Rod Rosenstein’s Subpoena Threat: He’s Conflicted, and He’s Acting Like It

The House Intelligence Committee is investigating whether the government has used the Justice Department’s awesome investigative authorities as a weapon against political adversaries. We learned yesterday that, in response to this very investigation, Deputy Attorney General Rod Rosenstein . . . threatened to use the Justice Department’s awesome investigative authorities as a weapon against political adversaries.

That Rosenstein threatened to subpoena the committee’s records does not seem to be in serious dispute. There are differing accounts about why. House investigators say that Rosenstein was trying to bully his way out of compliance with oversight demands; the Justice Department offers the lawyerly counter that Rosenstein was merely foreshadowing his litigating position if the House were to try to hold him in contempt for obstructing its investigations. Either way, the best explanation for the outburst is that Rosenstein is beset by profound conflicts of interest, and he’s acting like it.

The first thing to bear in mind about the news reported Tuesday by Fox News’s Catherine Herridge is that the dispute in question — which is just one of many during a year of Justice Department stonewalling — happened five months ago, on January 10.

So, what was going on back then?

Among other things, the House Intelligence Committee and senior Republicans on the Senate Judiciary Committee were pressing for disclosure of the applications the Justice Department submitted to the Foreign Intelligence Surveillance Court (“FISA court”) for warrants to eavesdrop on Carter Page, a former Trump-campaign adviser. (The Nunes memo is dated just eight days after Rosenstein’s reported subpoena threat; the Grassley-Graham memo is dated just four days before; both prompted bitter disclosure fights.)

Back then, we were being told that the FBI and Justice Department would never provide the FISA court with unverified allegations from third- and fourth-hand anonymous foreign sources, purveyed by a foreign former spy whose partisan work — including the planting of media stories at the height of the election race — had been paid for by the Democratic presidential candidate. We were being told that if the sources of information presented to the FISA court had any potential biases, those would be candidly disclosed to the FISA court. And we were being told that information in FISA applications is so highly classified that disclosing it would reveal methods and sources of information, almost certainly putting lives and national security in jeopardy.

What, then, did we learn when Congress, after knock-down-drag-out fights like the one in January, finally managed to force some public disclosure?

We learned that the Justice Department and FBI had, in fact, submitted to the FISA court the Steele dossier’s allegations from Russian sources, on the untenable theory that the foreign purveyor of these claims, Christopher Steele, was trustworthy — notwithstanding that he was not making the allegations himself, but instead was only relaying the claims of others.

We learned that the FBI had not been able to verify the dossier’s claims (and that even Steele does not stand behind them), but that the Justice Department presented them to the court anyway.

We learned that the Justice Department failed to tell the FISA court that Steele’s reports were an anti-Trump opposition-research project paid for by the Clinton campaign — i.e., paid for by the political candidate endorsed by the president, paid for by the party of the incumbent administration that had applied for the FISA warrant against its political opponent.

We learned that the Justice Department failed to tell the FISA court that Steele — on whose credibility it was relying — had been discontinued by the FBI as a source because he had lied about his contacts with the media.

We learned that one of those contacts with the media (specifically, with Michael Isikoff of Yahoo News) had generated a news story that the Justice Department actually offered as corroboration for Steele — on the false theory that someone other than Steele was the source for the story.

We learned that the revelation of these facts posed no danger to national security or to methods and sources of intelligence-gathering. Instead, the Justice Department and FBI had fought tooth-and-nail against disclosure because these facts are embarrassing and indicative of an abuse of power.

And we learned that, after the initial 90-day FISA warrant was authorized in October 2016 (about three weeks before the election), it was reauthorized three times — well into the first year of the Trump administration. Meaning: The last FISA-warrant application was approved at the Justice Department by none other than Deputy Attorney General Rod Rosenstein.

Note that the required sign-off by the Justice Department’s top official (which was Rosenstein because Attorney General Jeff Sessions had recused himself) is a key element of FISA’s elaborate statutory process. The process is in place because, unlike criminal-law wiretaps, which are disclosed to the defense and fully litigated prior to trial, national-security wiretaps under FISA are classified and are never disclosed to the targets. Because Congress was concerned that this could lead to abuse, it mandated that warrant applications be approved at the highest levels of the FBI and Justice Department before submission to the FISA court. This is supposed to give the court confidence that the application has been carefully reviewed and that the surveillance sought is a high national-security priority.

To recap: In January 2018, Congress was investigating whether the Justice Department had abused the FISA process. The top Justice Department official for purposes of responding to this congressional investigation was resisting it; this included fighting the disclosure of the last warrant relevant to that investigation, which he had personally approved — a warrant that relied on the unverified Steele dossier (flouting FBI guidelines holding that unverified information is not to be presented to the FISA court), and that failed to disclose both that the dossier was a Clinton-campaign product and that Steele had been booted from the investigation for lying.

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