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The Significance of Rosenstein’s Release

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Deputy Attorney General Rod Rosenstein provided testimony to the House Judiciary Committee on December 13, 2017.

I cover Rosenstein’s testimony in an earlier post.

Prior to his testimony, the Department of Justice released about 375 texts sent by FBI Agent Peter Strzok and FBI Lawyer Lisa Page.

More precisely, Deputy AG Rod Rosenstein released them.

From Rosenstein’s testimony:

Generally speaking, our goal is to be as forthcoming with the media as we can, when it is lawful and appropriate to do so. So I would not approve anybody disclosing something that was not appropriate to disclose.

When this inquiry came in from the Congress, we did consult with the Inspector General to determine that he had no objection to the release of the material. If he had, I can assure you we would not have authorized the release.

Several Democratic Congressional members were upset by the release and sent a letter demanding clarification.

DOJ Spokeswoman Sarah Isgur Flores publicly responded with this series of tweets.

(Note: DAG = Deputy Attorney General Rod Rosenstein):

Inspector General Michael Horowitz elected to respond formally to the Congressional queries with this response:

Although unusual, there was nothing legally wrong with releasing the texts.

The Inspector General, who was in possession of the texts, had clearly given permission for the texts to be released:

The OIG had no objection to the Department [of Justice] providing to Congress pre-existing Department records in its custody in response to a Congressional oversight request.

He left the legal and ethical issues up to the DOJ to vet:

I noted the Department would need to determine whether there were any restrictions, such as those affecting Grand Jury information, that limited its ability to produce certain records to Congress.

The DOJ determined the release of the texts passed legal and ethical hurdles:

Senior career ethics advisors determined that there were no legal or ethical concerns, including under the Privacy Act, that prohibited the release of the information to the public either by members of Congress or by the Department.

Some of this is just political noise, but I provided the sequence of events for a specific reason.

Deputy AG Rosenstein sought out Inspector General Horowitz on or before December 12, 2017, specifically to seek Horowitz’s permission to release the Strzok/Page texts.

(It’s possible IG Horowitz contacted Rosenstein first)

Rosenstein then had DOJ officials provide a determination that the release would be legal.

Senior career ethics advisors determined that there were no legal or ethical concerns, including under the Privacy Act.

This was done in order to make the FBI’s texts available to members of Congress and the public – prior to Rosenstein’s House Judiciary testimony.

Which produced a firestorm – something Rosenstein and Horowitz knew would occur.

The release caused enough of a stir that it:

  • Became a repeated line of questioning during Rosenstein’s House Judiciary testimony – and was entered into record.
  • Provoked several Congressional letters demanding an explanation.
  • Compelled Inspector General Horowitz to testify to the House Committee on Oversight and Governmental Reform about the process leading to the release.
  • Led to an official response letter to certain members of Congress by IG Horowitz.
  • Required DOJ Spokeswoman Sarah Isgur Flores to respond publicly several times.
  • Prompted a second official statement from IG Horowitz.

Rosenstein and Horowitz are both seasoned Washington veterans. They knew full well the response that would occur.

The far easier option would have been to never consider releasing the texts. There were any number of potential roadblocks to the texts being released.

  1. Rosenstein had to first decide to release the texts.
  2. Rosenstein had to seek out IG Horowitz to gain his departmental approval.
  3. IG Horowitz had to give approval.
  4. Rosenstein had to obtain internal counsel approval of the release.
  5. Rosenstein decides to include certain press members as part of the release – knowing the texts would then be made public.
  6. Rosenstein has to obtain internal counsel approval for this release as well.
  7. Rosenstein releases texts to Congress and certain press members the night prior to his House Judiciary testimony.

The release of the Strzok/Page texts prompted widespread press coverage.

It may seem as if I’m belaboring a small point, but ask yourself why Deputy AG Rosenstein went to all this trouble to release some text messages from the FBI.

And why did he choose to do so in advance of his testimony – something sure to make his Q&A session more confrontational.

More importantly, why did Rosenstein go to the Inspector General to obtain the texts – as opposed to the FBI itself.

In an earlier post, The Inspector General’s Quiet Investigation, I asked a related question:

Why have we witnessed such incredible levels of stonewalling by the FBI.

The House Intelligence Committee has been attempting to get answers from the FBI regarding Strzok’s sudden demotion but has been stonewalled by the FBI for several months. The refusal to cooperate by the FBI has been so severe that the Intelligence Committee is in the process of citing the FBI with Contempt of Congress charges.

In an internal House memo obtained by Fox News, a senior counsel for the House Intelligence Committee urged Republican Chairman Devin Nunes three weeks ago to pursue contempt of Congress citations against the Justice Department and FBI.

Congressional investigators accuse those agencies of withholding key documents and an FBI witness that could shed light on whether U.S. officials under then-President Barack Obama relied on the infamous anti-Trump “dossier” to justify surveillance against associates of then-candidate Donald Trump.

I had been puzzled over the FBI’s ability to simply ignore Congress during Trump’s Presidency.

Now, with the Inspector General’s Investigation, it all makes sense. Why would the FBI be willing to further incriminate itself by cooperating with Congress.

This has become a political fight for survival.

The FBI technically operates under the jurisdiction of the DOJ, but in reality often functions as an independent agency.

There’s also the obvious dichotomy of the newer Trump Appointees at these institutions – and the old guard put in place during the Obama Administration. The schism is very real. And deep.

Here is a recent timeline from an article by Byron York:

On Oct. 11, Nunes met with deputy attorney general Rod Rosenstein. In that meeting, Nunes specifically discussed the committee’s request for information about Strzok.

In an Oct. 31 committee staff meeting with the FBI, bureau officials refused a request for information about Strzok.

On Nov. 20, the committee again requested an interview with Strzok. (Three days earlier, on November 17, Strzok met with the Senate Intelligence Committee.)

On Nov. 29, Nunes again spoke to Rosenstein, and again discussed Strzok.

On Dec. 1, the committee again requested to speak with Strzok [Request made to FBI].

The stonewalling from the FBI has continued.

Deputy FBI Director Andrew McCabe abruptly cancelled his scheduled December 12th appearance before the House Intelligence Committee. McCabe cancelled on the evening of December 11th.

While the FBI has been resolutely refusing to cooperate, it appears that Horowitz and Rosenstein decided to take matters into their hands.

Inspector General Horowitz obtained the FBI texts through his ongoing investigation. Rosenstein obtained them from Horowitz – bypassing the FBI – and then released them to Congress, the press, and effectively to the public.

And he seems to have gone to some lengths in order to do so.

If you’re puzzling over all this, ask yourself a simple question.

Who did Rosenstein upset with the release of the FBI texts.

Hint: It wasn’t the Republicans.

 

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