Why Did Rosenstein Agree To Take Part in the Comey Farce?

Deputy U.S. Attorney General Rod Rosenstein at the Senate Judiciary Committee for testimony March 7, 2017 in Washington, DC. Marty Lederman writes that Rosenstein should have refused to be part of this transparent farce, and his reputation is deservedly taking a beating today for his apparent failure to see how he was being used. McNamee/Getty

This article first appeared on the Just Security site.

With his letter to James Comey today, President Donald Trump attached the "letters" he received from Attorney General Sessions and Deputy Attorney General Rod Rosenstein.

The President characterized those documents as "recommending [Comey's] dismissal" as FBI Director.

Here's an odd little fact, however, about the Rosenstein "letter" (which is not in fact a letter–it's a memorandum to the AG): The Deputy Attorney General carefully avoids actually recommending that the President remove Comey.

To be sure, Rosenstein is unequivocal in writing that:

— he thinks Comey's many actions in the Clinton e-mail case were indefensible and deeply harmful to the Bureau and to DOJ (and he's right about that, in every detail);

— he thinks Comey's refusal to accept that almost-universal judgment about his conduct is inexplicable (right again);

— the Bureau's reputation and credibility have suffered substantial damage (yes, again);

— the Department and Bureau should "reject" Comey's "departure" from DOJ/FBI norms and "return to the[ir] traditions" (just so);

— the FBI "is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them" (yup); and

— that Comey has demonstrated that he can't be expected "to implement the necessary corrective actions" (undoubtedly true).

And then . . . the memorandum ends abruptly, without any recommendation about what the President ought to do. Indeed, the only mention of the question comes at the outset of the final paragraph, where Rosenstein writes only–and cryptically–that "although the President has the power to remove an FBI Director, the decision should not be taken lightly."

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It would be foolhardy, of course, to read too much into this omission, even though it is very odd and conspicuous. Perhaps Rosenstein simply forgot to add the final, "action" sentence. Or perhaps he did not think it was his place–as opposed to Sessions's–to be recommending a course of action for the President to take.

Or perhaps Rosenstein, for some reason, actually offered the President advice on the removal question orally, rather than in his memorandum to the AG. (Or perhaps Rosenstein knew that President Trump had already made the decision to fire Comey, and thought it would have been disingenuous to make a "recommendation" about a decision that had already been made.)

Or perhaps, just perhaps . . . Rosenstein meant to convey the message that although the fallout from Comey's egregious mistakes cannot possibly be remedied, and trust in the FBI cannot and will not be "restored," until it is headed by some other Director–and perhaps even that it would have been ideal if Comey had been removed under some other circumstances (say, by President Obama in November if Hillary Clinton had won the election)–that does not mean that this President should remove Jim Comey now.

And if that is, in fact, the (unstated) final message of Rosenstein's memorandum, well then, in that case everything about it would be 100 percent spot-on.

Some readers may assume my intent in writing this is to absolve Rosenstein of his responsibility in this tawdry affair. I apologize if I've left that impression, which is decidedly not what I mean to convey.

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Rosenstein should have refused to be part of this transparent farce, and his reputation is deservedly taking a beating today for his apparent failure to see how he was being used–so much so that it'll be very interesting to see whether and when he appoints a Special Counsel for the Russia investigation.

My point, instead, is simply to suggest that even Ron Rosenstein did not necessarily think–and, contrary to what the President said, did not recommend–that Trump should fire Comey, even though Rosenstein obviously believes every strong (and correct) word that he wrote in his memorandum.

Marty Lederman is a professor at the Georgetown University Law Center.