Criminal Justice & the Rule of Law Executive Branch

Putting the Responsibility for ‘Crossing the Line’ Where It Belongs: The President and his White House Staff

Bob Bauer
Wednesday, May 23, 2018, 11:39 AM

On Monday, President Trump convened a meeting at the White House with Deputy Attorney General Rod Rosenstein and FBI director Christopher Wray about an ongoing investigation concerning the president, his campaign, close associates and family members.

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On Monday, President Trump convened a meeting at the White House with Deputy Attorney General Rod Rosenstein and FBI director Christopher Wray about an ongoing investigation concerning the president, his campaign, close associates and family members. The White House announced that the meeting had produced an agreement that the White House chief of staff would bring together law enforcement and senior congressional Republicans to review “highly classified and other information” about the use of an intelligence source in the Russian inquiry. In directing, participating in and overseeing this process, Trump at least shattered to pieces the norm of presidential distance from criminal investigations. But this norm-busting is, by now, old news. The more urgent questions are whether has he gone still further, “crossing a line” from threat to action—and whether Rosenstein erred in facilitating this transgression.

Evaluations of the Rosenstein decision seem to depend on whether he should be expected to stand firm, maybe even inviting his own dismissal, or given room to maneuver in order to save the Mueller inquiry. But it is a mistake to assess the gravity of Trump’s actions as hinging on Rosenstein’s decisions. The deputy attorney general had to choose the best among the available options and balance under trying conditions the president’s demands and the need to protect the Mueller inquiry. Whatever the merits of his choice, the responsibility for putting him in this position rests with Trump and, to no small degree, with his White House supporting cast—beginning with Chief of Staff John Kelly.

Before the analysis of these events even turns to the “compromise” reached on congressional access to investigative files, the first problem is one of process: the very fact of the White House meeting. It is hard to imagine in recent times a president convening a meeting about an ongoing criminal investigation with the most senior Justice Department officials to press for actions in his own political and personal legal interest. It should not have taken place.

That it did is highly consequential. Once done, this decision cannot be undone: It is now precedent available for citation or misuse by presidents chafing under the demands of Justice Department independence. Not every norm violation is precedent-setting, of course. Norms are not all the same—some count for more than others in the preservation of core constitutional values. But the norm that Trump is so determined to challenge is one of central importance and it is, if not fragile, under fairly constant pressure. As the Watergate episode showed, and as the rise and fall of the independent counsel experiment further demonstrated, the powerful, modern Office of the President coexists at worst, in dangerous tension, and at best, uneasily, with an independent federal law-enforcement process. This is, of course, especially the case, and of primary worry to presidents, on Justice Department matters of intense political, policy or personal interest to them.

At a minimum, Trump has now supplied a helpful talking point to a future president with an axe to grind with the Justice Department and the will to use to it. And Trump’s work may not be finished.

This president may well be a special case. Indeed, inexperienced in government and wholly unfamiliar with and uninterested in institutional issues and imperatives, he surely is the special case—so far. There is no reason to believe that he is the last president who will come to office with a show of contempt for the “system” and the political and governing incentive to lay waste to this and other critically important norms. Trump is leading way for at least those successors.

For all the talk of the deputy attorney general’s role in this episode, the spotlight should be turned instead to the current operation of the White House. While senior White House staff serve at the pleasure of the president, their first duty is to the institution of the presidency and their job is to strike a balance between what the executive may ardently wish for and what the long term health and integrity of the institution requires. They are obligated to seek ways of facilitating the implementation president’s policies—even policies that are inevitably influenced by political pressures and interests. But how far the staff goes to “facilitate” the achievement of presidential goals still depends what the president is seeking to accomplish. They bear a large measure of the responsibility for the impact of his individual actions on the norms governing the conduct of the office.

It falls to the White House staff to guard against irregular process and to develop options that could address a president’s concerns without harm to institutional norms or the generation of bad precedents. It is not that presidents cannot find other ways, more consistent with norms, to be heard on the law enforcement issues about which they care the most. For better or for worse, through Twitter and in other ways, Trump had already widely publicized his views in the Russia matter, and on such questions as the “infiltration.” The Department of Justice has been well aware of those views. Moreover, however inappropriately, the president’s congressional allies could continue to independently press his case directly with the department.

Had Trump still insisted on an even more direct expression of concern about the FBI’s use of an informant in investigating his campaign, Kelly could have directed White House counsel Don McGahn to convey that message to the deputy attorney general. In place of an explicit or implicit order from the president, the counsel and Rosenstein could have reviewed the options for addressing the president’s (and the House Republican leadership’s) demands —while leaving it unquestioned that the final choice rested with the Justice Department. These discussions may or may not have resulted in a viable option. But this is what regular process is for, and its value is not less—often even greater—when the circumstances are unusual.

What instead occurred here—a White House meeting between the president and senior officials of intelligence and law enforcement—was a brazen assertion of presidential authority over the investigation. It was a flaunting of Trump’s belief that even in a highly sensitive matter that bears on his own interests, Trump controls “his” department and can call it to account as he wishes. It is true that the meeting was publicly disclosed, and that the White House issued a statement after-the-fact, but this is not so much an exercise in transparency as it is a victory lap. In his flagrant disregard of a vital norm, Trump is bent on sending a message, and perhaps that message is just as important to him as the substance of the agreement reached by the meeting’s participants.

The meeting’s goal of answering a demand from senior Republican congressional leadership contributes significantly to this fouling of appropriate process. It injects a directly partisan note into the meeting’s function. If the intention was to address a serious and sincerely raised question about the integrity of law enforcement procedures, then the White House would have made a public point of also engaging the Democratic leadership. The president could have directed that that congressional leadership across the aisle be briefed on the issues raised, the agreement reached, and the reasons for extraordinary measures.

Would this have been just a show? Perhaps, but the point is that none of these considerations apparently mattered to the White House. One might surmise that as the midterms approach, the meeting served to show how Republicans were closing ranks around the president against a “deep state” stacked with Democrats committed to his defeat in 2016 and to his persecution ever since. It was theater for the base and for their opinion leaders: the no-nonsense president taking action when confronted with the possibility (for which there is no evidence) that his department had planted “spies” in his campaign. The narrative he is building is somewhat shaky—at a press availability the day after the meeting, he both declared this ostensible “spying” to be an unprecedented disgrace and yet described the White House meeting on the subject as “routine.”

To put a fine point on continuing, active and open White House involvement, the president has directed the White House chief of staff to oversee a procedure for the review of the information sought by House intelligence committee chair Devin Nunes. More White House control and supervision of this aspect of an ongoing criminal investigation is now in the offing. The line has been crossed, and it seems that, facilitated in this aim by his staff, the president may be preparing to pitch camp on the other side. The fault for this does not lie with Rod Rosenstein.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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