Sessions, Barr and Rosenstein all need to answer for the misuse of the DOJ

When Donald Trump wanted to talk about the investigation being conducted into how his campaign colluded with Russian agents, he used a term that was meant to demean and delegitimize. He called it "spying." Trump also accused the Obama administration of "wiretapping" his offices, which—no matter what Trump says—was in no sense true. But as more information emerges about the efforts of the DOJ to chase down supposed intelligence leaks, it's hard to think of more appropriate terms. The Justice Department may not have been technically spying, and seeking to crack open metadata from cell phones isn't really wiretapping, but the DOJ was absolutely surveilling member of Congress and their families, including their minor children.

Unlike the investigation of Trump, which was begun because the intelligence community was presented with evidence that Trump's team was engaging in efforts to gain Russian assistance in altering the outcome of the election, the effort to obtain phone data from California Reps. Eric Swalwell and Adam Schiff, as well as members of their families, seems to have been launched for no reason other than because Trump wanted it so. And, despite spending weeks finding no evidence, subpoenas were issued at least three times. Then the effort was revived months later and additional resources were added.

As might be expected, Republicans are already being dismissive about the whole affair, with multiple claims that investigating Congress over potential intelligence leaks is nothing new. However, attempting to obtain phone records of Congress members without their knowledge is certainly a new thing—much less trying to get the records of their spouses and children. It's clear that the DOJ went to extraordinary efforts to find something they could bring back to Trump as evidence that either Swalwell or Schiff had done something wrong.

But the most extraordinary thing about the whole sorry affair, may be the way that no one seems to be owning it. Former attorney general Jefferson Sessions says he didn't start it. Former attorney general Bill Barr says he didn't know about it. One of these men is absolutely lying. The other may be. But there's a third man who almost certainly was involved in both the beginning and the end of this effort to … sure, why not … to spy on the families of representatives. That man is former deputy attorney general Rod Rosenstein.

As the story of the attempts by the DOJ to subpoena Apple into providing phone records of members of Congress unfolded on Friday, Sens. Chuck Schumer and Dick Durbin demanded that both Sessions and Barr appear in public testimony before Congress and explain the extent of the leak investigations.

However, according to The Daily Beast, Sessions has already claimed that "he wasn't aware of, nor was he briefed on" the subpoenas, and that he was unaware of the entire leak investigation. On Friday, POLITICO reported that Barr also claimed that he was "not aware of any congressman's records being sought in a leak case."

The statement from Sessions is vaguely possible. Sessions recused himself from DOJ activities related to the Russia investigation in March of 2017, earning Trump's undying rage in the process. Since the information released was connected to that investigation, it's possible that Sessions was not involved. And besides, though his actions were not always in the news, Sessions stayed busy during his time as attorney general. Among other things, he rewrote hundreds of pages of federal guidelines, striking such rules as those which avoided placing excessive fines on the poor. He made it easier to ship guns across state lines. Sessions shredded rules that were designed to make the justice process accessible to the disabled. He also spent a lot of personal time going over drug cases and insisting that prosecutors seek the maximum penalties. He was one busy little elf.

On the other hand, the statement from Barr is, as might be expected, pure bullshit. As has been widely reported, Barr was not only aware of the investigations, he revived them when he took office in 2018. Even though attempts to pin intelligence leaks on Congress had come up dry, and investigators were indicating that the whole thing was a dead end, Barr expanded the investigation. He added more staff and, as CNN notes, brought in a prosecutor expressly to handle the leak investigations. Barr didn't just revive these cases, he "found a set of aggressive career prosecutors" who were "willing to take extraordinary steps to try to complete the probes." Which apparently included taking another crack at getting past Apple.

Like hell, Bill Barr "can't recall."

And then there's Rosenstein. When it comes to the revelations on Friday, The New York Times reports the Rosenstein has "refused to comment." But if there is anyone who needs to be dragged before the Senate and compelled to testify, it might be the former deputy attorney general.

There was a time in the spring of 2017 when Rosenstein seemed like the one person at the DOJ who was holding some semblance of justice together. He authorized the Mueller investigation after Sessions recused himself. The New York Times even reported that Rosenstein considered secretly recording Trump, and discussed whether enough Cabinet members could be persuaded to invoke the 25th Amendment. There was genuinely a point where Rosenstein seemed to be the one essential man; the one person in power at the DOJ who saw Trump for who he was.

But by the spring of 2018, Rosenstein appeared desperate to show he was fully on Team Trump. He instructed the DOJ to increase prosecutions of refugee families. As The Guardian reported, it was Rosenstein who argued that children should be separated from parents, even if they were infants. That fall, Rosenstein was reportedly crying after a call to Trump and then-chief of staff John Kelly, in which it appeared he might be forced to resign. He begged for his position, telling Trump that "I can land the plane," and suggested that keeping him in place gave the Russia investigation "credibility."

Once Barr came on board, Rosenstein was reliably at his elbow, providing cover for Barr's actions. That included signing off on the conclusion that Donald Trump not be charged with obstruction in spite of the mountains of evidence in support of that charge.

Rosenstein left in 2019, but he didn't pass into obscurity. He went to work as a partner at white-shoe law firm King & Spaulding, where he is in charge of "special matters and government investigations." What investigations might that be? As Reuters reported, the firm worked for Trump's campaign in 2020, including working on efforts to block the use of absentee ballots. Far from being sent into exile, ProPublica shows that King & Spaulding was a revolving door for the Trump White House with at least seven people moved from the firm to government positions during Trump's term. In fact, when Rosenstein helped Trump oust Comey, his replacement, current FBI director Christopher Wray, came from King & Spaulding.

Far from being run out of town, Rosenstein was helped into a nice, soft, lucrative position at a firm with deep connections to Trump. A firm which counts the Trump Organization as one of its largest clients. That's quite a feat for the guy who signed off on the Mueller investigation and reportedly tried to get Trump removed from office. Trump still hates Sessions for simply recusing himself, even though Sessions has slathered Trump with praise nonstop. But Trump appears to have forgiven Rosenstein, in spite of both Mueller and the 25th Amendment report. Why is that?

It's obvious that Rosenstein must had done a lot to earn that spot. And it's obvious that he needs to testify.

He can start by answering questions about his knowledge of the effort to secure the phones of sitting representatives and their families. Sessions might claim ignorance. Barr might feign forgetfulness.

But Rosenstein was there for it all.