Harry Litman teaches constitutional law at the University of California at San Diego and practices law at the firm Constantine Cannon. He was U.S. attorney for the Western District of Pennsylvania from 1998 to 2001.
President Trump has taken to perpetrating daily outrages on the Constitution and the rule of law, generally before breakfast. On Wednesday morning, he accused the FBI and Justice Department of being a part of a “Criminal Deep State” and opined that the (utterly routine) use of a confidential informant in the Russia probe “could be one of the biggest political scandals in history.”
Confronting these deep violations of constitutional norms and political decency, observers of all political stripes have begun to ask whether the Justice Department and FBI — presumably in the persons of Deputy Attorney General Rod J. Rosenstein and FBI Director Christopher A. Wray — have to try to stanch the damage and stand up to the president.
Ultimately, however, Rosenstein and Wray have one weapon and one weapon only here, and it can be deployed only once, at very substantial cost: They can resign their offices.
Two of Trump’s recent affronts to the Justice Department and the rule of law illustrate this excruciating dilemma. Trump began the week proclaiming that he “hereby” demanded an investigation into “whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes.” The next day, he summoned Rosenstein, Wray and Director of National Intelligence Daniel Coats to the Oval Office and essentially ordered them to share with Republican members of the House Intelligence Committee confidential information on a criminal probe into, among other things, the president’s own conduct.
Rosenstein and Wray could credibly have chosen to resign rather than carry out either of these outrageous demands. Resignations are a time-honored response for executive-branch officials and Cabinet members — think Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus in the Nixon administration — confronting orders that violate their consciences or oaths of office. We take it as not only permissible but also commendable, and at times morally necessary, for senior officials to resign rather than comply with objectionable presidential directives. Their actions are widely seen as a matter of higher duty, and an expression of fealty to law over men and office over officeholder.
Which leads to an important corollary: The theory of the unitary executive is wrong.
Trump famously averred that he has an “absolute right to do what I want to do with the Justice Department.” As a theory of raw power, this is dubious; but as a theory of constitutional order, it is bankrupt. The case for resignations demonstrates the political culture’s acceptance of the principle that Trump’s overreaches are both dangerous and lawless; otherwise, it would not be justified, much less commendable, for executive-branch officials to stand up against them.
Nonetheless, if a resignation is an ultimate gesture of elevated principle, it has a critical political and practical side. It is, by definition, a one-shot weapon that takes the official out of the fray and removes any power to influence subsequent events.
Both of Trump’s corrupt demands this week presented Rosenstein and Wray with a decision of exquisite nuance and consequence: Has the president gone so far beyond the pale that pushing back against the damage to constitutional rule justifies the cost of taking themselves out of a position where they can continue to try to safeguard special counsel Robert S. Mueller III’s probe?
Their calculations depend in part on knowledge we don’t have — for example, the state of development of the probe — and knowledge they don’t have — for example, their likely replacements. There is also the question of whether the two, and possibly others, would resign together, increasing the impact of the act but also its cost. And hovering over the whole analysis is the gamblers’ assessment of how likely Trump would be to back down when faced with a credible threat of public resignations.
Through this semi-opaque prism, it appears to me that Rosenstein acted sensibly in adopting a low-key approach to Trump’s contemptible demand for a criminal investigation of the FBI’s “infiltration” of the Trump campaign, which of course never happened. Rosenstein deftly deflected the call for this probe into an additional inquiry for the Justice Department inspector general, who handles allegations of improper conduct (and who will surely find nothing untoward here).
But Rosenstein’s capitulation to Trump’s demand that he brief members of Congress on the use of a confidential informant in the Mueller probe is a much tougher call. The revelation of confidential sources and testimony cuts deeply into the bone of normal Justice Department functions and in fact threatens U.S. security interests going forward. It makes matters worse that Trump’s chief of staff to the president, John F. Kelly, had a role in the briefings. Moreover, House Intelligence Committee Chairman Devin Nunes (R-Calif.) is plainly not exercising legitimate oversight but rather acting as an enabler and shill for the president.
Certainly, Rosenstein and Wray would have been well within an honorable tradition of Richardson and Ruckelshaus had they chosen this juncture to rebuff Trump and threaten to resign if he did not rescind the order. It will be a judgment of history whether their continued capitulation only emboldened Trump or in fact preserved their ability to act at an even more urgent time, likely in the near future. The answer, perhaps, may well be both.