President Donald Trump was the one who officially and suddenly fired FBI Director James Comey on Tuesday, but the person who made the case for why Comey should be fired was someone much less prominent: Deputy Attorney General Rod Rosenstein.
Rosenstein’s memo to Attorney General Jeff Sessions, made public by the White House, argues that Comey’s handling of the investigation into Hillary Clinton’s use of a private email server as secretary of state tarnished the FBI’s reputation.
“I agree with the nearly unanimous opinions of former Department officials,” Rosenstein says, after quoting several of them (including former attorneys general from both Democratic and Republican administrations):
The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of his mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.
Given reports that the decision to terminate Comey originated in the top levels of the administration, it might seem odd that a deputy attorney general was tasked with making the case for it. And given that Trump, during the election or after, never publicly objected to how Comey handled the email investigation, the argument that Comey should be fired for it now might seem odd for someone in his administration to make.
But the combination of the two — choosing Rosenstein to argue that Comey violated professional ethics — makes sense.
Rosenstein — who is also responsible for overseeing the investigation into ties between the Trump administration and the Russian government, after Sessions recused himself in March — earned a reputation for bipartisanship and professionalism. So much so, in fact, that some were surprised that Trump picked him.
Now, he’s lent his name and his reputation to one of Trump’s most alarming decisions: firing the FBI director who is currently investigating his campaign for collusion with Russia.
From a “reassuring choice” to the point man on an alarming decision
When Trump’s transition team nominated Rosenstein to be deputy attorney general, law professor Jonathan H. Adler wrote on the law blog Volokh Conspiracy that he was a “reassuring choice” — “and one that should be completely free of controversy.” The implication of “reassuring” was that while the president-elect occasionally demonstrated less than complete respect for the rule of law on the campaign trail (promising to jail Clinton for as-yet-unspecified crimes, for example), and attorney general nominee Jeff Sessions was a close Trump ally with his own ideological agenda, Rosenstein would be an upstanding public servant and law enforcement official.
That reputation came from his performance as a US attorney in Maryland — where, as former deputy state Attorney General Thiru Vignarajah wrote for Vox in April, Rosenstein enjoyed uncommonly broad bipartisan support:
Rosenstein enjoyed rare bipartisan support in Maryland and was the only United States attorney in the country appointed by President George W. Bush who remained in the role at the end of the Obama administration. This was no accident. Federal prosecutors who served in his office (Democrats like me among them) wrote in support of his confirmation, and local elected prosecutors from across Maryland sent the Senate a similar letter, reporting that when they ask Rosenstein for assistance, “he does not care if you are a ‘D’ or an ‘R’, he has only cared about making this State safer.”
In part, Vignarajah writes, this is because Rosenstein took a pragmatic approach to fighting crime in Maryland (often by taking a less draconian approach to low-level drug and immigration offenses than the one the Department of Justice is taking under Sessions now).
But Vignarajah also points out a trait of Rosenstein’s that’s particularly interesting in light of the role he’s assumed at the DOJ now — his eagerness to demonstrate that no one, including law enforcement officials themselves, is above the law:
Nor did Rosenstein ever doubt the need to crack down on police misconduct. As US attorney, Rosenstein prosecuted individual cases of corrupt cops across the state. For years, he also pursued sweeping indictments that exposed systemic wrongdoing by law enforcement. They ranged from extortion charges in 2011 against city officers who, for a kickback, funneled accident victims to select towing operators, to a racketeering conspiracy in 2013 involving prison guards who were in bed with inmates (literally and figuratively). Currently pending are allegations against seven police officers accused of falsifying arrests and stealing money and drugs from arrestees.
Thanks to careful, painstaking investigations like these, Rosenstein has managed to preserve excellent relations with local law enforcement while at the same time bringing corrupt officials to justice. These cases also sent an important, unmistakable signal to the community that wearing a badge is not a license to break the law.
To people who were concerned about the Trump administration’s commitment to the rule of law above ideology, partisanship, and personal gain, Rosenstein’s appointment was a relief to some — and could wind up being crucial to the role moving forward. “It surprises me that they didn’t pick somebody who was more partisan,” Philip Heymann told the Guardian’s Lois Beckett in March. Heymann taught Rosenstein at Harvard and served with him in President Bill Clinton’s Department of Justice.
When Sessions stepped aside from the Russia investigation, the Washington Post’s Paul Kane wrote that Rosenstein was as good “as Democrats could hope for.” While some Democrats called for a special prosecutor to take over the investigation, it didn’t stop them from supporting Rosenstein’s confirmation — he was confirmed on a 94-6 vote in late April.
Two weeks later, his signature is on the memo suggesting the firing of Director Comey.
When Rosenstein was nominated, Tricia Bishop, the deputy editorial page editor of the Baltimore Sun, wrote him a plea in the form of a column: “say no to Trump.”
“It's been a few years since I covered federal courts as a reporter, and we were never exactly close,” Bishop wrote, but she felt the need to urge him to protect his reputation. “In general, you’re considered an honorable straight shooter who’s certainly served Maryland well.”
In the column, Bishop warned Rosenstein that his future superiors might be less honorable — and that his own reputation could suffer:
at its core, in this administration, the job would be carrying water for a chain of outsiders who appear to care little about keeping the country's reputation — or indeed the country — intact. Do you really want to link your legacy with theirs?