Benjamin Wittes writes: 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. [Continue reading…]