Jurisprudence

The Tragedy of Rod Rosenstein

The deputy attorney general’s decision not to recuse himself from the Mueller probe will be his terrible legacy.

Rod Rosenstein.
Deputy Attorney General Rod J. Rosenstein speaks at the Los Angeles Crimefighters Leadership Conference on Feb. 7.
Reuters/Mike Blake

Deputy Attorney General Rod Rosenstein will soon leave the Justice Department that he joined as a newly minted lawyer nearly 30 years ago. He is, by all accounts, a skillful attorney who spearheaded a number of successful public corruption prosecutions and won widespread respect from members of both parties en route. But as is often the case, he will be remembered best for the worst moments of his career: his letter providing a cover story for the firing of FBI Director James Comey; his baffling failure to recuse himself from the special counsel’s probe into possible obstruction of justice by President Donald Trump; and his wingman role in Attorney General William Barr’s bid to make Trump’s obstruction issues melt away.

Before he became the Justice Department’s second-in-command under Trump, Rosenstein’s long tenure at the department looked like a public service success story. He joined the Justice Department at age 25, fresh from a D.C. Circuit clerkship and just one year out of Harvard Law School. President George W. Bush named him U.S. attorney for Maryland in 2005, and President Barack Obama asked him to remain at that post, making Rosenstein the only Bush-appointed U.S. attorney whom Obama retained. Though a registered Republican, he won the admiration of Maryland’s U.S. senators, Ben Cardin and Chris Van Hollen, both of whom are Democrats. When Trump nominated him as deputy attorney general, Cardin said that Rosenstein “has demonstrated throughout his long career the highest standards of professionalism.” Van Hollen praised him as a “top-notch lawyer” with a “record and reputation of serving justice.” At a time when virtually everyone in American political life was associated either with Team Red or Team Blue, Rosenstein appeared to be one of the few figures with bipartisan bona fides.

But over the past two years—and especially in the past week—this success story has turned into a cautionary tale. Rosenstein’s refusal to recuse himself from the special counsel’s obstruction of justice probe—notwithstanding a conflict of interest so blatant as to be almost blinding—has done irreparable damage to his own reputation and perhaps to the department that until now has been his only professional home.

It is difficult to understand how Rosenstein ended up in such a compromised position. Perhaps he will one day write a reflective memoir—as his two nemeses, Comey and former FBI Deputy Director Andrew McCabe, already have. Until then, we can reconstruct the timeline easily enough, but we can only speculate as to Rosenstein’s motives at each step of the way.

The saga starts in early May 2017, just days after Rosenstein was confirmed as deputy attorney general by a 94–6 Senate vote. Trump reportedly wanted to fire Comey over the FBI director’s handling of the Russia investigation, but Rosenstein and White House counsel Don McGahn urged a different tack. Rosenstein drafted a letter recommending that Trump terminate Comey for the FBI chief’s mishandling of the Hillary Clinton email inquiry. It was perhaps a plausible cover story—if only Trump could stick to the script.

Why did Rosenstein willingly supply a guise for what was, at bottom, an effort by the president to impede the FBI’s inquiry into Trump’s own campaign? No doubt Rosenstein believed he was doing the right thing: By pushing the email cover story, he was potentially saving the president—and the country—from a constitutional crisis unlike any since the Saturday Night Massacre of October 1973. And Rosenstein probably thought that Comey’s mismanagement of the email matter was indeed a fireable offense: Comey’s disregard for Justice Department protocol likely would have grated on Rosenstein, who was known around the department as a “by-the-book guy.”

So Rosenstein wrote a three-page letter laying out the case against Comey and recommending his termination—a letter that Attorney General Jeff Sessions soon endorsed and President Donald Trump did too. The letter lent a veneer of legitimacy to Trump’s firing of Comey—a move that, when its true motives were laid bare, looked to many like a textbook example of obstruction of justice. Perhaps it did not occur to Rosenstein that others would see his letter as the primary element in a not-so-elaborate cover-up, and that Rosenstein might be making himself an accessory to a crime.

It did, however, occur to others that Rosenstein should recuse himself from his department’s inquiry into whether Trump committed obstruction of justice, given that Rosenstein was now at least a “fact witness” and at worst a witting accomplice. In May 2017, I called for Rosenstein’s recusal in Slate, as several others did elsewhere. I didn’t know then—though the Washington Post has since revealed—that McCabe, who became the FBI’s acting director after Comey’s exit, also told Rosenstein in a closed-door meeting around the same time that the deputy attorney general should step aside.

The argument for recusal was, and remains, straightforward. A regulation adopted by the Justice Department in 1983 states that, as a general rule, “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with … any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.” That’s the regulation that Sessions cited when he recused himself from the Russia probe. As Sessions, who served as an informal adviser to Trump during the 2016 presidential race, put it, “department employees should not participate in investigations of a campaign if they have served as a campaign adviser.”

Rosenstein’s conflict was even more direct than Sessions’. In Rosenstein’s case, the “person … substantially involved in the conduct that is the subject of the investigation” was Rosenstein himself. And while the regulation on its face applies only to “employees” rather than departmental officers, Sessions sensibly interpreted the regulation as applying up the chain of command, evidently on the view that the Justice Department’s top brass should abide by the same ethical standards as the rank and file.

The 1983 regulation allows an exception for cases in which the employee’s supervisor determines that the conflict “will not have the effect of rendering the employee’s service less than fully impartial” and “would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation.” Setting aside whether Rosenstein could be “fully impartial,” it is quite clear that his participation created the appearance of a conflict. How could it not? Rosenstein, it bears repeating, was overseeing an investigation into whether Trump had obstructed justice by (among other actions) firing Comey to stop the Russia investigation and then hiding his true motive behind a cover story that Rosenstein himself had supplied. Moreover, the only supervisor who could bless Rosenstein’s continued participation under the 1983 regulation was Sessions, who had promised he would stay away from the Russia inquiry. Sessions would later take personal responsibility for his subordinate’s nonrecusal, though that only makes matters worse: The incurably conflicted Rosenstein remained in charge of the Russia probe because the incurably conflicted Sessions said he should.

How could Rosenstein have rationalized his decision not to recuse? One possibility is that Rosenstein’s reputation for personal probity prevented him from recognizing the reality of the situation. Rosenstein may have believed so strongly in his own honesty and professionalism—and that belief had been reinforced so many times by the praise of those around him throughout his long and successful tenure as U.S. attorney in Maryland—that Rosenstein could not imagine how others would see things differently in this instance. If so, Rosenstein’s error might not have been so different from Comey’s misjudgments during the Clinton email investigation, when the FBI chief with a record for fair-mindedness failed to anticipate how others would interpret the longtime registered Republican’s tongue-lashing of the Democratic presidential nominee four months before the general election.

Another possibility is that Rosenstein came to believe in his own indispensability. If he stepped aside, then oversight of the Russia probe would have fallen to Associate Attorney General Rachel Brand, a highly qualified lawyer and former law professor, but one who lacked Rosenstein’s prosecutorial record and who was much more closely linked to Republican Party politics than Rosenstein was. After Brand left the Justice Department in February 2018, the next in line was Solicitor General Noel Francisco, whose expansive view of executive power led some to fear that he would curtail or shut down the investigation.

Of course, we can never know how things might have played out if Rosenstein had stepped aside. But we can now see how damaging his decision to stay on turned out to be.

Rosenstein, to be sure, deserves credit for invoking the Justice Department’s special counsel rules—adopted in 1999 after Congress let the independent counsel statute lapse—and then naming Robert Mueller to lead the Russia inquiry. Mueller was the special counsel straight out of central casting—all the more perfect for the part because of his camera-shyness. He had served with distinction in Senate-confirmed posts under each of the past four presidents—two Republicans and two Democrats—and was arguably the best director that the FBI has ever had.

But while the decision to appoint Mueller was brilliant, it was also obvious. Even with the caveat that hindsight is 20/20, it is hard to imagine that Brand would not have thought to do the same. And even if she had chosen someone else—say, Dana Boente, the well-regarded U.S. attorney in northern Virginia—the investigation might not have suffered significantly if at all.

Rosenstein’s special counsel appointment was astute in another way: It linked the fortunes of the deputy attorney general, who at the time was little known beyond Maryland, to those of Mueller, who was widely revered and sometimes worshipped. Supporters of the special counsel were understandably reluctant to highlight Rosenstein’s nonrecusal, lest it cast doubt on the legitimacy of an investigation that was already under presidential assault.

Rosenstein, for his part, promised that “if anything that I did winds up being relevant to [Mueller’s] investigation, then … if there’s a need from me to recuse, I will.” But the promise turned out to be an empty one. Ultimately, the decision of whether to prosecute the president fell to Rosenstein and his now boss, Attorney General William Barr. And Rosenstein’s actions were highly relevant to the nonprosecution decision, because they speak to whether and why Trump tried to intervene in the FBI’s Russia probe.

If Trump fired Comey as part of an effort to shield his first national security adviser Michael Flynn from criminal liability and to hide from the American people the full extent of Russia’s election interventions on his behalf, then the obstruction case against the president would be strong. If those were Trump’s motives, then Rosenstein was—or allowed himself to be—used for subterfuge. Could Rosenstein be “fully impartial”—as department regulations demand—when deciding, in effect, whether Rosenstein was an accessory to obstruction? No human—not even a human with Rosenstein’s reputation for integrity—could call that shot straight.

Defenders of Rosenstein might argue that if he had recused himself, the decision of whether to prosecute the president would have fallen to Barr alone, and there is no reason to believe that Barr would have come down differently if Rosenstein were out of the room. True enough. But note that Barr’s letter to Congress Sunday summarizing the special counsel’s conclusions—a letter that uses the first-person singular everywhere else—shifts to the first-person plural when it reaches the question of obstruction (“Deputy Attorney General Rod Rosenstein and I have concluded,” “our determination,” “our judgment”). Barr no doubt knew that his own credibility on the obstruction issue was compromised by the letter he wrote to Rosenstein and Assistant Attorney General Steven Engel last June assailing the special counsel. As in the Comey firing, Rosenstein played the useful role of providing political cover.

This time, though, Rosenstein’s signoff is unlikely to provide shade. In part that is because Democrats and independents who so far have “spared the Rod”—as a headline in Politico put it—no longer feel the need to tiptoe around the uncomfortable fact of Rosenstein’s conflict, now that the much-feared firing of Mueller ceases to be a salient concern. In part it is because the polarization of Washington and the toxicity of Trump make it virtually impossible for anyone in this administration to maintain the bipartisan respect that Rosenstein built up during his Maryland years. But it is also in large part Rosenstein’s own fault. The deputy attorney general said, in effect: “Trust me. I will recuse myself if and when I need to.” But then he needed to—and yet he did not step aside.

For Rosenstein himself, the reputational hit from his nonrecusal may put him out of the running for the federal appellate judgeship to which he once aspired. But quite a few D.C. law firms are likely to seek his private sector services—and will happily pay him a salary in the seven figures. For the Justice Department that Rosenstein now leaves, though, the damage may be longer-lasting. The Russia probe was, among other things, a test of whether the department could conduct and conclude an impartial investigation of a sitting president by following its own special counsel rules. While it is too early to reach a final verdict on that question, the serious conflict of interest affecting the man who oversaw that inquiry casts a continuing shadow over the enterprise.

All this almost certainly would have surprised Rosenstein if he had known it at the outset. By remaining in charge of the Russia investigation, he probably believed he was protecting the interests of the institution in which he had loyally served for most of his life. But the road to institutional decay is often paved with good intentions. Indeed, if Rosenstein had not been so persuaded of the purity of his motives, one wonders whether he might have been able to understand the damage he would do.