Getty Images Law And Order Rod Rosenstein Makes a Devil’s Bargain Accommodating Trump’s whims may get him through today’s crisis, but what about tomorrow?

William Yeomans is the Ronald Goldfarb Fellow at the Alliance for Justice and Lecturer at Columbia Law School. He served 26 years at the Department of Justice.

President Donald Trump accelerated the nation’s slow-moving constitutional crisis by demanding that the FBI and Department of Justice investigate the use of an FBI source during his presidential campaign. The demand, made by tweet on Sunday, follows the authoritarian playbook. It orders law enforcement to launch an investigation without a factual predicate. Trump’s purpose is to delegitimize the investigation into his campaign and redirect law enforcement toward his political enemies.

Deputy Attorney General Rod Rosenstein, within hours of the tweet, announced that the FBI’s inspector general would incorporate the matter into his ongoing investigation into the validity of the FISA warrant obtained to surveil Trump campaign aide Carter Page. Rosenstein’s action may have prolonged his tenure and staved off immediate crisis, but it further weakened the independence of law enforcement and forced the IG once again to play the uncomfortable role of political steam valve.


Trump was not satisfied. He summoned Rosenstein and FBI Director Christopher Wray to a White House meeting and solicited a commitment to meet with chief of staff John Kelly, Director of National Intelligence Dan Coates and unidentified members of Congress to discuss classified information, presumably including the activities of the FBI’s confidential source. Past experience shows that any information shared with Republican leaders of the House Select Committee on Intelligence will leak and will be shared with Trump’s defense team. The meeting, therefore, appears to be an inappropriate effort to use executive power over law enforcement and congressional oversight to extract classified information during the course of a criminal and counterintelligence investigation. That information will then be used to delegitimize the investigation and aid the president’s defense. If Rosenstein and Wray resist sharing information, the crisis cycle will start again.

Article II of the Constitution gives the president authority to make sure that the laws are faithfully executed. That makes him the formal head of federal law enforcement with the technical authority to direct its actions. That authority, however, has long been curtailed by recognition that law enforcement must remain above politics and the whims of presidents. Richard Nixon’s determined attempts to shut down the Watergate investigation, including his instruction to the CIA to tell the FBI to stand down, formed the core of the articles of impeachment adopted by the House Judiciary Committee. Nixon’s conduct alerted the country to the enormous power of presidents to protect themselves from investigation. Since then, administrations have observed strict norms that limit communication between the White House and Justice Department. They recognized that members of the FBI and Justice Department owe ultimate allegiance to the Constitution and laws and must be allowed to operate without presidential interference in prosecutorial decisions.

Trump champs at the bit of these norms. He has repeatedly criticized law enforcement’s failure to prosecute his political opponents and has touted his authority to order investigations, but has generally pulled up short of giving the direct order. His Sunday tweet, however, did just that. He “demanded” investigation of the FBI’s use of a confidential source. We are in new and dangerous territory here.

What seemed like now-routine Sunday morning Twitter bluster to casual observers set off alarms at the Justice Department and FBI. Initiating an investigation that appeared politically motivated and lacked a sufficient factual predicate would shatter the wall separating the White House from law enforcement investigative and prosecutorial decisions. Open resistance, however, might well provoke Trump to fire Rosenstein and Wray. Those firings could clear the way for Trump to install new supervision of the Russia investigation.

Rosenstein attempted to land in the middle by agreeing to fold the matter into an existing IG investigation, thereby giving Trump an investigation, but avoiding opening a separate, full-scale criminal inquiry. While his solution has short-term practical appeal, his accommodation weakens his standing, chips away at the independence of the Justice Department and misuses the resources of the inspector general.

The president’s demand for an investigation is transparently political. The reported facts hold that the FBI employed a longstanding confidential source to speak with three members of the Trump campaign who might have information about Russian email hacking. These contacts followed warnings to both campaigns that Russians might attempt to interfere in the election. By any standard, these minimal contacts were appropriate, and possibly inadequate, steps in a counterintelligence investigation. To suggest that they were politically motivated requires accepting that the FBI engaged in a politically motivated investigation, but concealed it through the course of the campaign, while speaking openly of its investigation of Hillary Clinton.

Moreover, neither Congress nor the president presented the FBI with new evidence that might justify an investigation. The FBI has long had all of the relevant information and has not found it a sufficient predicate for an investigation. The only explanation for the president’s demand is his desire to undercut the legitimacy of the Mueller investigation.

While Rosenstein may have saved his job, he established a precedent that the president can force him to take investigative steps without sufficient evidence to justify them. That will make it more difficult for him—and others in law enforcement—to stand firm against future demands.

Rosenstein has also set a disturbing precedent by repeatedly referring politically charged matters to the FBI’s IG. The IG’s investigative ability is limited. The IG lacks subpoena power and cannot force witnesses who are not currently employed in the agency to cooperate. IGs perform valuable service in investigating whistleblower or strictly internal matters, but their effectiveness diminishes as the scope of the investigation grows. And, the IG’s resources are limited. Politically charged investigations are likely to bump less visible investigations down the priority list. The office’s important work should not be displaced by investigations launched to quell political tantrums. Finally, the IG’s credibility can be weakened by a steady diet of politically controversial matters that will inevitably generate partisan attacks.

Trump’s politically motivated demand for an investigation into a baseless allegation that the FBI launched a politically motivated investigation makes heads spin. It demonstrates again his willingness to breach norms and weaken institutions to serve his own interest without a thought for the nation’s. His demand is a further step in the slow-moving, incremental constitutional crisis of President Trump’s making.