I’m beginning to think President Trump is playing a game of making Rod Rosenstein look bad. Every time the deputy attorney general opens his mouth, the President flamboyantly pulls the rug out from under him—in public. The latest round took place this week when Rosenstein inexplicably gave a speech praising President Trump’s commitment to the rule of law. As the estimable Josh Gerstein recounts in Politico:
In a speech to an audience of judges and attorneys in Washington, Deputy Attorney General Rod Rosenstein said Trump’s nominations of distinguished lawyers to top Justice Department posts demonstrated his fidelity to “American values.”
“When President Trump spoke last summer about American values, he said, and I quote, ‘We treasure the rule of law and protect the right to free speech and free expression,’” Rosenstein said, quoting a speech Trump gave in July in Warsaw. “The president’s words about the rule of law are backed by concrete action.”
The No. 2 Justice Department official said Trump’s picks for attorney general, associate attorney general, solicitor general and FBI director underscored the president’s dedication to those longstanding principles.
“When you appoint principled lawyers like Jeff Sessions, Rachel Brand, Noel Francisco and Chris Wray to leadership positions in the Department of Justice, that demonstrates respect for the rule of law,” Rosenstein argued.
There wasn’t much rug to pull out from under the deputy attorney general once he had said this transparently foolish thing. Jack Goldsmith says it all in this Twitter thread:
Just getting to DAG Rosenstein's claim that Trump's excellent DOJ appointments show that he believes in rule of law. https://t.co/Auv18nptbY
— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
Trump's DOJ appointments *have* mostly been excellent. Brand, Francisco, Wray, Engel, Demers are all high-quality appointments.— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
And many great lawyer nominees in other Departments, eg Newstead at State. And many great judicial appointments too.— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
But, who thinks Trump has anything concrete to do with this? Rosenstein provides no evidence that DT had any say in this. I doubt he did.— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
Trump's attacks on judges, Mueller, DOJ, etc, & his utter disrespect for all legal process, belies idea that he cares about rule of law.— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
I'm flabbergasted Rosenstein would make such a preposterous claim--that DT cares about rule of law--in light of all the contrary evidence.— Jack Goldsmith (@jacklgoldsmith) November 2, 2017
But whatever tattered shred of rug may have remained under Rosenstein’s feet, Trump quickly yanked it away when he gave a talk radio interview to WMAL in which he addressed his attitude towards the Justice Department and the FBI with this remarkable comment:
But you know, the saddest thing is, because I am the President of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier, and the kind of money… I don’t know, is it possible that they paid $12.4 million for the dossier…which is total phony, fake, fraud and how is it used? It’s very discouraging to me. I’ll be honest, I’m very unhappy with it, that the Justice Department isn’t going…maybe they are but you know as President, and I think you understand this, as a President you’re not supposed to be involved in that process. But hopefully they are doing something and at some point, maybe we are going to all have it out (emphasis added).
That’s right. His deputy attorney general having assured the public of Trump’s fealty to the rule of law, the President of the United States declared that it was “the saddest thing” that he could not call up an investigation of his political opponent, that he would “love to be doing” things with the FBI and the Justice Department, and that he’s “very frustrated” and “very unhappy” that he can’t. As Rudyard Kipling might have put it, this is the way presidents who believe in the rule of law always talk.
If the President’s remarks once again make Rosenstein look foolish, they are a fabulous tribute to the men and women who work for him.
The tribute is, to be sure, inadvertent: Trump doesn't understand the profundity of the statement he is making about independent law enforcement and its relationship to the presidency. That very lack of comprehension on his part is what makes the statement—and the tribute—profound.
But let's unpack for a moment what Trump is saying here. He is saying with bold frankness that he would like to be able to interfere with ongoing investigations. He is saying just as clearly that he would like to be able to order up investigations of his political opponents. He is declaring himself a corrupt actor who believes that the FBI and the Justice Department should be at his beck and call for political purposes. We already knew these things about him. We knew that Trump is a man who is capable of firing his FBI Director because James Comey would not aid him in such endeavors and of threatening his attorney general and his deputy attorney general—the same deputy attorney general who is still giving speeches about Trump’s fealty to the rule of law—and the special counsel over the inconveniences they pose him in his corrupt attitude towards law enforcement.
Indeed, just this morning, he launched another series of tweets that seek actively to comment upon what the Justice Department should be investigating and how the FBI should be conducting itself:
Everybody is asking why the Justice Department (and FBI) isn't looking into all of the dishonesty going on with Crooked Hillary & the Dems..— Donald J. Trump (@realDonaldTrump) November 3, 2017
...New Donna B book says she paid for and stole the Dem Primary. What about the deleted E-mails, Uranium, Podesta, the Server, plus, plus...— Donald J. Trump (@realDonaldTrump) November 3, 2017
....People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!— Donald J. Trump (@realDonaldTrump) November 3, 2017
The real story on Collusion is in Donna B's new book. Crooked Hillary bought the DNC & then stole the Democratic Primary from Crazy Bernie!— Donald J. Trump (@realDonaldTrump) November 3, 2017
Pocahontas just stated that the Democrats, lead by the legendary Crooked Hillary Clinton, rigged the Primaries! Lets go FBI & Justice Dept.— Donald J. Trump (@realDonaldTrump) November 3, 2017
In these radio comments and these tweets, Trump is announcing just how badly he wants to corrupt the DOJ. He is announcing that as an assessment of his character and ambitions, everything I said in this article many months before his election was exactly right:
The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. The first reason you should fear a Donald Trump presidency is what he would do to the ordinary enforcement functions of the federal government, not the most extraordinary ones.
And yet, Trump is "frustrated." He’s facing the “saddest thing.” He is constrained—and he knows it.
He is acknowledging in this interview what Jack has been arguing for months: that the functional constraints on presidential action from both within the executive branch and from outside it are immense, and that these chains do bind him despite his best efforts. He hates it. But even he now seems to acknowledge it.
But what are these chains? They are not the stolid personality of Jim Comey. Trump managed to get rid of Comey. They are not Attorney General Jeff Sessions or Rosenstein, neither of whom has shrouded himself in glory. Both men have vacillated, rather, between honorable behavior and dishonorable behavior over their times in office. Both men have sometimes acted to protect the integrity of independent law enforcement—Sessions by recusing himself from the Russia matter and Rosenstein by appointing Robert Mueller and stalwartly protecting his investigation. But both men also facilitated the President’s firing of Comey. And they have both covered for Trump’s grotesque interactions with law enforcement even as Trump has humiliated them repeatedly. Rosenstein’s speech vouching for the President’s commitment to the rule of law is only the latest example. Neither of them has shown one tenth the backbone of the now-resigned head of the Drug Enforcement Administration, Chuck Rosenberg.
So what are the chains then? The chains are the workaday women and men of federal law enforcement, and their expectations that the political echelon at the Justice Department will shield them from becoming the President’s janissaries and enforcers. Trump is menacing the norm of independent law enforcement. He is chomping at the bit to do violence to it. But at least for now, it is holding. It remains strong enough that Trump can fulminate all he wants about how the Justice Department should be investigating Hillary Clinton and he can spit fire about the fact that Sessions hasn’t done more to “protect” him. Yet Mueller grinds on and does his job. The FBI grinds on and does its job. And the Justice Department grinds on and does its job. And the President finds it the “saddest thing” that none of their jobs, as our democratic polity has determined them to be over a long period of time, includes fulfilling his undemocratic aspirations to loose investigators on people he doesn't like or to have a Justice Department that protects him and his family and his campaign from scrutiny. The saddest thing indeed.
It's a stunning statement of presidential constraint by the rule of law, if not a statement of belief in it: Trump actually declared this week that while he aspires to corruptly interfere with law enforcement, he just can't pull it off.
This is not an argument for complacency. A President who aspires to undemocratic behaviors can whittle away at norms over time. The total absence of civic virtue in the man—what Comey called “the nature of the person”—is profoundly dangerous. Who knows how long the chains will hold him, particularly in the absence of a Congress that cares about his predations and in the presence of a political base that seems to revel in them?
Yet seeing Donald Trump chafe with frustration at what he cannot do—at least not yet—is a moment to warm the democratic heart. It is as vivid a portrait as I have ever seen of the American government structurally limiting the impulse to tyranny.