In Defense of Rod Rosenstein

Without him, there would have been no Mueller investigation.
by Kim Wehle
May 7, 2019
Featured Image
Rod Rosenstein. (Photo by Chip Somodevilla/Getty Images)

As Deputy Attorney General Rod Rosenstein wraps up his last week at the Department of Justice—after decades of dedicated service—there’s some talk of a tarnished reputation following his “weak” response to Attorney General William Barr’s eleventh-hour takeover of the narrative in Special Counsel Robert Mueller’s 448-page report.

Rosenstein has also taken hits for his resignation letter, in which he thanked President Trump “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.’” 

This language stands in contrast to that of Defense Secretary James Mattis’s resignation letter, which quipped that Trump deserves “the right to have a Secretary of Defense whose views are better aligned with yours.” Translation: Mattis used the opportunity to make subtle jabs at this out-of-control president; Rosenstein did not.

Full disclosure: I worked with Rosenstein in the office of Independent Counsel Kenneth Starr, and our families have remained friends over the years. As a constitutional law professor and scholar, I’m troubled that Barr hijacked the Mueller probe’s takeaways by conflating the colloquial term “collusion” with the legal concept of “conspiracy,” and by reaching definitive conclusions about obstruction that are so highly lawyered that they’re hard to explain even to other lawyers.

In my view, it would have been far better for the rule of law if Barr had allowed the American public to read Mueller’s work for themselves, and if he had stood behind Mueller as the professional he is, thereby speaking with a single voice as the leader of DoJ.

But as I have said publicly a number of times over the past two years, I believe that Rosenstein will go down in history as an American hero. Nothing among the sordid events of the last few weeks has changed my mind.

Let’s review the record.

Within a week of joining the Trump administration, Rosenstein was tapped to write a letter justifying Trump’s termination of FBI director James Comey. In the letter, Rosenstein pointed to Comey’s mishandling of the investigation into Hillary Clinton’s emails, noting that “we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.” In pinging Comey, Rosenstein was defending both Clinton personally and the integrity of DoJ. (As we now know, Trump later effectively admitted that the Rosenstein letter was a front and that he fired Comey over the “Russia thing.”)

Rosenstein continued: “The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.” The same critique could be made of Barr’s public handling of the Mueller report. But by that point, Rosenstein answered to Barr.

Most important, Rosenstein made the utterly correct—yet politically explosive—decision to appoint Special Counsel Robert Mueller in the first place. He did not have to do this. It was a really big deal that he did. Moreover, he didn’t pick someone who was going to carry Trump’s water for him. He chose a person with impeccable integrity and a reputation for even-handedness. And someone with virtually unparalleled experience. This is not how Trump picks most of his underlings.

Without Rosenstein’s appointment of Mueller, either Rosenstein or his then-embattled boss, Attorney General Jeff Sessions, would have been left to lead an internal DoJ investigation of Russian interference—under Trump’s heavy thumb and mostly out of the public’s consciousness.

Worse, Trump could have hand-picked a replacement for Sessions who, rest assured, would not have produced anything even closely resembling the massive missive we now call the Mueller report. However one spins the story, the report contains pages and pages of facts detailing both Russian and presidential wrongdoing. The Mueller report will follow Donald J. Trump the man—and Donald J. Trump the president—forever. The public now knows what went on (assuming people take the important step of reading Mueller’s summaries, at the very least) and voters can make their own choices at the ballot booth in 2020. Without Rosenstein, we would all still be in the dark.

But there’s more.

Remember Republican calls in Congress for Rosenstein’s impeachment over his refusal to turn over details of an ongoing FBI investigation? Or Trump’s Twitter attacks on Rosenstein? Or Rosenstein’s reported talk within the administration of invoking the 25th Amendment to address concerns over Trump’s fitness for office? Or his continued oversight of the Mueller probe, despite Trump’s passing him over in favor of Matthew Whitaker as the replacement attorney general—and notwithstanding Rosenstein’s superior experience, Republican credentials, and Senate-confirmed status? Rosenstein hung on at DoJ throughout this tsunami of obstacles, allowing Mueller to ultimately finish his important work. That does not reek of weakness to me.

To be sure, I’ve said all along that it will take heroes within the federal government for the rule of law and a functioning separation of powers to survive the Trump era of chaos, incompetence, division, and dishonesty. We are in a precarious posture as a nation. The Constitution won’t save us.

But Rosenstein did his part. We should all be grateful for that much.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).