Impeaching Rosenstein may hurt Trump

The decision by a group of Republicans to seek a bill of impeachment against Deputy Attorney General Rod Rosenstein may well backfire against President Trump. The conservative lawmakers who are seeking to introduce this bill of impeachment have charged Rosenstein with conduct that does not meet the constitutional criteria for impeachment.

As I pointed out in my book, “The Case Against Impeaching Trump,” the constitutional criteria are very specific: “Treason, bribery, or other high crimes and misdemeanors.” These specified crimes do not include the allegations being made against Rosenstein. Accordingly, the Republicans who support this bill of impeachment are implicitly siding with Democrats who argue that Trump can be impeached for noncriminal conduct.

{mosads}In my book, I lay out the history of the impeachment clause and demonstrate, I think quite persuasively, that the Framers intended to limit impeachment and removal to government officials who are tried and convicted by the Senate of the crimes specified in the Constitution. The Framers rejected a proposal allowing removal for “maladministration” or other noncriminal actions or policy differences. Now these Republican lawmakers are taking the Democratic side of this debate, calling for impeachment of Rosenstein for actions that do not fit the specified criteria under the Constitution.

If and when the Democrats regain control of the House, there will surely be efforts to vote a bill of impeachment against President Trump. Proponents of such a bill will argue, as Congresswoman Maxine Waters (D-Calif.) already has, that the criteria for impeachment are anything the House votes on, regardless of the words of the Constitution. She said, “Impeachment is whatever Congress says it is. There is no law.”

This is a variant on what former President Gerald Ford said when he was member of Congress in 1970. Ford declared, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history. Conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require the removal of the accused from office.”

These lawless approaches to impeachment fly in the face of the Constitution. It would be as if senators decided that a two-thirds vote was not necessary for removal, despite the fact that the Constitution explicitly requires such a supermajority. This entire episode demonstrates a point I have been making for a long time, namely, that both sides are abusing constitutional criteria for impeachment for reversible partisan advantages. Both sides are abusing the criminal law by stretching it and weaponizing it to target political opponents. Both sides seem to forget that what today may serve their partisan interests will become an enduring precedent that will soon be used by their political opponents against them.

The ultimate losers are all Americans who rely on neutral civil liberties and nonpartisan constitutional protections. Once these civil liberties and rights are weaponized for partisan purposes, they no longer serve the democratic function for which they were intended, namely, requiring the neutral rule of law to govern all actions by federal and state officials.

So, let these Republican lawmakers, who are seeking partisan gain from trying to impeach Rosenstein, look in the mirror, and understand the boomerang effect of such short sighted actions. They should immediately drop any plan to impeach Rosenstein. If they truly believe he improperly refused to comply with subpoenas, they have the option of seeking a contempt citation from a court. The sanction must fit the offense, and the sanction of impeachment does not fit the alleged offense of failing to comply with subpoenas. That is what the contempt power is for.

Among the charges in the proposed bill of impeachment is the allegation that Rosenstein has a conflict of interest because he is a potential witness to any charge of obstruction of justice against the president growing out of his firing of former FBI director James Comey. I agree that Rosenstein does have a conflict of interest, but the proper remedy for this is not impeachment. Rather, there could be a motion to the court to remove him from the investigation based on his conflict of interest.

I am sending a copy of “The Case Against Impeaching Trump” to every member of Congress. Let them read the history of the impeachment and removal clause. Let them read the Federalist Papers. Let them listen to the debates among those who ratified the Constitution. Most of all, let them read, with great care, the actual words of the Framers. When they do, they will become convinced that it is safer for all Americans, regardless of party affiliation, to reserve the impeachment and removal power for government officials who have committed the crimes designated in the Constitution, rather than using this power for partisan advantage.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.