On Thursday, Fox News reported that Deputy Attorney General Rod Rosenstein received prior notice of former Donald Trump private attorney Michael Cohen’s plea deal before Acting Attorney General Matthew Whitaker did.
This reminds me of a tradition the Army observed when there’s a change in command: The departing commanding officer is typically expected to physically leave his office and the organization to give the incoming commander space to assume command. Otherwise, the temptation for subordinates to “check in” with their old commander can seriously undermine the transition’s effectiveness.
Rosenstein seems like an affable guy who continuously demonstrates his wickedly dry humor with ironic speeches claiming fealty to the rule of law. But his mere presence in the Department of Justice is now demonstrably undermining its change in leadership. That the special counsel first checks in the deputy attorney general before the AG proves Rosenstein is still in charge.
In the complicated four-dimensional chess board of Washington DC, the results of a Senate election in Mississippi and President Trump’s trip to the G-20 summit in Argentina both affect Rosenstein’s strategic position. The recent media storm of “new” Trump-Russia collusion stories carpet-bombed the airwaves within hours of the Cohen plea deal.
Of course, this all happened hours before the president’s now-canceled meeting with Russian President Vladimir Putin. I’m sure that’s all a coincidence. Just like it was a coincidence that Rosenstein timed the last big Trump-Russia indictments days before the president met with Putin in the 2018 summit. Is the deputy attorney general in charge of American foreign policy?
I don’t play four-dimensional chess. But it seems to me that when a subordinate undermines the president, defies Congress, flouts the rule of law, and now bucks the chain of command, it’s time to reach onto the chess board and relocate Rosenstein’s office to McMurdo Research station in Antarctica. If I were president, Rosenstein would share a desk with Bruce Ohr in their new Antarctic empire. Allow me to offer a very incomplete list of justifications to reassign Rosenstein to the polar tundra.
1. The Wire
Recently, The New York Times published an allegation that Rosenstein, as acting attorney general, “suggested last year that he secretly record President Trump in the White House… discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.”
The article included an ambiguous denial from Rosenstein that unspecified details in the report were “inaccurate and factually correct.” He added that, “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.” There is no basis, meaning the story could have been true in 2017.
The denial was transparently evasive. Donald Trump Jr. quipped, “Shocked!!! Absolutely Shocked!!! Ohhh, who are we kidding at this point? No one is shocked that these guys would do anything in their power to undermine @realdonaldtrump.” The president should not be expected to cede de facto control of the DOJ to a man who is known to have plotted a coup against him.
2. A History of Mocking and Defying Congressional Oversight
It’s one thing to resist congressional oversight. It’s another thing to do it while giggling and smirking during a congressional hearing and a public speech in Washington. If any lawyer had done the same during a proceeding before an Article III judge, the judge would have been duty-bound to have sanctioned his lack of decorum. A president should not tolerate his subordinate showing such contempt for a co-equal branch of government.
3. Obstructing Congress
Rosenstein has a history of obstructing Congress and disregarding the president’s calls to cooperate with Congress.
4. Rosenstein’s Tolerance of Bruce Ohr
According to public accounts, Ohr, then number four in the Justice Department, appeared to violate 18 USC 208 by promoting his wife’s research to the FBI in an effort to interfere with the 2016 election. It’s exactly the type of misbehavior this statute was designed to prohibit, and it makes it appear that a company like Fusion GPS can purchase a DOJ investigation of a political opponent by hiring the wife of a prominent official. Either explain why these reports are wrong, or enforce the criminal statute designed to protect public integrity.
5. A History Of Politically Selective Prosecution
Rosenstein has ignored serious violations of the law by Trump’s opponents while aggressively pursuing Trump’s allies. More disturbing, Rosenstein tolerates the political violence of Antifa and its numerous instances of viciously attacking political opponents. The DOJ would prosecute the attacks as civil rights violations if the victims were leftists.
We can now add to this list the Cohen conviction for “lying to Congress.” Cohen, you see, testified there was no deal to build a Trump Tower in Moscow. Ah, but when was there no deal? Previously Cohen said there was no deal in January 2016. But it turns out there was no deal as late as June of 2016 too.
So now DOJ prosecutes lying to Congress? What about Glenn Simpson lying to Congress? Or charging Andrew McCabe with perjury? Or Peter Strzok’s perjury problem? Or then-CIA Director John Brennan’s misstatements under oath to Congress? Or former director of national intelligence James Clapper’s howlingly inaccurate testimony to Congress? Or Christopher Steele’s alleged perjury?
As noted below, there are some questions about the accuracy of Rosenstein’s testimony before Congress, also. Only one inescapable common denominator distinguishes the prosecuted from the not-prosecuted regarding lying to Congress: If the perjuring witness wears an anti-Trump T-shirt, it works as a de facto immunity from prosecution.
6. Supervising an Investigation Into His Own Actions
Rosenstein wrote the justification to fire James Comey and then appointed Mueller to look into the motives behind firing Comey. If the firing was “obstruction of justice,” then Rosenstein was in on it.
Thus, while he controls the special counsel, he has the tiger by the tail. He can steer Mueller to protect himself or, conversely, Mueller can leverage Rosenstein’s exposure to run amuck. The conflict is a clear violation of DOJ regulations and the basic principle that you shouldn’t supervise an investigation into your own conduct.
7. Inappropriately Obstructing the HPSCI Memorandum Release
Earlier this year, the House Permanent Select Committee on Intelligence issued an interim report exposing intelligence abuses, some of which bore Rosenstein’s authorizing signature. Rosenstein and his DOJ claimed release of the memo would reveal confidential sources and methods, and called the potential release “reckless.” It turned out Rosenstein was simply protecting himself from the embarrassing revelation that he participated in alarming abuse of the Foreign Intelligence Surveillance Act system.
8. Rosenstein Signed the Last FISA Warrant Application for Carter Page
You may recall that warrants issued to spy on Americans by the Foreign Intelligence Surveillance Court must be renewed every 90 days. Rosenstein signed the final renewal application to spy on Carter Page in June of 2017. Unfortunately for the deputy, his signature certified the veracity and reliability of the supporting information that is now believed to be the Clinton-procured Steele dossier.
The DAG would have also known that the previous 270 days of surveillance yielded nothing (or at least we can so surmise from Page’s continued status as an un-charged citizen at that point). But most problematic for Rosenstein, by June of 2017, the Steele dossier was already falling apart. Ironically, it was also in June 2017 that Comey famously characterized the material as “salacious and unverified.”
In addition to using his position to shield himself from the consequences of participating in the Comey firing, Rosenstein has also tried to hide his participation in the last Page warrant application. At least one report suggests Rosenstein is currently under investigation for his role in the Page FISA warrant. He will not be supervising that investigation.
9. Appointing a Special Counsel Without a Predicate Crime
When a civil libertarian quotes Joseph Stalin’s secret police director Lavrenti Beria’s “Show me the man and I’ll find the crime,” it is to illustrate the chilling injustice of assigning prosecutions to take down people instead of investigating crimes. Andrew McCarthy made this point citing Justice Department regulation 28 CFR 600.1, which says a special counsel must not be unleashed without a determination that “criminal investigation of a person or matter is warranted.”
Rosenstein’s claim to authority falls within the scope of former attorney general Jeff Sessions’s recusal from “any matters related in any way to the campaigns for President of the United States.” Nevertheless, Rosenstein has empowered the special counsel to pursue people related to the 2016 campaign for president, not crimes related to the 2016 campaign. In the absence of a single indictment or conviction for coordination between the campaign and Russia, one has to wonder if the Sessions recusal was a pretext.
In all the indictments and convictions Mueller obtained, every one is a Beria-style conviction under the special counsel’s jurisdiction over “any matters that arose or may arise directly from the investigation.” Paul Manafort, Michael Flynn, George Papadopoulos, Rick Gates, Alex van der Zwaan, Cohen, and Sam Patten were all convicted of crimes not related to contacts between the Russian government and the Trump campaign. They were just names on a list of people who may have helped Trump.
10. Threats Against Congressional Staffers
Millions of taxpaying Americans work in environments where people are fired for not following the rules or defying their boss. Why is Rosenstein above this simple principle?