The Ill-Advised Effort to Impeach Rod Rosenstein By Andrew C. McCarthy
This is not the way to hold the executive branch accountable.
In what was, at best, a serious tactical error, a relative handful of House conservatives attempted to file articles of impeachment against Deputy Attorney General Rod Rosenstein. The effort was quickly abandoned owing to a lack of support — including from many Republican lawmakers who believe it is essential to hold investigative agencies accountable for abuses of their legal authorities during the 2016 campaign. The impeachment gambit risks setting back that cause.
There are five articles that purport to allege impeachable offenses. I say “purport” advisedly. It is not just that no actionable misconduct on Rosenstein’s part has been established at this point. More fundamentally, some of the articles do not even state “high crimes and misdemeanors,” the applicable constitutional standard for impeachment and removal.
There are several other flaws, but I’ll deal with the two most important. First, the sponsors of the impeachment gambit conveniently overlook the fact that the deputy attorney general has a boss: President Trump. Their use of Rosenstein as a political piñata cannot obscure their studied failure to mention that the president could order the disclosure they demand at any time. This undermines Congress’s worthy examination of investigative abuses by bolstering the Democrats’ claim that Republicans are engaged in political theater to discredit the Mueller probe.
Second, Santa Claus has a better chance of being impeached than Rod Rosenstein. An impeachment attempt that is overwhelmingly defeated encourages the very misconduct it targets.
Judgment Calls Are Not Impeachable Offenses — Articles I and V
High crimes and misdemeanors are egregious violations of an official’s public trust, as I outlined in Faithless Execution, my 2014 book on the role of impeachment in our constitutional framework. For a balanced, accessible explanation of this topic, I also commend to readers Professor Cass Sunstein’s recent book, Impeachment: A Citizen’s Guide.
Impeachable offenses need not be criminal-law violations; indeed, many abuses of government power are not codified as crimes in the penal code. And there is no judicial check on impeachment; Congress alone decides how it’s used. But the Framers were quite clear that impeachment is not intended to address policy differences or good-faith legal positions that turn out to be wrong (or, at least, to be rejected by the courts). They designed the impeachment power so that it would be incredibly difficult, if not impossible, to use that way. An impeachment gambit that fails to pass the House by a majority vote, to say nothing of removing the official from office with a two-thirds supermajority in the Senate, only emboldens the alleged wrongdoer.
The sponsors begin their effort by lodging allegations that would not be impeachable offenses even if they were proved. Impeachment Article I states two supposed transgressions: Rosenstein’s refusals to appoint a special counsel and to recuse himself. The latter involves Rosenstein’s status as a fact witness: He approved the last FBI application for a FISA surveillance warrant to monitor former Trump-campaign adviser Carter Page.
Rosenstein’s approval of that application is also the subject of the fifth impeachment article. It alleges that the FBI and Justice Department, under Rosenstein’s direction, violated policy by (a) relying on allegations in the unverified Steele dossier in warrant applications to the FISA court and (b) misleading the court by failing to disclose that the dossier was a Clinton-campaign opposition-research product. This, they aver, caused the “potentially improper authorization” of warrants by the FISA court.
All of these matters involve legal judgment calls. None approaches the severity of a high crime and misdemeanor. (Hint: If you can’t even flatly say that an action was heinously wrong, as opposed to “potentially improper,” you are not dealing with a high crime and misdemeanor.)
If the Democrats take the House, the best defense of the president against impeachment is that, while he does not conform to norms, he has not done anything impeachable. How are Republicans going to make that case if they’ve already trivialized the concept of high crimes and misdemeanors?
It is mainly Attorney General Jeff Sessions (whose impeachment is not sought) who made the decision not to seek a special counsel. Presumably, Rosenstein agrees with this decision, which is not only defensible but, in my view, correct. The special counsel (regarded by some as an “independent” prosecutor) is a terrible institution that should be avoided whenever possible.
In our system of separation of powers, Congress has the obligation to conduct oversight of the Justice Department’s operations, but it does not get to run the place. It is true that the regulations on which the sponsors rely prescribe procedures that the Justice Department should follow when appointing special counsels; it is also highly likely that Rosenstein did not follow them. Yet these regulations explicitly state that they are not legally enforceable against the DOJ. They create neither a mandate to appoint a special counsel in any given situation nor an entitlement to have one appointed.
Special counsels are not actually independent — to cite the most obvious example, Special Counsel Robert Mueller is supervised by Rosenstein. The special-counsel option established by the unenforceable regulations is simply a construct of quasi-independence. Here, rather than appoint a special counsel to examine potential misconduct by FBI and Justice Department officials, the Justice Department has opted to design a different construct of quasi-independence. Dual probes are underway: one by Inspector General Michael Horowitz (who has a measure of independence because he answers to Congress as well as the DOJ), and another by a top-notch federal prosecutor, John Huber, the United States attorney for Utah (whom Sessions wisely assigned because he is removed from Washington).
There is no reason to believe that a special counsel would be better than this arrangement. Indeed, because Horowitz and Huber are in-house prosecutors who have many other DOJ responsibilities, their investigations are less likely to turn into boundless fishing expeditions — as special-counsel probes are wont to do, because they are run by outside lawyers whose only job is to try to make a case on a single set of subjects.
As for disqualification, while I believe the deputy attorney general has conflicts of interest, his decision not to recuse himself is not an impeachable offense, even if it is wrong. Government lawyers have considerable leeway in determining whether they are conflicted in a given situation. Further, recusal is more of an issue in judicial proceedings than in congressional inquiries. Congressional committees are political bodies, and conflicts abound in their investigations. (Note that no one is suggesting that the sponsors should recuse themselves as fact-finders because they support President Trump and, like committee Democrats, are not objective arbiters of the contested FBI and Justice Department conduct.) It is not typical for a government lawyer whose conduct is at issue in a congressional investigation to recuse himself from his official responsibilities.
Though we do not know all the relevant facts (because the executive branch is withholding them), it is fair to intuit that the approval of the FISA application was not Rosenstein’s finest hour. In recent House testimony, he parried questions about whether he actually read it before approving it. While he was obviously briefed on the application by competent staffers, it would be poor judgment if he did not peruse it himself given the gravity and highly unusual political circumstances (to wit, an application relying on information from one campaign to justify monitoring a person associated with the opposition campaign). In most good U.S. attorney’s offices, the boss would want to read and ask tough questions about potentially explosive investigations happening on his or her watch.
That said, the approval of a FISA warrant application by the attorney general (or the deputy AG when, as here, the AG is recused) does not vouch for the FBI’s verification of the factual allegations presented. It certifies compliance with the statutory requirements for a FISA application. We can certainly criticize Rosenstein’s handling of the application — he candidly pointed out in House testimony that the inspector general is taking a hard look. Even so, it is not clear that he did anything unlawful, let alone impeachable.
Finally, as House conservatives well know, the prospect of impeaching President Trump has galvanized the Left since before he took office. It is a prime motivator in the Democrats’ midterm-election push, and that effort could go either way. If the Democrats take the House, the best defense of the president against impeachment is that, while he does not conform to norms, he has not done anything impeachable. How are Republicans going to make that case if they’ve already trivialized the concept of high crimes and misdemeanors?
Premature — Articles II through IV
The second and third impeachment articles state serious wrongs; the fourth is less serious but not insignificant. The sponsors allege that, under Rosenstein’s direction, the Justice Department has defied a congressional subpoena and flouted a memorandum of understanding the Justice Department entered into with the investigative committees. The result is that salient information has been withheld from the committees. The sponsors add that there are witnesses who claim that the Justice Department has intentionally suppressed information; that the Justice Department and Special Counsel Mueller have instructed witnesses not to cooperate with the congressional committees; and that the DOJ has not informed witnesses within its control of congressional requests for testimony.
Furthermore, the Justice Department has redacted without justification some of the documents it has surrendered. When called on this abusive practice, the DOJ grudgingly dribbles out revelations that show that its original redactions were intended not to protect investigative integrity or national security; they were efforts to suppress embarrassing details — e.g., the purchase of a $70,000 conference table for the office of former deputy FBI director Andrew McCabe; the personal relationship between controversial FBI agent Peter Strzok and Judge Rudolph Contreras (who took Michael Flynn’s guilty plea and serves on the FISA court); and the names of Obama-administration officials who — the suggestion appears to be — were in contact with the FBI during its investigations. (Note this New York Times report, detailing contacts between “Obama advisers” and the FBI during the Flynn investigation.)
The Justice Department has vaguely claimed privileges against providing information responsive to a number of Congress’s demands. Yet, the sponsors contend, Rosenstein has refused to file a privilege log to itemize exactly what privileges the DOJ claims as to specific items.
For his part, Rosenstein says the Justice Department has been extraordinarily forthcoming, turning over tens of thousands of documents. He claims that compliance with Congress’s demands is an ongoing process, that he is trying to carry it out while protecting the DOJ’s legitimate interests, and that where Congress has brought problems to his attention, he has addressed them.
The Justice Department has clearly surrendered a great deal of information. Nevertheless, it has also withheld quite a bit. More to the point, the DOJ implicitly claims the power to withhold information. In essence, it reserves the right unilaterally to decide what information Congress does not need or should not be given. That is not acceptable.
Undeniably, the Justice Department has legitimate interests at stake: ensuring that ongoing investigations are not compromised, that uncharged persons are not scandalized, that vital classified information is not exposed, and that sources of intelligence are not revealed (which would discourage people from providing critical information to the government). The DOJ should, of course, make its concerns known to Congress, and Congress should weigh them carefully. Nevertheless, in the absence of a legally established privilege to suppress information, it is up to Congress to decide what it needs to examine when it conducts oversight of executive agencies that Congress created and funds with taxpayer dollars. No agency of the government — and certainly no agency permitted to wield coercive law-enforcement powers — is immune from accountability to the People’s representatives.
Rosenstein’s failure to disclose this information, though wrong, is not a cognizable violation of law. Nor does it rise to the level of an impeachable offense.
Impeachment is one of the tools the Framers vested in Congress to make the executive branch accountable. It is, however, the ultimate tool. It should not be resorted to until less drastic measures have been exhausted. Not only would it be inappropriate; it would also be impractical, because no executive official will be removed from power absent public support (a point we’ll have more to say about toward the end).
At the moment, the public has little or no understanding of exactly what Rosenstein is alleged to have withheld and why. There is good reason to believe Rosenstein is stonewalling and slow-walking. He may well calculate that Democrats could win the House in November, which would stop the investigations cold. On the other hand, this has not been proved. Rosenstein may have good reasons for what he has done. He is right to be concerned that disclosure to Congress would result in leaks that harm ongoing investigations. Moreover, these inter-branch spats are not that unusual, and compromises are typically found that accommodate the legitimate interests of both sides.
The committees should make crystal clear precisely what the Justice Department has refused to hand over. Rosenstein should be given a deadline either to provide the information demanded or to cite a legally valid privilege for declining to do so — not a rationale for why the DOJ would prefer not to disclose, but a lawful basis for refusing to disclose.
If the deputy AG does not comply, the committees should move to hold him in contempt of Congress. House leadership has previously supported the investigating committees when Rosenstein complained about their intrusiveness. The House has already passed by a comfortable margin a resolution demanding DOJ compliance with its committee’s information demands. These steps have been effective, pressuring the DOJ into more disclosure.
Because this issue bears on Congress’s prerogative to perform oversight of executive agencies, there are many lawmakers who would support a contempt finding even if they are leery of impeaching an executive officer. There are also many who would never consider impeachment unless it could be established beyond question that Congress tried to be reasonable but the Justice Department responded contemptuously.
In the meantime, it would get the Justice Department’s attention if the Republican-controlled House got to work on slashing its budget (including the FBI’s budget). The Framers expected the power of purse to be the primary arrow in Congress’s quiver when it comes to curing executive abuse. If executive agencies take the indefensible position that their operations are beyond scrutiny, then their operations should be curtailed.
In Impeachment Article IV, the sponsors complain that Rosenstein refuses to disclose the “scope memo” he gave to Mueller on August 2, 2016. The memo, which is classified, reportedly undertakes to lay out the parameters and factual bases for Mueller’s criminal investigations under special-counsel regulations. (I have discussed this memo here; it was plainly written to supplement Rosenstein’s original appointment of Mueller on May 17, 2017.) A very small portion of the memo has been revealed in connection with Paul Manafort’s prosecution, but the rest remains redacted.
To repeat, withholding information from Congress is a very serious matter. That said, this allegation does not state an impeachable offense. It makes no claim that Congress has subpoenaed the memo; just that Congress has requested it as part of its oversight authority, due to “significant public interest in the matter.” I agree with the sponsors that Rosenstein’s appointment of Mueller did not comply with federal regulations; as we’ve seen, however, those regs do not create rules that may be enforced against the Justice Department.
Yes, the deputy attorney general should still follow these rules. And while the Justice Department is correct that people who are presumed innocent and have not been charged should not be publicly identified as investigative subjects, that is a second-order priority here. The public should be told whether Rosenstein authorized a criminal investigation of the president, and if so on what basis. We should also be told whether, for example, the unverified Steele dossier formed part of Rosenstein’s “factual” basis for authorizing any investigation. Nevertheless, Rosenstein’s failure to disclose this information, though wrong, is not a cognizable violation of law. Nor does it rise to the level of an impeachable offense.
Why Not Demand Disclosure from the President?
To repeat what we’ve been saying since the start of the Trump presidency, Justice Department officials work for the president. He is the single official in the executive branch authorized to declassify and disclose any sensitive information to Congress; he is also empowered to direct subordinate executive officials to comply with legislative oversight requests — to order that such information as the scope memo be disclosed to the committees.
The Framers made the president a “unitary executive” largely so that he would be accountable for the performance of his administration. If the sponsors are dissatisfied with Rosenstein’s level of compliance, their complaint, ultimately, is with President Trump. Before doing anything so drastic as seeking articles of impeachment against the deputy attorney general, Congress should demand that the president direct that the materials sought be produced.
The sign on Harry Truman’s desk did not say ‘The Buck Stops . . . at the Deputy Attorney General’s Office.’
By failing to place the blame where it belongs, the sponsors succeed only in giving their opponents ammunition to claim they are playing cynical politics. That discredits the investigation.
President Trump is taking an untenable position, elevating his private legal posturing over his duty to run the executive branch. With the advice of his lawyers, he claims he must stay out of the fray between Congress and the Justice Department lest he be accused, yet again, of obstructing the Mueller investigation. But he alone is responsible for how his administration responds to legitimate congressional inquiries.
If the president believes the Mueller investigation is too important for the administration to risk disclosure of sensitive information to Congress at this time, then he should respectfully ask House conservatives to stand down until Mueller is done. If, to the contrary, he believes disclosure to Congress is essential regardless of how it impacts the Mueller investigation (if it impacts the Mueller investigation at all at this point), then he should order disclosure. Either way, he should make a decision and own it.
House conservatives could then either defer to the president’s judgment or fight him on it. But let’s stop pretending that the problem here is Rod Rosenstein. There are plenty of reasons to be critical of Rosenstein’s performance, but he is not in charge of the executive branch.
The longer this goes on, with congressional Republicans browbeating Rosenstein while consciously avoiding the fact that Trump could instantly provide the disclosure they demand, the more this looks like a game: (a) Conservative Trump supporters beat up on Rosenstein to fuel a “deep state” conspiracy narrative; (b) Trump stands on the sidelines and tweets about the obstinacy of his own Justice Department appointees in order to discredit the Mueller probe (notwithstanding that Mueller has never alleged a Trump–Russia espionage conspiracy, and will probably end up vindicating Trump on that core issue); and (c) everyone makes believe Trump could not end this spectacle by ordering his subordinates to comply with disclosure demands.
The sign on Harry Truman’s desk did not say “The Buck Stops . . . at the Deputy Attorney General’s Office.”
An Impeachment You Can’t Win Is Counterproductive Political Theater
In Faithless Execution, I explained why it makes no sense to move for impeachment unless the votes are there to support removal. Again, impeachment is not a legal proceeding; it is a political remedy in which the Constitution’s Article I political branch seeks to strip power from, usually, an official of the Article II political branch. The Framers quite intentionally made it difficult to accomplish: To repeat, though just a simple majority is required to approve articles of impeachment in the House, a two-thirds supermajority is necessary for conviction and removal by the Senate. This ensures that no official will be removed absent a broad consensus that cuts across partisan lines — only egregious misconduct will do, and a political case must be made to the public that impeachment is imperative.
If the sponsors want accountability for investigative abuses, this is not the way to go about it.
An impeachment gambit that is overwhelmingly defeated emboldens the wrongdoers. It demonstrates that there is no appetite among the People’s representatives to end the abusive official’s misconduct. When an official is shown in dramatic fashion that he can flout congressional demands with impunity, there is certain to be more flouting.
In Rosenstein’s case, the gambit’s sponsors would not even prevail on the simple majority needed to approve articles of impeachment — they’d be thumped. In the Senate, there is zero chance of a two-thirds vote to convict the deputy attorney general. In both chambers, even lawmakers who are frustrated and angry about Justice Department shenanigans understand that a DEFCON 1 move such as impeaching Rosenstein is either unjustified or demonstrably premature.
If the sponsors truly want more disclosure from the Justice Department, they should target their demands at the president. If they don’t think it’s important enough to pressure the president over, they should stand down. But by filing impeachment articles that fall woefully short of the Constitution’s high-crimes-and-misdemeanors standard, they undermine the Republican-controlled Congress’s resolve to back the committee’s demands for information, strengthening Rosenstein’s hand. If the sponsors want accountability for investigative abuses, this is not the way to go about it.
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