On display at the House Judiciary Committee hearing this week was the ham-handed, unsightly spectacle of Republican lawmakers trying to discredit the special prosecutor and the FBI in order to provide the president with a fig leaf, presumably one he’ll use at some point to fire Robert S. Mueller. As a Democratic adviser put it, we witnessed a “shameless and irresponsible ploy to cover for the president and cast doubt on Mr. Mueller.” The immediate tool was the text messages sent by one FBI agent, Peter Strzok, to another, Lisa Page, which Republicans used, as the source put it, to distract from “the direct threat that President Trump poses to the Department of Justice and our democratic institutions.”
In this Republicans had an enabler in the person of Deputy Attorney General Rod J. Rosenstein. Eli Lake reported:
Both Strzok, an FBI counter-intelligence agent, and Page, an FBI lawyer, were involved in the 2016 investigation into Hillary Clinton’s private email server, and were both briefly on Mueller’s team investigating Russia’s influence of the 2016 election. In the texts from 2015 and 2016, they complained about the Republican presidential nominee’s intelligence and demeanor (including in unprintable terms). In July, those private texts came to the attention of the Justice Department’s inspector general. The FBI reassigned Strzok to human resources, while Page left the special counsel’s probe.
The inspector general’s investigation is ongoing. Perhaps more evidence will emerge that the privately held opinions of two investigators contributed to then-FBI director James Comey’s decision in July 2016 not to charge Clinton with a crime. (That was when the Republicans said the FBI was pro-Clinton. Before Comey called the finality of that inquiry into question just days before the 2016 election and the Democrats said the FBI was anti-Clinton.) Until charges are pressed and evidence is considered, however, Page and Strzok are owed some due process.
But in this case, Rosenstein threw them under the bus, disclosing their private texts to Congress and the media. It’s rare to see such an aggressive act of betrayal by a political appointee on members of his own department, for the sole reason (apparently) to curry favor with the party of the president who appointed him.
Rosenstein, you will recall, has his own problems in all this. He cooked up the memo used to fire then-FBI Director James B. Comey on the spurious grounds that Comey treated Hillary Clinton unfairly (!) and had damaged morale at the FBI (blatantly untrue). The degree to which that makes Rosenstein complicit in a scheme to impair the Russia investigation will be a matter, ironically, for Mueller to unravel. But his performance here suggested a level of partisanship that has shocked former admirers and made it reasonable to assume he was acting in an overtly political way in the Comey firing.
Lawfare blog’s Ben Wittes, writes that Rosenstein’s behavior reflects very poorly on Rosenstein, calling into question his reputation as a straight-shooter:
My enthusiasm for Rosenstein these days is altogether under control. And his behavior in this episode, in particular, has hardly done him credit. The release of private correspondence between two Justice Department employees whose correspondence is the subject of an active inspector general investigation is not just wrong. It is cruel. It is not the practice of the Justice Department to turn over to Congress—let alone to give to reporters—active investigative material related to the private communications of its own employees. Justice Department and FBI employees have the right to their political opinions. To the extent their private political expressions for some reason make it impossible for them to work on a certain matter, they certainly have the right to have that determined without having their careers ruined and their names dragged publicly through the mud by politicians who know nothing about the circumstances in question.
Rosenstein’s handling of this may come back to bite him. “In throwing a career FBI agent and career FBI lawyer to the wolves by authorizing the release to the public of their private text messages—without any finding that they had done anything wrong—he once again sent a message to his workforce that he is not the sort of man with whom you want to share your foxhole,” Wittes observed. “The DOJ and FBI workforces will not forget that. Nor should they.”
Rosenstein may be too clever by half as he tries to walk a line between protecting Mueller and assuaging Republican partisans. He should leave the politics to others and stick to his job which must be free of partisan taint. That means following appropriate protocol, defending his people when appropriate and maintaining a proper arms-length relationship with the administration. If he doesn’t, Rosenstein may find himself crosswise with career civil servants and investigators who have every reason to cooperate with Mueller and return Rosenstein’s disloyalty in kind.