Rod J. Rosenstein is, by most accounts, about as good a nominee for deputy attorney general as Democrats could hope for.
He kept the job in 2009 when President Barack Obama arrived, and on Tuesday, after the new Republican administration nominated Rosenstein to the No. 2 post in the Justice Department, Sens. Benjamin L. Cardin (D-Md.) and Chris Van Hollen (D-Md.) happily introduced him to the Judiciary Committee.
Yet Rosenstein might receive little Democratic support, and some have signaled that they intend to slow-walk his nomination and stretch out the confirmation process through the rest of the month because they want a special prosecutor to take charge of DOJ’s investigation of Russia’s meddling in the 2016 election and Trump associates’ links to the Kremlin.
That’s because, in recusing himself from any investigations of President Trump’s 2016 campaign, Attorney General Jeff Sessions handed the case to whoever will be his No. 2 — meaning Rosenstein, if he is confirmed.
The situation has left Democrats wrapped inside their own paradoxical box: The price of their support for a speedy confirmation is Rosenstein promising to appoint a special prosecutor.
“If Mr. Rosenstein is unwilling to commit to naming a special prosecutor, or says that he needs to be confirmed and in his position before he can make an assessment — that is insufficient,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in a floor speech Tuesday morning. “The need for a special prosecutor is clear enough today to make that call.”
A little more than an hour after Sessions announced last week that he would recuse himself from any Trump-related cases, Sen. Richard J. Blumenthal (D-Conn.) said he would use "every possible tool to block" Rosenstein's confirmation until the nominee committed to naming a special prosecutor.
But that is the type of commitment that almost no nominee would ever make. That sort of answer would seem to prejudge a case before someone has reviewed the investigative material. It is typically considered a big no-no for judges and other executive branch nominees to key positions to tip their hands in confirmation hearings, leading to decades of answers by nominees with well-rehearsed lines about upholding the law without taking a formal stand.
That’s exactly what Rosenstein did Tuesday, deflecting questions about his view of the case by promising to follow the advice of Justice Department experts.
“I would evaluate the facts and the law [and] consider the applicable law,” he told Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa).
He promised to use “my best judgment” in handling the Russia investigation and vowed to take the “right course of action.” He noted that he has not been allowed to review the case because he has not been confirmed.
The standoff over Rosenstein sets up a scenario in which Democrats will continue to demand the appointment of a special prosecutor in a Trump-related Russia inquiry. Yet they will be holding up the confirmation of the one person who might actually make such an appointment.
Republicans are in what may be an even stranger position. They have almost uniformly rejected calls for a special prosecutor, saying that an investigation can be dealt with in the normal ranks of the Justice Department and in the congressional intelligence committees.
Grassley began the hearing by highlighting Rosenstein’s record handling sensitive cases, including a leak investigation in the Obama administration, and reminded Democrats of how a special prosecutor was not called to direct the investigation of Hillary Clinton’s treatment of classified information when she served as a secretary of state.
Yet in calling for Rosenstein’s speedy confirmation, Grassley and Republicans may be demanding the appointment of an official who might disagree with them and decide to set up a more robust, independent investigation of alleged Russian ties to the Trump 2016 campaign.
That’s the view of someone who has watched Rosenstein up close.
Cardin, a former member of the Judiciary Committee, recommended in 2009 that Obama retain Rosenstein as the state’s top federal prosecutor, telling the panel Tuesday that a broad cross-section of Maryland’s legal community supported him.
“This was a welcomed nomination by President Trump,” Cardin told the panel, recounting the “totally nonpartisan professional manner” Rosenstein adopted in his investigations.
Like his fellow Democrats, Cardin thinks a more vigorous investigation is needed in the Russia case, with an independent commission being his preferred body. Unlike many Democrats, he is willing to support Rosenstein without his public guarantee of calling for such an inquiry.
“I think that Mr. Rosenstein is the right person at the right time for deputy attorney general,” Cardin told his colleagues. He predicted that the nominee’s record would lead to decisions that Democrats will applaud.
Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, agreed that Rosenstein is “well-qualified” but she highlighted the conflicts within the Justice Department in the early days of Trump’s presidency. After Trump issued his first travel ban, which prevented all refugees as well as visitors from seven Muslim-majority nations, then-Acting Attorney General Sally Yates refused to defend the executive order and was fired by Trump.
“This is about the integrity of the process,” Feinstein said, noting that she feared Trump’s West Wing would exert influence over the investigation. “There is a real danger, I believe, that the Justice Department could become politicized.”
Blumenthal and other Democrats pointed to the 1973 confirmation of Elliot Richardson as attorney general, during which he vowed to appoint a special prosecutor to oversee the Watergate investigations. They want a similar pledge from Rosenstein — and are prepared to delay his confirmation as long as they can.
“This situation is extraordinary,” Blumenthal said, “and he is a professional career prosecutor who knows that there is a need — who should know, should know — there is a need for independence and protection from political influence here.”
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