Rosenberg: What News Media Misses About Trump

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Rosenberg’s Take on Mar-a-Lago, Police Brutality and His Years at DOJ

When it comes to charging Donald Trump, former FBI and DOJ counsel Chuck Rosenberg warns against “certitude.”

Program Date: Oct. 3, 2022

By Anne Godlasky, National Press Foundation

Updated Wed Oct 12, 2022

News coverage has focused on the classified documents found at former President Trump’s Mar-a-Lago estate, but Chuck Rosenberg, who spent nearly his entire career at the Department of Justice, called the classification piece of the issue “a sideshow.” [Transcript | Video]

“The search warrant executed at Mar-a-Lago was predicated on three statutes: an obstruction statute, a destruction of document statute, and the Espionage Act – none of which require that the documents actually be classified,” Rosenberg, senior counsel at Crowell & Moring, told Paul Miller fellows.

“There are a bunch of laws you can charge [Trump] with,” Rosenberg said, but it will be “exceedingly difficult.”

“I don’t mean that I can’t find a statute and match up his conduct to the elements of the statute. I can do that,” he said. “But if I had to prove that in a federal court by proof beyond a reasonable doubt to a unanimous jury, that’s really, really hard,” particularly because white-collar crimes require proof of intent, not general intent.

Because of this, Rosenberg, who is also a contributor for NBC News and MSNBC, takes issue with the “certitude” and speculation he sees on most TV news.

“I’ll very quickly turn it off because people are analyzing the criminal case against Mr. Trump based on what? A search warrant affidavit. That’s ludicrous and unfair and misleading. I am not inclined, to be charitable to Mr. Trump – I think he has done grave damage to our country and to our institutions – but I think it’s a more interesting question whether we as a nation want to move past him or continue to talk about him for the next seven years,” Rosenberg said. He argued that President Ford was “absolutely right” to pardon President Nixon.

Rosenberg, who worked as senior counselor to one FBI director and chief of staff to another, also called out media who have called the Mar-a-Lago search an “FBI raid.”

“It’s not a raid,” Rosenberg said. “If you’re trying to talk to somebody who doesn’t know what happened at Mar-a-Lago, I think it’s useful for them to know that a federal judge authorized the search warrant, that it’s based on probable cause, that probable cause is the standard that’s contained in the Fourth Amendment of the Constitution. And that the FBI can’t execute a search warrant without a federal prosecutor and a federal judge saying OK. And by the way, the federal judge happens to be in another branch of government, so two branches of our federal government are involved in the execution of a search warrant.”

While raid may sound more “inflammatory,” it’s less accurate, said Rosenberg.

“Search warrants happen all the time” based on probable cause that a crime has been committed and that evidence of that crime will be found in the place searched. “There’s nothing remarkable about that. The unprecedented part is that it’s a former president’s home. But maybe flip the question around. How many former presidents have given the Department of Justice and the judicial branch probable cause to believe they’ve committed a crime? Is it worse to have that set of facts and do nothing about it? Are [the DOJ] literally in a damned if you do, damned if you don’t place? So follow the law.”

Rosenberg lost his job as head of the Drug Enforcement Agency in 2017 after emailing his staff about proper law enforcement behavior after a rally in which Trump suggested police be rougher with alleged criminals.

Rosenberg said he doesn’t like “bad apple language” when talking about police misconduct.

“Almost everything on the planet is described by a bell curve. … Statistically, about two and a half percent of your population is two standard deviations from the mean,” Rosenberg said. Out of one million U.S. police officers., “that’s 25,000 men and women who carry a badge and a gun who are two standard deviations away on the bad side, on the wrong side. That’s really frightening. They’re probably in every department in America. Is that systemic? Yeah, I would say that’s systemic.”

While Rosenberg acknowledged systemic problems in the criminal justice system, he also said that the federal system has fewer problems than state and local and that most officers and judges try to do the right thing.

He pointed to federal judge Aileen Cannon, who has come under scrutiny after appointing a special master to review the documents retrieved from Mar-a-Lago, and the 11^th Circuit, which reversed her decision.

“Nobody was talking about the fact that two of the three judges on the 11th Circuit were also appointed by Trump,” he said. “It’s hard to reconcile that Judge Cannon would’ve been in his back pocket, but the 11th Circuit was not.”

For more, jump to these clips for Rosenberg’s answers on: