Rosenstein titled his Comey memo “Restoring Public Confidence in the FBI.” It was rough on Comey, to be sure. But, notably, it did not make a specific recommendation that the director be fired. That came in a separate, recusal-be-damned letter penned by Sessions.
Trump removed Comey on May 9, 2017, releasing a statement from the president, the recommendation letter from Sessions and the memo from Rosenstein. Then all hell broke loose as Congressman Jerrold Nadler, the former chair and ranking Democratic member of the House Judiciary Subcommittee on the Constitution, said the United States was “careening towards a constitutional crisis.” Nadler warned that “the Administration [is] systematically attacking all of the institutions that are meant to put a check on the power of the President.” Republicans joined Democrats in expressing their frustration and concern with the president and the Department of Justice. “Why? Why at this time? Investigations are going on about the Trump campaign and, you know, undertaken by the FBI headed by James Comey. And when that person is fired by the president, then obviously there are going to be questions,” Arizona senator Jeff Flake told NPR. Speaking specifically about the Comey firing, Flake said that “when that action is taken while an active investigation is going on and reasons are given that may not hold up to scrutiny, then I think it’s our responsibility as members of Congress to question that. And that’s what I’m trying to do.”
The White House claimed that the Rosenstein memo and the Sessions recommendation letter led Trump to make a draconian decision that was executed in such a bumbling manner that Comey initially thought someone was playing a joke on him. The deputy attorney general’s memo became a subject of controversy; Massachusetts senator Elizabeth Warren complained that “it reads like a press release, not a measured explanation of why someone has been fired. It’s a deeply political document. It’s totally outside the context of what the Department of Justice should do.”
NBC News asked: “Who Is Rod Rosenstein, the Man Who Swung the Ax on Comey?” Trump quickly contradicted them, which only made matters worse.
Comparisons with the Watergate scandal of the early 1970s were inevitable, yet still chilling.
“Today’s action by President Trump completely obliterates any semblance of an independent investigation into Russian efforts to influence our election, and places our nation on the verge of a constitutional crisis,” said former House Judiciary Committee chairman John Conyers, D-Michigan, on the evening that Comey was fired.
The senior member of the House of Representatives, and the only remaining member of the committee that approved articles of impeachment against President Nixon in 1974, did not hesitate to draw a comparison between Trump’s decision to remove Comey and Nixon’s Watergate-era machinations to force the removal of the special prosecutor who was investigating Nixon’s high crimes and misdemeanors. “There is little doubt that the president’s actions harken our nation back to Watergate and the ‘Saturday Night Massacre,’” asserted Conyers. “This decision makes it clear that we must have an independent, nonpartisan commission to investigate both Russian interference in the U.S. election and allegations of collusion between the government of Vladimir Putin and the Trump campaign. Today’s actions reek of a cover up and appear to be part of an ongoing effort by the Trump White House to impede the investigation into Russian ties and interference in our elections.”
True enough. But there was one big difference.
On the evening of October 20, 1973, a scandal-plagued Richard Nixon was determined to fire independent special prosecutor Archibald Cox, who was investigating presidential wrongdoing as part of a broader inquiry into issues raised by the Watergate scandal. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than follow Nixon’s orders. Finally, Robert Bork took over as acting attorney general and did the deed. The chaotic developments of that evening came to be known as the “Saturday Night Massacre.”
No one expected Jeff Sessions to be an Elliott Richardson.
But Rosenstein, a veteran U.S. attorney who had a reputation as an experienced and responsible man of the law, could and should have been a William Ruckelshaus. Rosenstein’s decision was at least a little bit surprising. Yes, he was a political appointee and, yes, he had a record that included several controversial moves. As the Baltimore Sun noted: “Rosenstein is no stranger to complicated investigations that are intertwined with politics. He was associate independent counsel under Kenneth W. Starr, who oversaw the Whitewater investigation into real estate dealings involving Bill and Hillary Clinton.” But the Harvard-educated lawyer generally got high marks from Republicans and Democrats. “If it comes down to a Nixonian scenario, I believe he will do the right thing,” said Gregg Bernstein, a former state’s attorney in Maryland, where Rosenstein served as U.S. attorney.
Bernstein certainly seemed to suggest that Rosenstein was a Ruckelshaus for our own times.
When the Nixonian scenario played out, however, Rosenstein did not resign. He may have thought about it. ABC News reported: “Deputy Attorney General Rod Rosenstein was so upset with the White House for pinning the firing of FBI Director James Comey on him Wednesday that he was on the verge of resigning.” But when he was confronted, Rosenstein announced: “No, I’m not quitting.”
When Rosenstein appeared before the Senate Judiciary Committee in March 2017 to make the case for his confirmation as deputy attorney general, he was asked how he would handle the Russia inquiry from which Sessions had recused himself. Rosenstein offered a bold and patriotic response. “I don’t know the details of what, if any, investigation is ongoing,” the nominee said, “but I can certainly assure you if it’s America against Russia, or America against any other country, I think everyone in this room knows which side I’m on.”
The committee recommended his confirmation and in late April the Senate voted 94–6 to make him deputy attorney general. One of the six “no” votes came from Senator Richard Blumenthal, D-Connecticut, who said he opposed the nomination because Rosenstein would not appoint a special counsel to oversee an inquiry into Moscow’s meddling in the 2016 campaign and potential connections between Trump aides and the Russians. “Mr. Rosenstein has said that he wants to be approved by the Senate before he decides whether to appoint a special prosecutor,” warned Blumenthal, “but that delay will mean that a man who was hired and can be fired by President Trump will decide whether the Trump administration will face a thorough and complete investigation.”
Senator Warren cast another “no” vote. Asked why she was one of the few senators to reject Rosenstein, she said she was frustrated that the nominee “would not give a straight answer” to questions about standing up to Trump and appointing a special investigator.
Warren was right to worry. Rosenstein got very high marks on May 17, 2017, when he announced the appointment of Robert S. Mueller III, a highly regarded former prosecutor and FBI director, who would serve as a special counsel charged with investigating the prospect of coordination between Trump’s associates and the Russians. There were many who commended Rosenstein for preserving his authority and using it to bring in a proper investigator. Yet, when he appeared before the Senate Intelligence Committee on June 7, he failed to make a clear commitment to defend the independence of the Mueller inquiry.
That was unsettling, but not surprising. The fact remains that, at the critical moment when Trump and Sessions were abusing their authority by scheming to “legitimize” the firing of Comey, the deputy attorney general was drawn into the wicked game that the president and the attorney general were playing. Rosenstein may well have been deceived and ill-treated by his superiors. But once he recognized that he was entangled in their deceits, he should have extracted himself as Richardson and Ruckleshaus did, by refusing to facilitate a president who was steering the country toward a constitutional crisis.
— 8 —
“THE KING OF VOTER SUPPRESSION”
Kris Kobach
Vice Chair of the Presidential Ad
visory Commission
on Election Integrity
In 2012, the ALEC Exposed project revealed the shadowy circle of right-wing operatives who worked with the corporate-funded American Legislative Exchange Council to craft so-called model legislation for conservative state legislators to propose on issues ranging from wages to education and voting rights. The Nation magazine published a series of articles by reporters, academics and activists that highlighted the Center for Media and Democracy’s ongoing examination of the conservative “bill mill.” In a section on ALEC initiatives to refocus debates about election law, I wrote on how the Corporate Executive Committee for ALEC’s Public Safety and Elections Task Force “began highlighting voter ID efforts in 2006, shortly after Karl Rove encouraged conservatives to take up voter fraud as an issue.”
The article explained that “Kansas Republican Kris Kobach, who along with ALEC itself helped draft Arizona’s anti-immigration law, has warned of ‘illegally registered aliens.’… And when midterm elections put Republicans in charge of both chambers of the legislature in twenty-six states (up from fifteen), GOP legislators began moving bills resembling ALEC’s model,” the piece explained, before concluding that “restricting voting and direct democracy while ensuring that corporations can spend freely on campaigning makes advancing the conservative agenda a whole lot easier. ‘Once they set the rules for elections and campaigns,’ says Wisconsin State Representative Mark Pocan, a longtime ALEC critic, ‘ALEC will pretty much call the shots.’”
As it turned out, ALEC had to stand down in 2012, amid an outcry from civil rights groups over the organization’s promotion of so-called stand-your-ground gun bills. As the Center for Media and Democracy noted: “ALEC temporarily disbanded its corporate-legislator task force that had approved extreme gun bills and voter restrictions, but ALEC did not take any steps to get those bills repealed where they had been enacted.”
Though ALEC stood down, Kris Kobach kept right on campaigning. He got himself elected as the secretary of state of Kansas and emerged, in the words of the American Civil Liberties Union’s Voting Rights Project, as “the king of voter suppression.” That’s a widely held view. Kristen Clarke, the president of the Lawyers’ Committee for Civil Rights Under Law, says: “Kobach is public enemy number one when it comes to voter suppression in our country.”
“During his tenure as Kansas’ top election official, he has championed some of the strictest voting laws in the country, including the state’s controversial proof-of-citizenship law, which requires people to provide birth certificates or passports in order to register to vote,” noted a lengthy assessment of Kobach by the highly regarded DC bureau of the McClatchy newspaper group, which added that “judges who have ruled against Kobach in voting rights cases have accused him of engaging in ‘wordplay meant to present a materially inaccurate picture of the documents’ and dismissed his assertions about voter fraud because they were backed by ‘scant evidence’ or based on ‘pure speculation.’”
Though Kobach’s claims have been discredited and dismissed for years, he’s got a fan in Donald Trump. The president repeatedly claimed that his 2016 presidential run was undermined by “serious voter fraud” and even suggested that he would have “won the popular vote if you deduct the millions of people who voted illegally.” Trump’s claims have been debunked by the Pulitzer Prize–winning PolitiFact project, which labels them “Pants on Fire” deceptions. So where does the president get his information? “While other secretaries of state, as well as government and academic studies, say occurrences of voter fraud are rare, Kellyanne Conway and other top Trump advisers cited Kobach as the source of the president’s unsupported claim that millions of illegal ballots had tipped the popular vote in Democrat Hillary Clinton’s favor,” noted McClatchy. “So far, Kobach has provided no hard evidence of widespread voter fraud. The author of one study he cited, the Cooperative Congressional Elections Study, has said it actually shows a rate of noncitizen voting of about zero.”
The president’s reaction? On May 11, 2017, Trump named Vice President Mike Pence and Kris Kobach as the heads of his new Commission on Election Integrity. Senate minority leader Charles Schumer, D-New York, said that “putting an extremist like Mr. Kobach at the helm of this commission is akin to putting an arsonist in charge of the fire department.” In a statement, Schumer decried the commission as “a clear front for constricting the access to vote.” Ari Berman, the author of the book Give Us the Ballot: The Modern Struggle for Voting Rights in America, says that “if Trump followed Kobach’s advice and pushed for policies like requiring documentary proof of citizenship for voter registration nationwide, it would have a massively suppressive impact on voting in America.”
States write election laws. But no one knows better than Kris Kobach that conservative legislators have a penchant for embracing and enacting “model legislation” that made it harder for Americans to vote. Kobach told the New York Daily News on May 11, 2017, that “as a practical matter I’ll be leading the commission” that has been positioned to make a major statement regarding elections and election laws in the United States. How major? Critics argue that the commission has been established not just to legitimize Donald Trump’s false claims about massive voter fraud but to advance an agenda that could inspire radical rewrites of state election laws and massive voter suppression.
“It’s not surprising that the Trump administration wants Kobach to lead this commission. Both Kobach and Trump have repeatedly dealt in lies about ‘illegal voting.’ We’ve seen this before—throughout our history, politicians have used propaganda about illegal voting to create unnecessary restrictions on the right to vote. And we know who this hurts—people of color, young people, first-time voters, low-income voters,” argues the ACLU. “No matter how much they lie, they can’t change the facts. Voter suppression is the real threat to election integrity. But that’s not a problem that any commission led by Kris Kobach is equipped to address.”
PART 2
GENERALS AND CEOS SEARCHING FOR MONSTERS TO DESTROY
Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry his own weight, this is a frightening prospect.
—ELEANOR ROOSEVELT, 1960
[Technology] has brought forth terrifying weapons of destruction, which for the future of civilization, must be brought under control through a workable system of disarmament… This is, indeed, a moment for honest appraisal and historic decision. We can strive to master these problems for narrow national advantage or we can begin at once to undertake a period of constructive action which will subordinate selfish interest to the general well-being of the international community.
—PRESIDENT DWIGHT EISENHOWER, 1960
The most important speech on American foreign policy was not given by a president of the United States but by a future president who was then serving as secretary of state. John Quincy Adams was an experienced man of government when he stood before the U.S. House of Representatives on July 4, 1821 (four years before he was sworn in as the sixth president of the republic). But on this day he spoke with the authority of a worldly man, who as a precocious youth had joined his father John Adam’s Revolutionary War–era diplomatic missions to France and the Netherlands, and who at the age of fourteen had traveled in the early 1780s with Francis Dana to initiate U.S. relations with the Russian Empire. A classicist, Adams was fluent in Latin and Greek and French and Dutch, and conversant in most of the languages of Europe. He had served as George Washington’s minister to the Netherlands and Portugal, and is said to have contributed to Washington’s farewell address as president. After his father succeeded Washington as president in 1797, John Quincy Adams represented the United States as minister to Prussia, where he renewed the essential Prussian-American Treaty of Amity and Commerce. He served as the first U.S. minister to Russia under James Madison, witnessed the Napoleonic Wars, negotiated the Treaty of Ghent t
o end the War of 1812 and renewed U.S. relations with Great Britain as the minister to the Court of St. James. As James Monroe’s secretary of state, he negotiated treaties that defined the continental character of the United States, recognized and encouraged declarations of independence by new Latin American nations and helped to forge the Monroe Doctrine.
John Quincy Adams never served as a general, nor as the CEO of an oil company. But Adams knew a thing or two about the world, and about what was required for the United States to achieve peace and prosperity. So when he spoke to the Congress on that anniversary of American independence in 1821, at a time in American history when the country was still young enough to use July 4 as a moment for reflection rather than barbecue partying, the message that Adams brought to the Seventeenth Congress of the United States was taken seriously. As it should be to this day.
The United States, said Adams, entered the assembly of nations speaking “the language of equal liberty, of equal justice, and of equal rights. She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own.”