Former Deputy Attorney General Rod Rosenstein will find few allies when he testifies before the Senate Judiciary Committee Wednesday regarding the origins of the investigation of alleged collusion between the Trump campaign and Russia in the 2016 presidential election.
Republicans will blame Rosenstein for Foreign Intelligence Surveillance Act (FISA) abuses and an aggressive investigation by Special Counsel Robert Mueller that yielded nothing of substance concerning President Trump or his campaign.
Democrats will attack Rosenstein for his role in concluding that President Trump did not commit obstruction of justice and ending their dream of an indictment.
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Neither of these two views captures the complex reality of Rosenstein’s tenure. In reality, Rosenstein’s decisions helped preserve the integrity of the Justice Department while protecting President Trump from FBI leadership gone rogue and Democrats hell-bent on removing the president from office.
Upon Rosenstein’s confirmation in April 2017, the Justice Department was at the center of a storm unprecedented in its history. Since Attorney General Jeff Sessions recused himself the previous month from the Russia collusion investigation, upon confirmation Rosenstein became acting attorney general for a federal investigation that received enormous news coverage.
At that point, the investigation itself was being conducted by the FBI under the leadership of Director James Comey, who repeatedly kept Obama administration Attorney General Loretta Lynch and Acting Attorney General Sally Yates in the dark about his machinations.
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To make matters worse, the Justice Department was largely devoid of political appointees in the early days of the Trump administration. Interviews with potential new U.S. attorneys had not begun and the assistant attorney general for the National Security Division was a year away from confirmation.
This latter point is key. The lack of a Senate-confirmed assistant attorney general for the National Security Division meant that Rosenstein was approving FISA applications in addition to his job of managing the Justice Department.
As does everyone in senior management positions, Rosenstein relied on supposedly competent and trustworthy people to brief him – and that is likely one of the reasons why he agreed to approve the extension of the FISA warrant on Trump campaign foreign policy adviser Carter Page.
It didn’t take Rosenstein long to learn that Comey’s insubordinate behavior would not be limited to Lynch and Yates. When Comey testified in front of the Senate Judiciary Committee on May 3, 2017, senior staff at the Justice Department were floored by his unwillingness to admit that his decisions in 2016 were misguided.
The next week Comey was fired, and Rosenstein’s views were clearly laid out in a memo to Attorney General Sessions.
Things did not improve with Acting FBI Director Andrew McCabe. Following the termination of Comey, McCabe opened an investigation into Trump without Rosenstein’s input. In fact, it appeared that McCabe and others at the FBI were of the opinion that Rosenstein was complicit in obstruction of justice.
With the Russia investigation now spiraling out of control, Rosenstein had to make a decision. He could shut down an investigation that, at that point, he had no basis to think might not be fully on the level. Had he done that, when Democrats took control of the House in 2018 they would have had all the ammunition to cook up the kind of impeachment that would actually have had a chance for bipartisan support and possible removal of the president.
Another option was to let McCabe and friends use the power of the FBI to get a president removed. That was a non-starter.
The third option would have been to assign a U.S. attorney to supervise the investigation, but with no Trump-nominated U.S. attorneys on board, Rosenstein clearly wasn’t comfortable with this option, nor should he have been.
Therefore, Rosenstein appointed Robert Mueller as special counsel to take over the investigation, which was completed far quicker than other high-profile independent investigations. This was probably Rosenstein’s best option, yet it was obviously not without its own problems.
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As we learned later, Peter Strzok, Lisa Page, and Andrew Weissman should not have been on the Mueller team. Aggressive tactics to flip the likes of National Security Adviser Michael Flynn and Trump campaign foreign policy adviser George Papadopoulos – though standard fare for prosecutors in all manner of cases – upended lives to investigate a president who turned out to be innocent.
And of course, President Trump had to deal with close to two years of leaks, fake news and Democrats salivating for his removal.
Rosenstein’s legacy is far more complex than what his detractors will claim. His motivation was to preserve the integrity of the Justice Department, part of which included protecting the president by taking the investigation out of the hands of a severely compromised Andrew McCabe.
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This also had the effect of House Democrats putting all their faith in the Mueller investigation, which completely backfired and ended their drive to remove President Trump from office over their collusion fantasies. While Trump was impeached by the House, he was acquitted in his trial in the Senate.
Faced with limited options and the world watching, Rosenstein made the best decisions he could. Those decisions may not have made Republicans or Democrats happy, but that was never his job.
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