A local D.C. news outlet has tweeted that “Deputy Attorney General Rod Rosenstein is expected to leave his role in the coming weeks.” There’s nothing surprising about this report, which is consistent with what I’ve been hearing for some time. With any luck, a new Attorney General will soon be in place. He will want and deserve a new Deputy.
What’s surprises me is that Rosenstein lasted as long as he did — longer than his former boss Jeff Sessions and longer than any number of capable and effective officials throughout the administration.
Rosenstein should have been fired for naming a special counsel to investigate alleged Russian collusion with the Trump campaign. There was nothing about the matter that made it beyond the capability of the Justice Department to handle.
Rosenstein should have been fired for granting the special counsel, in essence, free rein to investigate whatever tickles his fancy and the fancy of his team of anti-Trump partisans. No president should have to operate under the shadow of aggressive lawyers, with virtually unlimited resources, examining not just his every move as president, but also his pre-presidency dealings and those of his family and his associates.
Rosenstein should have been fired for failing to recuse himself from overseeing the Mueller investigation. He had direct involvement in the decision to fire James Comey, which is a subject of the investigation. He recommended the discharge.
Rosenstein arguably should have been fired for failure to cooperate with Congress in its investigations into questionable practices by the Justice Department. Congressional Republicans accused him of serial lack of responsiveness to requests for information. If this charge has merit, Rosenstein should have been fired for that reason too.
Why did Rosenstein survive for two years? Maybe because Trump (and/or his legal team) feared that the special counsel would view the firing of Rosenstein as obstruction of justice. But Team Mueller already has Comey as a test case for the theory that firing an executive branch employee can constitute obstruction, and Comey makes a better poster child because Trump apparently asked him to go easy on Michael Flynn. If, somehow, the legal theory is valid, Trump is already in trouble. If it isn’t, Trump need not have worried about legal jeopardy for firing Rosenstein.
Rosenstein might have survived because Trump trusted him more than he trusted Jeff Sessions and because the number three position at the Justice Department has long been vacant. If Trump preferred Rosenstein to Sessions, that was a serious lapse of judgment.
Sessions was a Trump supporter and a Trump loyalist. Rosenstein is neither. It’s true that Sessions refused to violate his ethical duty to recuse himself from an investigation in which his conduct would be at issue. But this decision only injured Trump because Rosenstein appointed a special counsel and gave him, in essence, carte blanche.
In any event, nothing prevented Trump from sacking both Sessions and Rosenstein and appointing an acting attorney general to run the show. Instead, he tolerated two years of fecklessness and poor judgment from Rosenstein.
Mercifully, we need only tolerate a few more weeks of it.