Politics & Policy

Rod Rosenstein’s Subpoena Threat: He’s Conflicted, and He’s Acting Like It

Deputy Attorney General Rod Rosenstein appears with President Donald Trump at a roundtable on immigration and the gang MS-13 at the Morrelly Homeland Security Center in Bethpage, New York, May 23, 2018. (Kevin Lamarque/Reuters)
He clings to his role in the process despite being a central witness in Comey’s dismissal.

The House Intelligence Committee is investigating whether the government has used the Justice Department’s awesome investigative authorities as a weapon against political adversaries. We learned yesterday that, in response to this very investigation, Deputy Attorney General Rod Rosenstein . . . threatened to use the Justice Department’s awesome investigative authorities as a weapon against political adversaries.

That Rosenstein threatened to subpoena the committee’s records does not seem to be in serious dispute. There are differing accounts about why. House investigators say that Rosenstein was trying to bully his way out of compliance with oversight demands; the Justice Department offers the lawyerly counter that Rosenstein was merely foreshadowing his litigating position if the House were to try to hold him in contempt for obstructing its investigations. Either way, the best explanation for the outburst is that Rosenstein is beset by profound conflicts of interest, and he’s acting like it.

The first thing to bear in mind about the news reported Tuesday by Fox News’s Catherine Herridge is that the dispute in question — which is just one of many during a year of Justice Department stonewalling — happened five months ago, on January 10.

So, what was going on back then?

Among other things, the House Intelligence Committee and senior Republicans on the Senate Judiciary Committee were pressing for disclosure of the applications the Justice Department submitted to the Foreign Intelligence Surveillance Court (“FISA court”) for warrants to eavesdrop on Carter Page, a former Trump-campaign adviser. (The Nunes memo is dated just eight days after Rosenstein’s reported subpoena threat; the Grassley-Graham memo is dated just four days before; both prompted bitter disclosure fights.)

Back then, we were being told that the FBI and Justice Department would never provide the FISA court with unverified allegations from third- and fourth-hand anonymous foreign sources, purveyed by a foreign former spy whose partisan work — including the planting of media stories at the height of the election race — had been paid for by the Democratic presidential candidate. We were being told that if the sources of information presented to the FISA court had any potential biases, those would be candidly disclosed to the FISA court. And we were being told that information in FISA applications is so highly classified that disclosing it would reveal methods and sources of information, almost certainly putting lives and national security in jeopardy.

What, then, did we learn when Congress, after knock-down-drag-out fights like the one in January, finally managed to force some public disclosure?

We learned that the Justice Department and FBI had, in fact, submitted to the FISA court the Steele dossier’s allegations from Russian sources, on the untenable theory that the foreign purveyor of these claims, Christopher Steele, was trustworthy — notwithstanding that he was not making the allegations himself, but instead was only relaying the claims of others.

We learned that the FBI had not been able to verify the dossier’s claims (and that even Steele does not stand behind them), but that the Justice Department presented them to the court anyway.

We learned that the Justice Department failed to tell the FISA court that Steele’s reports were an anti-Trump opposition-research project paid for by the Clinton campaign — i.e., paid for by the political candidate endorsed by the president, paid for by the party of the incumbent administration that had applied for the FISA warrant against its political opponent.

We learned that the Justice Department failed to tell the FISA court that Steele — on whose credibility it was relying — had been discontinued by the FBI as a source because he had lied about his contacts with the media.

We learned that one of those contacts with the media (specifically, with Michael Isikoff of Yahoo News) had generated a news story that the Justice Department actually offered as corroboration for Steele — on the false theory that someone other than Steele was the source for the story.

We learned that the revelation of these facts posed no danger to national security or to methods and sources of intelligence-gathering. Instead, the Justice Department and FBI had fought tooth-and-nail against disclosure because these facts are embarrassing and indicative of an abuse of power.

And we learned that, after the initial 90-day FISA warrant was authorized in October 2016 (about three weeks before the election), it was reauthorized three times — well into the first year of the Trump administration. Meaning: The last FISA-warrant application was approved at the Justice Department by none other than Deputy Attorney General Rod Rosenstein.

Note that the required sign-off by the Justice Department’s top official (which was Rosenstein because Attorney General Jeff Sessions had recused himself) is a key element of FISA’s elaborate statutory process. The process is in place because, unlike criminal-law wiretaps, which are disclosed to the defense and fully litigated prior to trial, national-security wiretaps under FISA are classified and are never disclosed to the targets. Because Congress was concerned that this could lead to abuse, it mandated that warrant applications be approved at the highest levels of the FBI and Justice Department before submission to the FISA court. This is supposed to give the court confidence that the application has been carefully reviewed and that the surveillance sought is a high national-security priority.

To recap: In January 2018, Congress was investigating whether the Justice Department had abused the FISA process. The top Justice Department official for purposes of responding to this congressional investigation was resisting it; this included fighting the disclosure of the last warrant relevant to that investigation, which he had personally approved — a warrant that relied on the unverified Steele dossier (flouting FBI guidelines holding that unverified information is not to be presented to the FISA court), and that failed to disclose both that the dossier was a Clinton-campaign product and that Steele had been booted from the investigation for lying.

It is not to his credit to threaten members of Congress with Justice Department subpoenas for their emails and phone records. It suggests that the conflicts under which he labors are distorting his judgment.

Meanwhile, on May 17, 2017, Rosenstein appointed Robert Mueller as special counsel to take over the so-called Russia investigation. The incident that proximately triggered this appointment was President Trump’s firing of FBI director James Comey. From the start of his tenure, Special Counsel Mueller has been investigating the Comey dismissal as a potential criminal offense — specifically, obstruction of justice. Mueller has done this with Rosenstein’s apparent approval, even though there are significant legal questions about whether a president may properly be accused of obstruction based on an act that is both lawful and a constitutional prerogative of the chief executive.

Even more significantly for present purposes, Rosenstein has clung to his role as Mueller’s ostensible supervisor in the investigation notwithstanding that he is a central witness in Comey’s dismissal. He authored a memorandum that, ironically, posits that a troubled official’s removal was necessary “to restore public confidence” in a vital institution. The Trump administration used Rosenstein’s memo to justify Comey’s firing even though there are salient questions about whether it states the true rationale for the firing — precisely the questions Mueller is investigating.

Conflicts of interests can be tough to analyze because some are contingent and hypothetical. Others, however, are obvious and straightforward. In the latter category are “actor on the stage” conflicts: If a lawyer is an important participant in the facts that form the subject matter of a controversy, he is a witness (at the very least) whose actions and motives are at issue. Therefore, he is too conflicted to act as an attorney representing an interested party in the controversy.

To point this out is not to attack Mr. Rosenstein’s integrity. I do not know the deputy attorney general personally, but people I do know and trust regard him as a scrupulous person and professional. That’s good enough for me. And indeed, while I disagree with his appointment of Mueller (because it was outside DOJ regulations), his impulse to appoint a special counsel suggests that he perceived an ethical problem in directing an investigation that would have to scrutinize his own conduct. That is to his credit.

Nevertheless, it is not to his credit to threaten members of Congress with Justice Department subpoenas for their emails and phone records. It suggests that the conflicts under which he labors are distorting his judgment. And in any event, to point out that a lawyer has a conflict is not to assert that he is acting unethically. A conflicted lawyer recuses himself not because he is incapable of performing competently but because his participation undermines the appearance of impartiality and integrity. In legal proceedings, the appearance that things are on the up and up is nearly as important as the reality that they are.

This is not a symmetrical conflict in which one side’s investigative demands can properly be reciprocated by the other — “if you subpoena me, I’ll subpoena you,” etc. The Justice Department is a creature of statute. While part of the executive branch, it has no independent constitutional standing; it exists because it was established by Congress (as, by the way, was Rosenstein’s office). If the House Intelligence Committee were to issue a subpoena demanding, say, President Obama’s communications with members of his White House staff, that would be objectionable. By contrast, Congress has not only the authority but the responsibility to conduct oversight of the operations of executive departments it has established and funds, and whose operations it defines and restricts by statute.

The Justice Department is not the sovereign in this equation. If it has legal or policy reservations about a disclosure demand from the people’s representatives, it should respectfully raise them; but it is ultimately up to Congress to decide what the people have a right to inquire into. The Justice Department has no business impeding that inquiry. And while people can lose their temper in the heat of the moment (like most of us, I am no stranger to that phenomenon), it is outrageous for a Justice Department official to threaten Congress with subpoenas. If the deputy attorney general did that in a fit of pique, I hope he has apologized.

On what planet is it necessary for Jeff Sessions to recuse himself but perfectly appropriate for Rod Rosenstein to continue as acting attorney general for purposes of both the Mueller investigation and Congress’s probe of Justice Department investigative irregularities?

The Justice Department’s spin on this is ill-conceived. Apparently, the idea is that if the House tried to hold Rosenstein in contempt for defying its subpoenas, he would be permitted to mount a defense and could issue his own subpoenas in that vein. Maybe so (at least, if there were a court prosecution); but he wouldn’t be able to subpoena anything he pleased. Congress has the power and duty to conduct oversight of the Justice Department; it does not need a reason, and its reasons are permitted to be (and no doubt frequently are) political. It would violate separation-of-powers principles for an executive official to attempt to use law-enforcement powers to infringe on the constitutionally protected power of lawmakers to consult and deliberate over legislative activity.

In any event, I assume this is all water under the bridge. It happened five months ago (which is eons ago in the Age of Trump). What matters is the disclosure dispute as it stands in the here and now: On what basis is the Justice Department still withholding some documents and massively redacting others; and when will President Trump, instead of blowing off Twitter steam, finally order his subordinates to comply with lawful congressional demands for information? If there were credible allegations that a Republican administration had spied on a Democratic campaign, we would not be hearing precious concerns about the viability of the Justice Department and FBI as critical American institutions; in unison, the media and the political class would be demanding transparency.

Finally, note that Attorney General Sessions was counseled by Justice Department officials (none of them Trump appointees) to recuse himself under circumstances in which (a) there was no criminal investigation (which the regulations call for in recusal situations); (b) his contacts with Russian officials were not improper; (c) there was scant evidence of criminally actionable collusion between the Trump campaign and Russia; and (d) Sessions apparently had no involvement in approving FISA surveillance of Trump officials, and had less involvement than Rosenstein did in Comey’s firing.

On what planet is it necessary for Jeff Sessions to recuse himself but perfectly appropriate for Rod Rosenstein to continue as acting attorney general for purposes of both the Mueller investigation and Congress’s probe of Justice Department investigative irregularities?

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