The political branches are designed to scrap with each other, not dictate to each other.
‘You’re the boss.”
That was Representative Jim Jordan’s terse rejoinder during a feisty exchange with Deputy Attorney General Rod Rosenstein at the House Judiciary Committee’s oversight hearing on Thursday. The Ohio Republican was blasting Rosenstein over information Republicans say Justice Department officials have concealed from Congress for a year.
As the jaw-boning continued, Rosenstein fended off claims that he had personally withheld files, redacted key portions of documents, and counseled a controversial witness, FBI agent Peter Strzok, to refuse to answer questions at a closed-door congressional interview.
These calls were made by subordinates, Rosenstein DAG-splained.
“They work for you,” Jordan bluntly replied.
And so it went. Rosenstein pointed out that, yes, 115,000 people work for him. Translation: He cannot possibly know what each of them is doing the moment they are doing it. When condescension failed, he tried earnestness: He’ll intercede with underlings if the committee brings any errors to his attention. Tin-eared, he emphasized that he had already done this several times . . . oblivious to the committee’s exasperation that it has several times been necessary to do.
Two discordant notes clanged throughout the joust. First, if Rosenstein is not actively instructing his charges to withhold information, he needs to work on his management skills, since they clearly assume this stonewall is a top-down enterprise. Has anyone been disciplined for hiding from Congress Strzok’s explosive text promising to “stop” Donald Trump from being elected? And that’s hardly an atypical concealment. If Rosenstein isn’t encouraging this nonsense, how come nobody’s walking the plank over it?
Second, while House Republicans revel in reminding anyone who will listen that DOJ’s intransigent middle managers work for Rosenstein, they never quite get around to mentioning that Rosenstein works for President Trump. The president is better positioned than the DAG to order more transparency. And if the “witch hunt” narrative is valid, the president would be the chief beneficiary of more transparency. Yet, for all his Twitter bombast, Trump abstains . . . and then House Republicans dutifully target their ire at Rosenstein.
There’s lots of “deep state” rhetoric in the air, but Thursday looked more like a quagmire: Everybody dug in, everybody more vulnerable than their bravado suggests.
The information at issue relates, in part, to the FBI’s counterintelligence investigation of Russia’s interference in the 2016 election — and specifically when and why the Obama administration monitored the Trump campaign on suspicion of “coordination” in the Kremlin’s perfidy. Also on demand are documents pertinent to the Hillary Clinton emails investigation.
The hearing was extraordinarily frustrating because counterintelligence investigations are always classified and the one involving Russia is still ongoing. Moreover, the Justice Department always resists making disclosures about pending investigations, and here several are germane — those conducted by Special Counsel Robert Mueller, the U.S. attorneys’ offices in the Southern District of New York and Eastern District of Virginia, perhaps other federal prosecutors and FBI field offices, and the Justice Department’s Office of the Inspector General and Office of Professional Responsibility.
Because of the sensitivity, lawmakers have to be inscrutably non-specific during public hearings when describing materials they claim have been withheld. It is political suicide to be accused of blowing an intelligence source or a criminal case. So, Congress frames questions in unedifying generality: Why are you concealing “documents” and “information”?
If the materials at stake were better defined, we could evaluate whether DOJ was foot-dragging for a good reason (e.g., to safeguard source identities, to avoid identifying an uncharged person under investigation) or a bad reason (e.g., to conceal official misconduct or incompetence). But with only a vague description, we get a conclusory answer — we’re not “improperly” concealing anything.
Rosenstein’s habit of smirking when the questions get abrasive obscured the fact that much of what he had to say was welcome.
But who is to decide what it is “improper” to withhold? By what right does the Justice Department presume to make that judgment, at the expense of the People’s representatives — of the Congress that created the Justice Department?
You want a simple, legal answer to that question, but it’s actually an age-old political problem. That is, there is nothing improper in Congress’s seeking information about potential abuses of power; equally, there is nothing improper in the Justice Department’s opposing disclosures that would compromise sensitive intelligence or undermine investigations.
In our system of separation of powers, the political branches are designed to scrap with each other, not dictate to each other. It is common for both Congress and the executive to have perfectly legitimate reasons for taking antagonistic positions. It is similarly routine for each of them to suspect that the other is acting for illegitimate reasons — maybe the congressional majority is politically motivated to protect the president; maybe the executive agencies are using national-security and ongoing investigations as a pretext to conceal misconduct.
So how do we resolve the conflict? Not legally. It gets resolved through the political weapons the Framers gave the two branches. The outcome depends on how much damage each side is willing or able to inflict on the other, and how much damage each is willing to sustain rather than give in. It is rare that one side achieves total victory; almost always, there is a compromise — and the sooner they get to it the better.
I observed a few days ago that, for all its chest-thumping, the Republican Congress is in no position to cut DOJ’s funding or hold Rosenstein in contempt, much less impeach him. The resolution adopted by the House Thursday was just the sheep in wolf’s clothing that you’d thus expect: a toothless admonition that the Justice Department better disclose information about FISA warrants and use of informants by July 6, or else.
Or else . . . what? They don’t say.
That doesn’t mean it’s a big nothing. Rosenstein insists the resolution is based on mistaken assumptions and has threatened to ignore it, but don’t think for a moment that he’s not stewing over it.
The DAG has made several missteps — not least appointing a special counsel when there was no basis in the regulations to do so. (And, with Mueller now openly transitioning his only actual Russia indictment to a district U.S. attorney’s office — i.e., to the supposedly conflicted Justice Department — no apparent need to do so, either.) And at Thursday’s hearings, Rosenstein’s habit of smirking when the questions get abrasive (an odd tic for a former trial lawyer) obscured the fact that much of what he had to say was welcome — at some points, even compelling. The DAG’s propensity to lecture that we should all wait to draw conclusions until the relevant facts are known would be easier to swallow if the DOJ and FBI were not making it so hard to get at the facts.
Withal, Rosenstein made it clear that he sees himself as a member in good standing of the Trump administration. Beneath a thin veneer of equanimity, he smoldered at being framed as the president’s tormentor. Without reservation, he condemned the egregious behavior by FBI and Justice Department officials outlined in the IG report on the Hillary Clinton investigation; and he full-throatedly endorsed the ongoing IG investigations of irregularities during the Trump-Russia probe.
Is it too late for Rosenstein to convince critics that he can be trusted to guide the special-counsel probe to a swift, credible conclusion?
This is not a guy who sounds like he has it in for Donald Trump. Nor did he sound like a guy who is letting a rebuke from Congress, even a toothless one, roll off his back. Which is to say, he doesn’t seem like a guy who wants to be at war with Congress, to be perceived as running interference for people trying to destroy the president who appointed him.
Call me crazy, but I sense that the deputy attorney general sees the Trump phase of the Mueller investigation — the probe of “collusion” and obstruction — drawing to a close without allegations of crime. Not with a ringing endorsement, mind you. Mueller will no doubt write a report, and it will probably hammer the president for bringing scoundrels like Paul Manafort and his disturbing Kremlin connections into the campaign, and for being all over the map in explaining why FBI director James Comey was fired. But I suspect Rod Rosenstein sees a way to wrap this debacle up without further damaging the president, the presidency, the Justice Department, and the FBI — if everyone would just be patient, if Trump would just stop tweeting, and if House Republicans would just stop . . . period.
Is there too much water under the bridge? Is it too late for Rosenstein to convince critics that he can be trusted to guide the special-counsel probe to a swift, credible conclusion? That he will earnestly pursue investigative misconduct? If that’s his hope, Thursday’s hearing was a net setback. On the other hand, a deadline Intelligence Committee chairman Devin Nunes (R., Calif.) gave DOJ to produce information about the Russia probe came and went without uproar on Monday — Nunes did not complain that his committee was being ignored and Rosenstein testified that he and Nunes had indeed gotten an informative briefing from the FBI.
Maybe that’s progress. Until we have a better idea of when and how the Mueller probe will end, though, it’s going to be a hot summer.