Thoughts on Rod Rosenstein's Testimony

By Benjamin Wittes, Lawfare

16 December 17

have not watched all of Deputy Attorney General Rod Rosenstein’s testimony before the House Judiciary Committee yesterday. But I watched three hours of it, and that was quite enough to convey the disturbing and dangerous nature of the current moment.

It was enough to highlight the apparent breadth of the congressional Republican effort to delegitimize the Robert Mueller investigation. The attacks on Mueller and his staff and allegations of supposed conflicts of interest were not the province of a fringe but a matter of an apparent consensus among House Republicans, at least on the famously partisan judiciary committee.

It was enough to loose upon the world an almost hysterical attack on an FBI agent and an FBI attorney in the presence of little evidence that either has done anything wrong—as opposed to merely ill-advised and unfortunate—and in the midst of an ongoing inspector general investigation that has not yet reached any conclusions.

It was enough to lay bare the absurdity of Republican demands for the appointment of a special counsel to investigate a series of matters about which there is not even the barest allegation of criminal conduct—let alone a predicate for an actual investigation.

It was enough to bring to the surface the bizarre fixation in the Republican caucus on conspiracy theories involving Fusion GPS, the so-called Steele Dossier, FISA surveillance, and the Mueller investigation.

And it was enough to make clear, yet again, that Rod Rosenstein is a man out of his depth and to make one sympathize for him at the same time.

My enthusiasm for Rosenstein these days is altogether under control. And his behavior in this episode, in particular, has hardly done him credit. The release of private correspondence between two Justice Department employees whose correspondence is the subject of an active inspector general investigation is not just wrong. It is cruel. It is not the practice of the Justice Department to turn over to Congress—let alone to give to reporters—active investigative material related to the private communications of its own employees. Justice Department and FBI employees have the right to their political opinions. To the extent their private political expressions for some reason make it impossible for them to work on a certain matter, they certainly have the right to have that determined without having their careers ruined and their names dragged publicly through the mud by politicians who know nothing about the circumstances in question.

I don’t know whether agent Peter Strzok and attorney Lisa Page did anything improper, or merely engaged in ill-advised and foolish communications that did not impact their work. I have no quarrel with Mueller for removing Strzok from the investigation, whether for substantive or appearance reasons. But I do know this: these questions deserve to be adjudicated within the confines of a serious internal investigation, not a partisan circus.

Rosenstein here has, at a minimum, contributed to that circus—at the expense of his own employees. In throwing a career FBI agent and career FBI lawyer to the wolves by authorizing the release to the public of their private text messages—without any finding that they had done anything wrong—he once again sent a message to his workforce that he is not the sort of man with whom you want to share your foxhole. The DOJ and FBI workforces will not forget that. Nor should they.

And that said, I found it impossible to watch yesterday’s hearing without a certain amount of sympathy for Rosenstein’s predicament. Whatever one says about his conduct, he is squeezed between the jaggiest of rocks and the hardest of hard places here. He is evidently trying to protect the Mueller investigation, and to his credit, he yesterday stood up strongly for the investigation’s integrity and for Mueller’s personal integrity. In doing so, he is exposing himself to the risk of being fired at any moment—and he is acting with an awareness that he may need to resign at any moment when ordered to do something inconsistent with his commitments. He is working for a man who is behaving completely unreasonably, even in public; one can only imagine how much worse is Trump’s behavior in private. What’s more, the congressional Republicans who should be protecting the integrity of the work of Rosenstein and his department—particularly in the House but also increasingly in the Senate—are not only failing to do so, they are braying for actions inimical to the very idea of independent law enforcement. They are doing it about someone, Mueller, with whom they have long experience and about whom they know their essential claims to be false. To make matters worse, Rosenstein is quite constrained in terms of what he can say, so he has to sit and answer in platitudes attacks that require an energetic defense.

Yes, it would be desirable if the campaign contributions of Mueller’s staff reflected more political diversity than they do. And yes, it would be a good thing if the private political expressions of those who later went to work for him happened not to reflect the widely-held views of members of the national security establishment about the man who then became President—or that they had refrained from expressing them.

But it would be highly inappropriate for Mueller to recruit on the basis of political orientation. And whatever the staff-level composition of the investigation may be, the law enforcement leadership is hardly a Democratic bastion committed to going after President Trump. Mueller himself is as apolitical a public servant as this country has known in a long time—and to the extent he has a partisan political identification, it is as a Republican. Rosenstein and FBI Director Christopher Wray are both appointees of Trump himself. To whatever extent Strzok and Page engaged in any impropriety, that impropriety is known because the Justice Department inspector general discovered it, and when Mueller became aware of it, he removed Strzok from his investigation.

Most importantly, there is no serious suggestion that any step taken by Mueller’s shop is unjustified. The Mueller investigation will ultimately be measured by its work product, not by the text messages or campaign contributions of its staffers from before the investigation even existed. That work product so far is two guilty pleas for lying to the FBI over contacts with the Russians by the Trump campaign and transition—and one completely shocking indictment involving allegations of massive money-laundering by the Trump campaign’s chairman.

At yesterday’s hearing, Republican Rep. Jim Jordan announced about the Mueller probe that “The public trust in this whole thing is gone.” This is actually wrong.

In our latest poll on the subject, fully 61 percent of respondents expressed at least some confidence in the Mueller investigation. A similar number expressed at least some confidence in the FBI in connection with the Russia probe. And an even higher percentage, 74 percent, expressed confidence in the FBI generally.

The trouble is that if enough members of Congress tenaciously attack the institution over a long period of time, Jordan’s words could acquire the quality of self-fulfilling prophecy. It is an enormously damaging undertaking for members of Congress to self-consciously erode public confidence in federal law enforcement.

Even if that doesn’t happen, public confidence in Mueller may not be enough when the President’s political base—in conservative media, in Congress, and the broader political ecosystem—is rallying behind the proposition that the Justice Department, the special counsel, and the FBI are all out of control. The concern, and yesterday’s hearing dramatically highlights that concern, is that if Trump believes he has Republican cover to get rid of Mueller, he may feel emboldened to act against him even in the presence of broader public support.