August 03, 2018

Rosenstein urges lawyers to tout rule of law, however unpopular at times

Deputy Attorney General Rod J. Rosenstein

Deputy Attorney General Rod J. Rosenstein

Deputy Attorney General Rod J. Rosenstein delivered a strong endorsement for an independent U.S. Department of Justice Thursday, noting that “honorable lawyers defend the rule of law, even when it is difficult, so it will be there when we need it.”

Rosenstein, under criticism from President Donald Trump and House conservatives for his stewardship of the ongoing special counsel’s investigation, gave late afternoon remarks to a packed audience on the opening day of the 2018 American Bar Association Annual Meeting in Chicago. His upbeat message centered on the rule of law and the challenges government lawyers particularly face in navigating through political winds to execute the law in a nonpartisan fashion.

“Lawyers and judges need to know who they are,” Rosenstein said. “You are the guardians of the rule of law, a concept that developed over many centuries and today is fundamental to human liberty.”

In her introduction, ABA President Hilarie Bass called Rosenstein a “credit to his profession” for always projecting professionalism while under fire. “I do not think there is another lawyer in this country as much in the public eye,” she said of the deputy AG.

Rosenstein only mentioned the president by name once – when he praised Donald Trump for selecting a top-notch team to run the Justice Department and cited Attorney General Jeff Sessions as an example. While delivering his remarks in an occasional light tone and with a smile, he nonetheless did not avoid alluding to recent events in which the leadership of the Justice Department has come under fire.

“The rule of law requires us to reserve judgment until we have heard from all parties and completed a fair process,” he said. “You cannot reach reliable factual conclusions unless you first weigh the credible evidence. You cannot offer reasoned legal opinions unless you consider conflicting arguments.”

He later added: “The goal is to be governed by law – by a system of clear rules and neutral processes – not by the whim of any person.”

The hundreds of ABA members and others packed into the grand ballroom at the Hyatt Regency Chicago welcomed Rosenstein with a standing ovation and interrupted his remarks with applause repeatedly. A longtime U.S. attorney based in Maryland, Rosenstein has served as the No. 2 leader at the Justice Department since April 2017.

For much of that time, he has faced criticism from Trump and his supporters because he is overseeing the investigation into Russian interference in the 2016 election by Robert Mueller. More than a year ago, Sessions recused himself from any role in that probe because of contacts with Russians during the 2016 campaign.

During remarks that stretched about a half an hour, Rosenstein traced the rule of law concept from the fourth century BC, when Greek philosopher Aristotle wrote that it “’is more proper that law should govern than any one of the citizens’.”

“When you follow the rule of law, it does not always yield the outcome that you would choose as a policy matter,” he said. “In fact, one indicator that you are following the rule of law is when you respect a result although you do not agree with it. You respect it because it is dictated by the facts and the law.”

In perhaps a reflection on his own situation, Rosenstein observed that lawyers “bear a solemn responsibility to defend constitutional principles, particularly government lawyers.” He then quoted former Attorney General Robert Jackson, who later became a U.S. Supreme Court Justice in the 1940s, noting Jackson once lamented about the “unpleasant duty” of responding to congressional inquiries about law enforcement investigations.

Continuing to borrow from Jackson, he said, “lawyers must at times risk ourselves … to defend our legal processes from discredit, and to maintain a dispassionate, disinterested and impartial enforcement of the law.” Jackson, he pointed out, understood the importance of the “intellectual integrity, courage and straight thinking of … government lawyers.”

In a question-and-answer session with Bass, Rosenstein said while foreign entities have tried to interfere in U.S. elections there is no evidence that they have succeeded to “break in and alter the count.”

He also defended the “zero tolerance” immigration policy of the Trump administration at the U.S. southern border. While not addressing the now shelved policy of separating children at the border from their parents, Rosenstein said “zero tolerance” was in response to a sharp spike in illegal border crossings and that the administration has not “dispensed with principles” of fair prosecution.

The ABA Annual Meeting concludes Tuesday with the closing session of the House of Delegates, the association’s policy-making body.