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 about applications for warrants under the Foreign Intelligence Surveillance Act (FISA). 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 about his contacts with Russians while acting as a campaign surrogate for Donald 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 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 the 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 that claim is not only unsupported, but almost certainly false.
Politico notes that the Freedom Caucus has tried things like this before:
The HFC always does something like this right before the August recess. They tried to boot John Boehner, they tried to push out the IRS commissioner, they tried to force a repeal of Obamacare and this year, they are trying to push out the deputy attorney general. They say they are responding to legitimate issues. Their detractors say they’re trying to raise money and split Republicans.
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, has 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 Republican from Ohio who has been accused by at least eight former members of the Ohio State University 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 that 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. The most recent case was Thomas Porteous, a federal judge who was charged with perjury and taking bribes, convicted, and removed in 2010. About a third of those impeached were acquitted. The most famous impeachment case is Bill Clinton’s; he was charged with perjury and obstruction of justice in the House, but was acquitted in the Senate. The grounds on which the then-president was charged are far clearer than in the Rosenstein case: The deputy attorney general’s decisions are all standard procedure for the Justice Department, even if they are open to debate or bad calls.
Even then, the Clinton impeachment was derided by detractors as a political witch hunt. Regardless of the lawmakers’ motivations, it has become a famous example of overreach by Congress, with disastrous results: The process brought down one speaker of the House, Newt Gingrich, and his presumptive successor, Bob Livingston. Elections held during the run-up produced major losses among the ruling Republicans, and Clinton was not convicted.
That might give the sponsors of the Rosenstein articles pause, especially given the slim chance of impeachment and the nonexistent chance of removal. Representative Carlos Curbelo, a Republican from Florida, blasted the filing on Twitter Wednesday night, writing: “Reckless publicity stunt. No different from Dems who filed articles of impeachment against the President some months ago.” Curbelo’s comparison to the Democrat Al Green’s quixotic quest to impeach Trump is worth considering. If the House Freedom Caucus fails to get rid of Rosenstein but succeeds in normalizing the use of impeachment as a political weapon, their effort to help the president could end up imperiling him instead.
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