Rosenstein needs to apologize for his mistake.

Deputy Attorney General Rod Rosenstein of the United States Department of Justice was in town last night to receive an award from the Greater Baltimore Committee for courage in public service.  Maybe they voted on the award before Rosenstein’s courage in facing up to President Donald Trump was called into question.

Personally, I am a little tired of the excuses being made around the city for Mr. Rosenstein, popular here because he did a good job as the United States Attorney for the District of Maryland.  Rosenstein tried to play it cute when placed in a difficult ethical position by President Trump and Attorney General Sessions and he got burned.

Rosenstein heretofore had an impeccable reputation for integrity and it certainly is possible for him to repair the damage done to his reputation by the ill-advised role that he played in the firing of former FBI Director James Comey.  To rehabilitate his reputation, however, he is going to have to go before the Senate on Thursday to set the record straight and to apologize for his mistake.

Even an admirer of Rosenstein, Preet Bharara, the former United States Attorney for the Southern District of New York, wrote an opinion piece captioned “Are there still public servants who will say no to the president?” in which he described the memorandum that Rosenstein wrote critiquing Comey’s performance as a “peculiar press-release-style memo.” It is obvious on first reading of the memo that Rosenstein had undertaken to make the case against Comey as persuasive as possible.

Rather than reciting the facts and offering his own assessment as a professional would do in any objective performance evaluation Rosenstein embellished his memorandum by quoting public comments made by former Justice Department officials that were not necessarily free from political motivations.  Presumably the memorandum was intended to represent his opinion and not the opinions of other folks that the Attorney General and President could read in the newspaper.

Even Rosenstein’s later efforts to make sure that the public knew that his memorandum did not contain an explicit recommendation that Comey be fired ring hollow.  Judge for yourself from the concluding paragraph of his memo:

“Although the President has the power to remove an FBI director, the decision should not be taken lightly. I agree with the nearly unanimous opinions of former Department officials. The way the Director handled the conclusion of the email investigation was wrong. As a result, 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. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”  [Emphasis added.]

I’m sorry, I agree with President Trump on this one:  Rosenstein recommended that Comey be fired without saying it in so many words.  Again, Rosenstein was trying to be clever but ended up being clever by half; we may not be as bright as you, Mr. Rosenstein, but we’re not stupid, either.  You write a memo telling the President that the FBI director has irretrievably lost the trust of Congress and the public but claim that the memo did not constitute a recommendation that Comey be fired?  Technically true but far, far too cute for public consumption.

The Rosenstein memo also is noteworthy for what it did not include in the course of addressing the issue of whether Comey should be fired.  Particularly telling is the omission of any discussion of the impact of firing Comey on the FBI’s investigation into possible collusion between the Russians and Trump campaign officials.  Being apolitical does not mean being unaware of political context, particularly when that context includes a legal issue.

Rosenstein had to know that firing Comey at this point in time would result in the perception that the firing was intended to derail or at least discourage the FBI investigation, action that credible experts now are describing as an effort by Mr. Trump to obstruct justice.  This situation is chock full of ironies and one is that Rosenstein’s memo could cause for him that which, according to Rosenstein, doomed Comey:  An irretrievable loss of public and congressional trust.

Right after he wrote “Although the President has the power to remove an FBI director, the decision should not be taken lightly” Rosenstein could have added “. . . and the timing of the decision must be considered, particularly in light of the highly-sensitive investigation of Russian collusion in the United States election.”  The omission of such a critical consideration is particularly striking because, as a lawyer, Rosenstein knows the perils of omitting advice relevant to an issue upon which his advice has been sought, even if it is on an aspect of the issue that the client did not raise when seeking the advice.  A lawyer’s job includes pointing out pitfalls which the client may not recognize.

Did Rosenstein believe that, while it was important for the director of the FBI to retain public and congressional trust to do his job, it wasn’t important for Rosenstein to retain public and congressional trust to do his own?  As far as I am concerned, the memo gave half the story without stating that it was only half the story, and that makes its author disingenuous.

Listen, I fully agree with Rosenstein that Comey needlessly and foolishly interjected himself into a political campaign by making statements that should not have been made.  Those statements, however, were made over six months ago and he never should have recommended (explicitly or implicitly) firing an FBI director who otherwise did a good job and had the respect of his employees when it was going to appear that the firing was done to influence the outcome of one of the most important investigations that the FBI ever has undertaken in terms of the overall impact on this country.  It is not even a close call.

In this case we know with reasonable certainty that Rosenstein did not include any reference to the Russia investigation because President Trump did not want him to – Trump recoils at any mention of the investigation.  The administration’s Plan A was to use Rosenstein’s memo as the pretext for firing Comey because Mr. Trump recognized that the real reason – getting Comey off his back – would cause a political firestorm.

It also is significant that Rosenstein made no mention of the broad support that Comey enjoyed (and still enjoys) within the FBI.  If your concern is whether Comey could continue to lead the FBI in an effective manner wouldn’t it be relevant that Comey retained the confidence of the men and women who worked for him?  There was no objective weighing of the pros and cons of retaining Comey in Rosenstein’s memo.  It was a hatchet job pure and simple, and it was so by design.

Whether Rosenstein had second thoughts about the role he was given to play, or whether he never understood the full extent to which the White House would attribute personal responsibility for the firing to him, Rosenberg decided that he had to make it clear to the public that he was not the moving force behind Comey’s firing, and he put pressure on the White House to do so.  As a result of Rosenstein’s disclaimer the Trump administration had to go to Plan B (the truth) and admit that Mr. Trump intended to fire Comey all along and that Rosenstein’s memo was window dressing.

Regardless of what Rosenstein knew and when he knew it, here’s the thing:  Rosenstein never should have written that memorandum.  At the very least he knew that 1) it was going to play some role in Trump’s decision to fire Comey; and 2) it was not an objective and comprehensive treatment of the subject of whether Comey should be fired.

Moreover, the Deputy Attorney General of the United States is not one of the president’s press agents.  When he writes a memorandum of advice on an issue to his boss it has to reflect his own considered professional judgment on the issue, or clearly state otherwise.  When he was told to write a memorandum on one particular aspect of an issue but to omit any reference to other critically-important considerations he should have refused.  Period.  Instead, his knees buckled and he tried to play it cute, willing to write the script for the political theater about to take place on the assumption that his name would not appear on the screen credits.  Instead, he got top billing.

In another irony, in order to rehabilitate his reputation Rosenstein is going to have to do something for which he castigated Comey for failing to do:  Admit his mistake.  Rosenstein is going to have to express his regret at agreeing to prepare a brief for the president to use as grounds for firing Comey and to admit that it was a mistake to allow the Attorney General or President to dictate the contents of the memorandum.  I am not overly optimistic because that would be an enormously embarrassing admission for a veteran government attorney and because Rosenstein already has made it known through his actions that he is very conscious of which side of the bread the butter is on.

If he does not apologize for the memorandum, however, Rosenstein will find it hard to overcome lingering questions about his integrity.  There is one thing in his memorandum with which I agree wholeheartedly, and that is you cannot fully trust the judgment of someone who is unwilling to admit a mistake.

I want to make clear that I am saying that Rosenstein is a bad person or a bad Deputy Attorney General.  He did an excellent job as the United States Attorney for the District of Maryland without a hint of scandal; the consummate professional.  On the other hand, there is the idea that integrity is akin to physical courage and you can’t lay claim to courage until you find out how you act when the real bullets start flying over your head.

I am sure that Rosenstein had to withstand some political storms and pressures while United States Attorney and that he did so with aplomb.  I am equally sure that he has never faced anyone like Donald Trump and his sidekick, Jeff Sessions, in a situation in which his future in the Justice Department – and a possible future appointment to the federal court – was at stake.

It is my opinion that, when placed in that crucible, he wilted.  I hope that on Thursday he takes the steps necessary to recover the bit of integrity that he has lost and that his lapse was only temporary.  If he comes clean I disagree with his former colleague Mr. Bharara and believe that Rosenstein can credibly continue to supervise the investigation into Russian collusion.

It is not as if Rosenstein was the first governmental employee to fail in his duty to speak truth to power and say no to his superiors when that was required.  It is a problem that plagues government at all levels in this country.  In my opinion, it was at the core of a controversy for which my opinion was sought last year in Anne Arundel County and at the core of actions taken in Baltimore County that are the subject of an op ed that I wrote that was published today in the Baltimore Sun.

The current National Security Advisor, H.R. McMaster, wrote a book that every government employee expected to tell truth to power should read.  McMaster wrote Dereliction of Duty in 1997 while he was Major in the Army.  I don’t know any former military officer of his generation or younger, including me, who hasn’t read it.

I hope I am attributing this accurately (it’s been almost 20 years since I’ve read the book and I got rid of my copy when down-sizing our household last year) but I seem to recall a passage in which McMaster muses on how men who could exhibit such courage on the battlefield when young could become such careerists as they progressed through the ranks, unwilling to risk being passed over for promotion by speaking truth to power.  The book recounts the disastrous consequences in Vietnam of the failure by the military to provide the country’s civilian leadership with frank appraisals of the war effort.  Maybe Rosenstein has become just another careerist.

Perhaps there is a silver lining in the dark cloud that the Trump presidency has hung over this country.  Government at all levels will be better off if employees look at what is going on in Washington and renew their commitments to speak truth to power and say “no” when no is the right answer.  On the other side of the coin maybe managers will re-examine whether their expectations of personal loyalty are misguided and whether what governmental organizations really need from their employees is loyalty to the missions of the organizations – and to the laws that govern them.

May 16, 2017

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