Rosenstein Undercuts Democrats’ Main Argument for ‘Obstruction’

May 20, 2019 Updated: May 22, 2019

Commentary

Rod Rosenstein just blew a huge hole in the Democrats’ “obstruction of justice” narrative, dismantling their foremost argument against President Donald Trump.

It’s been two months since special counsel Robert Mueller submitted his report to Attorney General William Barr. Mueller concluded—after almost two years of an investigation that cost taxpayers tens of millions of dollars—that there was no “collusion” between the Trump campaign and Russia, and declined to come to a conclusion about whether there was any obstruction of justice. A short time later, Barr and Deputy Attorney General Rod Rosenstein announced their joint conclusion that there wasn’t sufficient evidence to conclude that the president in any way obstructed justice as a matter of fact and law.

For many Democratic members of Congress, the report and the conclusions by Barr and Rosenstein were simply too much to bear. How could their white knight—Mueller—and his team of Clinton supporters have failed to find the collusion and obstruction that was so clear to liberal partisans?

Rather than moving on and focusing on public policy initiatives, Democratic committee chairs in the House of Representatives have remained fixated on the Mueller report, threatening to hold the attorney general in contempt of Congress if he doesn’t give them an unredacted version of the report—perhaps hoping to find in the redactions that it was all a misunderstanding and that Mueller really did find collusion and obstruction.

One Democrat on the House Judiciary Committee even convinced her colleagues to hold a public reading of the Mueller report, perhaps with the hope that reviewing the politically charged “facts” the Mueller team put in the report would provide some catharsis.

While House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and his fellow diehards still hang on to the collusion myth, others are now taking Mueller’s irresponsible equivocation on obstruction of justice as license to make their own factual and legal findings—naturally, they’ve concluded that the president simply must have obstructed justice in some way.

The favorite contention of most Democrats in Congress, and many in the media, is that the firing of James Comey as FBI director must have constituted obstruction. Mueller devoted at least 26 pages of his report to the matter, and Nadler let himself get so carried away on the subject that he achieved the rather dubious distinction of being called out by the Annenberg Public Policy Center’s Factcheck.org project for making false claims.

The Comey firing is a curious choice for the Democrats to use as their leading evidence to support their obstruction claim. Comey was, for a time, the Democratic Party’s villain after his announcement concerning Hillary Clinton’s email server scandal, in which he declined to pursue charges against Clinton, but still detailed her extensive wrongdoing. After Trump’s election victory, that press briefing by Comey provided one of the countless excuses offered by Democrats for Clinton’s shocking loss at the polls.

However, once it was learned that Comey and his fellow travelers at the Justice Department were actually working behind the scenes on a plan to defeat candidate Donald Trump or oust him from office once he was elected, Comey found redemption and was welcomed into the anti-Trump camp. He burnished his “#resistance” credentials on his recent tour to promote his book and redeem himself publicly, taking every opportunity to attack the president.

Comey’s firing as FBI director also is a curious focus for obstruction of justice allegations against the president, for reasons noted by some of the nation’s leading constitutional scholars, who have opined that the president’s use of the executive branch powers he lawfully possesses can’t constitute obstruction of justice as a matter of law. Further, by statute, the FBI director serves at the president’s pleasure, and there likely would be constitutional barriers to giving the FBI director some sort of tenure or requiring cause for his firing.

But constitutional and statutory provisions, or facts, for that matter, have been no obstacle to the anti-Trump camp. They are determined to succeed by any means necessary in their quest to destroy Trump’s presidency, no matter what the collateral damage to our system of laws.

Recent events, however, have sharply undercut their narrative that the president obstructed justice with Comey’s firing. It was, of course, Deputy Attorney General Rod Rosenstein who notified Comey that he was being fired, and who provided the official justification for his firing. But the Democratic narrative, adopted by most in the media, was that Rosenstein was merely acting as the president’s unhappy pawn and didn’t believe in the decision. After all, Rosenstein himself had earned significant credibility with the rabid anti-Trump crowd for choosing Mueller as the special counsel, for giving him an extraordinarily broad mandate and long leash, and for his bizarre purported plan to tape-record the president, in hopes of removing him from office under a perversion of the 25th Amendment to the Constitution.

Those were serious anti-Trump credentials, and the Democrats hoped that once out of office, Rosenstein would wholeheartedly support their absurd notion that the president obstructed justice when he directed Rosenstein to fire Comey.

Those hopes have been dashed.

On May 13, Rosenstein spoke publicly for the first time since resigning from his post as deputy attorney general. Rosenstein characterized Comey as a “partisan pundit” who, as FBI director, crossed “bright lines that never should have been crossed,” adding that Comey absolutely deserved to be fired for his misconduct in office. While Rosenstein might have handled the Comey firing in a different manner, he has now made clear that he (Rosenstein) single-handedly wrote the memo listing the reasons for firing Comey, and that the president didn’t tell him what to put in his memo.

Rosenstein’s biggest complaint about Comey was the way in which Comey mishandled the Clinton email scandal, but he can find a great deal of support for his decision to fire Comey in other areas, as well. Take, for example, the unprecedented action by Comey in leaking memos to a friend in order to advance a personal agenda—a matter now under investigation by the Justice Department’s inspector general. Legal authorities familiar with the facts have reported that the leaked memos contained sensitive and classified material, and that at the very least, Comey’s actions violated the affirmation he signed when he joined the FBI.

Comey likely faces many more challenges ahead regarding his FBI-related misconduct. Former FBI general counsel James Baker recently disclosed that officials at the FBI were “quite worried” that Comey was trying to blackmail the president. Whatever the consequences, Comey’s actions during his time at the FBI and after can’t be reconciled with the claims he makes in his book about placing a premium on ethical conduct in public service.

Rosenstein has made it crystal clear that there is no factual or legal merit to any claim that the president obstructed justice in connection with the firing of Comey. For Nadler and company, an apology—and maybe even a thank-you note to the president for firing Comey in the first place—would be appropriate.

David Schoen is a civil rights and criminal defense lawyer based in Montgomery, Alabama, and has served as trial counsel in the past for the Democratic Party.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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