Deputy Attorney General Rod Rosenstein was a veteran prosecutor with decades of Justice Department experience before he was thrust into the national spotlight by appointing a special counsel investigation into Russian election interference.
His reputation as a “prosecutor’s prosecutor” with deep roots in the DOJ are something noticeably missing in Jeffrey Rosen, the man who President Donald Trump intends to nominate to take Rosenstein’s place. Despite Rosen’s lengthy legal career, he is relatively unknown on the national stage, has no prosecutorial experience and lacks the typical Justice Department resume for such a high-profile appointment.
The contrast is perhaps most clear in their path to becoming the second-highest ranking Justice official. Rosenstein joined the criminal division at the Department of Justice in 1990 and moved up through the ranks from there, serving later as the U.S. attorney in Maryland before taking over as the agency’s No. 2 in 2017. Rosenstein had signaled he would step down after William Barr was confirmed as attorney general and is expected to leave his post next month.
Rosen, who currently serves as the deputy secretary of the Department of Transportation, has a much different legal background.
Before joining the Trump administration, he worked for nearly 30 years at Kirkland and Ellis, the law firm where newly-confirmed Attorney General William Barr worked briefly in 2009 and 2017. While there, Rosen handled a variety of cases, representing large companies in litigation and regulatory issues. The Harvard Law graduate also served as a general counsel at the Transportation Department from 2003 to 2006, and as a general counsel for the Office of Management and Budget from 2006 to 2009.
George W. Bush appointed him to be a federal judge in 2008, but he did not get a confirmation vote in the Democratic-controlled Senate.
Rosen’s nomination comes at an especially delicate time, as special counsel Robert Mueller appears closer to finishing his investigation into Russian meddling in the 2016 election and ties to the Trump campaign. Mueller could send a final report to Barr as early as this week, according to recent news reports.
It’s unclear what role Rosenstein would have in handling the investigation in this final weeks on the job, or if Rosen would be involved in decisions surrounding the investigation.
Still, critics of his nomination said Rosen is not prepared to serve as the second-highest ranking Justice Department official.
“This is not a role for which someone should be learning on the job,” said Elliot Williams, who managed the Senate confirmation process for Sally Yates. Yates served as deputy attorney general during the Obama administration and was briefly the agency’s acting attorney general before President Donald Trump fired her shortly after he took office.
If Rosen “has never worked with [criminal] charging documents before, he comes in at a huge disadvantage,” Williams added.
Six of the last 10 deputy attorneys general were U.S. attorneys before being nominated to the No. 2 position in the Justice Department. Others who have held the job worked their way up at the department over several years.
If Rosen is confirmed, the top two leaders at the Justice Department will not have prosecutorial experience. Though Barr served as attorney general once before under President George H.W. Bush, he was not a prosecutor before entering public service and has not worked as one at any point in his career.
A background in federal prosecution is important to for the deputy attorney general in particular because some of the key duties of the position include authorizing searches and electronic surveillance. The deputy attorney general is also tasked with being the Justice Department’s main liaison with the White House on criminal matters.
But those who support Rosen’s nomination said he could adapt to new situations, and argued that his nontraditional background is actually an advantage.
“This notion that the deputy attorney has to be a prosecutor does not fully comprehend what the job is. The day-to-day is management of the Department of Justice,” said Will Moschella, who served as the principal associate deputy attorney general during the George W. Bush administration.
Moschella likened the deputy attorney general position to the CEO of a company.
He said Rosen’s experience handling budgets and working with other federal agencies puts him in a strong position to address the Justice Department’s top management challenges, such as managing the nation’s overcrowded federal prison system and administering grants.
Barr also cited Rosen’s managerial experience in a statement praising his nomination. Barr noted that Rosen supervised 400 attorneys when he was the Transportation Department’s general counsel and currently oversees 50,000 employees at the Deputy Secretary of Transportation. The Justice Department is one of the largest federal agencies with 115,000 employees.
If confirmed by the Senate, Rosen would take over from Rosenstein when he steps down next month. Rosenstein’s resignation came as no surprise. He told colleagues he would resign shortly after Barr was confirmed by the Senate, giving the new attorney general a chance to have a hand in choosing his deputy.
Rosenstein has been one of the most high-profile deputy attorneys general in recent history because of his role in overseeing Mueller’s Russia investigation. Rosenstein took over the Russia investigation after former Attorney General Jeff Sessions recused himself because of the former senator’s involvement with the Trump campaign. Rosenstein drew Trump’s ire by appointing a special counsel investigation a week after the president fired then-FBI Director James Comey.
Rosenstein became a frequent target of Trump, who just this week accused Rosenstein of “treasonous” behavior. Trump’s attacks on Sessions, Rosenstein and the Justice Department have created an unusual level of tension between the White House and DOJ.
Legal experts said those tensions could dissipate once Rosen steps in.
Under Rosen, “I think you are going to have a little bit more of a return to normalcy,” said Paul Clement, a former U.S. solicitor general who knows both Rosenstein and Rosen. Clement said Rosen was someone who would put his head down and get the job done without seeking the spotlight.
Rosen’s appointment comes at a time when the Justice Department is increasingly viewed through a partisan lens. A Reuters/Ipsos poll earlier this month found that nearly three of four Republicans believe the FBI and the Justice Department are trying to undermine Trump. The same number of Democrats believe Republicans and the White House are trying to “delegitimize the FBI and DOJ.”
With Rosenstein on his way out, Barr is expected to take a leading role in the special counsel investigation.
Democrats asked Barr to promise he would release the special counsel’s final report to the public, a commitment Barr has refused to make. It’s unclear where Rosen stands on the issue or if he would even be involved in the decision-making process.
Whatever his involvement, Rosen has been in high-pressure situations before and will likely base his decisions on what he thinks is right, not on what Trump wants, said Steven Harper, a lawyer-turned author who worked at Rosen’s longtime firm, Kirkland and Ellis.
“I don’t think he’s somebody who is just going to roll over and pander to someone who is running roughshod over the rule of law,” Harper said.