Trump’s Demands Escalate Pressure on Rosenstein to Preserve Justice Department's Independence
Posted May 21, 2018 11:00 p.m. EDT
WASHINGTON — As President Donald Trump and his allies repeatedly take aim at the Justice Department investigation into his campaign’s possible links to Russia’s election meddling, Rod J. Rosenstein, the deputy attorney general overseeing the inquiry, has mostly evaded the attacks through inventive maneuvers.
To protect the inquiry, Rosenstein has agreed to meet increasingly onerous demands from Trump and his allies on Capitol Hill. But legal scholars and former law enforcement officials fear that the measures Rosenstein has resorted to could weaken the Justice Department’s historic independence, allowing the department to be used as a cudgel to attack the president’s political enemies.
That dilemma intensified on Sunday when Trump demanded that the department investigate the FBI, infuriated by reports that a government informant had met with officials from his campaign in the early weeks of the investigation. Trump’s request violated decades of established Justice Department independence from presidential intervention into what it investigates, and it targeted one of the law enforcement officials’ most sensitive secrets: the identity of a source. Nonetheless, Rosenstein responded by asking the department’s inspector general to examine the president’s allegations.
Rosenstein’s supporters said his response was a deft deflection that achieved three immediate needs: It neutered a troubling request, appeared responsive to the president’s demands and allowed Rosenstein to keep his job. But, some cautioned, his short-term strategy could have longer-term costs for the Justice Department’s independence from the White House, which was established to prevent political meddling after Watergate.
“Ideally, the Justice Department would not respond,” said Robert Litt, a former Justice Department official. “But under the current circumstances and the place this president is coming from, they can’t do that.”
The department’s inspector general, Michael E. Horowitz, will look into whether the FBI acted inappropriately in investigating the campaign as part of an existing review into the department’s decision to put Carter Page, a former Trump campaign adviser with links to Russia, under surveillance. The White House announced the new aspect of the review after a meeting on Monday between the president and top law enforcement and intelligence officials, including Rosenstein; Christopher A. Wray, the FBI director; and Dan Coats, the director of national intelligence.
The officials agreed that John F. Kelly, the White House chief of staff and a supporter of Rosenstein, will set up a meeting between the officials and congressional Republicans “to review highly classified and other information they have requested.”
Trump has made public demands of the Justice Department in the past, but until Sunday his allies in Congress had made the strongest demands of Rosenstein. They have pushed him to act in ways that could compromise some of the department’s most sensitive investigations, demanding access to more documents and other information and threatening to hold him in contempt or impeach him.
The lawmakers say they are exercising their oversight powers to investigate allegations that law enforcement officials are abusing their authority. Democrats say the Republicans are simply trying to undermine the special counsel investigation. Rosenstein has responded by agreeing to most of those demands and pledging to be more responsive to requests.
“A lot of people feel that the department has gone too far in terms of turning over vast amounts of investigative files,” Litt said.
Supporters said that Rosenstein’s decisions to refer demands for investigations of the Russia inquiry to the inspector general were astute moves that prevented criminal investigations of the department’s own investigators. Opening such an investigation could create a fear within the department that if FBI agents act on valid intelligence they could someday be investigated for being at odds with the White House, they said.
“Rosenstein is in the very tricky position of supervising and protecting the integrity of an investigation of the president’s associates even though the president, his boss, possesses lots of constitutional power to control investigations and is trying to wreck this one,” said Jack Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “In this situation, it’s appropriate to refer the president’s concern to the Justice Department’s nonpartisan inspector general, who is already investigating related matters.”
Trump’s demands prompted a new test for Rosenstein — whether he shares the name of the FBI informant. “The Justice Department must go to the mat to protect the identity of an FBI informant,” Goldsmith said. “Informants are the lifeblood of many investigations. To be able to attract informants, the FBI must never give these names out.”
Rep. Devin Nunes, R-Calif., the chairman of the House Intelligence Committee, has subpoenaed the department for all documents referring to or related to the source, prompting the latest battle between Rosenstein and Trump’s allies on Capitol Hill. They have asked the president to direct Rosenstein to reveal the name.
If the president or his aides direct Rosenstein to reveal the name to congressional leaders, Litt predicted, Rosenstein would be forced to comply or to resign. A Justice Department spokeswoman would not comment on the situation.