Rod J. Rosenstein has been leading federal prosecution in this state since being named U.S. Attorney for the District of Maryland in 2005. He has reorganized the office’s criminal division and set its priorities, placing terrorism and violent crime at the top of the list.
I recently sought out Rosenstein for an interview. We discussed many subjects, including his views on crime deterrence, the U.S. Attorney’s proper role in combating terrorism, and the recent U.S. Attorney firings.
First, some background.
Rod Rosenstein has been in training for this post his entire professional career. After graduating from the Wharton School of the University of Pennsylvania and then Harvard Law School and serving for one year as a judicial law clerk, he went immediately into the Justice Department as a trial attorney in the Public Integrity Section of the Criminal Division. He has since held various government posts, including counsel to Clinton Administration Deputy Attorney General Philip Heyman, assistant to Independent Counsel Kenneth Starr, and Assistant U.S. Attorney in Greenbelt, Maryland.
Below are excerpts from our conversation.
I. On Terrorism
Sandler: What are your priorities in terms of prosecution?
Rosenstein: Our top priority is preventing a terrorist attack. That’s our top priority but it doesn’t involve a lot of cases, fortunately, because we don’t have a lot of prosecutions of terrorists. But to the extent that we do or we have leads that need to be followed up, they are our top priority.
Another of my top priorities is violent crime. I’ve spent a lot of my time on that issue, particularly in Baltimore City and Prince George’s County where we have unacceptably high gun crime rates.…Drug dealing and gangs are really behind a lot of the violent crime and a lot of the problems -- the temptations that some children and teenagers face while growing up lead them down the road to commit violent crimes when they become adults.
Fraud and corruption have been and remain federal priorities because they are areas where state and local officials often lack the resources to bring prosecutions. We pursue civil penalties as well as criminal cases against people who defraud the federal government. We also focus on child exploitation.
Sandler: With regard to terrorism, what is your office specifically doing that you can share with us, and how, if at all, are you cooperating with the Governor, the Mayor and the county executives around the state?
Rosenstein: Most of what we are doing I can share with you. After September 11, 2001, the U.S. Attorney’s Office was tasked by the Attorney General with coordinating the government’s anti-terrorism efforts. Here in Maryland we have what we call the Anti-Terrorism Advisory Council [ATAC], which is a group of hundreds of representatives of our federal, state and local agencies that meet on a regular basis along with private sector partners that may play a role in preventing or responding to terrorist attacks. We have a monthly meeting where we coordinate our efforts.
When I say coordinate our efforts, when you think about it, there are a lot of things we need to do. We need to be collecting leads. We need to be investigating the leads and we need to be anticipating potential terrorist acts and preparing to respond to them. As one component of our ATAC, we have the Maryland Coordination and Analysis Center, MCAC, which is what we call a fusion center. A fusion center takes leads that come in from all sources, evaluates those leads, analyzes them, sends them out for investigation and then disseminates intelligence in a usable form to the front-line officers -- the police and agents who are out on the front lines -- about what to be looking for.…
Our active investigations are handled by the Joint Terrorism Task Force, or the JTTF, which is run by the FBI. That is a group of federal agents working with detailed state and local law enforcement officers who investigate all the leads that come up of potential terrorists in Maryland.
Sandler: Do you think that there are enough resources allocated for what you just described?
Rosenstein: There are a lot of resources invested in this effort, although not just from the U.S. Attorney’s Office. We have one Assistant U.S. Attorney who works full-time as the supervisor of national security issues. One Assistant U.S. Attorney works full-time investigating national security cases, and several others pitch in when needed. We have two other employees in our national security unit who are actively engaged in running the ATAC operation. But most of the anti-terrorism effort involves the FBI and other federal, state and local law enforcement officers.
Civil liberties
I asked Rosenstein to discuss generally the challenge of balancing anti-terrorism efforts with civil liberties. Here is what he had to say.
Rosenstein: On September 11, 2001, I was an Assistant U.S. Attorney in our Greenbelt office. The Greenbelt office is about one mile from the Beltway Plaza Mall where some of the 9/11 terrorists trained in a Gold’s Gym. I’ve reflected a lot on that and the fact that I and other Assistant U.S. Attorneys would occasionally go into that mall for lunch and we’d walk right past that Gold’s Gym where terrorists were training.
As Assistant U.S. Attorneys, we had no responsibility at all for fighting terrorism. Such national security issues were handled by FBI agents who worked behind what they referred to as “the wall.” They didn’t deal with federal prosecutors, and we never talked with them. We didn’t even know who they were.
One of the things that we recognized — and when I say we, one of the things America recognized — after September 11th was that we couldn’t afford to have a situation where federal prosecutors…were in the dark about potential terrorist threats. So the structure of the Justice Department was radically changed to the point where now it falls to the U.S. Attorney to take a leadership role in preventing terrorism on American soil.…
It requires a lot of work to figure out who the potential terrorists are. We’ve been very fortunate not to have any domestic attacks since September 11th, but we look at other countries like England where they have. They’ve had home-grown terrorists. People who seem to be average citizens who are, in fact, secretly developing allegiances to foreign terrorists and preparing to launch attacks domestically.
Now, you’re not going to catch those people just by standing out on the street corner. You’re going to have to do some investigative work. I think everybody recognizes that law enforcement is going to have to gather intelligence in order to know who the potential terrorists are so that we are, in fact, disrupting terrorists before they attack. We don’t want to be in the business of trying to prosecute terrorists after they attack.
From my perspective as U.S. Attorney, and having worked with the prosecutors and law enforcement agents who are investigating terrorism here in Maryland, I don’t think that our response to terrorism has undermined the civil liberties of Americans. I think that law enforcement agencies are being very responsible in the way that they’re gathering information, and I don’t think they’re abusing the information that they’ve gathered.
That being said, civil liberties are not just about the reality of being persecuted. They’re about the perception of being persecuted. I think we have to be sensitive to the fact that when people believe that the government is, for example, collecting information from libraries or intercepting telephone calls, they fear that their civil liberties are at risk, and I think it’s our responsibility to do what we can to reassure people that we are using those powers responsibly.
II. The U.S. Attorney Firings
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.
III. Prosecuting and Deterring Violent Crime
Sandler: Let’s talk about Project Exile.
Rosenstein: Our Maryland Exile program is a unified and comprehensive strategy to reduce gun crime. When I became U.S. Attorney in 2005, one of my first goals was to establish a coordinated program to fight gun crimes in Baltimore and Prince George’s County. … So we sat down with the State’s Attorney’s office and the Police Department and ATF and other agencies and developed a written plan.
What that plan involved was, number one, the law enforcement component. The law enforcement component includes reactive prosecutions....Then there’s the proactive component, which we refer to as the Violent Repeat Offenders Program. The proactive component involves not just waiting for dangerous criminals to get arrested, but actually going out to investigate them and develop cases against them and prosecute them and remove them from the community….
Then there’s the community outreach component. We recognize that we’re not going to prosecute our way out of this problem. We need to deter people from committing crimes in the first place. That involves such things as television commercials, radio advertisements, billboards, placards on city buses and flyers that are handed out by the Baltimore City Police.
It also includes call-ins, where we identify ex-convicts who are now out in the community and who we think are likely to commit new crimes. While they are under judicial supervision they are required to respond when they are told to come in by Parole and Probation. Then we have a meeting at which we make a number of presentations to them. One of the presentations is by the U.S. Attorney’s Office, and in our presentation, we compute the lengthy sentence that each person will face if they are convicted of a federal drug or gun violation in the future based on their criminal history.… We’re telling them face-to-face, we know who you are and here’s how much time you will spend in federal prison if you get caught with drugs or a gun.…
We [also] hope to develop outreach to schools. We’re in the process of hiring a coordinator whose primary job will be to work with school officials and help to introduce anti-violence and anti-gang programs into the schools.
Sandler: Recently, the new mayor introduced a new plan to combat crime. Have you had a chance to at least hear about that or read about that?
Rosenstein: Yes.
Sandler: What’s your view?
Rosenstein: Well, we’ve worked closely with Mayor Dixon’s law enforcement liaisons, as we did with Mayor O’Malley’s. I think their most recent plan is going to work well with our Exile program because it recognizes that there are flaws in our state system and there is an important role [for] federal prosecution … in identifying defendants who should spend a long period of time in prison, but might not if they were prosecuted in state court, and in prosecuting those defendants in federal court. It also recognizes that stopping people from becoming criminals requires more than just good law enforcement.
Breaking the cycle
Sandler: If you had to be the mayor of this city, or for some unique happenstance, you were to create a solution to the Baltimore City crime problem, how would you construct your plan? What would your plan include?
Rosenstein: There’s not going to be any single magic solution and there’s not going to be a short-term solution. But I do believe that with concentrated effort, we can make an impact. First, we need to do a better job of punishing armed criminals, and second, we need to change the conditions that create criminals.
Number one, obviously, is law enforcement. How do you identify the most dangerous offenders and incapacitate them by putting them away in prison? I would push for legislative changes to close the revolving door of our state justice system for violent criminals. Armed criminals should not get bail, they should not get suspended sentences, and they should not get automatic parole.
Number two, after you remove the worst criminals, how do you send a message that will deter others from following in their footsteps? You don’t accomplish anything if you take one armed drug dealer off the streets and another armed drug dealer steps in and replaces [him]. The core mission of law enforcement should be preventing crime, not just prosecuting criminals after they victimize someone.
You need to take a broader approach by looking at the conditions that lead people down that road. From a law enforcement perspective, the most significant thing that we can provide is deterrence. I think that is extraordinarily valuable. There are a lot of people in Baltimore who believe, rightly or wrongly, that they can deal drugs and carry guns and that they’re unlikely to suffer much punishment for it. They think that they’re unlikely to get caught. If they get caught, they think they are unlikely to be prosecuted. If they are prosecuted, they think they are unlikely to get convicted. If they get convicted, they think they are unlikely to get significant sentences. If they get significant sentences, they think they are unlikely to serve them because they can get paroled.
So one of our goals is to try to break that cycle by sending a message that if you are a criminal caught carrying a gun in Baltimore, you will get prosecuted, you will get convicted, you will go to prison and you won’t get out for a long time.
Solving the Baltimore City crime problem is challenging because it requires a cultural change to stop children from emulating criminals. I think education is extraordinarily important. …
We need to rebuild a sense of community where people are afraid to break the law because they believe that they will suffer punishment and bring shame to themselves and their families.
On capital punishment
Sandler: You mentioned deterrence. Do you think capital punishment is a deterrent?
Rosenstein: I think that there are some people who can be deterred and some people who can’t. Capital punishment certainly is a deterrent for that group of people who can be deterred.
I think that people who are skeptical about whether you can deter crime really underestimate human intelligence and take an unduly short-term view. Most criminals were not born to be criminals. They became criminals because they saw opportunities and they thought that whatever benefit they would gain by taking those opportunities outweighed the likely adverse consequences. Also, most criminals start with small crimes and become increasingly more brazen. So if we can create a situation where people fear the consequences, I think we can deter many crimes and have fewer criminals. I think human nature operates that way.…
We see hardened criminals who, out on the street, would tell you that they hate law enforcement and they believe in the Stop Snitching campaign. Then suddenly when they get across the table from a federal prosecutor who shows them that they are going to face a minimum sentence of 20 years and a maximum sentence of 30 or 40 years or life in federal prison, they are willing to cooperate. They are willing to tell us everything they know. They are willing to do what they can to try to reduce that sentence.
I believe that human beings, for the most part, make rational choices, and if you fully inform them about the likely penalty, they’ll factor that into their decision-making about whether to commit a crime in the first place.
Think about the impact of speed traps and speed cameras on speeding. Just having a law on the books does not change behavior. Enforcing the law changes behavior.
Sandler: Does it concern you or interest you that this country is one of the only countries in the western part of the world that, if not embraces, utilizes capital punishment?
Rosenstein: It’s a relevant factor, I think, in deciding whether it’s good or bad policy to have capital punishment. But I don’t think the ultimate decision of whether it’s right or wrong should hinge on what everybody else is doing.
I think that we need to be very careful about how we use the death penalty. … When you look at the cases in which we’ve pursued the death penalty here in Maryland, I think you’ll see that they really are very violent and very dangerous offenders… We have a thorough review process, both in our office and the Department of Justice in Washington, before we even file a notice to seek the death penalty. Then, if we do, the defendant is entitled to representation by two extraordinarily talented lawyers.
One of the objections that people lodge against the death penalty is that [it] might be imposed on somebody who hasn’t had a fair trial or hasn’t had zealous representation. I know that’s not happening here. Anybody who faces the death penalty in federal court in Maryland gets excellent lawyers and investigators, with all expenses paid by the government.