Rod
Rosenstein Is the Best Emblem of Trump Administration Culpability
OCT 08, 20203:11 PM
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.”
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.
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.
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.
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.”
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.
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.
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.
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.
