The Principle of Professional Law Enforcement Is Now on the Line
If the president can, with impunity, remove the deputy attorney general, the very notion that law enforcement has a higher function than serving power becomes a lie.
Expect President Trump to fire Deputy Attorney General Rod Rosenstein in the next few days. Maybe he won’t do it. Maybe he’ll change his mind. But Trump is apparently livid at Rosenstein and both The Washington Post and CNN have reported that he is actively contemplating Rosenstein’s removal. Trump urged people on Twitter last night to watch Sean Hannity, who in turn invited on his show a guest who egged the president on in firing his deputy attorney general. The air in Washington right now is thick with Rosenstein’s imminent removal.
Many people will not shed tears over Rosenstein if Trump, in fact, pulls the trigger. After all, Rosenstein played a shameful role in the firing of James Comey. He’s tried to keep a lot of masters happy in his year in office, and one risk of serving multiple masters is that none of them emerges fully satisfied. You risk ending up looking like a weasel.
I understand the instinct to treat a Rosenstein firing as different from a Mueller firing. I have been fiercely critical of Rosenstein in the past. But today is the wrong day to dwell on Rosenstein’s vices and errors—because those vices are not the reasons Trump is persecuting Rosenstein. Instead, Trump is persecuting Rosenstein because of the deputy attorney general’s virtues.
And it is because of those virtues that defending Rosenstein is now a critical imperative for everyone who is concerned about the Trump administration’s erosions of the independence of law enforcement. His removal, if the president can effectuate it with impunity, would shatter long-standing expectations of what federal law enforcement is, what it isn’t, and how presidents can and cannot properly use it.
Trump is livid because Rosenstein has supervised two separate investigations that involve both Trump himself and those close to him, now including Trump’s personal lawyer Michael Cohen—and because Rosenstein has not loosed the Justice Department and the FBI on Hillary Clinton and other political foes of the president. In other words, the president wants to fire Rosenstein because apolitical law enforcement is stronger with him than without him, and the president is at war with the very notion of apolitical law enforcement.
You don’t need to take my word on this point. Trump himself says it all the time—and loudly. He announces at every turn that he thinks the attorney general’s job is to protect him from the Russia probe and that he wants law enforcement to focus on Clinton. Rosenstein is only on Trump’s radar screen at all because the investigation of potential ties between associates of the Trump campaign and Russia required the attorney general’s recusal, a matter about which Trump also serially complains. The president’s attitude toward federal law enforcement is not just corrupt. It is openly and flamboyantly corrupt. He wants the FBI and the Justice Department to be at his beck and call. He wants them to be expressions of his power and interests.
That is a notion of federal law enforcement that this country turned decisively away from over a long period of time. The notion of law enforcement as professional, not political, began developing as an aspiration and an ethos even while in practice the FBI was the personal fiefdom of J. Edgar Hoover. The modern norms of apolitical conduct and independence on investigative matters, which crystallized in the reforms that followed Watergate and the civil-rights era abuses, reflect not merely the shock of those abuses but decades of learned experience about law enforcement professionalism and how to do investigations well under a rule of law system. The question Trump is posing is whether we want to go back to a more primitive vision of the relationship between the president and the civilians with the power to lock people up.
In the face of these expectations on the part of Trump, Rosenstein—after his catastrophic participation in the Comey firing—first began to assert his independence when he appointed Robert Mueller as special counsel. In the months since then, he has assiduously protected Mueller both from Trump and from congressional pressures. He has courted the enmity of the Trumpist wing of the congressional Republican delegation by making clear, repeatedly, that Mueller is not a rogue actor but is instead working under his supervision and keeping him informed. Back in December, he testified that “I know what (Mueller is) doing. I’m appropriately exercising my oversight responsibilities. So I can assure you that the special counsel is conducting himself consistently with our understanding about the scope of his investigation.” He has made clear that he will not remove Mueller absent good cause to do so and that he has seen no evidence of good cause.
More recently, he also supervised the assignment of the Michael Cohen matter to the U.S. Attorney’s Office for the Southern District of New York. According to The New York Times, Rosenstein personally authorized the raid that followed. I have seen no signs that he has overseen either investigation in anything other than a professional fashion.
Rosenstein has, in short, allowed federal law enforcement to do its job. He has done so knowing that it would enrage the president. He has done so in the face of mounting pressure, both from Trump himself and from Congress, to back down. This is the reason the president wants his scalp.
What would the consequences be of Trump’s dismissing Rosenstein for these reasons and getting away with it? In the immediate term, it would mean the installation of someone else above Mueller and above the prosecutors in New York. That person would come in knowing that his or her predecessor had been axed for behaving honorably. That person would also arrive, at least in the first instance, in an acting capacity without having been confirmed by the Senate. That person might act, as Rosenstein has done, to protect the investigations and their integrity. But he or she might also come in with a mission to tame the investigations, to give the president what he so clearly wants. And that person will certainly come in with a clear incentive to lean in that direction.
More broadly, Rosenstein’s forcible removal at this stage would be another step in the president’s open attempts to dismantle the apparatus of independent law enforcement. It would be a bold statement of presidential control over the substance of law-enforcement investigations—a statement that the purpose of the FBI and the Justice Department is nothing more elevated than an expression of raw political power. The notion of independent law enforcement is an attempt to prevent the coercive powers of the state from being deployed as the playthings of those in power—to advantage and protect friends (and themselves) and to punish enemies. If the president can, with impunity, remove the deputy attorney general because he refuses to go after Clinton on the basis of the manufactured nonsense that litters Fox News and because he insists on allowing serious investigators to do serious work on serious criminal matters involving the president and his coterie, the very notion that law enforcement has a higher function than serving power becomes a lie.
As Donald Rumsfeld might say, you defend democratic institutions with the deputy attorney general you have, not the deputy attorney general you wish you had. I certainly wish we had a different deputy attorney general. But there is much to admire about Rosenstein’s conduct over the past year. If Americans value the democratic goods that his conduct has protected, indeed is protecting, they need to stand by the man himself.