FBI Director James Comey

The Strange Inadequacy of the Rosenstein Memorandum

By Paul Rosenzweig
Thursday, May 11, 2017, 10:05 AM

At the heart of President Trump's controversial decision to fire FBI Director Comey is a memorandum from Deputy Attorney General (DAG) Rod Rosenstein which lays out the grounds on which the decision was taken.  In their initial reaction to the firing, Ben Wittes and Susan Hennessey characterized the memorandum as "a bad op-ed."  In today's Washington Post, one of Rosenstein's former AUSAs called the memorandum "very professional and non-political." Perhaps most accurately, on this blog, Bob Bauer has said that the memo was "short [and] seemingly informal." Some reports even suggest that identifying this memorandum as the ground for the President's decision is mistaken and that DAG Rosenstein has threatened to resign after being cast in the role of the impetus for the firing decision. 

But perhaps the best way to think of the Rosenstein memorandum is that it is simply inadequate to the task.  If the President is about to take the momentous step of firing the FBI Director (for only the second time in history), perhaps based on your recommendation, a decent respect for the rule of law and public opinion would demand a much more detailed and analytical product than the one we now have before us.  To take the single, most obvious, gap in the document, it justifies the dismissal on the ground that the Director had violated the long-standing policy against commenting on investigations in the middle of an election cycle, without ever once citing to or quoting that policy

What then should a more complete and suitable memorandum have looked like?  Below is an outline for such a memorandum (with the caveat that it is not my own view but rather my projection of what the DAG might have written, with the assistance of staff.  [My own commentary is in italics]).

I.  Introduction—A proper analysis would begin by setting the context for what follows.  This context would have two essential components.  The first would be to establish (and quote!) the statutory framework for the President's appointment and removal power as applied to the FBI Director.  This section would recount, in more detail than Bobby did the other day, the origins of the appointment power.   It would look at the legislative history of the provision (which I have not looked at but which I suspect resonates with concern about Hoover's power) to understand its purpose.  The section would note, as well, that Congress had failed to provide for any protection against the removal of the Director (by, say, requiring some form of "good cause") and provide lengthy legal research on the President's general power of removal (we would swipe here from any number of OLC opinions).  The introduction would conclude that while the 10-year term was intended generally to isolate the FBI from political whims, the fundamental purpose behind the statute, its structure and history was to provide control over a powerful investigative agency to ensure that it would not go rogue.  [This would be a powerful introduction as it would establish what few doubtthat fundamentally, the President may legally act as he did].

The second part of the introduction would recount the steps taken by the DAG and his team at DOJ to examine the issues.  Phrases like "This examination began after receiving reports of misconduct from the DOJ Inspector General" are the sorts of things we might see here.  We might also see phrases like "in conducting this examination I spoke with XX individuals and reviewed YY documents" as well as "I invited the Director to respond to this inquiry and he provided me with ..."  In short, this is the procedural history of the investigation—how it started and how it proceeded.  The intent here is to establish the thoroughness of the examination as a way of buttressing its conclusions.  [There are obvious reasons why this section is missingvery little could have been done in just 14 days since the DAG was confirmed.  It seems certain that no independent inquiry was conducted, that no OIG reports were requested, that the Director was not given an opportunity to respond, and that the DAG could not reasonably, have reviewed the factual details of the matter and been briefed on all the ins and outs of the Clinton email investigation in the short time he was in office.  [Recall that he testified during confirmation to having no knowledge of either the Clinton or Russia investigations beyond what he read in the press.]]

II.  Factual Investigation—In this section, you would expect the DAG to lay out the factual conclusions on which his analysis rests.  In a typical memorandum, this might cite to reports of interviews, Congressional testimony, and documents.  In criminal investigations (which this is NOT) it would include grand jury testimony and other forensic evidence.  [This piece is almost completely absent and that is passing strange.  The memo seems to assume familiarity with all the facts and relies, exclusively, on public reports from news sources for its limited description of events.  There is no apparent effort to fill out the back story of the Director's decision (yet we know from press reports that such a back story existsirrespective of its persuasiveness).  The lack of factual inquiry is one casualty of the apparently hurried nature of the memorandum's preparation].

III.  Analysis—Here, of course, is where the rubber meets the road.  In this section, we might expect the DAG to first cite and quote the underlying DOJ policy against election influence (and the more general policy against commenting on criminal matters) and then expand at length on the value of such a policy—how it protects the innocent and protects the integrity of the elections.  The analysis might also deal with the internal DOJ history of the application of this policy to other prior cases.  We know, for example, from Matthew Miller of at least one case where the policy was applied during the Obama Administration. Comey referred in his testimony to another (that of Lois Lerner).  Surely this prior history could be used to develop a "common law" if you will of how the policy is applied and also of those rare "exceptional circumstances" when it might be violated.

Having laid the groundwork for the analysis, this section would then describe how Comey's conduct violated the policy and it would attempt to distinguish any contrary circumstances (like the Lerner case that Comey cited) on whatever grounds seem most persuasive.  [Properly done, this would be a strong sectionafter all few doubt that the Director did violate policy.  We may dispute the severity of the error but a well-written analysis that leans heavily on the strong purposes underlying the DOJ policy which many would find persuasive)].

The analysis would then turn to the second ground for removal that seems to be buried in the DAG's brief memorandum -- the fact that the Director's refusal to acknowledge error makes it impossible for him to be tasked with implementing any corrective measures.  Here, again, we would first recite the Director's testimony before Congress (of the "I would do it again" variety) and then advert to the need to reimpose DOJ policy standards on the FBI and the inability of a leader who is not committed to reform to be the reform leader the Department needed.  The memo could go on, at some length, about the need for a leader who is willing to enforce the policy as delivered from superiors.  [If the DAG wanted to be snarky he could insert here a sideways glance at the Sally Yates dismissal.]  [This, too, could be a very strong part of the argument.  Few can really argue with the proposition that a leader can't implement well a policy with which he disagrees.  The virtue of this section would lie in the fact that even if you thought Comey was right to speak out, you might be persuaded that he has to respond to the direction of the DAG and AG, even if he does not like the direction given -- and that if he can't or won't implement and defend the policy, he should be removed].

Finally, thirdly, the memorandum would turn to the portion that is the meat of the actual memo that the DAG wrote—the loss of public confidence in the FBI director (occasioned by his violation of policy and by his refusal to acknowledge error).  It could, here, quote all of the outside sources that it did (though perhaps with more care not to quote people who might publicly distance themselves from the firing) and use that to buttress the conclusion of actual misconduct with the "agreement" from outside the Department.  [This is the weakest argumentafter all the statement "the public doesn't like you" is not necessarily reflective of whether or not you are doing a good job.  It is remarkable that this formed so great a part of the DAG's actual memorandum and I might even consider dropping it altogether].

IV.  Pre-rebuttal—A final section of any appropriate memorandum would anticipate, take on, and directly address anticipated criticisms of the decision.  At least three come to mind and might suitably be addressed in this section.  [This section is essentialespecially in an environment where outside observers might doubt your bona fides]:

First, there is the "this is trivial" argument—in other words, critics might say that the grounds for this dismissal pale in comparison to the only other time in history that a Director was dismissed (namely the Sessions dismissal that was grounded on an OIG report alleging financial misconduct).  This section would both acknowledge the factual differences in the two cases but make the argument that, if anything, the Director's failure, in this case, was far more serious. After all, Sessions' failures (as alleged) were mostly personal in nature; Comey's (as alleged) were far broader and directly undermined confidence in America's democracy.  The DAG should have little trouble asserting the severity of Comey's failures.  [It is remarkable that any memorandum about the dismissal of the FBI Director lacks a mention of the only prior instance in which dismissal occurred.  This is especially so when, on one reading of the facts, the comparison would be favorable to the DAG's conclusions.]

Second, there is the "why now" argument—which is implicitly a suggestion that other motivations exist.  Here, of course, the DAG's memorandum is challenged—it needs to answer the question of "why not right after inauguration" as well as the question of "why not after a more lengthy investigation?"  But the memo might, for example, say that action was delayed until a senior non-partisan official of the DAG's stature could review the matter, as a way of removing any taint of politicization.  [This is a hard criticism to answer, especially given the short 14-day timeline of the DAG's actions.  Of course, this issue would disappear if the more lengthy memorandum we are suggesting was drafted bottomed on a more complete factual investigation.  Then the DAG could say, for example, "On the day I took office I initiated ... and now 60 days later I conclude ...."]

Finally, there is the "what about Russia" question—in other words, there is the lingering question (so prominent in the news) that the true motivation for this action was anger about the FBI's inquiry into the Russia-Trump connection.  A rebuttal of this would take the form of assurances from the DAG that the dismissal was only about Clinton/management issues and that the Russia investigation would continue unimpeded.  Those assurances could take many forms:  a promise of more resources; a call to the lead investigative agent promising independence and continued support; a promise to Congress of greater transparency into the investigation; or even the appointment of a special counsel.  [The fact that the DAG did not write such a section and that, by all accounts, he could not write such a section, is perhaps the most glaring gap in the entire exercise.  It gives a strong indication, by its absence, that public suspicion as to the true motivation (of the President, if not the DAG) for the firing is accurate and that it lies in something other than the stated reasons for the dismissal].

My view:  I wish, beyond measure, that DAG Rosenstein had written such a memorandum.  It would have taken a while.  It would have required staffing and investigative assistance.  It would have provided a better public justification for so significant and momentous a decision.  It might not have satisfied everybody (especially in the absence of a "The Russia Investigation Will Continue" section) but it at least would have provided us with a fuller, clearer public record on which to base our discussion.