Sessions’ recusal last week from any investigations into last year’s campaigns makes the deputy attorney general responsible for the probe of Russian hacking and contacts with President Donald Trump’s associates. Rosenstein can expect tough questions at his confirmation hearing before the Senate Judiciary Committee Tuesday about his willingness to follow the facts wherever they lead -- potentially even to his own boss and the White House, according to Bloomberg.
Even Democrats who have demanded that Sessions resign acknowledge that Rosenstein, the U.S. attorney in Baltimore, is well-qualified after more than 25 years’ experience working in the Justice Department through Republican and Democratic administrations. So the focus will turn on how he intends to handle the explosive Russia investigation.
“Dems should seek to have Rosenstein commit to a special counsel, which he would be empowered to appoint if confirmed," said Brian Fallon, a former spokesman for Hillary Clinton’s presidential campaign, the Justice Department and Democratic Senator Chuck Schumer of New York. They should “hinge it on the fact that it is an untenable situation for anyone in the deputy slot to be investigating their own boss, whom they meet with every day.”
Schumer, now the Senate minority leader, said Sunday on "Meet the Press" on NBC, "I am urging him at that hearing to say that he will appoint a special prosecutor to look into this."
Senator Richard Blumenthal, a Connecticut Democrat on the Judiciary panel, said on Twitter Sunday that he’ll "use every possible tool" to block Rosenstein’s confirmation unless he promises to appoint a special counsel.
Rosenstein’s associates say he should have little problem assuring senators of his independence, given his reputation and experience in prosecuting crimes.
"He is a prosecutor’s prosecutor," said Jason Weinstein, a former assistant U.S. attorney who worked for Rosenstein in Maryland. "Given the incredibly politically charged environment in which he will be coming into this job, I can’t imagine someone who I would have more confidence in than him."
Still, senators are likely to press Rosenstein to pledge that his commitment to the Constitution and the law will override his loyalty to the attorney general or the president. That could create a moment like the one when then-Senator Sessions questioned Sally Yates at her confirmation hearing for the job of deputy attorney general on whether she’d be willing to say “no” to the president.
Her affirmative answer went viral after Trump fired Yates, who was then the acting attorney general, in January after the Obama administration holdover refused to defend Trump’s travel ban in court.
Sessions recused himself from investigations of last year’s campaigns after it was disclosed he met with the Russian ambassador to the U.S. twice last year despite testifying at his confirmation hearing that “I did not have communications with the Russians.” Sessions told reporters Thursday that “in retrospect” he should have given a different answer but that he met with the ambassador in his capacity as a senator, not as a top Trump supporter and campaign adviser.
The Justice Department said Sessions won’t go to meetings, review evidence or weigh in on the final decisions to pursue or end multiple FBI investigations now under way into attempts by the Russian government to sway last year’s U.S. presidential election, including the hacking of Democratic Party emails.
Toxic Topic
While Dana Boente, a U.S. prosecutor in Virginia who’s currently acting deputy attorney general, took immediate charge of any campaign investigations, the task will shift to Rosenstein if he wins Senate confirmation.
Debate over the finding by U.S. intelligence agencies that Russia leaked Democratic emails to hurt Clinton -- and ultimately to help Trump win -- has only grown more toxic over time. Trump said in a tweet over the weekend that former President Barack Obama had his phones in Trump Tower tapped during last year’s campaign, although he offered no evidence and a spokesman for Obama called the claim “simply false.”
According to the New York Times, FBI Director James Comey asked the Justice Department to issue a statement rejecting Trump’s claims, but the agency has not.
Republicans say Rosenstein’s solid record should help fend off Democratic pressure to commit before his confirmation to a special counsel or an independent commission on Russian influence.
“Nobody should be prejudging as to if there should or shouldn’t be a special prosecutor. Mr. Rosenstein is clearly independent, having been a U.S. attorney under both President Bush and President Obama,” Beth Levine, a spokeswoman for Senate Judiciary Chairman Chuck Grassley of Iowa, said in an email. “Mr. Rosenstein should go into the job without any predeterminations and evaluate the necessity on the facts and the merits."
Serving Since 2005
Rosenstein, 52, is the only U.S. attorney appointed by former President George W. Bush who remains in place, serving in Baltimore since 2005. Among his past challenges was working as a prosecutor in the Whitewater investigation into former President Bill Clinton.
Democrats seeking to question his independence will have to contend with supportive letters filed with the Judiciary Committee by Obama administration officials who vouched for Rosenstein’s ability to keep politics out of investigations.
"Rod has earned a reputation as an apolitical public servant who impartially pursues the cause of justice without regard to politics or any other influence," wrote David Kris, Lisa Monaco and John Carlin, all former heads of the Justice Department’s National Security Division during the Obama administration.
Although Maryland doesn’t get as many national security cases as New York or Virginia, Rosenstein brought a case against retired Marine Corps General James Cartwright for leaks about a U.S. effort to sabotage Iran’s nuclear program.
Rosenstein was asked by Eric Holder, who was attorney general under Obama, to lead the probe after congressional Republicans called for a special prosecutor. Cartwright pleaded guilty to lying to the FBI before Obama pardoned him in January.
Given Rosenstein’s low-key personality it might be easy to underestimate him, but he won’t have a problem standing up to Trump and the White House if necessary, Weinstein, now a partner at the law firm of Steptoe & Johnson LLP in Washington, said in an interview.
"Whether it’s the White House or the attorney general or someone in Congress, if Rod thinks that something wrong is happening, he wouldn’t stand by and let it happen," Weinstein said.
Brand’s Nomination
The committee will also question Rachel L. Brand on her nomination to become associate attorney general, the No. 3 job in the Justice Department. She’s a former senior counsel at the U.S. Chamber of Commerce and ran the Justice Department’s Office of Legal Policy during Bush’s administration.
She is likely to be questioned about a friend-of-the-court brief she wrote for the Chamber of Commerce arguing that Citigroup Inc. shouldn’t have to admit wrongdoing as part of a settlement of Securities and Exchange Commission misconduct allegations involving mortgage bonds.
Brand, 43, would supervise the department’s civil, antitrust and environmental divisions, among others, making the position an important overseer of many department investigations of corporations.
Questions also may arise over her views on government surveillance of Americans. Since 2012, she has filled a Republican seat on the Privacy and Civil Liberties Oversight Board, a panel that advises the president and other top officials about counterterrorism policy. In 2014, Brand dissented when the panel’s majority concluded that the National Security Agency’s collection of bulk telephone data on Americans was illegal and should be stopped.