What's Bad for Rosenstein Is Bad for Kavanaugh

In trying to oust the deputy attorney general, the president is strengthening the Democratic argument against his SCOTUS nominee.

As I write this, Rod Rosenstein is on his way to the White House. He’s the deputy attorney general. He oversees Special Counsel Robert Mueller’s investigation into Russia’s involvement with the Donald Trump presidential campaign.

On Friday, the Times published a flawed story about Rosenstein having discussed, in the days after Trump fired former FBI Director James Comey, the idea of wearing a recording device while talking to the president. The Times also said that Rosenstein brought up invoking the 25th Amendment, which empowers the Vice President and the Cabinet in the event a president is incapacitated. When top government officials go the White House after explosive stories, it usually means one thing.

That they’re going to be fired.

(As of this writing, Rosenstein is said to be preparing to be fired, but has not been fired yet. Other reports show that he offered his resignation, but that the White House has not accepted it. In any case, the president is not in Washington right now.)

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Why flawed? Because the Times appears to have stated as fact something that was a matter of interpretation. It’s not clear whether Rosenstein was serious when he brought up the idea of wearing “a wire.” Some sources says he was being sarcastic. Other say he wasn’t. In any case, I don’t know if that matters, because this president does not need a good reason to fire the man most responsible for the Russia investigation. What he needs is the veneer of a pretense. Probably not even that.

If he fires Rosenstein, or accepts his resignation, Trump will have put him thumb on the scales of justice, thus mocking what has been called America’s civil religion: we are a country of laws, we believe, not a country in which might makes right.

This is happening while the Senate is still conducting hearings on the confirmation of Trump’s nominee for the Supreme Court, Brett Kavanaugh. On Thursday, the Senate Judiciary Committee is set to hear testimony from Christine Blasey Ford, a college professor who has alleged that Kavanaugh attempted to rape her when they teenagers. It’s not clear yet whether the Senate will hear testimony from a second accuser, Deborah Ramirez. The New Yorker published a story Sunday in which she alleged that Kavanaugh sexually assaulted her during a dorm party when they were at Yale.

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These two stories—one about Rosenstein and one about Kavanaugh—are not usually spoken of in the same breath. They should be. Remember that Kavanaugh was not the party’s first pick. He was Trump’s, and he was Trump’s because of Kavanaugh’s deference to presidential power (at least as it pertains to Republican presidents). One could argue, and many have, that Kavanaugh is Trump’s insurance policy against being indicted. This argument was given credence when Kavanaugh refused to commit to recusing himself in the event the Mueller inquiry attempts to indict the president.

I don’t know if I agree with that argument, but my agreeing with it isn’t important. In politics, success often depends on who makes the most convincing argument to the most number of people at a particular time and place. It’s a misconception that Senators must maintain open minds while discharging their duty to “advise and consent” with respect to judicial nominees. As Jonathan Bernstein once wrote, it would be “highly irresponsible of those senators, most of whom campaigned on promises of either protecting or preventing the decisions Kavanaugh is likely to make if he is confirmed.” It’s OK for partisans to make partisan decisions. That’s what they are supposed to do. The question, in my view, is how partisans make arguments, for what reasons, and whether a majority of people accept those arguments as true.

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The Democrats have a lot to work with. Not only can they point to the allegations of sexual assault against Kavanaugh (both of which are credible though not yet confirmed) as good reason to vote against him. They can point to their own history, as a party, in which they purged Al Franken from their ranks. Franken was accused of sexual misconduct. He resigned. In doing so, he removed any credible claim by the Republicans to portray the Democrats as being equally motivated by power alone.

And now the Democrats can point to Rod Rosenstein’s resignation, or today’s attempt to procure his resignation, as another reason to vote against Brett Kavanaugh.

This is not a president, the Democrats can say, who respects the rule of law. This is a president, in fact, who goes out of his way to erode the credibility of law enforcement officials working to unearth the truth about his campaign’s tie to the Russian government. Not only does Kavanaugh offend us morally, the Democrats can say. Voting for Kavanaugh would in effect enable Trump’s attempt at autocratic rule.

That’s a powerful and perhaps winning argument.

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