“The Constitutional Crisis is Here” reads the title of the recent column by Eugene Robinson in the Washington Post. Robinson’s piece concerns President Trump’s “demand” that the Justice Department wield its powers to serve Trump’s own political purposes.
Trump’s demand was for an investigation of his investigators, on the basis of allegations for which there was no evidence.
In response, Rosenstein referred the matter not as a criminal referral, as Trump demanded, but to the Inspector General of the Justice Department, where it could quietly die for lack of any foundation.
And Rosenstein offered the noncommittal statement:
“If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.”
On the excellent MSNBC discussion shows that evening, there was much discussion of Rosenstein’s response to Trump’s altogether inappropriate demand, amounting as it does to an especially blatant assault on the rule of law.
Some condemned Rosenstein on the straightforward basis that he was failing to uphold the norms of American justice. Such critics noted, quite correctly, that by failing to push back against Trump’s inappropriate intrusion into the Justice Department’s investigatory affairs, Rosenstein was allowing an important wall in the American system of justice to be damaged.
But that seemed to be a minority position because people understood that Rosenstein faces challenges in dealing with Trump that do not admit of easy solutions, that require competing values and strategic assets to be weighed against each other, and that are of utmost importance to American democracy.
Everyone recognized how dangerous and wrong Trump’s conduct was, and how in normal circumstances such a demand should be openly refused. But these are not normal circumstances, as Rosenstein is a bulwark against Trump’s increasingly blatant and desperate attempt to destroy the legal net that is closing in on him. And part of Trump’s effort to defeat the rule of law is to find an excuse to get rid of Rosenstein, and thereby gain access to firing or hobbling Special Prosecutor Robert Mueller.
Most of the high-quality legal experts in these conversations felt that Rosenstein had made the right decision. As they saw it, Rosenstein shunted Trump’s autocratic move into a harmless channel, while not committing any overt act of defiance. He lives to fight another day, as a couple of people put it.
Damage gets done. But the more vital part of the forces upholding the rule of law remained protected.
Ari Melber was one of those more critical of Rosenstein, but he never spelled out how Rosenstein, proceeding differently, could get a better result for the endangered rule of law.
Later in the evening, David Frum did offer another very interesting scenario. Drawing upon comments made earlier by Rachel Maddow — who spoke about the “lizard brain,” and how we know that appeasing a bully like Trump will only lead to the next bullying step — Frum said that it would serve the Republic better for Rosenstein not to appease Trump but to find the moment where his getting fired would have the maximum constructive impact on the nation, and make his stand of defiance.
Frum thought that this was quite likely that moment– a time when Rosenstein could force Trump to fire him (he would not resign), have a bunch of resignations in his pocket to spill to magnify the event, and otherwise precipitate as strongly as possible the kind of crisis that damaged Nixon in the Saturday Night Massacre.
Lawrence O’Donnell found Frum’s argument most arresting and important. But he also ventured that there would be other such moments for Rosenstein ahead– perhaps better for that purpose than this one.
I did not hear anyone talk about what the value might be of Rosenstein’s playing for time, i.e. putting off the moment of confrontation as long as possible to enable the Mueller investigation to move further toward completion.
Nor did I hear any assessment of how any Saturday Night Massacre would play out now, as opposed to back in the days of Watergate, when the Democrats had much more power and the Republicans had at least some integrity.
But I did hear some fleeting mention of the possibility that the President could be taken to court over inappropriate demands and conduct. But it was not elaborated. Could Rosenstein himself challenge the President in Court? If not he, then who? Are there any legal avenues to pursue, in order to keep the President from overstepping, as he has increasingly been doing?
I’ve found myself spinning an especially strange scenario. In my fantasy, Rosenstein gets fired but refuses to go. And Mueller even if fired refuses to go. They take the position:
“Normally, of course according to American law, the President has the legal authority to fire us. But if the President is to be openly defiant of the rule of law — as he is manifestly being — then it will not serve the Constitution we took an oath to defend for us to comply with this President’s wielding of his powers. Under these extraordinary and dangerous circumstances, our oath to protect and defend the Constitution unfortunately requires us to take a stand for the rule of law and against this President’s authority.”
Pretty weird. But then, these are very strange times.