Opinion | Rod Rosenstein explains the ‘rule of law’

Deputy Attorney General Rod J. Rosenstein on Tuesday gave a succinct lesson on the rule of law:

Let’s break that down.

First, the rule of law requires the government to specify charges in writing and present sufficient evidence to proceed to court. (“It really does illustrate though a really important principle about the rule of law, and a distinction between the way we operate in the department — and we make mistakes, that’s not to say we’re flawless. But the way we operate in the Department of Justice, if we’re going to accuse somebody of wrongdoing, we have to have admissible evidence and credible witnesses, we need to be prepared to prove our case in court, and we have to affix our signature to the charging document. That’s something that not everybody appreciates.”) The department is and must be apolitical and cannot operate according to the whims of the president. President Trump cannot direct the Justice Department to investigate and indict his opponents; he cannot use his power to shield cronies from the criminal justice system. In short, he most certainly cannot do whatever he wants with DOJ.

Second, career Justice Department officials and political appointees take an oath to uphold the law; they do not pledge loyalty to one man. Asking an official to sublimate his oath to the demands of political patronage violates the essence of the rule of law. If DOJ officials violate their oath, they are held accountable for their actions. Judges can sanction them; the bar can punish them. Unlike members of Congress who get the protection of the speech and debate clause of the Constitution, prosecutors do not get to go around making wild accusations. Those who uphold the rule of law certainly operate in the public eye, but they cannot respond to the mob or mix it up with critics. It is for that reason that they require ordinary citizens, members of the bar who do not work for DOJ, retired judges and alumni to speak up on their behalf.

Third, Rosenstein reiterated, “I think they should understand by now, the Department of Justice is not going to be extorted. We’re going to do what’s required by the rule of law, and any kind of threats that anybody makes are not going to affect the way we do our job.” Trump — who lacks an appreciation of institutions, norms and professional ethics — seems to be under the impression that if he fires special counsel Robert S. Mueller III, or if Attorney General Jeff Sessions were there to protect him, there would be no investigation. It doesn’t work that way. The Justice Department operates whether one person or a flock of people leaves; an institution with more than 115,000 people cannot be bullied. Fire Mueller or Rosenstein or Sessions, and others will step forward to do their jobs.

Rosenstein’s short tutorial makes clear why the White House cannot be allowed to reach down into DOJ to go after this individual or spare that individual. Such conduct violates core principles without which liberal democracies cannot function. Allow the executive to direct law enforcement based on whim, self-interest or partisanship, and you have a king, not a president constrained by the rule of law. Put in FBI officials and DOJ lawyers who would respond to the president’s expressed whims, self-interest or partisanship, and you no longer have constitutional government.

Even a first-year law student comes to class equipped with an appreciation for these elementary concepts. Trump, however, who has operated in a world of empty threats, financial muscle, tabloid boasts and flat-out lies (in a family business with no outside accountability), appears unaware that all those tricks are useless when operating in a realm where the rule of law is taken seriously.

No wonder Trump is an emotional basket case these days. He’s learning that you cannot extort the Justice Department. If you try, there are serious legal consequences.