Rosenstein’s Dilemma
Rod Rosenstein is the Deputy Attorney General of the United States, second in command in the Justice Department. Born in Philadelphia, Summa Cum Laude at Wharton School of Economics and Cum Laude at Harvard Law; he has spent his entire career in service of his country with the Justice Department. His previous job was as US Attorney for Maryland, where he was chosen by Republican George W Bush, and continued under Democrat Barack Obama.
Rosenstein became Deputy Attorney General by appointment from President Trump and Attorney General Jeff Sessions. Due to his involvement in the Trump Campaign, Sessions recused himself from the Russia Investigation, leaving Rosenstein as the supervisor. Rosenstein appointed his old boss, former FBI Director Robert Mueller to conduct the probe.
Rosenstein has the obligation to serve three masters in his current assignment. The first, as a member of the executive branch of the government, is the President of the United States. While the Department of Justice has a long tradition of maintaining independence, ultimately they are a part of the Executive. The President hired Rosenstein, he can fire him as well.
The second is his Constitutional duty to accept oversight from the legislative branch, the Congress. Congress has the authority to oversee the actions of executive agencies, and also has the power to control funding for those agencies. Congress can, and should, know what actions are being taken, and have the obligation to ask questions and get answers.
The third is to the Constitution and law itself. Rosenstein, as a career Department of Justice employee, has spent his whole career following the law. He sees as his duty to prosecute those who break the law, and to make sure that no one is above the law. As part of that duty, he cannot allow obstruction of an ongoing criminal investigation.
His dilemma: the Mueller investigation is clearly centering on the actions of his ultimate boss, the President of the United States, Donald Trump. Trump has to ability to fire Rosenstein (and appoint someone who would subsequently stop or fire Mueller) so Rosenstein’s job and career are in peril. In addition, some Republican Congressmen, notably members of the “Freedom Caucus,” led by Chairmen Gowdy, Goodlatte and Nunes; are demanding un-redacted versions of the “scope and sequence” documents for the Mueller probe. These documents are the roadmap for the investigation, and should they leak to possible subjects/targets, would make investigating much more difficult.
While the three Chairmen claim they are acting in their oversight role, it has already been demonstrated that classified information given to them has been used for political gain (see the House Intelligence Committee FISA report) rather than oversight of the Department.
In essence, the Chairmen are acting as “investigators” for the Trump defense team, trying to glean details so that the President can defend himself as the named “subject” of the Russia Investigation.
So Rosenstein faces the supreme dilemma: which of the three masters has the highest call? In statements made this past week, he made it clear where he stands.
On Monday, President Trump issued a Law Day Proclamation. The President said, “Law Day recognizes that we govern ourselves in accordance with the rule of law rather [than] … the whims of an elite few or the dictates of collective will. Through law, we have ensured liberty.” The point is that we do not achieve justice by polling the opinion of any person or group. We achieve justice through a process that seeks objective truth based upon credible and admissible evidence.
Rosenstein’s remarks (definitely worth reading in full) make it clear. He said, “…when you accept a privilege, you incur an obligation.” The privilege of spending a career in the Justice Department obliges him to follow his highest loyalty, to the Law and the Constitution. This requires him to perform the “unpleasant duty” of refusing the requests of the Congressmen.
The Freedom Caucus may try to impeach Rosenstein for this refusal. While one would hope Speaker Ryan would step into such a situation, his pending retirement may have emasculated him (or he retired because he already was.) Clearly there is no majority in the House, far less a two-thirds majority of the Senate to convict. Rosenstein won’t lose his job by Congressional action. And should President Trump use that as his excuse to remove Rosenstein, it will ignite a Constitutional crisis.
If we are a nation of laws, then obstruction of those laws is in itself a crime. Rosenstein will not be a participant in obstruction, and Congress should not become a tool of obstruction either.
Great summary in this very complex time!
Why do the Freedom Caucus and other republican senators and representatives want to stop the Mueller probe? Are they afraid for their own safety as well?
So there are two possible answers to that question – and maybe a mix. There are a number of Republican House and Senate members with Russian connections – particularly accepting Russian campaign contributions in some form (directly would be obviously illegal – but if Russians donate to a PAC that doesn’t have to account for its money – thanks Citizens United Decision – then it goes through.) Nunes definitely is one of those.
The second possible answer is that they truly believe that there is a “Cabal” of FBI agents attempting to overthrow the duly elected government (the same ones that investigated the Hillary email and didn’t press charges) and they are defending the Constitution. It’s hard from our perspective to see that as possible – but when you listen to Jim Jordan – he sounds like a “true believer!!!”