The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document.
It is filled with embarrassing factual errors. Most notably, the fifth article charges Rosenstein with responsibility for the Justice Department’s supposed obfuscation of the Steele dossier’s origins as opposition research on behalf of the DNC and Hillary Clinton’s presidential campaign: “Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC.” The problem is that Rosenstein became deputy attorney general in April 2017, long after the Steele dossier was used in the Carter Page FISA application. He was not, and could not have been, responsible for the alleged obfuscation—an allegation that the recent release of the Carter Page application revealed is baseless.
The fourth article also contains a factual error. The charge here concerns Rosenstein’s failure to give Congress in unredacted form his August 2, 2017, memorandum on the scope of the Mueller investigation. In this context, the article avers: “Mr. Rosenstein’s memo raises fundamental concerns related to the government’s basis for alleging ‘collusion’ between the Trump campaign and Russia, and whether these allegations resulted in potential crimes warranting investigation.” The Justice Department has not yet alleged anything about the Trump campaign and Russia, much less anything about “collusion.” Rather, Rosenstein appointed Mueller to investigate the possibility of “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” There is plenty of information in the public record to support the establishment of such an investigation, which despite the articles of impeachment has the support of many Republicans in Congress.
Another indication of the lack of seriousness in the articles of impeachment is the flimsy legal basis for the charges against Rosenstein. There is uncertainty at the margins about what constitutes “high Crimes and Misdemeanors” under the Constitution, but that uncertainty does not extend to the House charges. Most of the charges against Rosenstein concern the Justice Department’s supposed failure to respond fully to congressional subpoenas related to the Mueller investigation. Any notion that the constitutional phrase is meant to apply to a dispute about congressional oversight of an ongoing counterintelligence or related criminal law-enforcement investigation by the executive branch is absurd.
The idea is especially absurd because the Justice Department has been more forthcoming to Congress about the Mueller investigation than it has been about any similar ongoing investigation in American history. Such a sensitive investigation would typically be closely held inside the executive branch. The Justice Department would at most turn over to congressional intelligence committees summaries and conclusions about the investigation, and, in an extreme case, perhaps a very few primary documents. And it would do so in strict secrecy. Under enormous pressure, and in a politically impossible situation, trapped between the over-demanding House Republicans and a railing president, Rosenstein has been generous and transparent in what he has authorized the Department of Justice to disclose. If anything, he has gone too far in compromising traditional executive-branch prerogatives.
Impeachment, moreover, is not an appropriate remedy for Rosenstein’s alleged transgression of insufficient transparency. He, after all, works for the president, who is ultimately responsible for the information the Justice Department gives to Congress and who can order Rosenstein to disclose more on threat of removal. Congress is overstepping its authority in micromanaging the executive branch by seeking to impeach an official for refusing to turn over information that the president has not ordered him to turn over. Congress appears to have only once used the impeachment tool against an executive-branch official other than the president—in 1876, when it impeached Secretary of War William Belknap after he resigned for accepting bribes and kickbacks in office.
When Congress is unhappy with the executive branch’s refusal to comply fully with a broad subpoena requesting documents about an ongoing investigation, and when negotiations about proper accommodations break down, the usual remedy is to seek to enforce the subpoena in court. The House Republicans have not gone this route, since they would almost certainly lose in court. Their political aims are better served by articles of impeachment than by judicial process.
Which brings us to what is really going on here. The president has been hounding and threatening his deputy attorney general for his part in the Mueller investigation. But Trump has not removed Rosenstein, since doing so would invite political disaster—especially before the midterms. The president’s attacks on Rosenstein and others seek to discredit the Mueller investigation in advance of what the president fears will be damaging revelations down the road.
The sloppy articles of impeachment serve the same aim. There is no chance that the House will impeach Rosenstein over these allegations, much less that the Senate would then convict him. But the charges and the threat of proceedings further muddy the waters about the legitimacy of what Mueller is doing and thus the legitimacy of whatever Mueller discloses in the end about the president and his closest advisers.
The articles of impeachment are a shameful, cynical attack on the rule of law. They are all the worse since they come in the context of our government’s trying to figure out the undoubted efforts by the Russians to manipulate our democracy in 2016.
