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Editorial: Rod Rosenstein comes to his own defense, and it's convincing (almost)

The Baltimore Sun Editorial Board, The Baltimore Sun on

Published in Op Eds

The last time Rod Rosenstein spoke to the Greater Baltimore Committee, the influential business group in the city where he'd spent the last several years as a U.S. attorney, the audience was mildly surprised that he showed up, more so that he spoke and somewhat astonished that he said anything of substance. It was two years ago, and he was at the center of a national political firestorm for having just authored the memo the Trump administration used to justify the firing of then-FBI Director James Comey. That document was predicated on actions Mr. Comey took that hurt the presidential campaign of President Donald Trump's rival, Hillary Clinton, but pointedly failed to mention the gathering probe into Russian interference in the 2016 election and the question of whether the Trump campaign was in on it. Adding a frisson of irony to the situation was the fact that he was due at the GBC to accept its award for courage in public service.

He was back again Monday night, again at the center of a national firestorm, this time over what he did or did not do in the aftermath of the special counsel investigation into Russian interference that he authorized and oversaw. He again made a few jokes, for example about how he told his daughter upon taking the No. 2 post in the Justice Department that she shouldn't expect to be seeing his face in the newspapers. But his first extended public remarks about the Mueller probe after his resignation as deputy attorney general had a much more serious purpose: to defend the integrity of the career prosecutors and law enforcement officials in the Justice Department -- including his. It was convincing, but only up to a point.

Members of the GBC and Baltimoreans generally had a good impression of Mr. Rosenstein at baseline before he joined the Trump administration. He is a Republican who worked closely with the overwhelmingly Democratic powers-that-be in Maryland during a span that covered the end of the George W. Bush administration and all of Barack Obama's. He played it straight, doing his job well and with integrity. What he was doing accepting a job that seemed bound to put him in compromising positions was beyond us.

It was at the first of those compromising junctures that Mr. Rosenstein addressed the GBC two years ago, and he spent much of his address Monday night fleshing out what he was thinking at that moment. He lamented Mr. Comey's current incarnation as a quasi-political pundit on cable TV (and marveled at Mr. Comey's public fretting over the fate of Mr. Rosenstein's immortal soul), but he offered up a reasonably dispassionate evaluation of the former FBI director's actions before he was fired. Mr. Comey's public press conference to announce his views on Ms. Clinton's conduct with regard to her use of email as secretary of state was, in fact, an astonishing breach of DOJ protocols, and we believe Mr. Rosenstein when he says he was deeply troubled by it, irrespective of which side it helped or hurt in the election.

We speculated at the time that Mr. Rosenstein must have understood that there was another side to the story, that there should have been a second half of the Comey memo outlining the very good reasons not to fire an FBI director in the early stages of a criminal investigation that touched on the president's inner circle if not the president himself. On Monday, Mr. Rosenstein suggested that was the case, noting that left to his own devices he would have offered up an analysis of the cons as well as the pros for firing. But, he said, he wrote it after the president told him the decision had already been made. He said he did, however, refuse to include a line the president wanted about Mr. Comey having assured him that he was not a target of the investigation, on the grounds that he did not have personal knowledge of it and that it was irrelevant anyway.

That explanation is illustrative of how Mr. Rosenstein justifies his actions and of what critics on both sides find infuriating about them.

On Monday, Mr. Rosenstein reiterated his view that the mission of federal prosecutors -- and their actual practice -- is to follow the facts without partiality or prejudice. Consequently, he said he is not a fan of special counsels, believing that it is typically not necessary to create an authority independent of professional DOJ officials who are by nature independent. People who are seeking to interpret law enforcement decisions through a political lens are simply applying the wrong frame to the situation, he said. We believe that the views he expressed in the Comey memo were not born of partisanship, that he did not appoint Robert S. Mueller III as special counsel for partisan reasons, and that he did not supervise the investigation in a partisan way.

But what Mr. Rosenstein fails to recognize (or at least admit to) is the extent to which his integrity has been used as a partisan tool by those who lack it. Just as Mr. Trump used Mr. Rosenstein's Comey memo to whitewash his true motivation for firing the FBI director -- a desire to get rid of the Russia probe -- the Trump administration would, two years later, take advantage of his unblinking presence behind Attorney General William Barr to convey credibility to what turned out to be a deeply misleading summary of the Mueller report. He may find politics and law enforcement incompatible, but for the last two years, he worked for people who consider them inseparable.

 

Was there a more honorable alternative for Mr. Rosenstein? We suppose he could have quit when, just days into the job, Mr. Trump asked for the memo to justify the Comey firing, or he could have insisted on authoring a memo that told both sides of the story and be fired himself. Would we be better off if that happened? Probably not. Mr. Rosenstein made the right decision in appointing a special counsel, in selecting Mr. Mueller for the job and in avoiding interference in the investigation. Subsequent experience shows that entrusting power to someone who puts country and integrity over blind loyalty to the president is a vanishingly rare phenomenon in the Trump administration. Without him in that job during the last two years, things would almost certainly have been worse.

But he's not there anymore. He is no longer fighting the good fight on the inside, if that is indeed how he saw his role. We understand his distaste for how outspoken Mr. Comey has become as a critic of the Trump administration, and we don't expect him to do anything of the sort. But if he is capable of calling out the former FBI director for mixing politics and the law, he should certainly be capable of saying whether he believes his former bosses in Washington -- those who, unlike Mr. Comey, are still in power -- are doing the same thing. There are times when integrity demands condemnation of those who lack it.

Yet Mr. Rosenstein's speech Monday glossed over nearly everything that has happened since he decided to appoint a special counsel. There's a lot more to Mr. Rosenstein's story, and we hope we won't have to wait for the GBC dinner two years from now to hear it.

(c)2019 The Baltimore Sun

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