Impeach Rod Rosenstein?

I don’t think any of us has commented on the articles of impeachment filed against Rod Rosenstein by a small number of conservative House Republicans. My comment is that there is no case for impeaching Rosenstein. I’ll give my reasons in a moment.

I assume the articles were filed in order to focus attention on the fact that the Department of Justice hasn’t produced documents requested by the House at the desired pace. The authors probably wanted to rouse House leadership to engage the issue of document production and maybe to encourage President Trump to sack him. They apparently achieved at least partial success on the first objective, and now have backed off some on impeaching Rosenstein.

Should impeachment articles be filed for these purposes? I don’t think so. But impeachment as political theater is probably the wave of the future. That future is due to begin in earnest next year, if Democrats gain control of the House.

Now let’s consider whether Rosenstein deserves to be impeached. The main grievance against him is the Justice Department’s failure to produce documents expeditiously. If it were an impeachable offense not to produce documents as quickly as the party seeking them wants, I would have been “impeached” from my law practice more than once. The slow production of documents is nothing like the “high crimes and misdemeanors” the Constitution establishes as the standard for impeachment.

Moreover, as Jack Goldsmith argues, the House has remedies other than impeachment. The normal remedy is to seek to enforce the subpoena for documents in court. This has not been done, though the authors of the impeachment articles are talking about doing so now.

Another remedy in the current circumstances would be for President Trump to order Rosenstein to produce more material faster. I agree with Goldsmith that Congress would overstep its authority in micromanaging the executive branch if it impeached an official for refusing to turn over information the president has not ordered him to turn over.

The articles also cite conflicts of interests that Rosenstein allegedly labors under. To some extent, as Goldsmith shows, these articles rely on statements of fact that aren’t true.

I do believe that Rosenstein has a potentially serious conflict if Robert Mueller is investigating the decision to fire James Comey. Rosenstein recommended firing Comey and thus would be a fact witness in a proper investigation of that decision. Assuming, as I do, that Mueller is investigating this decision, Rosenstein should recuse himself from this part of the investigation.

I don’t know whether he has. I also don’t know whether he has obtained an ethics opinion that blesses the way he’s handling this. It’s likely that he has. In that event, I don’t see how it could be am impeachable offense — a high crime and misdemeanor — to proceed as Rosenstein is proceeding.

Document disputes occur all the time in litigation and disputes over what is a conflict of interest are not uncommon. In litigation and investigations involving the government, they are not grounds for impeaching government lawyers.

I’m no fan of Rosenstein. I am a fan of some of the congressional Republicans who filed the articles of impeachment against him. But the articles do not support the remedy. Rosenstein shouldn’t be impeached.

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