given the stakes of resignation, and Trump’s unpredictable behavior, it is hard to know what they are.

What did you make of Rudy Giuliani saying Mueller had set a date, Sept. 1, to wrap up the obstruction part of the probe? Does that seem like something Mueller or a responsible prosecutor would do, and why?

It’s hard to say. Giuliani has not been terribly credible lately. The stories say that Mueller “hopes” or “plans” to wrap up the obstruction probe by early September if Trump sits for an interview this summer. There is lots of wriggle room in that secondhand account. But still, if Mueller is focused only or primarily on the president’s possible obstruction, and if he plans to issue a report on the matter rather than indict the president while in office (which in DOJ’s official view is not allowed), then he might well be able to wrap that part of the investigation up by September if the president cooperates.

It seems a tad strange to me, as an admitted nonexpert, to wrap up part of the probe when a) Trump could keep obstructing it, and b) You don’t know what he might have tried to cover up if you don’t know what potential crimes were committed, which would only be known at the end of the whole probe.

Again, it is very hard to speculate about what Mueller [has] in mind based on Giuliani’s secondhand account of what Mueller supposedly said. To say that he “might” be able to wrap up part of the investigation does not mean that he won’t find something along the way that would require him to extend it or reopen it. Compare what FBI Director James Comey did when the FBI discovered [Anthony] Weiner’s laptop.

You say, and I agree, that the main aim of Trump and his surrogates is to damage the investigation’s credibility. We know that the Mueller team seems to be pretty quiet—and so is the DOJ. Is there anything they can do to bolster their own credibility? Does even trying to do that go against DOJ regulations or norms?

I don’t think there is anything they can do to bolster their credibility other than continue to do their jobs with integrity.