Law & the Courts

Rod Rosenstein Is Shirking His Duty to Supervise Robert Mueller

Rod Rosenstein testifies before the House Judiciary Committee in December 2017. (Reuters photo: Joshua Roberts)
A self-absorbed, unrestrained prosecutor can do a lot of harm.

Let’s say I’m an assistant United States attorney in, oh I don’t know, Montana. I get to work one morning and I say to myself, “Self, you know what would be really interesting? Why, to ask Barack Obama some questions.”

Sure, there are a lot of people who’d like to do that — Obama’s a very interesting guy. But see, I’m not just “a lot of people.” I’m a federal prosecutor, just like Special Counsel Robert Mueller. Thanks to this nifty federal grand jury we’ve empaneled here in Montana, I’ve got subpoena power, just like Mueller.

Let’s back up a bit. After my weekend column, it occurred to me that a hypothetical was in order, to demonstrate the sorts of things a self-absorbed, unrestrained prosecutor can do.

My column argued not only that President Trump should refuse to be questioned by Mueller’s alpha-prosecutors, but that it would be wrong for Mueller to seek to interview the president of the United States unless he can first show cause that (1) a serious crime implicating the president has been committed and (2) the president is possessed of testimony that is both essential to proving the crime and unobtainable by alternative means.

In response, some commentators who were sympathetic to this standard wondered how it would be enforced.

After all, what’s to stop Mueller from threatening to issue a subpoena compelling Trump’s appearance before the grand jury if he declines to submit to an interview? Even if Mueller should not do that, nothing says he could not do it. If he did, then Trump — despite the lack of just cause — would be put to an array of fraught choices — much to the delight, no doubt, of the Democratic partisans on Mueller’s staff. The president would have to (a) submit to questioning and risk that Mueller would decide his answers somehow incriminated him; (b) invoke executive privilege at the political cost of adversaries’ claiming he was concealing criminal misconduct or some kind of collusion with Russia; or (c) fire Mueller and risk comparisons to Watergate and calls for his impeachment — even though the Watergate special prosecutor had compelling evidence of President Nixon’s criminal culpability before demanding that the president submit to law-enforcement demands.

The answer to the “What’s to stop Mueller?” question should be obvious. It is the Justice Department. Alas, the answer eludes us because Deputy Attorney General Rod Rosenstein has been AWOL for seven months. We seem to have forgotten that Mueller answers to Rosenstein — and Rosenstein seems only too happy to have us forget.

Back in May, besieged by Democrats feigning outrage over FBI director James Comey’s firing — the same Democrats who wanted Comey’s scalp for purportedly costing Hillary Clinton the election — Rosenstein preemptively surrendered. In appointing Mueller, he flouted regulations requiring that he specify the crimes that supposedly necessitated the appointment of a special counsel. He promised Democrats that Mueller would have carte blanche — no limits and no supervision from his nominal supervisor, Rosenstein.

And now, with Mueller poised to pressure the president to submit to interrogation — despite the absence of a crime, despite the absence of any suggestion that Trump has essential information that Mueller is otherwise unable to acquire — Rosenstein is nowhere to be found, at least when he’s not impeding congressional committees from conducting oversight of the Justice Department’s actions in the Clinton emails and Russia investigations.

Without Justice Department supervision, Mueller answers only to his own whim. Well, what if all prosecutors did that?

Back to our hypothetical.

I really want to grill President Obama. But do I have reasonable cause to believe he is involved in some crime? That his testimony is essential? At the moment, no — but hey, you never know.

I’m really curious about those 20-odd emails Obama exchanged with Hillary Clinton when she was his secretary of state. There’s got to be some classified information there, right? Otherwise, the State Department would have disclosed them rather than sealing them at the direction of the White House. Sure, the former president says he did not, er, collude in Secretary Clinton’s mishandling of classified information, but why should I take his word for it? If Obama knew he was emailing to Clinton’s private, non-government account, that would be — as they say down at the FBI — an extremely careless way to transmit highly sensitive intelligence.

Come to think of it, as long as I am going to compel President Obama to testify, why not bring in President Clinton, too? He’s another interesting guy, and it sure would be fascinating to ask him about that homebrew server system his wife had cooking in their house.

I have a whole stack of subpoenas here, so might as well have Hillary come along, too. I’ve always thought her FBI interview raised more questions than it answered — no surprise, I guess, since they had already decided not to charge her. But I haven’t decided not to charge her. And I’ve got all these subpoenas. Why not bring her in for a grilling and clear up some things?

Speaking of things to clear up, there’s also that Fast and Furious scandal. I vaguely recall Congress trying to get some information about that. And no wonder . . . it’s not in every case that you find a Border Patrol agent murdered with a gun the ATF and Justice Department let “walk” to Mexico. If I’m remembering right, the Obama administration so wanted that information buried that Attorney General Holder was willing to be cited for contempt of Congress over it. President Obama even invoked executive privilege to keep lawmakers from eyeballing documents.

As a prosecutor, I’ve got ways to get at witnesses and documents that Congress can only dream of.

But I’m not a lawmaker. No, no: I’m a law-enforcer. As a prosecutor, I’ve got ways to get at witnesses and documents that Congress can only dream of. Just ask Special Counsel Mueller. Or better yet, ask Paul Manafort. Or Mrs. Manafort — she can tell you what it’s like to have FBI agents break into your house with their guns drawn in the middle of the night, all because Mueller’s team decided to get a search warrant with covert-entry authority. They could have just given a subpoena to Manafort’s lawyer, but what fun would that be?

Speaking of subpoenas, it occurs to me that I’ve got enough of them to poke around in that whole IRS mess, too. Imagine getting the taxman to harass people over their political views, only to have the taxman “lose” the emails that talk about it. Sounds fishy to me.

Fishy enough to amount to probable cause of a crime? Heh . . . probable cause, probable schmause.

The grand jury doesn’t need probable cause to investigate something. The grand jury can investigate on a hunch, or even to satisfy itself that no crime was committed. And I’m a prosecutor. Just ask Mueller: I don’t need no stinking probable cause!

Now, are you a Republican who’s popping his buttons over the thought that these schemers are finally going to get their comeuppance? Or a Democrat thinking this all sounds monstrous — an out-of-control prosecutor in Trump’s fascist government, using the awesome investigative powers of the executive to grill esteemed former presidents not because he has a case but just because he can?

Or are you just an ordinary, not particularly partisan American who is now wondering: If the prosecutor has all this power — power to coerce anyone, including current and former top government officials, to submit to interrogation under oath — what’s to stop him from abusing it?

What’s to stop the prosecutor from inducing people to hire lawyers and endure the anxiety of an investigation? From inflicting this adversity not because the prosecutor has cause to believe that a crime has been committed and that these officials have the essential testimony needed to prove it, but because he has decided his investigation and his curiosity take precedence over every other interest?

I’m glad you asked. What’s supposed to stop the prosecutor is the adult supervision provided by a storied institution and responsible supervisors.

See, we need federal prosecutors to have these potent powers because serious crimes could not be solved without them. The rule of law on which ordered liberty depends would be impossible without them.

Ordered liberty: We are talking about the culture of law enforcement in a free society, in which people are presumed innocent and not scrutinized without just cause. So we put a couple of safeguards in place because all power, no matter how necessary, can be abused.

First, the Constitution brings law-enforcement powers under the executive branch because the president is politically accountable. Of course we want cases to be decided by law, not politics. But that does not mean — as too many law-enforcement officials maintain — that law enforcement must be fully independent of politics.

Politics is not a dirty word, some connotations notwithstanding. In a republican democracy, politics is how the public holds officials accountable. Nothing would be more frightening than law enforcement independent of political accountability. We make sure the president knows that if the law-enforcement agencies run by his appointees perform corruptly or incompetently, the president will pay the price — at the ballot box or, for Watergate-level abuses, by impeachment.

Second, we try to prevent things from ever getting to that point by preserving the Justice Department as an aspirationally nonpartisan, apolitical law-enforcement institution. We put experienced, responsible professionals in charge of it.

Those people grasp critical things about the institution and the maintenance of its public trust. For one thing, they understand that a stable institution does not make a habit of acting on the outer margins of its authority. It does not instigate constitutional crises idly. It appreciates that it is endowed with formidable powers on the assumption that they will be deployed only for the purpose underlying the endowment: investigating and preventing actual crimes.

Because more crimes are committed than can be prosecuted, the Justice Department (a) exercises discretion to prioritize the most serious offenses and (b) refrains from exploiting its powers in the absence of cause to believe a crime has been committed.

Moreover, the Justice Department conducts its law-enforcement mission with humility. The principle of prosecutorial discretion embodies the concept that it is often not desirable to have maximal exercise of investigative powers and enforcement of the laws. Sometimes prosecuting a business would put hundreds of innocent people out of work. Sometimes prosecuting a terrorist would expose an informant or an intelligence operation, shutting down life-saving information channels. Sometimes charging an easily provable felony could destroy the life of a first-time offender who has otherwise lived a decent life and is unlikely to repeat the law-breaking.

Good law enforcement has to know when to stay its hand. It also has to know its mission is not always first in the pecking order. Investigations paralyze their subjects. A criminal investigation that targets the government compromises the government’s capacity to carry out its functions — functions that the public needs carried out.

Of course, if the president and his subordinates have engaged in crimes, then we have no choice: The corruption must be investigated, and if that means the administration cannot govern effectively, that is the price a democracy pays for vesting power in unfit hands. If the president and his subordinates have not committed crimes, though, an investigation harms the country for no good reason.

So where do we draw the line? At reasonable suspicion.

So where do we draw the line? At reasonable suspicion. If the Justice Department has good-faith grounds on which to believe the president is complicit in a serious crime, the president should be investigated; if not, the president should not be investigated. If there is reason to believe the president has evidence that is essential to proving a crime in which he is complicit, and that the evidence cannot be obtained from any other source, then the prosecutor should subpoena him. If not, then the prosecutor has no business bothering the president, because the president’s responsibilities are far more critical to the nation than the prosecutor’s. As between the two of them, there is no doubt which should stand down.

President Trump is not the official who should be enforcing these standards. That is what the Justice Department is for. If Special Counsel Mueller wants to interview the president, he should first be required to demonstrate that there is strong evidence the president has committed a crime, and that the president has essential evidence of the crime that cannot be obtained from any other source.

It is Deputy Attorney General Rod Rosenstein’s job to force Mueller to make that showing. That duty trumps whatever “hands off” promises he may have made to Democrats. If the Justice Department will not supervise its prosecutors, then presidents, former presidents, other high public officials, journalists, defense lawyers, and all sorts of interesting people who might have relevant information — but who are protected from harassment by over-aggressive prosecutors thanks to prudent Justice Department leadership and policy — should plan on spending lots of time in the grand jury.


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