Published by The Lawfare Institute
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One of us was admittedly very hard last week on Deputy Attorney General Rod Rosenstein for his role in the firing of FBI Director James Comey. His drafting of a memo criticizing Comey’s handling of the Clinton email investigation—which the administration now admits is an entirely pretextual basis for the dismissal of the FBI Director—struck Ben as shocking for reasons he explained. And Ben called on him to resign.
Since then, there have been a few developments of note. Rosenstein did a significant national service both by naming a special counsel in the Russia matter and by naming a particularly appropriate figure—Robert Mueller—to the post.
Yesterday, Rosenstein spoke to the Senate on his own role in Comey’s dismissal. And this morning, he addressed the House of Representatives on the subject. In his publicly released statement to the House, he describes his long-running discomfort with Comey’s public disclosures on the status of the Clinton investigation, particularly Comey’s decision to go around Justice Department “rules and traditions.” As he reports it, Rosenstein discussed those concerns with then-Senator Jeff Sessions during the winter, long before he was confirmed as deputy.
On May 8, the day before Comey was fired, Rosenstein says he “learned that President Trump intended to remove Director Comey and sought my advice and input.” Rosenstein then wrote the above-mentioned memo to Attorney General Sessions regarding Comey’s conduct, and he notes that he “chose the issues to include” himself. He emphasizes that several career attorneys in the Department of Justice reviewed the memo before it was sent to Sessions. The document is, Rosenstein says, “a candid internal memorandum … I wrote it. I believe it. I stand by it.”
Rosenstein’s statement to the House clarifies some important points, most significantly that he knew before he wrote the memo that Trump had already decided to fire Comey. But in important respects, the memo raises more questions than it answers.
Here are a few questions that jump to mind:
First, Rosenstein says that he was made aware of Trump’s intention to dismiss Comey before he wrote the memo. But was Rosenstein also aware of why Trump intended to dismiss Comey?
The President has since given multiple explanations for the firing, saying that Comey’s handling of the Clinton investigation had made him widely unpopular, that the FBI was “in turmoil” and that there was widespread dissatisfaction within the Bureau with Comey’s leadership, that Comey was a “showboat” and a “grandstander,” and—more ominously—that Comey was leading the investigation into Russian election interference:
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.
Given that Rosenstein knew that the President was not acting on the basis of Rosenstein’s concerns—indeed, that the decision had already been made before he expressed them—what was his understanding of the President’s reasons? Specifically, did Rosenstein know that the President had in mind the ongoing investigation into Russian election interference when he decided to fire the Director, as President Trump later stated?
Second, Ben’s previous piece noted the process failures evident in Rosenstein’s memo: it short-circuited an ongoing inspector general investigation into Comey’s handling of the Clinton investigation and, more particularly for present purposes, did not address whether Rosenstein spoke with Comey about his concerns about the Director’s conduct prior to his firing. Over the past week, more information has come out regarding a series of inappropriate interactions Trump initiated with Comey, which has added to the public perception of impropriety in Comey’s dismissal and raised questions about the possible obstruction of justice. Was Rosenstein aware of these interactions, in which Trump requested information about the ongoing Russia investigation and pushed for Comey to drop the FBI probe into the conduct of former national security advisor Michael Flynn and asked the FBI director when it would be announced that Trump wasn’t under investigation? In other words, was Rosenstein aware that these conversations might raise questions about whether Comey had been dismissed on a pretextual basis and that the firing might actually either be or be seen as the culmination of a pattern of interference in that investigation? And if so, did he care?