The three people involved in effecting the termination of FBI director James Comey last week were President Donald Trump and the two highest officers in the Justice Department, Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. The Constitution vests in Trump the executive power, which he employs in fulfilling his constitutional obligation to take care that the laws are faithfully executed. He works through subordinates in exercising his power, and only he may fire them.
Thus did Trump, in a brief letter to Comey, fire the director: “you are hereby terminated and removed from office.” Trump told Comey he was taking that action after receiving letters “recommending your dismissal” from Sessions and Rosenstein.
In his letter to Trump—one paragraph long—Sessions said that “a fresh start is needed at the leadership of the FBI,” and he endorsed Comey’s removal “for the reasons expressed by the Deputy Attorney General in the attached memorandum.” “It is essential,” he added, “that this Department of Justice clearly reaffirm its commitment to longstanding principles that ensure the integrity and fairness of federal investigations and prosecutions.”
This brings us to the third person in the trio, and by far the least known: Rod Rosenstein, author of what Trump called a letter and Sessions a memorandum. This memorandum (Rosenstein’s choice of words) was three pages long and had to be, since it dealt in detail with Comey’s “handling of the conclusion of the investigation of Secretary Clinton’s emails,” in which the director said the case should be closed without prosecution. Rosenstein had four things to say about the matter.
First, in Comey’s press conference last July 5, “the Director was wrong to usurp the Attorney General’s authority . . . and announce his conclusion” about the case. Rosenstein explained that it’s not the function of the director to make such an announcement. Justice may do that, but the FBI may not. “At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors.”
Second, Comey “compound[ed]” that error “by ignoring another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.” Such information is sometimes disclosed in the course of criminal investigations and prosecutions, “but we never release it gratuitously.” Noting that during the press conference, Comey effectively made a closing argument, but without a trial, Rosenstein called it “a textbook example of what federal prosecutors and agents are taught not to do.”
Third, at a congressional hearing, the director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” Rosenstein took issue with this kind of thinking. The “goal of a federal criminal investigation is not to announce our thoughts at a press conference” but to determine whether there is sufficient evidence to justify a prosecution. If that conclusion is reached, a prosecutor who exercises authority delegated by the attorney general may make a prosecutorial decision and, if prosecution is warranted, “let the judge and jury determine the facts.”
Also of concern to Rosenstein was Comey’s October 28, 2016, letter to Congress, in which the director cast his decision “as a choice between whether he would speak about the FBI’s decision to investigate the newly-discovered email messages or ‘conceal’ it.” Observed Rosenstein, “ ’Conceal’ is a loaded term that misstates the issue. When federal agents and prosecutors quietly open a criminal investigation, we are not concealing anything; we are simply following the longstanding policy that we refrain from publicizing public information. In that context, silence is not concealment.”
Trump, of course, is not a lawyer. Sessions is, and was both a U.S. attorney in Alabama and the state’s attorney general. It is Rosenstein, however, who has had truly long experience in the law, most all of it in the Justice Department.
A graduate of Penn and Harvard Law, Rosenstein, 52, worked in various capacities in the criminal division during the Clinton administration. He also served as prosecutorial co-counsel in the trial of three defendants in the Whitewater independent counsel investigation that ended in their convictions for fraud. During the Bush administration, he was in the department’s tax division, where among other things he coordinated enforcement activities of that division, the U.S. attorneys’ offices, and the Internal Revenue Service. Unanimously confirmed in 2005 as the U.S. attorney for the district of Maryland, Rosenstein served in that position until last month, when he became the deputy attorney general. He is regarded as a straight-shooter and nonpartisan.
Rosenstein is an institutionalist, meaning, in the context of the Justice Department, someone who defends the department’s traditions against dubious innovations and seeks their restoration when they are violated. Rosenstein’s institutionalism is evident in his memorandum. It concerns a subject—investigations and prosecutions—that is at the heart of the department’s and the bureau’s work, and thus of deep interest to institutionalists. And in his memorandum, as befits an institutionalist, Rosenstein makes clear that his views are thoroughly mainstream.
“My perspective” on Comey’s handling of the Clinton emails, he writes, “is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties.” Rosenstein quoted what a number of them have said on the matter. George W. Bush’s attorney general Michael Mukasey declared that Comey “stepped way outside his job in disclosing the recommendation” not to charge Hillary Clinton; the FBI director “doesn’t make that decision.” President Obama’s attorney general Eric Holder said that Comey “violated long-standing Justice Department policies and traditions,” and a deputy attorney general under George H. W. Bush, Donald Ayer, called Comey’s move a “departure from the Department’s widely-respected, non-partisan traditions.”
Rosenstein saw a choice that must be made: “We should reject the departure and return to the traditions.” He not only cannot defend Comey but seems almost personally disappointed by the director: “I do not understand his refusal to accept the nearly universal judgment that he was mistaken.”
In his letter to Comey, Trump wrote, “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.” Trump greatly appreciated that the director had repeatedly informed the president that he was not under investigation, though not enough to keep Comey on. The investigation not identified by Trump but dominating the news media involves Trump campaign contacts with Russia, an investigation that presumably does not focus on the president.
The officer in the Justice Department overseeing the investigation is not the attorney general, who has recused himself on account of several conversations with Russians he had in 2016—it’s Rod Rosenstein.
Terry Eastland is a contributing editor to The Weekly Standard.
