Jurisprudence

Rod Rosenstein Is the Best Emblem of Trump Administration Culpability

Rosenstein staring ahead blankly.
Former Deputy Attorney General Rod Rosenstein testifies before a Republican-led Senate Judiciary Committee hearing on June 3. Greg Nash/Getty Images

On Tuesday, the New York Times reported that a draft report from the Justice Department’s inspector general offers fresh and horrifying details on the implementation of the Trump administration’s family separation policy in 2018. According to the Times’ reporting, Deputy Attorney General Rod Rosenstein personally overruled line prosecutors and ordered the prosecution of undocumented immigrants who had traveled with children who “were barely more than infants.” Rosenstein told the Times, “If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office.” He added, “I never ordered anyone to prosecute a case.”

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This bloodless statement expressed no remorse for the irreversible trauma that thousands of children suffered as a result of the illegal family separation policy. Its purpose was to tell the public—and the five U.S. attorneys along the border who, according to the Times, expressed internal concerns about the policy—that Rosenstein’s subordinates shared culpability for their role in the whole disgusting affair. It’s true that, if prosecutors in the department with a role in implementing the policy were so concerned about it, why didn’t they quit rather than implement it? But it also tells us something important about Rosenstein. His statement to the Times was not a defense on the merits of an indefensible policy; it was a way to extend responsibility for its execution further down the Justice Department hierarchy.

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Nearly a year and a half since Rosenstein’s resignation, it’s clearer than ever that the prevailing view of him that many once held—as someone who meant well but was perhaps easily manipulated by nefarious forces—is at best seriously incomplete and at worst clearly wrong.

With the benefit of more information and hindsight, a clearer picture of Rosenstein has emerged—as someone consumed, first and foremost, with his own survival and his own ascension. Usually when someone robs a bank, we don’t start by wondering what motivated him to do it; we start with the obvious explanation—greed. That same principle of parsimony provides much easier ways to understand what motivated Rosenstein.

Take Rosenstein’s memo recommending James Comey’s firing—a memo that argued for the firing on the basis that Comey had been irresponsible in his public comments about the investigation into Hillary Clinton’s use of a private email server. Rosenstein claimed that he had no idea that Trump’s interest in firing Comey was related to the Russia investigation, but we learned from the Mueller report that, in fact, Rosenstein knew Trump had already made the decision to fire Comey when he solicited Rosenstein’s cover memo offering an ex post facto rationale. Rosenstein likely simply feared Trump’s wrath if he refused to play ball—perhaps even his own firing.

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The same concern for self-preservation provides a much simpler explanation for Rosenstein’s decision not to recuse himself from overseeing the subsequent Mueller investigation—even though Rosenstein was clearly conflicted because of his role in the Comey firing, which was under investigation. Rosenstein’s decision afforded him the unique position to critically shape the outcome of the investigation—including by limiting its scope in a potentially decisive way and recommending against Trump’s prosecution. And when observers raised concerns over Attorney General William Barr’s refusal to promptly release Mueller’s report—rather than his four-page summary of it—Rosenstein defended Barr’s actions and argued that “this notion” that Barr was “trying to mislead people” is “just completely bizarre.” That conclusion, though, is ultimately what Robert Mueller himself alleged in a letter to Barr and exactly what a judge eventually determined earlier this year.

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A similarly instructive episode occurred when Rosenstein made the decision to conduct a coordinated leak of text messages between former FBI lawyer Lisa Page and agent Peter Strzok on the eve of a congressional hearing in which Rosenstein testified, and where the content of the messages would conveniently shift the focus away from him. Rosenstein has claimed that he made this decision because the department was planning to provide the text messages to Congress anyway and he feared a selective drip of leaks by members of Congress and that he wanted to “further the goal that the Department be forthcoming with the public.”

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Rosenstein’s story has a gaping hole, which is why the department tried to hide the fact that it was the source of the leaks to the press. Concealment of conduct by a criminal defendant is routinely used by prosecutors to suggest consciousness of guilt, and any competent prosecutor would have a field day with the fact pattern involving Rosenstein’s leak of the Page-Strzok texts.

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Rosenstein’s approach to the Page-Strzok leak also tracked his approach to the family separation policy in a telling way. Before Rosenstein approved the leak, he managed to obtain an opinion from the department’s Office of Privacy and Civil Liberties concluding that the disclosure would not run afoul of the Privacy Act, which protects the personal information of government employees. Under limited circumstances, it can be a crime to violate this statute, but the opinion that Rosenstein obtained makes a criminal prosecution virtually impossible. This is a tried-and-true bureaucratic mechanism for insulating yourself from aggressive scrutiny of misconduct after the fact—your reliance on the opinion is a get-out-of-jail-free card—and it has the added virtue of making the opinion-giver just as culpable in the underlying conduct. This shared culpability is exactly what he is now seeking in regards to family separation.

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Rosenstein’s consistent, dual-prong strategy throughout these events—accommodating the interests of those with power over you, while, when necessary, drawing subordinates into your zone of misconduct so that they too are incentivized to defend you—does not reflect the behavior of some unwitting, hopelessly naïve dupe. You might call it the standard work of a bureaucratic infighter or survivor, but these anodyne descriptions fail to capture just how corrupt his conduct was in these instances, particularly in the case of family separation.

The strategy also works, though, because of how contagious it can be. Everyone with a hand in it bears some responsibility, but everyone is also allowed to be blameless. That includes not just the U.S. attorneys who, according to the Times, expressed concerns internally—but who never went public with those same concerns—but also the front-line prosecutors without whom the policy could never have been implemented. All of them have the same defense—that they were following orders. Although we can and should ascribe different levels of responsibility to people based on how senior they were and how involved their work was, none of them should escape the public’s moral disapprobation.

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Rosenstein ranks pretty high on the list of those responsible. We should not, though, allow this to become a story that is just about Rosenstein, former Attorney General Jeff Sessions, and Trump, or that is just about the family separation policy. If Joe Biden wins in November, I suspect we are going to find out that many more people—all throughout government, all across the spectrum of political-to-career positions, and in all sorts of contexts we do not yet even know about—conducted themselves with a similarly strategic blend of myopia and narrow self-interest, with similarly disastrous and morally repugnant consequences.

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