If Rod J. Rosenstein needs advice on how to try to maintain the credibility of the U.S. Department of Justice, he might try turning to an unlikely source: James B. Comey, the FBI director President Donald Trump abruptly fired Tuesday night, initially using Rosenstein to defend his head-spinning action.
Back in December 2003, when Comey served as George W. Bush’s deputy attorney general—the same job Rosenstein took over just two weeks ago—Comey was faced with a very similar situation in which Rosenstein currently finds himself.
Then-Attorney General John Ashcroft had just recused himself from an investigation into who had leaked the identity of former Central Intelligence Agency officer Valerie Plame Wilson to the late syndicated newspaper columnist Robert Novak. At the time, many in the press and in Congress suspected the leak was political because Wilson’s husband, the retired diplomat Joseph C. Wilson IV, had publicly criticized the Bush administration for exaggerating Iraq’s nuclear capabilities as a pretext for invading the Middle Eastern country. As the New York Times reported at the time, Ashcroft stepped down to avoid even the appearance of a conflict of interest.
To further quell concerns of potential impropriety, Comey appointed a special prosecutor (and a reportedly close friend) to lead the investigation: Patrick J. Fitzgerald, who at the time was a U.S. attorney for the Northern District of Illinois (he now works for Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates). I. Lewis “Scooter” Libby, the chief of staff to then-Vice President Dick Cheney, was eventually convicted of obstruction of justice, making false statements, and perjury as a result of Fitzgerald’s investigation, though Bush later commuted his 30-month prison sentence.
Rosenstein now finds himself in a similar hot seat. As Washington explodes over Comey’s ouster—which even Republicans have criticized as being troubling—all eyes are trained on the former U.S. attorney for Maryland, wondering if he will try to maintain honor and credibility in a Justice Department that’s controlled by an increasingly unpredictable administration, or whether he is simply being used as a political pawn.
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As with Ashcroft back then, current Attorney General Jeff Sessions has announced that he will recuse himself from the investigation into potential collusion between Trump’s election campaign staff and the Russian government, which Comey had been leading. Sessions had not disclosed during his Senate confirmation hearing that he had met with the Russian ambassador to the United States on multiple occasions during the 2016 election race. Though, as Judd Legum at ThinkProgress writes, the fact that Sessions called for the firing of the person in charge of the Russia investigation casts doubt on his recusal promise.
The fate of this investigation into White House staff now falls to Rosenstein, who has served the Justice Department for nearly three decades, now under five different presidents.
Although the Senate last month voted 94 to 6 to confirm Rosenstein as deputy attorney general, several senators raised concerns that the Philadelphia native did not promise that he would hire a special prosecutor to oversee the case, to ensure the investigation would be thorough and impartial. Rosenstein said during the hearing that he would need to “familiarize myself with the facts” and “consult with experts in the department” before making that decision.
Since the Comey firing, so far 20 state attorneys general have called on Rosenstein to hire an independent prosecutor, as Comey once did.
“Only the appointment of an independent special counsel, pursuant to 28 CFR § 600.1, with full powers and resources, can begin to restore public confidence,” the attorneys wrote in a letter released Thursday. “We urge you to appoint a special counsel immediately.”
Eric Columbus—an attorney who served as the special counsel to the deputy attorney general under President Barack Obama from 2009 to 2014, and as the special counsel in the Department of Homeland Security until earlier this year—said he worries the Trump administration will kill the investigation, not overtly, but by defunding it and letting the air out of it very slowly.
“The way to kill an investigation is not to terminate it, but to slow-walk it, starve it of resources, move it from a rolling boil to a slow simmer,” Columbus told Rewire in a phone interview. “That is what we should be worried about. I don’t think you’re going to see a new FBI director announce, ‘Oh yes, I am terminating this investigation.’ But the more diabolically effective ploy would be to continue it but not make it a top priority.”
Columbus took to Twitter shortly after the firing, writing that the key to the Russian investigation going forward will be Rosenstein. Columbus told Rewire that Rosenstein is respected by both Democrats and Republicans in the legal community, because he appears to be someone who cares more about preserving the integrity of the office in which he is serving than advancing a political ideology. Many political and legal analysts have painted Rosenstein in similar tones, but also as a likely political pawn in this situation.
Slate staff writer Leon Neyfakh makes that very point in the unambiguously titled article “Rod Rosenstein Is Being Used.”
“With Sally Yates’ testimony raising urgent new questions about why the White House didn’t move sooner to eject retired Lt. Gen. Michael Flynn from the National Security Council, perhaps the Trump administration thought it was time to change the channel,” Neyfakh writes. “Rosenstein was exactly the mouthpiece Trump needed to make it end. Trustworthy, not known for being loyal to Team Trump, and utterly convinced that Comey actually did deserve to get fired.”
In a letter to Comey sent Tuesday night, Trump wrote that he was firing him because the FBI director could no longer effectively lead the Bureau. In that letter, the president in part credited his decision with a memo signed by Rosenstein, which argued that Comey broke FBI protocol in his handling of the investigation into Hillary Clinton’s emails, in particular by usurping the attorney general’s authority and announcing to the public his decision not to prosecute the Democratic presidential candidate.
Politico reported that Rosenstein called a meeting with leaders of the Senate Intelligence Committee on Thursday, following reports that he is angry the White House characterized his letter as a recommendation to fire Comey and that the deputy attorney general threatened to quit. Meanwhile, Senate leaders have invited Rosenstein to brief all 100 senators on the firing.
Comey’s firing has earned widespread criticism, as many political leaders and reporters disbelieve Trump’s original stated reason for terminating the FBI director, given that he repeatedly praised his handling of the Clinton investigation throughout his presidential campaign.
Adding further doubt to the president’s original statement is the fact that the White House and Trump have repeatedly shifted their answers all week as to why the president abruptly fired Comey on Tuesday.
Trump’s latest reason—given in an interview with NBC News’ Lester Holt Thursday night—is that Comey was a “showboat” and a “grandstander” and that the FBI was “in turmoil” under his direction. In contradiction to his Tuesday letter, Trump told Holt that he was going to fire Comey regardless of the recommendation from Rosenstein.
“I was going to fire Comey—my decision,” Trump told Holt.
According to the New York Times, Trump has said he was frustrated by recent comments Comey has made about the ongoing Russia investigation and that he was “mildly nauseous” at the idea that he might have affected the results of the presidential election by disclosing details of his investigation in to Clinton’s emails.
The New York Times reported earlier in the week that Trump had been wanting to fire Comey for a long time now, for essentially undermining his authority and not promising loyalty. According to the Times, Trump asked Rosenstein and Sessions—who allegedly raised concerns about Comey—to write letters recommending the FBI director’s ouster.
Pawn or not, what seems clear is that Rosenstein has overnight been elevated to a top position, at least in terms of the investigation into the Trump administration’s potentially criminal dealings with Russia.
This is not the first time Rosenstein has been promoted amid scandal.
Former President George W. Bush tapped Rosenstein as a U.S. attorney after winning re-election in 2004. Bush had just fired Tom DiBiagio, who at the time had been investigating Maryland Republican Gov. Bob Ehrlich Jr. related to allegations of corruption concerning a gambling scheme. That situation was not completely dissimilar to Rosenstein’s current one, having been confirmed as the No. 2 at the DOJ just two weeks before the president fired the official leading an investigation that could damage him.
Shortly after Rosenstein became a U.S. attorney in 2005, a scandal broke out. The Bush administration was widely criticized for firing nine U.S. attorneys during its second term for what many believed to be purely political reasons. (Trump has been similarly criticized for firing 46 Obama-era U.S. attorneys. Those positions still remain largely unfilled.)
Then-Attorney General Alberto R. Gonzales resigned from the DOJ in 2007 amid this scandal and others.
Perhaps ironically, Rosenstein name-checked Gonzales along with several former DOJ staffers in defending his position that Comey disgraced the office of the FBI with his disclosures to the public.
Assuming he stays on, Columbus is betting that Rosenstein will hire a special counsel. In any case, he’s hoping that he will, because what the president did this week scares him.
That the president did not try to come up with a plausible rationale for firing Comey is “almost as scary as the firing itself,” Columbus told Rewire. Because, he said, it prompts the question, “To what degree does it matter what people think of [Trump and his administration]?”
“You’re beginning to slide into an autocracy when you don’t care about that anymore, when you do the wrong thing for the wrong reasons and you don’t even bother to try to make it look like you’re doing it for the right reasons,” Columbus said.