A few years ago, “good faith” was declared dead. Obama was still president and the Department of Justice was run by the people lionized today for their not being sycophants of the Trump administration. To some howls of disapproval, I disputed the contention as unworkable, the end of the American experiment. A nation cannot function without the presumption of regularity.
The beauty of such presumptions is that they are rebuttable. The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.
Yet, the Comey termination letter tests the presumption beyond the breaking point. As Julian Sanchez writes, the claim that he fired Comey for mishandling the Clinton email investigation is too ludicrous to be taken seriously. It’s as if Trump wasn’t even trying to come up with a credible story. It’s insulting. Lawprof Dawn Johnsen, at the WeHateTrump blog, argues that he’s not entitled to the deference otherwise shown presidents:
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking?
This rabbit hole goes down very, very far. Think before you leap.
It’s one thing for the public to say that they don’t believe Trump, that his claimed justification for firing Comey is insultingly ludicrous, but to take that a step further, so as to relieve government officials of the presumption of regularity, is another matter. It opens the door to justifiable insubordination by those in official positions who disagree with or dispute their superior. It allows every person who gets a government paycheck to veto and undermine the president.
Rod Rosenstein is reported to have considered resigning after Trump used his memo for ulterior purposes. He didn’t. Threatening to quit isn’t bold. Quitting is bold. Rosenstein remains in his office today.
Should he have written the letter, reasonably assuming that it would be used to bolster a lying narrative? Assuming, arguendo, it was a truthful statement of his belief, and he was asked to prepare it by his superior, his option was to comply or quit.* You don’t get to be Deputy Attorney General and simultaneously decide to tell the president to get lost.
The New York Times has written an open-letter editorial to Rosenstein, imploring him to appoint a special prosecutor to continue the investigation of the Trump administration’s Russian ties.
Given the sterling reputation you brought into this post — including a 27-year career in the Justice Department under five administrations, and the distinction of being the longest-serving United States attorney in history — you no doubt feel a particular anguish, and obligation to act. As the author of the memo that the president cited in firing Mr. Comey, you are now deeply implicated in that decision.
Note the projection of emotion onto Rosenstein, that he “no doubt feel[s] a particular anguish.” To say “no doubt” is to beg the question. To attribute “anguish” to him isn’t to inform him, but to play to their audience. However Rosenstein feels, he knows it without the Times telling him.
You must also know that in ordering you to write the memo, Mr. Trump exploited the integrity you have earned over nearly three decades in public service, spending down your credibility as selfishly as he has spent other people’s money throughout his business career.
Every president “exploits” the credibility of those he appoints, who serve at his pleasure. That’s part of the job description of being appointed to a government position.
Given your own reputation for probity, you must be troubled as well by the broader pattern of this president’s behavior, including his contempt for ethical standards of past presidents.
While the back end of this sentence carries far too much weight, the front end ignores the fact that Rosenstein accepted the position of DAG in the Trump Administration, under Attorney General Jeff Sessions. If he’s not a fool, then he knew what he got himself into and said, “yup, I’m your guy.” And didn’t resign.
You have one choice: Appoint a special counsel who is independent of both the department and the White House. No one else would have the standing to assure the public it is getting the truth.
This is a threat. This is the New York Times editorial board challenging Rosenstein to appoint a special prosecutor, and appoint one of whom they approve. If not, then it will be Rosenstein’s fault. He, and he alone, will have failed the nation.
In simpler times, the decision of the Deputy Attorney General, following the recusal of the AG, would have been entitled to the presumption of regularity, that he exercised his authority in good faith and did what he believed to be proper. But these aren’t simple times. Whatever decision is made, it will be subject to scrutiny and disbelief, whether by the New York Times or by supporters of the president, such that his decision will be decried either way.
Even if he appoints the most respected, pristine, honorable person ever, they will be Gorsuched. Without the presumption of regularity, there is no possibility of a trusted outcome. This is the rabbit hole of which Josh wrote. We may already be falling down it and there will be nothing to stop us from crashing when we hit the bottom. No nation can function this way.
*For those who have willfully bought the Sally Yates narrative that her offense was disagreeing with the president’s Muslim Ban EO, this is false. Her offense was issuing a letter, given to the media, undermining the president publicly while sitting in the Acting Attorney General’s chair. She was publicly insubordinate. Right or wrong on the substance, that was not an option available to her. If she refused to do the job, her option was to quit, not go public.