A push by House conservatives to remove the deputy attorney general is thin on substance and futile in practice.
Deputy Attorney General Rod Rosenstein has many reasons to be concerned about his job security, but the articles of impeachment filed against him late Wednesday are probably not one.
The documents were filed by Mark Meadows, the chair of the House Freedom Caucus, and are co-sponsored by 10 other members of the group. They argue that Rosenstein should be removed for withholding information from Congress, appointing Robert Mueller as special counsel, declining to name a second special counsel, and approving applications to surveil certain members of the Trump campaign. But the articles seem unlikely to have the votes to be ratified in the House—where Speaker Paul Ryan has already rejected the effort—much less for Rosenstein to be convicted and removed by the Senate.
The articles are largely a pastiche of misdirection and question-begging, but they represent an escalation of the ongoing tug-of-war between the Justice Department and the GOP-led House, which dates back to the Obama administration, when Eric Holder became the first attorney general to be held in contempt of Congress. The filing is also a classic stunt by the House Freedom Caucus, which has developed a pattern of pushing splashy-but-doomed measures in the late summer, generally against the will of party leadership. What’s new is that now the White House is tacitly encouraging the caucus.
For months, Rosenstein has been locked in a feud with the House, which has demanded that the Justice Department hand over certain documents about the investigation into Hillary Clinton’s use of an email server and over applications for warrants under the Foreign Intelligence Surveillance Act. These matters fall to Rosenstein because his boss, Attorney General Jeff Sessions, recused himself from investigations into the 2016 election, after senators accused him of misleading them over his contacts with Russians while acting as a campaign surrogate for President Trump.
While Rosenstein has occasionally acquiesced—drawing criticism for that, as well—the Justice Department has balked at giving some documents to the House Judiciary and Oversight committees, saying that handing over the files would imperil intelligence sources, handicap investigations, or violate privacy. Members of the House have accused the department of obstructing Congress’s oversight role.
Yet the fight over documents is properly seen as a proxy fight in the war over Mueller’s investigation. The House Freedom Caucus has been a stalwart ally of Trump, seeking to throw roadblocks into the special counsel’s path and to defend the president from any allegations of impropriety. The impeachment feint isn’t about governance, good or otherwise; it’s pure posturing.
Indeed, only Article II of the filing focuses on the documents. Article I complains that Rosenstein has not appointed a second special counsel to look into the Clinton investigation, as requested by Bob Goodlatte, the chair of the House Judiciary Committee. Article III accuses Rosenstein of excessive redaction of documents that were handed over. Article IV takes issue with Mueller’s very appointment, saying Rosenstein has not adequately explained his rationale for naming the former FBI director as special counsel. Article V alleges Rosenstein improperly signed off on requests to surveil Trump campaign members.
There are plenty of flaws in the caucus’s overall argument. To name one example: Having complained that DOJ isn’t revealing enough information about FISA applications, Article V confidently states that “the Department of Justice and FBI intentionally obfuscated the fact the dossier was originally a political opposition research document before the FISC.” Yet ample evidence—including a redacted version of the FISA warrant application for Carter Page, a Trump-campaign foreign-policy adviser, that was released this weekend—shows that claim is not only unsupported, but almost certainly false.
Politico notes that the Freedom Caucus has tried things like this before:
On Thursday morning, Ryan said he opposes the push. “I don’t think we should be cavalier with this process or this term,” he said. “I don’t think this rises to the level of high crimes and misdemeanors.”
It’s notable that although the articles cite offenses against the House Judiciary and Oversight committees, neither Goodlatte nor Trey Gowdy, his counterpart at Oversight, have signed on to the articles, choosing to work through other, likely more productive channels to pressure Rosenstein. Also notable is one of the co-sponsors: Jim Jordan, the Ohio Republican who has been accused by at least eight former members of the Ohio State wrestling team of overlooking sexual abuse that occurred while he was a coach. Jordan also announced Thursday that he plans to mount a long-shot bid for speaker in the next Congress.
Like Ryan earlier Thursday, Republican leaders in the House have tended to look on the Freedom Caucus with reactions ranging from eye-rolling to fury. But now the caucus has found the White House in its corner. This is especially strange because Rosenstein is Trump’s own appointee as deputy attorney general and a lifelong Republican. One expects the White House to stand up for the executive branch and for its own appointees in a feud with Congress, but the White House has remained on the sidelines.
It’s a peculiar scrambling of roles. Presidential administrations are often excessively jealous of prerogatives and do stonewall Congress from legitimate oversight requests, so one might cheer Trump pushing deputies for more transparency. Yet the allegations against Rosenstein are transparently thin and political, and the Trump White House has fought transparency in nearly every other case.
The reason that the White House isn’t standing up for Rosenstein, of course, is that Trump has hated Rosenstein ever since the Mueller appointment, which the president rightly sees as a serious threat. He has suggested the deputy attorney general is a Democrat. The White House has repeatedly floated the idea of firing Rosenstein, but it has not followed through—yet. Nonetheless, it’s those threats from the president that pose a much more serious danger to Rosenstein than the articles of impeachment.
Impeachment is analogous to an indictment in a criminal trial. The House serves as a grand jury, deciding whether to impeach, or formally charge, a public official, which occurs by simple majority. Once an official is impeached, he or she is tried in the Senate, where a two-thirds vote is required for removal.
A quick review of the 19 people who have been impeached by the House shows the charges against Rosenstein don’t really fit the pattern. Impeachment is a political process, and needn’t involve actual criminal offenses, though it often does. Most of the impeached are federal judges who were accused of abuses of power or corruption.
