More than any federal agency or department I’ve worked for, with, or against, the Justice Department resembles a cult. Its employees think they are special. They feel intense hostility towards the Department’s adversaries. They are fiercely loyal to the Department and compulsively committed to its ways of doing things. Outsiders are viewed with condescension and suspicion, if not contempt.
Obviously, many DOJ employees do not buy fully into the cult, but many do. Those who rise to the top tend to embrace it the most.
This brings us to Rod Rosenstein, a career DOJ attorney who joined the department in 1990. Rosenstein is admirable in some ways. He’s had an exemplary career with the Justice Department. Andy McCarthy writes:
I do not know the deputy attorney general personally, but people I do know and trust regard him as a scrupulous person and professional. That’s good enough for me.
Same here. I’ve heard very good things about Rosenstein from people I know well and trust. I assume they are true.
So what are we to make of Rosenstein’s conduct in the dueling Trump-related investigations? As McCarthy point out, the deputy AG clings to his role as overseer of the Mueller investigation despite being a key witness to events encompassed by it, most notably the firing of James Comey. He slow walks the production of documents to Congress and, apparently, has threatened to use the DOJ’s investigative powers against congressmen seeking to obtain the documents.
McCarthy attributes the slow walking and the threats against congressman to Rosenstein’s conflict of interest arising from his dual role as an actor in events under investigation and the ultimate supervisor of the investigation.
Rosenstein certainly labors under a conflict of interest, and it’s plausible to believe that this is affecting his judgment. But why, in the first place, has Rosenstein elected to serve in a role that puts him in a conflict of interest?
I think it’s because of his intense and excessive loyalty to the cult — to the Department of Justice.
Rosenstein wants to oversee the Mueller investigation because he doesn’t want an outsider or someone with less attachment to the DOJ to interfere with Mueller’s work. Mueller spent decades in the Justice Department and was a mentor to Rosenstein. He’s a venerated figure in the cult.
Rosenstein doesn’t want documents produced that will embarrass the DOJ. He’s playing bulldog, the way an aggressive lawyer in private practice would behave in response to a document request. He’s treating Congress as an adversary — as a threat to the cult.
Loyalty to an agency or department one works for is an admirable quality up to a point. When one becomes a leader of the department, appointed by the president, the equation changes some, or should.
We should still want agency heads to have some loyalty to the agency. Otherwise, morale will dip and the agency may become a punching bag.
But the loyalty of a cabinet member (or a deputy who assumes the role of cabinet member for some purposes, as Rosenstein has done) should not be primarily to the agency. Mike Pompeo’s main loyalty should not be to the State Department, qua department. It should be to the interests of the U.S. and the policies the president has decided best advance them. Scott Pruitt’s main loyalty should not be to the EPA, qua agency. It should be to enforcing the environmental laws of the U.S. as written by Congress.
Rosenstein’s primary loyalty should not be to the Department of Justice, qua institution. It should be to justice and to the law. These interests are not served by laboring under a conflict of interest, by resisting lawful subpoenas issued by Congress, and by threatening members of Congress.