NSA leaks investigation could be unique challenge for Rosenstein

Just days after Maryland U.S. Attorney Rod J. Rosensteinand another federal prosecutor were appointed to look into national security leaks, a group of Republican senators called for their ouster, claiming the men can't be trusted to investigate the Obama administration because they work for it.

"A lot of us believe if there was ever a need for an outside special counsel, it is now," South Carolina Sen. Lindsey Graham said during a Judiciary Committee hearing last week, raising questions about the prosecutors' objectivity.

That might be a first for Rosenstein. The Republican prosecutor has won bipartisan support throughout his 22-year career, cultivating a reputation as a no-nonsense government lawyer who thrives in heavily Democratic Maryland. But this leak case — political at its core — is likely to challenge the perception of his neutrality like never before.

U.S. Attorney General Eric H. Holder Jr. tapped Rosenstein, along with D.C. U.S. Attorney Ronald C. Machen Jr., earlier this month to direct separate criminal investigations into intelligence leaks that some claim were orchestrated to make President Barack Obama — who's roundly condemned such disclosures — look good in an election year.

The Associated Press recently published an article detailing efforts to thwart an al-Qaidabomb plot in the Arabian Peninsula. And reports in The New York Times outlined President Barack Obama's "kill list" strategy in fighting the war on terror and the use of cyber-attacks against Iran.

Little has been said about the scope of the inquiries or the expectations being placed on the U.S. attorneys. But those who know Rosenstein, 47, claim he's a solid selection for the job. He declined to be interviewed for this article.

"This sounds so hammy, but I think he's so deeply decent and honorable and cares so much about being honorable that I don't think [the politics] will affect his actions in any way," said Philip B. Heymann, a former deputy attorney general under Bill Clinton who hired Rosenstein to act as counsel in 1993. "I just have complete faith that he will try his damnedest to call it" as it is.

Rosenstein is one of five George W. Bushadministration holdovers — out of 93 U.S. attorneys — still in position under Obama, according to Main Justice, which covers insider news from the Department of Justice. He was chosen for the position in 2005, after a controversial predecessor resigned under pressure.

He has been widely praised ever since, particularly by Maryland's Democratic officials, despite his membership in the conservative Federalist Society at Harvard Law School.

The one time his career was apparently held up because of partisan politics was because both sides of the aisle said they wanted him. Bush nominated him to be a federal appeals court judge in 2007, but Maryland's Democratic senators blocked the recommendation, claiming Rosenstein was doing a "good job" as the state's U.S. attorney and they wanted him to stay there.

Still, even straight shooting is a risk in this situation, said Heymann, who's also a Harvard law professor and taught Rosenstein decades ago. If he finds nothing criminal, Rosenstein could be vilified by the right, and if he finds high-level wrongdoing, it could upset the left.

"People won't give him too much credit for just being absolutely straight," Heymann said. "In other words, he'll take a beating if he [ever] wants to be confirmed as a judge or something. It may cost him."

'Sound judgment'

Rosenstein grew up in the Philadelphia suburbs, graduating summa cum laude with an economics degree from the University of Pennsylvania's Wharton School in 1986, then cum laude with a juris doctorate from Harvard Law three years later.

He went on to clerk for U.S. Court of Appeals Judge Douglas H. Ginsburg in D.C. for a year and then his star took off, with a rapid succession of respected positions. He became a trial attorney within the Justice Department's public integrity section in 1990, and Heymann selected him from a pool of hundreds to serve in the deputy attorney general's office in 1993.

"I would trust him with anything," said Heymann, who's worked for Democratic administrations, but considers himself an independent.

Rosenstein next served as special assistant within the DOJ's criminal division for two years, before accepting a role as an associate independent counsel under Kenneth W. Starr, who oversaw the so-called Whitewater investigation into suspicious real estate dealings involving Bill and Hillary Clinton. Rosenstein left for Maryland before the examination turned toward Monica Lewinsky's relationship with the president.

He became an assistant U.S. attorney in the state's Greenbelt office from 1997 to 2001, prosecuting cases that ranged from mail fraud to murder. That's when federal prosecutor Bonnie S. Greenberg, who's currently on assignment at a justice department training center in South Carolina, got to know him best.

They'd met nearly a decade earlier, through Rosenstein's wife-to-be, but they became friends while they were both Maryland assistants, said Greenberg, who spoke protectively of her colleague.

"He's got sound judgment. He is fair and impartial and strives to do the right thing," she said. "He does not view himself as Republican or Democrat, he views himself as the U.S. attorney."

Rosenstein returned to Washington for four years as a deputy assistant attorney general in the Justice Department's tax division, before he was selected to replace Maryland U.S. Attorney Thomas M. DiBiagio, who was forced out after a memo ordering his staff to produce three front-page indictments was leaked.

Morale was low when Rosenstein took over in the Baltimore office, Greenberg said, but he turned things around quickly. "He added resources that were sorely needed," she said.

His Project Exile program, a multi-agency effort to curb violent crime in the state, has been held up as a national model, as has his approach to Project Safe Childhood, which targets sexual predators. He's tackled gang violence, mortgage fraud and terrorism while showing "unprecedented cooperation" with state and local agencies, Gov.Martin O'Malleyhas said.

"Rod's a brilliant guy, and he's meticulous," said Steven H. Levin, who worked for Rosenstein as a federal prosecutor for three years before leaving to open his own firm in 2008. "He trusts the people who work for him … and he doesn't micromanage."

Levin said leak prosecutions by their nature are difficult, but he has faith that Rosenstein is capable of doing what needs to be done.

"If he can find the evidence that he and the agents are looking for, he's not going to be deterred by any potential politics of the situation," Levin said. "And he's fully capable of finding the evidence given his attention to detail… If there's a prosecution in this case, no one can argue with any degree of credibility that it's partisan."

A challenging case

It's rare for leaks to reach the prosecution stage for several reasons, including wide dissemination of material, a reluctance to subpoena reporters and a fear that additional intelligence information will be revealed in court. From 2005 through 2009, 183 potential leaks were referred to the FBI, according to agency statistics, leading to 26 investigations and 14 identified suspects — none of whom was prosecuted.

Prosecutions have ramped up under Obama, however. His administration has brought more leak cases than the three previous administrations combined, including the doomed case against former National Security Agency employee Thomas Drake.

Drake was accused of felony espionage for giving information to a Baltimore Sun reporter, but ultimately convicted of a misdemeanor computer violation. The case against him, which was filed in Baltimore but pursued by Washington prosecutors, collapsed last summer.

The vigor with which Obama's administration has gone after alleged leakers led people on either side of the political spectrum to cry double standard when pro-Obama leaks appeared in The New York Times.

"Could you have a more fawning story?" asked Gregory S. McNeal, a law professor at Pepperdine law school in California who specializes in national security. He referred to the Times "kill list" piece, which portrayed the president as a "student of writings on war by Augustine and Thomas Aquinas" who feels a "moral responsibility" for deadly actions.

It's a narrow universe that had access to such information, which should make it easier to identify the source, McNeal said. He suspects that the president himself authorized the disclosures, making them legal to share, but politically damaging.

And he trusts Rosenstein to reveal that if it's the case.

"When you look at his resume, he's not the kind of guy that you're thinking is going to be kowtowing to the whims of the White House or attorney general," McNeal said.



Rod J. Rosenstein:

Personal: Age 47. Married to an attorney, two pre-teen daughters, lives in Bethesda.

Education: Economics degree, University of Pennsylvania. Law degree, Harvard University.

Professional: Maryland U.S. attorney. Previous positions include associate independent counsel in Whitewater investigation and principal deputy assistant attorney general for the Department of Justice's tax division.

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