Congress has powers other than impeachment against Rosenstein

‪“Time is up.” That is how Congressman Mark Meadows, chairman of the House Republican Freedom Caucus, explained the filing of articles of impeachment against Deputy Attorney General Rod Rosenstein on Wednesday. Less than a day later, the Meadows backed off that strategy, saying he would pursue a contempt vote instead in late August. However, that decision is unlikely to quell continued demands for impeachment by some advocates both inside and outside of Capitol Hill.

‪His effort would have been the first impeachment of a senior executive branch official other than a president since 1876. But it likely would have been unsuccessful because it is not a valid basis for impeachment. Indeed, the impeachment standard is designed to prevent this type of impulsive response to a fairly common conflict with the executive branch. No matter how one may feel about Rosenstein, his impeachment would come at a far greater cost to our Constitution and political system.

{mosads}‪I have long agreed with critics in Congress who have objected to the conduct of the Justice Department in response to legitimate demands from oversight committees looking into the handling of both the Clinton and Russia investigations. The FBI has abused classification authority in redacting clearly unclassified but embarrassing information, as well as slow walking the disclosure of information. For years, I have called on Congress to more aggressively its contempt authority in such cases, including examining the role played by the Justice Department in killing every contempt referral against its own officials. However, contempt proceedings are vastly different from impeachment proceedings.

‪Disagreements over the disclosure of information have existed between the legislative branch and executive branch from the very start of the republic. George Washington invoked the precursors of what would become known as executive privilege in refusing to share certain information with Congress. While he should have done more in regard to these investigations, Rosenstein has actually produced far more than prior administrations. The Justice Department has already handed over about 880,000 documents to Congress. There still remains information that should have been turned over months ago. However, this action by 11 members of Congress takes a disagreement to Defcon One.

I previously have written academic pieces arguing for the use of impeachment for figures other than the president when warranted. However, the gravity of the misconduct still remains very high under the constitutional standard of “treason, bribery, or other high crimes and misdemeanors.” It is so high that only one such impeachment of a Cabinet member has occurred. ‪Actually, two such cases occurred, historically.

The first was that of William Blount, soon after the Constitution was ratified, in times not unlike our own. The country was bitterly divided between Federalists and Republicans. The one difference is that, when people today attack like they want to kill each other, the Federalists and Republicans actually wanted to kill each other. The Federalists under John Adams used the Alien and Sedition Acts to arrest their opponents, and violence was commonplace. There also were fears, in some cases well founded, of secret conspiracies with England and other nations to retake lost territory or even overthrow the nascent American government.

‪In that very first impeachment, Blount was accused of conspiring with the British to invade the southwest. The evidence included an incriminating letter with British operatives. Blount, a Republican from Tennessee, was expelled from the Senate under its inherent authority to discipline its members. The reason was a “high misdemeanor” inconsistent with his “public trust and duty.” The House instituted its own proceedings, and Blount was impeached. All of the House “managers” taking the case to the Senate for trial were Federalists. Ultimately, the Senate voted that legislative officials are not civil officers subject to impeachment.

‪‪The second analogous impeachment was that of William Belknap, war secretary for Ulysses Grant who was accused of accepting bribes after the Civil War, a time of great corruption. An investigation of military contracts uncovered kickbacks to Belknap. Just two hours before his impeachment, Belknap resigned but was still impeached. The Senate trial lasted five months, and Belknap was acquitted with the help of a Republican senator who broke ranks. Only two senators believed him to be innocent, but the jurisdictional questions over the fact of his resignation prevailed.

‪These cases were key to laying the foundations for the rules and procedures of impeachments. They were important in another way as well. In both cases, in the worst of political times, members of the governing parties crossed the aisle to reject impeachment or conviction of their political enemies. They understood this process had to be reserved for only the most extreme possible cases of “treason, bribery, or other high crimes and misdemeanors.” The same courage was shown in later impeachments, such as the trial of Andrew Johnson, when seven Republicans abandoned their party and careers to vote to acquit him.

‪The point is that the Constitution was not just written for times like this. Indeed, it was written in times like this. Yet, members transcended their partisan impulse, even in legitimate cases of wrongdoing, to follow the standards set out by the Framers for the use of impeachment. ‪These articles against the deputy attorney general are not meritless because the grievances are frivolous. Rather, they are meritless because the grievances are extraneous to the conditions for impeachment.

That leaves Congress with an array of powers to respond to any continued failure by Rosenstein and the Justice Department, from appropriations t to confirmations to contempt. It simply requires the will and clarity of purpose to use those powers. It is a welcomed decision to withdraw these articles and let us not speak of this again until someone actually commits “treason, bribery, or other high crimes and misdemeanors.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.