Impeaching Rod Rosenstein? Oh, Please

(Bloomberg Opinion) -- SEQ CHAPTER \h \r 1Let’s get one thing straight. The silly resolution to impeach Deputy Attorney General Rod Rosenstein will never come to a vote. There won’t even be a hearing. This sort of thing happens all the time. Republicans tried to impeach President Barack Obama’s commissioner of Internal Revenue. Democrats tried to impeach President George W. Bush’s vice president. The efforts sparked brief news reports, and were soon forgotten, as they should have been.Impeachment resolutions, even against presidents, are nowadays so drearily commonplace that they’re not really newsworthy. They’re political documents intended to score political points with political supporters. The Rosenstein resolution falls into this category.Nevertheless, the idea behind it is instructive. It’s often said that we shouldn’t seek to criminalize political differences, and I agree. But nobody claims that we can’t politicize political differences. And that’s what impeachment is — a political process. The power to impeach is one of several ways in which the structure of the Constitution offers the legislative branch the opportunity to check the executive. The trouble is, the power is often invoked over what amount to differences of opinion.Consider the Rosenstein impeachment resolution. It contains five articles, each of them high-sounding, but they amount to very little. Here’s a quick summary: Article I: Rosenstein had a conflict of interest when he declined to recommend the appointment of a second special prosecutor to look into the Justice Department’s investigation of the Donald Trump campaign. Article II: Rosenstein has refused to produce documents requested by congressional investigators. Article III: Rosenstein supervised the redaction of documents turned over to Congress, and the Justice Department eventually conceded that the redactions were “unnecessary.” Article IV: Rosenstein has refused to turn over to Congress a non-redacted version of the memorandum setting forth the limits on Robert Mueller’s authority. Article V: Rosenstein has a conflict of interest because he oversaw the controversial Carter Page FISA process, now the subject of congressional investigation.What these complaints boil down to is that the petitioners don’t approve of the way Rosenstein has done his job. This is thin gruel — so thin that the nearest comparison that comes to mind is the 1830 impeachment of federal district judge James H. Peck, who was charged with high crimes and misdemeanors after he held a lawyer in contempt for publishing an anonymous letter criticizing one of his rulings. The House bound Peck over for trial in the Senate, where he was ultimately acquitted.Okay, Peck shouldn’t have held the lawyer in contempt. As a judge, even in the freewheeling U.S. legal system of the early 19th century, he should have shown a thicker skin. But the impeachment mechanism was too large a weapon to bring to bear on so small an abuse of authority.Rosenstein’s case is even simpler. The only charges that carry any faint sting involve supposed conflict of interest. But the conflicts that the petitioners claim are no different than those faced daily by hundreds of executive-branch functionaries who are involved in multiple facets of the work of their departments. Suppose a congressional committee decides to investigate the finance and procurement systems division of the Interior Business Center of the Department of the Interior. (Yes, that’s an actual thing.) It cannot be the case that the associate director who runs the division has a conflict every time she’s involved in providing documents responsive to a subpoena.In saying even this much, I’m treating the petition more seriously than it deserves. And yet I don’t mean to disparage the impeachment power. We tend to think of impeachment as a threat to be wielded against misbehaving presidents (although judges are the officials most frequently impeached). But the Constitution establishes a system of balanced and separated powers, a proper respect for which would lead us to recognize that the authority to impeach is actually an important congressional tool for reining in even the employees of the executive branch. Sometimes what the Constitution calls “officers” do indeed misbehave.And here, perhaps, is where the petition’s authors are most vulnerable. One senses that their quarrel isn’t really with Rosenstein but with Mueller, the special counsel Rosenstein selected to look into the ties, if any, between Trump’s presidential campaign and the Russian government. Many on the right have complained that Mueller’s investigation is ranging too far, but Trump’s supporters don’t dare move against him. They calculate, correctly, that the political cost would be enormous.Yet such an effort would not be unprecedented. Back in 1992, a conservative activist group called on Congress to impeach and remove Lawrence Walsh, the special prosecutor investigating the Iran-Contra affair, who had recently indicted former Defense Secretary Caspar Weinberger. Happily, nothing came of the calls to impeach Walsh. Happily, not even the most devoted Trump supporters would have the guts to file a resolution of impeachment against Mueller. Seeking to impeach the special prosecutor would make the game too obvious. By going after a Justice Department official, maybe persuading him to resign, they can keep playing insider baseball, and possibly even get a tiny win — and hardly anyone outside the Beltway will care. If on the other hand they were to go after Mueller formally, everybody would notice, and lots of people would care. In short words, by pressuring Rosenstein rather than Mueller, Trump’s allies are betraying a lack of political courage.Well, good. There are rare moments when a certain lack of courage may be welcome, and this looks to be one. We needn’t cheer the silly assault on Rosenstein to be relieved that they’re not going after Mueller instead. Surely we’ve got enough crises on our hands.To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.netThis column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his nonfiction includes “Civility.”©2018 Bloomberg L.P.-->

Impeaching Rod Rosenstein? Oh, Please

Impeaching Rod Rosenstein? Oh, Please

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Impeaching Rod Rosenstein? Oh, Please