A Brief Aside on the Inexplicable May 2017 Rosenstein Memo About Comey

This is hardly the most important thing about the Mueller Report, but it warrants a short note, if only to fill out the historical record.

When President Trump removed FBI Director James Comey on May 9, 2017, the White House’s initial explanation was that Trump had acted on DOJ recommendations, particularly that of Deputy Attorney General Rod Rosenstein.  (See Mueller Report vol. II at 69.)  When the public reacted harshly to the removal, Chris Christie recommended that Trump should double-down on the idea that he had fired Comey based upon Rosenstein’s May 9 memorandum to the President.  (Trump had untruthfully told Christie that he removed Comey because of Rosenstein’s criticisms.)

Following Trump’s conversation with Christie, White House officials asked DOJ to put out a statement that it was Rosenstein’s idea that Trump should fire Comey.  DOJ refused to do so because, well, it wasn’t Rosenstein’s idea.

Nevertheless, Sarah Sanders and Sean Spicer continued to insist, later that evening and into the next day, that “it was all Rosenstein”–“a DOJ decision.” Sanders even went so far as to lie to reporters that Rosenstein decided “on his own” to review Comey’s performance; that Rosenstein decided “on his own” to come to the President on Monday, May 8 to express his concerns about Comey”; and that “the President accepted the recommendation of his Deputy Attorney General to remove James Comey from his position.”  See id. at 70-72.  (Presumably her explanation for these statements now would be similar to the euphemism she invoked when she explained to Mueller that her statement to the press that FBI agents had lost confidence in Comey was “not founded on anything.”)

In those first 24 hours after the firing, Rosenstein was shocked to find that he’d been played; Attorney General Sessions even complained to the White House Counsel’s office on May 9 that Rosenstein was upset that his memo was being invoked as the basis for Comey’s firing.

Here’s the weird thing, however:  Rosenstein knew what was up before he wrote the memo.  During a meeting with the President on May 8, Trump told Rosenstein and Sessions that he was going to remove Comey–he even showed them the termination letter he and Stephen Miller had drafted.  Only then did Trump ask Rosenstein to draft a memo “recommending” Comey’s removal.  Rosenstein acknowledged to Mueller and aides that when he left the meeting, having promised to deliver the memo by the next morning, he knew Trump would terminate Comey for reasons that were different from those that gave Rosenstein concern about the Director (i.e., because of the Russia investigation rather than because of Comey’s grossly inappropriate judgment and conduct regarding the Clinton e-mail investigation). Id. at 67-68.

Indeed, as I noted here back on May 10, 2017, a striking thing about Rosenstein’s memo is that it actually did not recommend that Trump remove Comey (a fact the White House and most of the media overlooked at the time).  With respect to this important (but often forgotten) point, the Mueller Report now reveals that in the first draft of his memo Rosenstein did recommend that Trump remove Comey, but that he removed that recommendation from the final draft of the memo because he knew Trump had already made the decisionId. at 68 n.439 (citing notes of Rosenstein’s colleague Tash Gauhar).

In other words, Rosenstein knew that Trump solicited his memo so that it could be used as a pretext for a removal that Trump was going to make for entirely different reasons.  Yet Rosenstein wrote it anyway–and carefully omitted any recommendation, presumably so that the decision couldn’t be pinned on him–only to be shocked that very evening when the White House used (and mischaracterized) the memo for precisely the reasons he was asked to write it.

I understand why Rosenstein was eager to memorialize all of the reasons that he sincerely–and correctly–believed that James Comey had demonstrated abominable judgment and was unsuited to be FBI Director.  The memo undoubtedly reflected what virtually everyone at DOJ was thinking and saying about Comey’s disastrous decision-making (see generally the Inspector General’s later report).  It’s substantively unimpeachable.  Even so, it was obvious to Rosenstein, even as he put pen to paper, why the President had asked him to write the memo, and the (mis)uses to which it would likely be put.

That’s why it’s so difficult to understand just why Rosenstein agreed to submit such a memo to Trump in the first place–a question the Mueller Report (understandably) does not try to answer.

In several posts here, I’ve argued that Rosenstein deserves credit for the way he’s handled the Russia investigation over the past two years.  And even in this particular instance, he acted admirably in one particular respect:  Mueller reports (vol. II, p.67) that the President told Rosenstein to include in his recommendation the fact that Comey had refused to confirm that the President was not personally under investigation.  When Rosenstein responded that because the Russia investigation was not the basis of his recommendation, he didn’t think he should mention it, “[t]he President told Rosenstein he would appreciate it if Rosenstein put it in his letter anyway.”  Yet Rosenstein, to his credit, refused to do so.

The problem is that Rosenstein did not take the additional step of specifying, in his memorandum, that the Russia investigation had nothing to do with why he thought Comey had betrayed the great traditions of the Department and the Bureau.  Nor did Rosenstein’s memorandum reflect his knowledge that Trump had already decided to fire Comey for other, presumably dubious reasons.  Instead, Rosenstein cryptically wrote that:

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.”

Although Rosenstein was careful not to expressly recommend that Trump remove Comey, this passage was certainly susceptible of being read to imply that Trump had not yet made the decision and that Rosenstein was recommending he do so for reasons related to Comey’s failures in the Clinton investigation.  Not surprisingly, Trump exploited that ambiguity immediately, as Rosenstein surely should have anticipated he would.

In this particular instance, then–as well as in his recent support for Bill Barr’s inappropriate and transparently unjustified public pronouncements that Trump did not commit any criminal offenses in his efforts to undermine the investigation–Rosenstein unfortunately failed to meet the appropriately high institutional standards that he and Mueller have otherwise exemplified. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).