President Donald Trump on Sunday launched his most direct attack on the Justice Department’s independence since he fired FBI Director James Comey, taking to Twitter to “hereby demand” that it open a counterinvestigation of the probe into Russian interference in the 2016 election.
Trump’s demand crossed every institutional norm that has long safeguarded the Justice Department’s independence. The president was calling for an investigation into both political opponents from the former administration and career law enforcement agents, without evidence of wrongdoing, for the obvious purpose of undermining a criminal probe into his own conduct and that of his associates.
Trump was clearly testing the limits of the system that constrains presidential interference with the Justice Department. And the response so far — including Deputy Attorney General Rod Rosenstein’s decision to refer the matter to the department’s inspector general — shows that the system is failing.
There is no legitimate justification for asking the inspector general to investigate a hyped-up claim that the FBI inappropriately infiltrated the Trump campaign. Just as in February there was no legitimate justification for Attorney General Jeff Sessions, in response to claims by House Republicans, asking the inspector general to investigate alleged — and debunked — abuses by the department in securing a Foreign Intelligence Surveillance Act warrant against former Trump aide Carter Page.
But the president’s direct involvement — and his transparent motives in using the demand to undermine the Mueller probe — makes the abuse here far more grave. It is one thing for an inspector general to review unsubstantiated allegations made by members of Congress. It is quite another for an inspector general to do so at the direction of a compromised president — whose demands carry the implicit threat of removal and who, in this case, is himself the subject of the underlying investigation.
Rosenstein is without a doubt in a tough spot, and the blame here does not rest with him. Republican members of Congress — at times in direct coordination with the president — have launched an unprecedented attack on Robert Mueller’s investigation, demanding that the special counsel turn over sensitive materials of a type that the Justice Department has never before released while an investigation was ongoing. At times, they seem to be more interested in the confrontation itself, possibly hoping that he will refuse some irrational demand, just so Trump has an excuse to fire him.
Rosenstein has tried to resist Congress’s escalating demands but has often ended up caving under pressure. He turned over texts between two FBI employees, allowing them to be smeared by the president and the conservative media while the FBI investigation into their conduct was ongoing. (There still has been no finding of wrongdoing on their behalf and may never be, but the damage to their reputations is done.) He allowed Congress to view the FISA applications regarding Page, as well as a highly sensitive and classified document that launched the Russia investigation.
In surrendering this ground, Rosenstein seems to be giving the president and his defenders in Congress just enough accommodation — without fatally compromising the Justice Department’s independence — to forestall either his own firing or Mueller’s and to buy enough time for Mueller to complete his work.
But this is a dangerous game, and in the short term it may only embolden the president. Just think about it from Trump’s perspective: He crossed what has long been seen as a red line on Sunday, and not only did he not pay any consequence but also he got at least some of what he wanted. In referring his demand to the inspector general, Rosenstein gave credence both to the ideas that there was something nefarious in the Russia probe’s launch and that it is acceptable for a president to demand a counter-probe into a Justice Department investigation.
I don’t know whether Rosenstein’s gamble will work. It may. But there is something to be said for the approach he laid out a few weeks ago, when he forcefully declared that “the Justice Department is not going to be extorted” and promised that he would resist threats to him being made by unnamed people publicly and privately.
Standing up to Trump this weekend might have provoked the cataclysmic confrontation between the Justice Department and the president that has at times seemed inevitable since the Russia probe began. But the alternative is watching the slow erosion of the department’s independence, as the president’s attacks take hold, Republicans in Congress either egg him on or cower in corners, and the norms of presidential behavior drift inexorably in Trump’s direction.
For now, Rosenstein seems to be delaying a fight with the president. But that day will come, and we should all hope he recognizes it before it is too late.
Matthew Miller was director of the Justice Department’s public affairs office from 2009 to 2011. He wrote this article for the Washington Post.