Before more time goes by I wanted to share a few thoughts about the latest we’ve heard on the role Deputy Attorney General Rod Rosenstein played in the firing of FBI Director James Comey as well as the larger Russia investigation. Rosenstein has now written an explanation and justification for the firing memo and appeared in a close door session before members of Congress.

The memo Rosenstein penned to explain the firing memo and why he wrote it is a minor bureaucratic masterpiece. It does what lawyers are trained to do in an advocacy context: state clearly and emphatically what can be discussed and argued, ignore or seek to make irrelevant what cannot be discussed and put a firm interpretation on what is inherently subjective.

The complexity of this whole story, or rather Rosenstein’s role in it, rests on the fact that within the four corners of the original memo, Rosenstein’s arguments are quite defensible. His argument about Comey disregarding longstanding department guidelines and principles of non-interference in elections is significantly stronger than his argument about usurping the authority of his DOJ superiors. But both are solid. The arguments are not only arguable, they’re frankly hard to argue with. In the second memo, Rosenstein not surprisingly makes a strong stand on just this point. “I wrote it. I believe it. I stand by it.”

Rosenstein is on considerably weaker ground in another declaration. “My memorandum is not a statement of reasons to justify a for-cause termination.” This comes under my third category: “a firm interpretation on what is inherently subjective.” I would say that within the bounds of inherently subjective questions, this claim is about as close as you can get to being demonstrably false.

Soon after the Comey firing, I heard several people speculate that Rosenstein’s memo had been written as an exercise for some other purpose and then been repurposed as a firing argument. This didn’t seem implausible to me since Rosenstein’s role in the drama seemed so surprising. I reread the memo and was quickly disabused of this idea. While Rosenstein never uses the words “Comey should be fired”, the memo is clearly written as a brief to argue for and justify that action.

Indeed, the memo concludes with what can only be taken as a firm statement that only firing Comey can fix the problems at the FBI (emphasis added)…

Although the President has the power to remove an FBI director, the decision should not be taken lightly. I agree with the nearly unanimous opinions of former Department officials. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.

Where Rosenstein’s second memo (the one justifying the firing memo) really gets interesting though is his discussion or rather lack of any discussion of President Trump. Indeed, Trump and his decision to fire Comey act together as a sort of Aristotelian unmoved mover in the whole drama – unseen, un-examinable, beyond questioning, a simple fact that exists prior to all substantive discussion and contingent action that come after it.

Rosenstein writes that he learned on May 8th that President Trump had decided to fire Comey. In other words, the matter was settled before he came into the picture. After the decision was a foregone conclusion he summarized his own “longstanding concerns” about Comey’s public statements.

In Rosenstein’s reconstruction of events, Trump decided to fire Comey. Rosenstein in parallel but with no possible effect on the outcome – since the decision had been made – wrote out his own “longstanding concerns” about Comey’s actions and his belief that “it was appropriate to seek a new leader” at the FBI.

What remains undiscussed through all of this is that Rosenstein knew that whatever Comey’s errors, Comey was in fact being fired to stymie the investigation into Trump’s and Trump’s associates ties to Russia, and that Rosenstein chose to make himself a party to that bad act. Indeed, in his subsequent closed door meetings with members of Congress, he apparently refused to discuss whether he’d been pressured to write the memo or anything else about his decision-making or role in furthering Trump’s decision. No decision can be evaluated in any way, whether it be factually, ethically, morally, without its context. Rosenstein insists on discussing his role and the use to which his actions were put only once the context has been entirely removed from the discussion.

It is as I wrote a minor bureaucratic masterpiece and a tour de force of evasion.