In his recent testimony to Congress, Deputy Attorney General Rod Rosenstein undoubtedly intended to sound reassuring. “I am quite confident,” he proclaimed, “about my conduct throughout this investigation.”
Rosenstein may have reason to feel confident. He’s in a difficult position and his conduct may indeed be above board. And, under normal circumstances, Congress and the public might be comforted by his guarantee.
But that’s the rub: These circumstances are far from normal.
We’re in the midst of one of the most important scandals in memory: Our intel agencies and some public officials within them are suspected of abusing power and misusing sensitive tools under their control as political weapons. The allegations reach far beyond the 2016 campaign and transcend party politics, which makes them all the more insidious in nature.
Combine that with the probes into Trump-Russia “collusion” and Hillary Clinton’s classified email practices, and the result may well be the most tangled web of overlapping investigations and competing conflicts of interest we’ve ever seen.
In this context, it seems unreasonable to be expected to uncritically accept assurances from Rosenstein or other figures and federal agencies — such as the CIA, the FBI and the Department of Justice (DOJ) — whose behavior is under the microscope. Yet, they currently control much of the evidence at issue and are making crucial determinations about everything from what to turn over to Congress and what to withhold or redact, the propriety of wiretaps and other surveillance, possible prosecutions, whether they should recuse themselves for conflicts of interest, to appointment(s) of special counsel(s) who could investigate their conduct.
For his part, Rosenstein has several potential conflicts of interest - at least in perception. And in the realm of legal ethics, perception counts.
Rosenstein recommended that President Trump fire FBI Director James Comey — then handpicked Robert Mueller to investigate why Trump fired Comey. It’s akin to you or I being allowed to hire the guy who’s going judge our own actions. Not only that, Rosenstein’s pick — Mueller — is a longtime colleague of Comey’s, whose own behavior was found to be “extraordinary and insubordinate,” according to the recent DOJ’s inspector general report.
Rosenstein reviewed and signed off on controversial wiretaps of Trump associate Carter Page, who was never charged with a crime despite being tracked under four FBI wiretap approvals.
The wiretaps Rosenstein signed had relied, in part, on anti-Trump political opposition research known as the “Steele dossier.” The FBI reportedly had not strictly verified the research as required under the FBI’s Woods Procedures. If that’s the case, Rosenstein (or those who work under him) could be implicated in possible violations of those procedures.
Rosenstein is in the position to decide whether to pursue criminal charges against the man who provided the anti-Trump “oppo” research used for the wiretaps that Rosenstein approved: Christopher Steele. But implicating Steele — an FBI source — could call into question the actions of Rosenstein himself and his colleagues. Rosenstein has taken no public action on a criminal referral against Steele sent to him almost six months ago by Sens. Chuck Grassley (R-Iowa) and Lindsey Graham (R-S.C.).
Under Rosenstein, the Department of Justice and FBI have withheld and improperly redacted information Congress requested. One key withheld text exchange was dated Aug. 9, 2016. It was between the FBI’s former top counterespionage official, Peter Strzok, and his reported mistress, FBI attorney Lisa Page. “[Trump’s] not ever going to become president, right? Right?!” Page wrote to Strzok. “No. No he’s not. We’ll stop it.” Strzok answered. After the texts and other possible misconduct were known internally, both Strzok and Page were allowed to remain on the job.
All that — and yet, the clear message delivered at last week’s hearing was: We’re not to worry. Material isn’t being provided to Congress? We’re told nobody’s hiding anything, it’s just that it’s part of “an ongoing investigation.” We’re to trust, without the ability to independently verify, that blacked-out passages in emails and other evidence are legitimately withheld — although the ones making those decisions are the feds themselves who are potentially under investigation. As for previous improper redactions? We’re told we’re paranoid or conspiratorial if we’re dubious about the next batch. When we ask who was responsible for the improper redactions in the first place, the question is diverted. We can assume the same people are still on the job — but that would be conspiratorial.
And most of all, even in the face of the DOJ’s inspector general faulting dozens of top officials, lawyers and ethics officials at the FBI and Justice Department, we’re to believe that any who are still there (and their friends) will do the right thing, even if it comes down to exposing their own misconduct.
Lastly, during his testimony, Rosenstein assured Congress that he would certainly discuss with Mueller if there were any conflicts of interest.
Don’t worry. He’ll take care of it.