Isn’t Ready for the Job

Rod Rosenstein’s Replacement Isn’t Ready for the Job

Jeffrey Rosen may be smart, but he doesn’t have the right experience to run the Department of Justice.

By JULIE RODIN ZEBRAK

Swiftly following William Barr’s confirmation to serve as attorney general, the White House announced its intention to nominate Jeffrey Rosen, the current deputy secretary of Transportation, to replace Rod Rosenstein as deputy attorney general of the United States.

On paper, it seems like a good fit. Rosen’s academic accomplishments, legal aptitude and Washington experience place him squarely on a level with any smart, savvy attorney under consideration for the job, one of the most important in Washington. He’s no Matt Whitaker; Rosen comes across, at first blush, as a legitimate, well-credentialed attorney capable of taking on a serious job in Washington at the highest level of the United States government. Given that the Senate has already confirmed him for his current role, he should be easily confirmable for the new post.

But none of that means Rosen possesses the appropriate qualifications to serve effectively as the deputy attorney general. Unlike Rosenstein and many before him, he lacks prior Justice Department experience and—critically—has zero prosecutorial experience.

The deputy attorney general oversees day-to-day operations and policies of the entire DOJ, a sprawling institution of more than 107,000 employees and an annual budget of approximately $28 billion. The department includes the litigating divisions such as the Civil Rights Division, Criminal Division, Antitrust Division, National Security Division, Civil Division, and the Environmental and Natural Resources Division. The deputy supervises all 93 United States attorneys and their work around the country, as well as immigration judges. DOJ also includes the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, United States Marshals Service and Bureau of Prisons. For someone completely new to DOJ, managing all that will require a steep learning curve.

The deputy role is widely known as the hardest job at DOJ, regardless of the administration. In ordinary times, the attorney general is known as the show horse, whereas the deputy is known as the work horse, given the breadth of evaluation, level of detail and careful consideration that all matters hitting the DAG’s office must undergo en route to the AG and the White House. For someone who is new to DOJ, its ways of doing business, and its central importance to any White House, this job is far more demanding than Rosen’s current position at the Department of Transportation.

Nothing in Rosen’s background suggests he is incapable of rising to the challenge. With a Harvard law degree, years as a litigator at the prestigious law firm of Kirkland & Ellis, and impressive government stints as general counsel at the Office of Management and Budget and the Department of Transportation during the George W. Bush administration, it’s not surprising that Rosen earned a top post overseeing the daily operations of the Department of Transportation for the past couple of years. His legal and management chops are obvious.

But what should give the Senate pause in evaluating his nomination is that the head of the Criminal Division, the head of the National Security Division, the director of the FBI, the administrator of the DEA and all of the U.S. attorneys will report directly to a potential DAG Rosen who, if confirmed, will lack any meaningful experience over the subject matter for which they are seeking his approval and guidance. This dynamic puts Rosen at an enormous disadvantage for getting up to speed and for quickly gaining DOJ staff credibility and respect because he has had no exposure to, for example, wiretaps, Foreign Intelligence Surveillance Act, criminal laws on discovery — all matters that require extraordinary levels of judgment and wisdom under pressure.

erving as the deputy attorney general is akin to drinking from a firehose on any given day. Over a three-month period in 2013, my former boss, James M. Cole, faced the Boston Marathon bombing and the Edward Snowden leak. Both incidents threatened our security as a nation and caused enormous reverberations throughout the country and the world. Day after day for months, these criminal and national security events dominated the attorney general, DAG, FBI and White House leadership’s schedules. Imagine overseeing and reacting to those investigations and threats while familiarizing oneself with an unfamiliar national law enforcement agency, without the benefit or knowledge of a background in criminal law or national security. Rosen easily could face such significant events, all while navigating an unpredictable White House intent on undercutting the very department Rosen will be trying to run.

In effect, Rosen will be learning how to fly a plane while actually flying the plane, but with one arm tied behind his back. In any era, the typical day-to-day schedule requires the DAG to attend meetings and reviews of complicated, sensitive and extremely serious criminal and national security matters. Rosen’s scant track record in these areas makes him vulnerable; he will be incredibly dependent on his career and political staff, as well as on the judgment of those who report to him. Lacking independent experience, Rosen will be evaluating serious and sensitive information at the mercy of others’ interpretations, while possessing the power to make uninformed, and potentially dangerous, decisions.

Rosen’s plight is not unprecedented; former DAGs Jamie Gorelick and David Ogden did not possess DOJ experience or criminal prosecution experience. In less volatile times, a complete novice at DOJ faces an enormously steep learning curve. But here, during an unusually fraught period for the rule of law, Rosen’s lack of expertise places him and DOJ in a bind. It’s hard enough for any member of DOJ leadership to push back against a White House, but it’s even harder to change minds or advocate without pulling from one’s personal experience, gut or judgment on topics of national or international significance. Consider the tightrope Rod Rosenstein has had to walk with this White House with the benefit of 25-plus years of DOJ prosecutorial experience, as well as prior experience in the DAG’s office. It’s not luck—Rosenstein has skillfully navigated this White House and the Mueller probe, while largely preserving DOJ’s independence and integrity, precisely because he has that intimate knowledge and familiarity with DOJ precedent to stand firm upon.

While Rosen may be capable and smart, placing someone with no institutional knowledge and without the experience related to DOJ’s core mission, represents yet another assault on the Justice Department as an institution. I hope Rosen treats DOJ with the reverence it deserves, and which Rosenstein has given it under excruciating circumstances. But I don’t know how he can.