Last week this column ran the first of three excerpts from a conversation I had with Rod J. Rosenstein about federal prosecution in Maryland. Among other topics, we discussed how he became the U.S. Attorney for the District of Maryland in 2005 and his thoughts about the political furor over the firings of several U.S. Attorneys in other states. [For part three of this interview, click here.]
Sandler: With regard to the procedures for appointments of U.S. Attorneys, can you tell us how one does get appointed?
Rosenstein: I can tell you how I was appointed. Now, one of the interesting things about this is it varies from state to state. As a legal matter, the President makes the nomination, subject to confirmation by the Senate. But how the name comes to the President’s attention varies depending upon the politics of a state. For example, there are some states where traditionally the senior elected official of the President’s party makes the choice. Here in Maryland it would have been Senator Paul Sarbanes, for example, or Senator Barbara Mikulski in a Democratic administration. Some states have panels that are set up with the consent of the leading politicians in the state to make recommendations. I know that it works that way in California, for example.
At the point when I applied, which was in December of 2004, there was a lot of publicity about the fact that nobody quite knew how the process was going to operate in Maryland. What ultimately wound up happening was that I was interviewed by a panel of lawyers at the Justice Department, and I had separate meetings with Senator Sarbanes, Senator Mikulski and the Attorney General. I know that a lot of candidates were interviewed – including four or five who are friends of mine. At some point I received a telephone call notifying me that I had been selected. I wasn’t involved in any deliberations by the decision-makers. But from my perspective it was a process of letting people know that I was interested in the job, interviewing for the job, and then waiting to hear what the decision was.
Sandler: Do you want to make a comment on the U.S. Attorney issue?
Rosenstein: I can tell you from my experience, having been a federal prosecutor in the George H.W. Bush administration, the Clinton administration, and now the George W. Bush administration, that almost every administration is going to be accused of impropriety in law enforcement. It’s very painful when you are a prosecutor to be on the receiving end of that, as the Justice Department was in the 1990s and as it is now.
…When you sense a coming storm, you batten down the hatches and secure your own ship. We’ve done that here. I can assure you that federal law enforcement in Maryland during my time here has not been infected by any kind of partisanship, that everything we do is based upon a careful analysis of the issues by nonpartisan prosecutors and investigators, and that decisions are made based on the merits.
I believe that’s pretty much the way it is everywhere. But I recognize that the public perception has now been influenced by what we’ve heard about things in Washington. It’s the obligation of the Justice Department to work to restore people’s confidence in the way the Justice Department operates and the way U.S. Attorneys are hired and fired and the way that all of our decisions are made.
Sandler: Do you think that the issue and public attention to the discharge of these U.S. Attorneys has affected morale within the Justice Department and within the various U.S. Attorney offices?
Rosenstein: I think that promoting public confidence in law enforcement is one of our most important obligations. It’s something that we, as employees of the Justice Department, should be thinking about in everything that we do. The American public is not able to judge our motives. They don’t know what we’re thinking. They can only observe what we say and do and draw inferences from that.
So when information comes to light that gives people reason to be suspicious about the motives of the Justice Department, then you inevitably have the kind of speculation that we’ve had recently. It casts a shadow on all of our work. That is damaging.
I think it is important to recognize that it’s not just damaging to this administration. It’s damaging to the government and the people because our Justice Department has been really a shining light for the entire world, when you think about it. Federal courts and federal law enforcement in the United States are integral to American democracy and the promise of equal justice under the rule of law. If people’s confidence in that is shaken, it’s really damaging to everybody.
So I’m hopeful that this period will pass. I’m hopeful that there will be no evidence that there was any actual impropriety and that people will regain confidence in the integrity of the Department of Justice. Based on my experience, I think that the Justice Department is deserving of confidence because it’s an institution with a lot of internal checks and balances. So, for example, when I hear people say that there was concern that potential prosecutions would be influenced by a U.S. Attorney’s resignation, I don’t think that’s the case. … The U.S. Attorney can make a difference. But the U.S. Attorney doesn’t make all the difference. Investigations and prosecutions that are currently ongoing in the office normally would continue even if the U.S. Attorney were to leave. There might be new priorities or new areas of focus, but I would certainly expect that any meritorious ongoing cases would not be affected by the departure of a U.S. Attorney.
Sandler: Would you say that morale in your office was unaffected by this?
Rosenstein: I think morale in this office has been extraordinarily good. Obviously it has an effect when people see public questions about the integrity of the Department of Justice, and you can’t ever expect everyone to be cheerful all of the time. But overall, morale in this office is extraordinarily good. Our employees are honored to work for the Department of Justice, and they are proud of the work we do.