Published by The Lawfare Institute
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The defense of democratic institutions, norms, values and culture does not always involve standing up for people who have acted heroically. Stories feel better, of course, when it does—when honor goes to those to whom people rally because they have behaved admirably; when the music swells in our minds and it all feels like a screenplay. But democracies don’t function like neatly-ending screenplays. The characters on whom democracies depend may perform erratically; citizens may not fully understand their conduct or motives; people may not trust them.
I have not held back from criticizing Deputy Attorney General Rod Rosenstein over the past few months. I called on him to resign for his role in enabling President Trump’s firing of James Comey as FBI director. I argued that he should resign in response to Trump’s attacks on the integrity of the Justice Department—and I questioned his honor when he didn’t respond loudly and clearly to the president’s attacks on federal law enforcement. More recently, I criticized his decision to throw two FBI employees to the wolves by allowing the public release of their text messages during a pending investigation by the Justice Department’s inspector general. Jack Goldsmith has asked questions of his own, such as why Rosenstein has not recused himself from the Mueller investigation when his own involvement in Comey’s firing would seem to require it. Rosenstein’s behavior, to put it simply, has not inspired my admiration.
And yet: The defense of Rosenstein represents an imperative for everyone who is concerned about the Trump administration’s predations against the independence of law enforcement.
There will come a time to litigate the question of Rosenstein’s handling of the many bizarre questions he confronted in his role as deputy attorney general. Today is not that day. Today is a day to understand that apolitical law enforcement is stronger with him than without him, and that it would suffer a genuine blow if the president and the House Intelligence Committee chairman can lie the deputy attorney general out of government.
Let me explain: As I write this, on a plane with a spotty internet connection, NBC has reported that Deputy FBI Director Andrew McCabe is stepping aside—weeks earlier than expected. Only days ago it was reported that FBI Director Chris Wray threatened to resign rather than remove McCabe before his scheduled retirement in March. What’s more, CBS reports that McCabe was forced out. I’ll have more to say on this as the story of McCabe’s departure becomes clearer.
The McCabe news also follows a flurry of reports, first from CNN and then from the Washington Post, that Trump was upset with Rosenstein and thinking of firing him over the “memo” being hawked by House Intelligence Committee Chairman Devin Nunes. And it comes the same day the New York Times reported that that memo specifically targets Rosenstein for approving an FBI request to the FISA court to extend the monitoring of former Trump adviser Carter Page that began in the fall of 2016. Trump has previously voiced frustration with Rosenstein over the deputy attorney general’s appointment of Robert Mueller as special counsel, and the Post writes that the president views the memo as an excuse to fire Rosenstein or ratchet up pressure on him to leave.
Let’s be clear about the significance of the current New York Times story—and about why the defense of Rosenstein has become so crucial. The Times story strips away the nonsense that L’Affaire Russe exists in some cloud of original sin owing to some origins in the dossier compiled by former British intelligence operative Christopher Steele. The Times is reporting that what Trump calls “the Trump Justice Department”—for all the president’s lies about the FBI and law enforcement—believed in spring 2017 that there was still probable cause to conduct surveillance against Page.
In other words, to believe—as so many Trump defenders seem to—that there is something defective about the Mueller investigation, one has to believe not merely that the Obama administration conducted inappropriate surveillance against the Trump campaign based on laundered opposition research from the Democratic National Committee. You also have to believe that the Trump administration itself is still doing it. You have to believe—or have to choose to believe—that Rosenstein is a corrupt actor out to get the president.
That belief is a political choice. It is a political choice to accept a big lie that the president and his defenders have been peddling for months about federal law enforcement and intelligence.
Let me pause a moment to say that I hate Nazi comparisons. Unless there are literally bodies piling up, and even when there are, they are nearly always specious. So I’m not going to quote “Mein Kampf” to compare Trump to Adolf Hitler or to compare Trump’s defenders to Nazis. And to be crystal clear, I hereby disclaim any such comparison. I refer to “Mein Kampf” because Hitler was extremely insightful in a pure-evil kind of way on the subject of lies. I’m quoting him, in other words, not as an analogy but as an authority.
The “Big Lie” passage from “Mein Kampf” is one of the turgid tome’s most famous passages. It reads:
All this was inspired by the principle—which is quite true in itself—that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying.
Donald Trump lies more blatantly and outrageously than any other American politician who has attained the presidency. As David Frum puts it in his excellent new book, “Trumpocracy,”
No American president in history—no national political figure of any kind since at least Senator Joe McCarthy—has trafficked more in untruths that Donald Trump. He owed the start of his political career to the Birther hoax. He falsely insisted that he lost the popular vote only because of somewhere between three and five million ballots cast by illegal aliens. He repeated false stories about New Jersey Muslims cheering the 9/11 attacks. He recited false statistics about the majors of terrorists since 9/11 entering the United States from foreign countries. He falsely denied that his campaign communicated with Russia about hacking the Hillary Clinton campaign. He falsely boasted that he enacted more bills in his first one hundred days and first six months than any previous president. He even told a false anecdote about an imaginary friend named “Jim” who never visits Paris anymore because “Paris is no longer Paris.”
The Washington Post keeps a running tally of Trump’s lies since entering office. As of Monday, Jan. 19, it documents 2,140 false or misleading claims.
Not all of Trump’s lies are big lies. But some certainly are. And among the biggest, most audacious, most “colossal” or “grossly impudent” is the way he talks about federal law enforcement. To understand why the defense of Rosenstein has become so critical, let’s take a step back and consider this big lie. And let’s consider it beyond the almost-comical point that Rosenstein, a lifelong Republican appointed to Senate-confirmed positions by two Republican administrations, is being tarred as a “Democrat from Baltimore” with a vendetta against the president.
Trump wants to politicize law enforcement. He announces this himself. He talks openly about the job of the attorney general as protecting him and going after his political enemies. He says he admires Eric Holder’s protection of Barack Obama—a supposed corruption that represents yet another conspiracy theory, but one that sheds enormous light on his thinking about how an attorney general should behave. Trump is many things, but on this point he is no hypocrite. He has said exactly what he thinks law enforcement should be: his political plaything, his tool for the crude form of justice Polemarchus describes in Plato’s Republic: “rewarding friends and punishing enemies.”
The trouble was that when Trump confronted the law enforcement apparatus of the United States, he discovered that it did not conform to his vision. He became aware, to his shock, that federal law enforcement actually had integrity. It included a set of institutions that did not work as simple arms of political power. There is no need to take my word for this: It was he who demanded loyalty of Comey. It was he who asked Comey to drop the case against former national security adviser Michael Flynn and who has publicly expressed his anger at Attorney General Jeff Sessions for recusing himself from the Russia investigation—as Sessions was certainly bound to do. It was Trump who has expressed surprise that he couldn’t order up an investigation of his political opponent. Trump started discovering quickly that the FBI and the intelligence communities are not the janissaries of the powerful. And he didn’t like it.
His response? First, try to change this reality quietly. Try to corrupt Comey and get a pledge of loyalty from him. Install an attorney general he expected to behave as he imagined Holder had for Obama. It was as that effort failed that the big lie emerged.
That big lie is the notion that federal law enforcement is already behaving as corruptly as the president aspires for it to. The wrinkle is that the big lie imagines that law enforcement is behaving corruptly not in support of the president but on behalf of his political enemies. Instead of saying the truth, which is that Trump wants a law enforcement apparatus that will act corruptly on his behalf, he created an audacious smear in which it is acting to protect Hillary Clinton and destroy him.
The purpose of this big lie is twofold: the lie discredits the investigation against Trump in the minds of a large swath of the public and, perhaps more importantly, tends to tear down the institutions responsible for such investigations in general, with an eye toward their reconstitution in the image of the lie itself. In other words, the goal is to use the lie of politicized law enforcement to effectuate the politicization of law enforcement. By falsely describing a set of corrupt institutions, even by complaining of them, it is possible to lower public expectations to the point of accepting their corruption. Indeed, the lie seeks not merely to destroy the current leadership and install leadership more apt to behave in the fashion the president wants; it also erodes public confidence in the premise that a different reality ever existed.
The classified memo prepared by Nunes is a critical part of this big lie. Specifically, it is the part where the lie metastasizes and breaks out from the world of Trump’s fulminations and becomes an extrinsic political reality of its own, propagated by an independent constitutional actor in a different branch of government.
Since word of the memo surfaced weeks ago, a group of House Republicans have been pushing aggressively for its public release, arguing that it contains evidence of surveillance abuses “worse than Watergate.” While the memo’s contents were initially shrouded in mystery, the New York Times has since reported that it concerns a request for a FISA warrant targeting Page, a foreign policy adviser to the Trump campaign—alleging that the Justice Department and FBI misled the FISA judge about the extent to which the warrant request had been based on the Steele dossier.
The House Intelligence Committee majority is reportedly planning a vote, as soon as Monday, to make the memo public. But the process leading to this point has been plagued by irregularities that call the document’s reliability into serious question. Nunes prepared the memo without any input from Democrats on the committee, and the committee’s vice chairman, Rep. Adam Schiff, has criticized it as “rife with factual inaccuracies” and “meant only to give Republican House members a distorted view of the FBI.” The memo summarizes intelligence to which only members of the Gang of Eight have access, meaning that the vast majority of Republican House members who have viewed Nunes’s summary have not seen the underlying intelligence itself. Senate Intelligence Committee Chairman Richard Burr and Vice Chairman Mark Warner do have access to that intelligence—but Nunes refuses to share the memo with them. He has also withheld the document from both the FBI and the Justice Department. And while the Washington Post reports that Trump would probably give his approval to a House intelligence panel vote to make the memo public, the Justice Department has warned Nunes that release of the memo prior to departmental review would be “extraordinarily reckless.”
So here’s the question: What still stands against this big lie?
Rosenstein is, as I say, a highly imperfect answer to this question. But he is one critical component of the answer. He appointed Mueller. He has assiduously protected Mueller from Trump and from congressional pressures. Publicly there have been no signs that he has done anything other than supervise the investigation in a professional fashion. In other words, his forcible removal at this stage would be another step in the attempted dismantling of an apparatus of independent law enforcement that simply needs to hold. More fundamentally, the Nunes memo’s reported attack on him as a component of a corrupt law enforcement apparatus seeking to take down the president—the president whom Rosenstein, in fact, serves—is itself part of the big lie, and it needs to be energetically confronted and exposed.
As Donald Rumsfeld might say, you defend democratic institutions with the deputy attorney general you have, not the deputy attorney general you wish you had.