Rod Rosenstein Was Just Doing His Job
Does that really excuse
him for his role in the Trump administration’s family separation policy?
Opinion
columnist
- Oct.
15, 2020, 5:00 a.m. ET
What, in the Trump era, does
the face of complicity look like?
Sometimes the answer is obvious. Mitch
McConnell. William Barr. Lindsey Graham.
But sometimes it’s someone who’s less
well known. The face might register, but the name escapes you. It’s just a man
in rimless glasses and a dark suit.
I’m talking about Rod J. Rosenstein.
Years from now, I think we should remember the men and women like him, and the
role they played in this administration’s vilest deeds.
Last week, The
Times reported that the inspector general of the Justice
Department, Michael E. Horowitz, has prepared a draft report based on an
investigation of his agency’s role in the Trump administration’s family
separation policy of 2018.
Before discussing his findings, let’s
start by calling this policy what it really was: A state-directed effort to
intern immigrant children, some exceptionally young — so young that they were
still breastfeeding, so young that they were preverbal, so young that they were
not yet aware of their parents’ names. To wrench these children from their
mothers and fathers and detain them for months on
end required a bureaucracy, with cruel architects at the top — specifically,
the former attorney general, Jeff Sessions, and Stephen Miller, Trump’s senior
policy adviser — and a dedicated pyramid of helpers directly below.
Rosenstein, the former deputy attorney
general, was close to the peak of that structure. That’s what the reporting by
my colleagues Michael D. Shear, Katie Benner and Michael S. Schmidt made clear,
as did reporting this summer in
The Guardian.
On a conference call with the Justice
Department in the spring of 2018, five U.S. attorneys from our border states —
three of them Trump appointees — expressed their alarm about the “zero
tolerance” policy of prosecuting all undocumented immigrants, even if it meant
separating them from their sons and daughters. One, John Bash, specifically
said he’d declined to prosecute two such cases, because they involved children
under the age of 5.
Rosenstein was the one who told him he
was wrong to do so. (“Those two cases should not have been declined,” Bash
wrote to his staff immediately following the phone call.) There was no
categorical exemption based on age. Even parents with babies could be
prosecuted. The headline from The Guardian’s own investigation made this point
rather bluntly: “Revealed: Rod Rosenstein advised there was no age limit on
child separations.”
“I think this is the
structural question that’ll last the longest,” Lee Gelernt, the A.C.L.U. lawyer
who in June of 2018 made a successful argument for ending
family separation in federal court, told me. “We know the political people at
the top who wanted a policy of family separation, and it’s horrific. But where
were the career people? How many pushed back?”
How many indeed?
Rosenstein’s complicity in this machine
was ugly, but it was by no means unique. Top officials at the Departments of
Justice, Homeland Security, and Health and Human Services all played a role.
They were all sowing chaos, inflicting cruelty and causing unfathomable trauma
at the behest of a small, vicious cadre up top.
Gelernt told me that he had to make a
hard strategic decision when arguing his case against the Trump Justice
Department. In order to get families reunited quickly, he was not going to
challenge the administration’s right to prosecute these immigrants. He accepted
that they broke the law. And like any American parent who breaks the law, he
accepted that they typically had to be separated from their children while in
jail.
Instead, his argument was this: The
jail time for these misdemeanors was usually a matter of days. So why were
these parents not being reunited with their children afterward? “What became
clear,” he told me, “is that they never had any intention of reuniting them
until the parent gave up and was deported, if ever.”
The federal judge in San Diego agreed,
saying the government’s behavior “shocks the conscience,”
that the separation policy violated due process and that all separated families
had to be reunited within 30 days.
But what galls Gelernt now, after
seeing the Times report about the inspector general’s investigation, is that
his suspicions were right all along: Separating families was the objective of
the Trump administration’s zero-tolerance policy, not a byproduct. The children
were the targets of the policy, not collateral damage. “We need to take away
children,” Sessions reportedly told the local U.S. attorneys.
No president before Trump had ever
dared go that far. Which is not to say that Trump’s predecessors handled
immigration gingerly: When the number of immigrants surged at the border in
2014, President Barack Obama responded by building more detention facilities
and holding families indefinitely — though still together — and faced a legal
backlash.
But Trump’s policy
was something altogether different. It was child abuse, plain and simple.
“That’s why it’s so chilling,” Gelernt told me. “D.O.J. officials apparently
declined to exempt even cases with a baby.”
In response to the inspector general’s
report, Rosenstein’s former office offered a 64-page response, according to the
Times report.
In a separate letter to The New York
Times, Rosenstein took care to note that he was not responsible for developing
the “zero tolerance” policy; he merely clarified what it meant. “I correctly
told U.S. Attorneys that the Attorney General did not want them to decline
cases for categorical reasons,” he wrote, “but I expressly advised U.S.
Attorneys that they were NOT required to prosecute every immigration defendant
arrested by the Department of Homeland Security.”
It’s a very cautious, lawyerly
statement. But note what Rosenstein did not deny: That he refused his U.S.
attorneys permission to automatically exempt undocumented immigrants with young
children from prosecution. In his letter, Rosenstein also said that any claims
that “I did not care how young the children were, or that I ignored concerns
about the children’s welfare are unequivocally not true.”
But if Rosenstein really harbored
concerns about the family separation policy, why wasn’t he noisier about them
in public? He could have registered his objections and left. He did have other
options. He has a degree from Harvard Law. He had a distinguished record of
public service that long preceded his association with Donald Trump. He served
in both Bill Clinton and George W. Bush’s Justice Departments; in 2005, he
became the U.S. attorney for the district of Maryland, and he was one of only three U.S. attorneys retained by Obama.
But what we have lately learned about
Rosenstein is that he is a very canny political operator. He has a gift for
threading needles that even a tailor would envy.
While serving in the Trump Justice
Department, for instance, he wrote a memo recommending the removal of James
Comey as the head of the F.B.I., and he later defended his boss,
William Barr, after he misled the public about the results of the Mueller
investigation. But he also had the presence of mind to appoint Robert S.
Mueller in the first place — and, though he has denied it, to question Trump’s own presence of mind.
(It has been reported that he suggested secretly recording Trump’s ravings in
order to expose him as unfit to lead.)
So Rosenstein is not
a caricature of a villain, necessarily. You might even say he’s a man of a
rather banal morality. But
when push came to shove, he seems to have done exactly what it took to survive
in the Trump Justice Department — which was to tell U.S. Attorneys that they should
not decline to prosecute undocumented immigrants just because those immigrants
had very young children.
Last
week, the Trump Justice Department made it possible to investigate specious claims of election fraud, a
move that not only departs from precedent but also undermines confidence in
democracy itself. Who can be relied upon to stop such a thing?
Courageous
civil servants. They’re our best defense against tyranny, against autocracy,
against government-perpetrated crimes.
Yet when it was Rosenstein’s turn, he did nothing to stop
government-orchestrated cruelty. Instead, he simply did his job.
