Published by The Lawfare Institute
in Cooperation With
“He made—he made a recommendation,” Donald Trump said yesterday of his Deputy Attorney General, Rod Rosenstein in an interview with NBC News. “He’s highly respected, very good guy, very smart guy. The Democrats like him; the Republicans like him. He made a recommendation, but regardless of the recommendation, I was going to fire Comey.”
There it is, directly from the presidential mouth: Trump happily traded the reputation of Rosenstein, who began the week as a well-respected career prosecutor, for barely 24 hours of laughably transparent talking points in the news cycle. The White House sent out person after person—including the Vice President—to insist that Rosenstein’s memo constituted the basis for the President’s action against the FBI director. The White House described a bottoms-up dissatisfaction with Comey’s leadership, which Rosenstein’s memo encapsulated and to which the President acceded. And then, just as casually as Trump and his people set Rosenstein up as the bad guy for what was obviously a presidential decision into whose service Rosenstein had been enlisted, Trump revealed that Rosenstein was, after all, nothing more than a set piece.
Here’s the entire exchange between Trump and NBC:
LESTER HOLT: Monday you met with the deputy attorney general, Rod Rosen—Rosenstein
DONALD TRUMP: Right.
LESTER HOLT: Did you ask for a recommendation?
DONALD TRUMP: Uh what I did is I was going to fire Comey—my decision, it was not [OVER TALK]
LESTER HOLT: You had made the decision before they came in the room?
DONALD TRUMP: I—I was going to fire Comey. Uh I—there's no good time to do it by the way. Uh they—they were [OVER TALK]
LESTER HOLT: Because you letter you said I—I, I accepted their recommendation, so you had already made the decision.
DONALD TRUMP: Oh I was gonna fire regardless of recommendation.
LESTER HOLT: So there was [OVER TALK]
DONALD TRUMP: He made—he made a recommendation, he's highly respected, very good guy, very smart guy, uh the Democrats like him, the Republicans like him, uh he made a recommendation but regardless of recommendation I was going to fire Comey knowing, there was no good time to do it. And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story, it's an excuse by the Democrats for having lost an election that they should have won.
Note that Trump did not merely reveal Rosenstein as a set piece here; he revealed him as a set piece in Trump's own effort to frustrate the Russia investigation. The story as told by the president to NBC now is that Trump decided to fire Comey in connection with saying to himself that the Russia investigation was a made up story, and that it was in that context that he got Rosenstein to write a pretextual memo.
Rosenstein appears to know he has been used. The Washington Post reports that he threatened to resign, as the Post puts it, “after the narrative emerging from the White House on Tuesday evening cast him as a prime mover of the decision to fire Comey and that the president acted only on his recommendation.” Rosenstein yesterday denied that he had threatened to resign, and the Wall Street Journal offers a slightly more modest version, in which Rosenstein “pressed White House counsel Don McGahn to correct what he felt was an inaccurate White House depiction of the events surrounding” Comey’s firing. He “left the impression he couldn’t work in an environment where facts weren’t accurately portrayed.”
And Rosenstein got what he wanted: The White House, and Trump himself, have come clean. The firing of Comey had nothing to do with Rosenstein’s memo. As the White House has now made clear, in a timeline released Wednesday, there were other reasons. As the Journal reports:
The timeline didn’t mention Mr. Rosenstein’s letter until the fourth bullet point, and said Mr Trump had been “strongly inclined” to remove Mr. Comey after watching his testimony in front of a Senate panel last week.
Subsequently, administration officials said Mr. Trump had been growing increasingly frustrated by the former director’s demonstrative performance in a series of congressional hearings, combined with his refusal to clear Mr. Trump’s campaign of any wrongdoing, put the president over the edge.”
The trouble is that while Rosenstein got what he wanted, Trump’s idea of correcting the record was to say publicly exactly the thing about a law enforcement officer that makes his continued service in office impossible: That Trump had used his deputy attorney general as window dressing on a pre-cooked political decision to shut down an investigation involving himself, a decision for which he needed the patina of a high-minded rationale.
Once the President has said this about you—a law enforcement officer who works for him and who promised the Senate in confirmation hearings you would show independence—you have nothing left. These are the costs of working for Trump, and it took Rosenstein only two weeks to pay them.
The only decent course now is to name a special prosecutor and then resign.
I say this with not a trace of joy. Comey’s firing has shaken me very deeply, and no aspect of it has shaken me more than the apparent corruption of Rosenstein, on whom I was counting to be a support base for the career men and women of the Justice Department in their efforts to continue honorable service in difficult times.
When Trump nominated Rosenstein as deputy attorney general, I was delighted. I have known Rosenstein for a long time. I have always thought well of him. I've admired his ability to serve at senior levels in administrations of both parties and impress both sides with apolitical service. I considered it a positive sign that Trump had installed a career professional as deputy attorney general under Jeff Sessions, who is a polarizing figure to many. And I quietly told many people anxious about Sessions that I was not worried that anything too terrible would happen at the department with Rosenstein and Rachel Brand—who has not yet been confirmed as associate attorney general and of whom I think extremely highly—in the deputy's and associate's offices respectively.
I was profoundly wrong about Rosenstein.
Rosenstein's memo in support of Comey’s firing is a shocking document. The more I think about it, the worse it gets. I have tried six ways from Sunday to put an honorable construction on it. But in the end, I just cannot find one. The memo is a press release to justify an unsavory use of presidential power. It is also a profoundly unfair document. And it's gutless too. Because at the end of the day, the memo greases the wheels for Comey's removal without ever explicitly urging it—thus allowing its author to claim that he did something less than recommend the firing, while in fact providing the fig leaf for it.
In other words, Rosenstein’s actual role was even less honorable than the one he reportedly objected to the White House's tagging him with. If the original story that Rosenstein’s recommendation drove the train had been true, after all, that at least would involve his giving his independent judgment. But the truth that Trump told is far worse than the lie Rosenstein insisted the White House correct. Rosenstein was tasked to provide a pretext, and he did just that.
Let’s give Rosenstein the benefit of the doubt and assume he believes every word of the memo he wrote—and I do assume as much. A lot of people, including a lot of people with institutionalist Justice Department views, share the belief that Comey screwed up, as the President would say, big league. Even I, who have defended the good faith of Comey’s actions and believe he was in an impossible situation, do not agree with every one of his decisions during the 2016 election period. So I’m perfectly willing to believe that Rosenstein felt able to take on the assignment to write this memo because he, in fact, believes the things he said in it.
Let’s go a step further and assume that everything Rosenstein says in the memo about Comey’s conduct is actually true—in other words, not merely that Rosenstein believes it all, but that he’s right. (This I do not believe, but I don’t want to relitigate the question of Comey’s handling of the Clinton emails matters.)
For that matter, let's set aside the fact that the memo criticizes Comey for actions taken many months ago that the current president never criticized and that the previous administration did not think amounted to a firing offense.
Even with these assumptions, the memo is indefensible. Paul Rosenzweig has ably detailed its deficiencies; Bob Bauer has described how the document, which was produced in the less-than-two-weeks that Rosenstein has been in office, does not indicate whom Rosenstein consulted with and on what factual record his conclusions depended. Daphna Renan and David Pozen make a similar point, arguing that “the process by which Comey was fired appears to raise a version of the same professional concerns that the firing supposedly responds to”: a breach of Justice Department norms developed to protect integrity and independence.
I won’t rehash their many points in detail here but I wish to add a few, all around one general theme: Rosenstein’s memo wasn’t honorable, and it debases the office of the deputy attorney general for the occupant of that office to issue such a memo.
First off, the document, even if a recitation of Rosenstein’s actual views, was—as Trump’s comments yesterday made so very clear—not a good faith exercise in advising the attorney general or the President. Trump, after all, had already made his decision, and Rosenstein clearly knew that. He met with the President on Monday, after all, along with Sessions. What happened at that meeting? “The president asked that they put their concerns and recommendations in writing, which is the letter that you all had received,” said White House spokeswoman Sarah Huckabee Sanders a little too candidly, the Washington Post reports. So Rosenstein was simply memorializing his concerns about Comey’s handling of months-old matters in a document he knew would be used for political ends. In this context, the deployment of the obviously pretextual rationale that Democrats had previously embraced is not the conduct of a deputy attorney general but, well, something you might expect from Sarah Huckabee Sanders or Sean Spicer. Did Rosenstein think he would fool anyone? How does a person of honor write such a weak document at the President’s request in support of a decision already made?
Second, Rosenstein’s memo wasn’t decent. If you’re going to recommend that someone be fired, you should have the decency to pick up the phone and give him a chance to address the substantive matters that form the basis of your recommendation. You should particularly do that if you know that the document you’ve written is likely to become public. And you should even more particularly do it if you’re making your recommendation knowing that you’re short-circuiting an inspector general investigation of the subject’s handling of precisely the matters that form the basis of your memo. (So you don’t think I’m being hypocritical here, I emailed Rosenstein before publishing this article, offering to share to the draft with him and to discuss the matters at issue.)
The memo was also cowardly. Rosenstein doesn't even take responsibility for the recommendation he was plainly making. He has, quite bizarrely in my view, gotten credit for this in some quarters, with some observers suggesting that perhaps he stopped short of explicitly recommending the firing because he, in fact, had no intention of precipitating that event when he wrote the memo.
Rosenstein has been around the block in this town too many time not to know exactly what he was doing when he wrote this.
His omission actually cuts in the opposite direction. If he did not want Comey to be fired, he should have written a memo explaining how Comey had erred and why those errors did not in his view amount to a firing offense. Conversely, if he believed that Comey needed to go, he should have had the courage to make that view explicit. Except, of course, that as Trump has now told us, Rosenstein wasn’t actually giving advice at all. He was filling in some blanks on a preprinted form. The decision had already been made. The recommendation, such as it was, was retroactive.
Nor is it quite true that Rosenstein did not recommend Comey’s firing, except in the very limited sense that he did not write the words, “I recommend that you fire Jim Comey.” Here’s what he did write: “The FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.” Stopping just short of explicitness in order to retain some marginally plausible deniability was not an honorable course. It was an excercise in Washington CYA, and it compounds the indecency of the episode.
In the end, Trump was able to make set piece out of Rosenstein, because Rosenstein let himself be used as a set piece. And there’s an important lesson in that for the many honorable men and women with pending appointments and nominations to serve in senior levels of the Justice Department—or who are considering accepting such appointments. It took Donald Trump only two weeks to put Rosenstein, a figure of sterling reputation, in the position of choosing between continued service and behaving honorably—and it took only two days after that for the President to announce that Rosenstein’s memo, after all, was nothing more than a Potemkin village designed as a facade on Trump’s predecided outcome.
Do you really want this to be you? Do you really think Trump will not leave your reputation as so much roadkill on the highway after enlisting you in sliming someone else a week or two after you take office?
The lesson here is that these are not honorable people, and they will do their best to drag you down to their level. They will often succeed.