As Rosenstein Leaves DOJ, How Will History Judge Him?

5/9/2019

Updated:

6/14/2019

News Analysis

Outgoing Deputy Attorney General Rod Rosenstein has evoked strong opinions across the political spectrum during his two-year tenure.

Interestingly, over the past month, there has been an inversion of people’s opinions regarding him. Those on the left, who had been supporting him ever since he appointed special counsel Robert Mueller, are now claiming Rosenstein has been running interference for President Donald Trump. Those on the right, who felt Rosenstein betrayed the president with the appointment of Mueller, have begun to reassess his actions, following the publication of the Mueller report.

Rosenstein submitted his resignation letter to the president on April 29, with an effective date of May 11. Rosenstein had previously discussed his intent to resign from his post when a new attorney general was confirmed, following the resignation of Jeff Sessions.

After the appointment of William Barr as attorney general in February, however, Rosenstein stayed on to assist Barr in guiding him through the Mueller report, upon Barr’s request in mid-March.

Rosenstein, who had long overseen Mueller’s investigation, had knowledge of the more intimate details of the case and its underlying focus. Additionally, Rosenstein had issued to Mueller two expanded scope memos—the first on Aug. 2, 2017, and the second on Oct. 20, 2017—just 10 days before the indictment of former Trump campaign manager Paul Manafort and his business partner, Richard Gates.

On March 24, 2019, Barr delivered his principal conclusions letter to Congress. He noted that the special counsel found no evidence of collusion, but also noted that the special counsel didn’t draw a conclusion regarding obstruction. Barr told Congress that he and Rosenstein jointly concluded that the evidence presented by Mueller didn't “establish that the President committed an obstruction-of-justice offense.”

Barr later noted that “the Deputy Attorney General and I disagreed with some of the Special Counsel’s legal theories.”

In other words, Rosenstein not only had a direct hand in determining that Trump hadn't obstructed justice, but also disagreed with some of the special counsel’s findings.

A few days later, on April 25, Rosenstein gave a speech in which he defended his handling of the Mueller investigation, noting: “I did pledge to do it right and take it to the appropriate conclusion. I did not promise to report all results to the public, because grand jury investigations are ex parte proceedings. It is not our job to render conclusive factual findings. We just decide whether it is appropriate to file criminal charges.”

Rosenstein pointed a finger at the Obama administration, noting they “chose not to publicize the full story about Russian computer hackers and social media trolls, and how they relate to a broader strategy to undermine America.”

He also had some choice words for the FBI and its former director, James Comey:

“The FBI disclosed classified evidence about the investigation to ranking legislators and their staffers. Someone selectively leaked details to the news media. The FBI Director announced at a congressional hearing that there was a counterintelligence investigation that might result in criminal charges. Then, the former FBI Director alleged that the President pressured him to close the investigation, and the President denied that the conversation occurred.”

Rosenstein had earlier come to Barr’s defense, telling The Wall Street Journal that Barr was “being as forthcoming as he can, and so this notion that he’s trying to mislead people, I think is just completely bizarre.”

But it was Rosenstein’s resignation letter that really caught people’s attention.

Rosenstein specifically thanked the president, saying, “I am grateful to you for the opportunity to serve; for the courtesy and humor you often display in our personal conversations; and for the goals you set in your inaugural address: patriotism, unity, safety, education and prosperity, because ‘a nation exists to serve its citizens.’”

Rosenstein also quoted former Attorney General Robert Jackson:

“At the Department of Justice, we stand watch over what Attorney General Robert Jackson called 'the inner ramparts of our society—the Constitution, its guarantees, our freedoms and the supremacy of law.'”

Between 1938 and 1954, Jackson served as U.S. solicitor general, U.S. attorney general, and, finally, as an associate justice of the U.S. Supreme Court—the only man to have held all three positions.

In 1940, Jackson gave a famous speech, “The Federal Prosecutor,” in which he discussed the great powers inherent in a federal prosecutor, and the need to exercise those powers responsibly and ethically. In 1945, Jackson took leave from the Supreme Court as President Harry Truman appointed Jackson as U.S. chief of counsel in the Nuremberg trials of Nazi war criminals.

Rosenstein ended his resignation letter with this closing statement:

“We enforce the law without fear or favor because credible evidence is not partisan, and truth is not determined by opinion polls.

“We ignore fleeting distractions and focus our attention on the things that matter, because a republic that endures is not governed by the news cycle. We keep the faith, we follow the rules, and we always put America first.”

Rosenstein’s letter prompted no shortage of reactions, including one from former U.S. Attorney Preet Bharara, who wrote on Twitter, “This is just plain weird,” in response to Rosenstein thanking Trump.

A Polarizing Figure

Rosenstein has proven himself to be a polarizing figure. According to some, Rosenstein was part of the problem in Washington, actively working against Trump’s administration. To others, he occupied a slightly greyer area—compromised, but with the capability to adjust to a new political climate. Not actively bad, but not to be trusted either.

Then there are those who see Rosenstein as something of a quiet hero—a man who intentionally wrested control of the Russia investigation away from the FBI and operated with honorable, or at least fully legal, intentions.

Rosenstein, if you believed the many reports from the media, was the most “about-to-be-fired” deputy attorney general this nation has ever had. But he was never fired. An argument sometimes used by those who view Rosenstein poorly is that he was “coerced” by either Trump or Barr into staying and was doing as asked.

But this coercion theory flies in the face of logic. Rosenstein was responsible for overseeing the Mueller investigation for most of its duration. Additionally, Rosenstein, along with Barr, was responsible for determining that Trump wasn't guilty of obstruction. Any measure of coercion placed onto Rosenstein would inherently invalidate Rosenstein’s ruling.

Rosenstein as US Attorney

Rosenstein’s history as the U.S. attorney for the District of Maryland included several high-profile investigations, including those of Prince George’s County Executive Jack B. Johnson and former Vice Chairman of the Joint Chiefs of Staff Gen. James E. Cartwright.

Johnson, who was investigated on suspicion of having hidden cash bribes, ultimately admitted guilt and served more than five years on corruption charges. According to The Washington Post, “The case was so airtight that without a single trial, 14 others pleaded guilty, including Johnson’s wife—former County Council member Leslie Johnson—a former county housing official and three police officers.”

Rosenstein ran the felony leak investigation of Cartwright, who ultimately admitted to “making false statements to the FBI concerning multiple unauthorized disclosures of classified information that he made to reporters.” Cartwright was asking for probation while Rosenstein was seeking a two-year prison sentence. Immediately prior to Cartwright’s January 2017 sentencing, President Barack Obama unexpectedly pardoned him, ending an investigation that had begun back in 2012.

Notably, Cartwright’s attorney was Washington lawyer and former White House counsel Greg Craig, who was recently indicted for violations of the Foreign Agents Registration Act in Ukraine that stemmed from the Mueller investigation. Craig’s case is being handled by the U.S. attorney's office for the District of Columbia, in conjunction with the Justice Department's (DOJ) national security division.

Rosenstein was also involved in the prosecution of Vadim Mikerin, the director of Tenam, a U.S.-based subsidiary of Russian company Tenex, which, in turn, is wholly owned by Rosatom, Russia’s state-owned nuclear company. Tenam sold recycled Russian nuclear fuel, and later uranium, to U.S. nuclear energy companies.

Mikerin was indicted in 2014. According to the DOJ announcement of Mikerin’s guilty plea, he conspired with several other individuals to “transmit funds from Maryland and elsewhere in the United States to offshore shell company bank accounts located in Cyprus, Latvia and Switzerland.”

Essentially, Mikerin was engaging in a bribery kickback scheme and was moving the payments to offshore accounts, probably at the behest of Russian officials.

This case has often been conflated with the sale of Canadian mining company Uranium One, and its U.S.-based assets, to the Russian government in a series of transactions that took place in 2009, 2010, and 2013, but it's an entirely separate matter. As the U.S. attorney for Maryland, Rosenstein had no involvement with any of the Uranium One transactions.

Early Days of Trump Presidency

Rosenstein, who was confirmed as deputy attorney general on April 25, 2017, was involved in a number of controversial matters that took place during a chaotic period in the early days of the Trump administration.

The first major event that transpired was the firing of Comey on May 9, 2017. Rosenstein wrote the recommendation letter, titled “Restoring Public Confidence in the FBI,” that would be used by Trump to fire Comey.

Media outlets have claimed that Rosenstein didn't want to write the memo, and former FBI Deputy Director Andrew McCabe alleged that the letter wasn't Rosenstein’s idea and that he regretted doing so. But there are a few problems with that line of reasoning, not the least of which is that McCabe, who was fired from the FBI for lying under oath to the inspector general multiple times, is currently involved in grand jury proceedings.

Although McCabe claimed Rosenstein was upset over supposedly having to write the memo, DOJ spokeswoman Sarah Isgur Flores said Rosenstein was upset that McCabe had failed to reveal the existence of an entirely different set of memos—written by Comey.

“To be clear, he was upset not because knowledge of the existence of the memos would have changed the [deputy attorney general's] decision regarding Mr. Comey, but that Mr. McCabe chose not to tell him about their existence until only hours before someone shared them with The New York Times,” Isgur Flores said.

On May 19, 2017, Rosenstein testified before Congress, stating: “On May 8, I learned that President Trump intended to remove Director Comey and sought my advice and input. Notwithstanding my personal affection for Director Comey, I thought it was appropriate to seek a new leader." As for the memo, Rosenstein said: "I wrote it. I believe it. I stand by it."

Rosenstein also made one other, often overlooked, comment. Rosenstein had discussed removing Comey with then-Sen. Jeff Sessions prior to Sessions’s confirmation as attorney general:

"In one of my first meetings with then-Sen. Jeff Sessions last winter, we discussed the need for new leadership at the FBI. Among the concerns that I recall were to restore the credibility of the FBI, respect the established authority of the Department of Justice, limit public statements and eliminate leaks."

Rosenstein had thought Comey needed to be removed as FBI director long before the president took action to fire him.

Rosenstein Appoints Mueller

Rosenstein has been pilloried for his appointment of Mueller as special counsel, but it is worth examining how that appointment occurred.

Two days after Comey was fired, on May 11, 2017, McCabe testified before the Senate Intelligence Committee, agreed to notify the committee “of any effort to interfere with the FBI’s ongoing investigation into links between Russia and the Trump campaign,” and told members of Congress that there had been “no effort to impede our investigation to date.”

In other words, McCabe testified that he was unaware of any evidence of obstruction from Trump or his administration. Notably, during his May 3 testimony, Comey had also said there was no obstruction, which may have left McCabe with little choice other than to say the same.

McCabe, however, failed to inform the committee that he was actively considering opening an obstruction-of-justice probe into Trump—a path that he would initiate in a meeting with Rosenstein just five days later.

On the morning of May 16, 2017, Rosenstein allegedly suggested to McCabe that he could secretly record Trump. The allegations against Rosenstein, raised in September 2018, came only from McCabe, who had been fired for lying to the DOJ's inspector general three separate times while under oath.

An unnamed participant at the meeting, in comments to The Washington Post, framed the conversation between McCabe and Rosenstein in an entirely different light, noting that Rosenstein had responded with angry sarcasm to McCabe, saying, “What do you want to do, Andy, wire the president?”

That meeting, where McCabe pushed for an investigation into Trump, took place five days after McCabe had publicly testified that there was no obstruction on the part of the Trump administration.

Sometime later that same day, both Rosenstein and Trump met with former FBI Director Robert Mueller in the Oval Office. The meeting was reported as concerning the FBI director position, but the idea that Mueller would be considered for the FBI director role seems unlikely. By law, an FBI director is allowed to serve for only 10 years, and Mueller had already received a special exemption during the Obama administration to serve for two more years, making another exemption from Congress highly unlikely.

Rosenstein appointed Mueller as special counsel the following day, on May 17, 2017, and in doing so, removed control of the Trump–Russia investigation from McCabe and put it into the hands of Mueller.

This was confirmed in a recent statement by a DOJ spokesperson, who said: “The deputy attorney general in fact appointed special counsel Robert Mueller, and directed that Mr. McCabe be removed from any participation in that investigation. Subsequent to his removal, DOJ's Inspector General found that Mr. McCabe did not tell the truth to federal authorities on multiple occasions, leading to his termination from the FBI.”

With the appointment of Mueller as special counsel, it also appeared that an attempt by the FBI under McCabe to re-engage with former British intelligence officer Christopher Steele, who authored the Clinton- and Democratic National Committee-funded dossier on Trump, abruptly ended.

Rosenstein’s Four Important Positions

During his tenure as deputy attorney general, Rosenstein would occupy several important positions. On Aug. 4, 2017, Attorney General Sessions announced the formation of a newly established Leak Task Force and appointed Rosenstein as its co-head:

“I directed my Deputy Attorney General Rod Rosenstein—whose district in Maryland encompassed the NSA headquarters and who has personally led these kinds of investigations—and FBI Director Christopher Wray to oversee all classified leak investigations and actively monitor the progress of each and every case.”

Rosenstein discussed the task force with Fox News’ Chris Wallace in August 2017, stating, “If we identify somebody, no matter what their position is, if they violated the law, in that case it warrants prosecution, we’ll prosecute them.”

Notably, former FBI General Counsel James Baker is currently the subject of an ongoing criminal leak investigation.

On Oct. 15, 2018, Sessions designated five groups as the nation’s top transnational organized-crime threats:

MS-13
Cartel de Jalisco Nueva Generacion, or CJNG
the Sinaloa Cartel
Clan del Golfo
Lebanese Hezbollah

As part of his announcement, Sessions also announced the formation of an “organized crime task force of experienced prosecutors” and appointed Rosenstein to lead the new task force. Working under Rosenstein were separate subcommittees for each of the target groups, each led by an experienced prosecutor.

Rosenstein’s appointment hinted at the possibility of a pre-planned succession taking place in the weeks prior to Sessions’s formal resignation, which occurred Nov. 7, 2018, following a request by the president.

The task force appointment occurred shortly after Trump’s Oct. 8 affirmation of Rosenstein, following their meeting on Air Force One, which Trump said went “great.” Rosenstein flew on Air Force One with the president two weeks after McCabe’s allegations regarding Rosenstein’s wearing of a wire surfaced.

Speculation was rampant that Rosenstein would be fired, but that day, the president told reporters that he had no plans to fire the deputy attorney general and continued, saying: “I get along very well with him. I didn’t know Rod before [becoming president], but I got to know him.” Trump added that he and Rosenstein “actually have a very good relationship.”

In April, in the days following the release of the special counsel’s report, many again focused their ire on Rosenstein, blaming him for the length and duration of the Mueller investigation, as well as the contents of the report. Often lost amid the emotions is the basic fact that Mueller found the president hadn't engaged in any collusion with Russia and left the question of obstruction up to Rosenstein and Barr, who jointly determined there had been none.

Worth considering is what might have happened if the Mueller investigation had been shortened, or appeared in any way partisan. Trump appeared to be fully aware of this risk, having previously stated in May 2017 that he wanted the investigation, which at the time was still in the hands of the FBI, to be “done properly.” He also noted that he might “expand” and possibly “lengthen” the investigation. The Mueller report was released to the public on April 18. Just four days later, a smiling Rosenstein was seen with his daughter at the White House Easter celebration, greeting senior White House adviser Kellyanne Conway.

Rosenstein's Signing of Carter Page FISA

Rosenstein was responsible for one more notable action. On June 29, 2017, almost exactly two months after his confirmation as deputy AG, Rosenstein signed the third Foreign Intelligence Surveillance Act (FISA) renewal on Trump 2016 presidential campaign adviser Carter Page. He may have been the only authorized DOJ official available to do so. Sessions was recused, and Dana Boente was the acting head of the DOJ’s National Security Division—he hadn't been confirmed. Rosenstein noted this during a June 28, 2018, sworn testimony before Congress:

“Only three people in the department are authorized to sign it: the Attorney General, the Deputy, and the Assistant Attorney General for national security, which was vacant at the time.”

Rosenstein addressed the FISA signing process and made some very interesting comments at the same time:

“We sit down with a team of attorneys from the Department of Justice. All of whom review that and provide a briefing for us about what’s in it. And I’ve reviewed that one in some detail, and I can tell you the information that’s public about that doesn’t match with my understanding of the one that I signed, but I think it’s appropriate to let the Inspector General (IG) complete that investigation. These are serious allegations. I don’t do the investigation—I’m not the affiant. I’m reviewing the finished product.

"If the Inspector General finds that I did something wrong, then I’ll respect that judgment, but I think it is highly, highly unlikely given the way the process works.”

Exactly what Rosenstein meant by “the information that’s public about that doesn’t match with my understanding of the one that I signed” remains to be seen. But he's correct in that he isn't the affiant.

Rosenstein referenced the IG FISA investigation in comments he made to Rep. Matt Gaetz (R-Fla.) during the June 2018 hearing:

“People can make all kinds of allegations publicly. I am quite confident about my conduct throughout this investigation. That matter is under review by the Inspector General. We’ll see what the Inspector General finds.”

The IG report on FISA abuse is supposed to be released in the coming weeks. It will likely provide some clarity to Rosenstein’s comments—and identify the actual affiant.

On Dec. 6, 2018, then-chairman of the House Intelligence Committee Devin Nunes (R-Calif.) discussed the FISA signing issue during a Fox News segment and stated the direction where he thought the IG might find fault:

Sean Hannity: "This would be Comey signing off on it, Rod Rosenstein signing off on the last one ..."

Rep. Devin Nunes: "Well, they’re the ones that signed off on it—but they’re not necessarily the ones who would have provided and doctored the information. So really, the people that are culpable here are the ones who were in these discussions, that knew about the information that was not provided to the court."

Lisa Barsoomian (front), wife of Deputy Attorney General nominee Rod Rosenstein (C), at his swearing-in at the Capitol on March 7, 2017. (Win McNamee/Getty Images)

Rosenstein’s Wife

One persistent myth about Rosenstein relates to his wife, Lisa Barsoomian, who was an assistant U.S. attorney for a number of years at the DOJ. It appears the attack on Barsoomian can be traced back to a post made by political lobbyist Roger Stone on his website on June 22, 2017:

“Lisa Barsoomian works for R. Craig Lawrence, an attorney who has represented Robert Mueller three times, James Comey five times, Barack Obama 45 times, Kathleen Sebelius 56 times, Bill Clinton 40 times, and Hillary Clinton 17 times between 1991 and 2017.

"Barsoomian participated in some of this work personally and has herself represented the FBI at least five separate times.”

Stone referred to Rosenstein and his wife as a “DC Globalist Power Couple” who “mean to destroy Donald Trump under the bidding of their Globalist Masters.”

What Stone leaves out is that both Lawrence and Barsoomian were acting as assistant U.S. attorneys for the DOJ and, in the course of those positions, represented the United States in various civil matters. Barsoomian later worked for the National Institutes of Health, before taking time off to be home with the couple’s two daughters.

Stone was indicted in January in connection to the Mueller probe for lying to Congress, making false and misleading statements, and tampering with witnesses. He has pleaded not guilty, and his trial is scheduled to begin in November.

Rosenstein leaves his office on May 11, after more than two years of service during a tumultuous period. He faced immense criticism and no small amount of pressure. And despite ongoing reports of his imminent firing, Rosenstein is leaving of his own accord and with the special counsel’s investigation concluded.