Rod Rosenstein is not above the law

Deputy Attorney General Rod Rosenstein’s reaction to reports of possible impeachment for failing to respond to congressional subpoenas was to proclaim that the Justice Department “will not be extorted.”

I suppose he meant to say, “Only we here at the Justice Department do the extorting, with special counsels, daylight raids of people’s attorneys, bankrupting people with legal fees, threats to prosecute family members, and questionable wiretapping of Americans.”

{mosads}Last time I checked, the Constitution gave the elected representatives of the people the right to decide whether to impeach public officials for failure to comply with completely lawful subpoenas and appropriate oversight. They even provide Congress with immunity included in the Constitution to prevent threats from people like Rosenstein.

As the proposed questions for President Trump from special counsel Robert Mueller imply, just the act of the president raising issues or even having negative thoughts about the appropriateness of actions by Rosenstein, fired FBI director James Comey or Mueller can be investigated as possible obstruction of justice.

This government within the government has now crossed a line that is unacceptable. By gaining the recusal of Attorney General Jeff Sessions, Rosenstein stepped into the shoes of the attorney general, even though he was not appointed to that role by the president.

Now he believes he is above the law despite the myriad of conflicts he has ignored to authorize these unlimited investigations of the administration he supposedly serves. Remember, Rod Rosenstein provided the memo supporting the firing of Comey and then turned around and installed Mueller, a friend of Comey’s, as special counsel, right after trying to get Mueller the position of head of the FBI.

Sessions should call Rosenstein in and demand that he comply fully with the subpoenas or fire him and replace him with someone who will fairly oversee the Russia investigation and who will comply with the lawful orders of Congress. Yes, all hell will break loose, but Rosenstein has now assumed unconstitutional powers, believing that he is accountable to no one but his own conception of the rule of law, and these comments reveal the truth that has been carefully hidden below the Harvard-educated patina of respectability.

It was also Rosenstein that allowed the raid on Cohen’s office, a measure that was sure to draw huge publicity and, thus, be a tactic that itself goes against the idea of at least trying to keep investigations of people secret so as not to ruin the lives of innocent people before they have had their day in court. In the process, it took an investigation that was supposed to be about national security and state secrets and turned it into the same kind of circus we had in 1998 with the investigation and impeachment of President Clinton.

The president’s new lawyer, Rudy Giuliani, did exactly the right thing in getting out the real facts about the Stormy Daniels payment. He is right that such a personal expense is not a campaign expense, did not use donor funds and, even if he were wrong, we have an administrative process for determining that fact under the Federal Election Commission. Remember, the payments were made in the last days of the campaign and so would never have been reported before the election. No difference could ever have been made.

The legal status of this payment does not rise to a high crime or misdemeanor, is not money laundering, wire fraud or any of these other inflated charges. It was a reimbursement to a lawyer for an expense incurred. We have to stop trying to criminalize non-disclosure payments for perfectly legal acts. This is not the “Pentagon Papers.” There is no compelling national interest in Stormy Daniels relating the minute-by-minute events of a consensual event from 10 years ago.

However, the potential case related to the Democrats in which millions of dollars paid to a law firm were funneled to an opposition research firm, Fusion GPS, is far more clear cut. It used donor, not personal funds, it was falsely reported during the campaign and the ultimate recipient was not disclosed. Yet, no sirens are blaring. And by the way, exactly who is paying for Michael Avenatti, attorney for Stormy Daniels, and the continued work of Fusion GPS? Might that be donor money not being reported?

It’s the double standard led by the team at the top that is undermining the rule of law. Either these are both administrative matters to be handled by the Federal Election Commission or they are both criminal investigations with raids on law firms, but we can’t have the lawyers of one party raided and the lawyers of the other party laughing out loud.

The Republicans and the Justice Department inspector general have raised legitimate questions about the operation of the FBI and the Justice Department. The FBI’s deputy director, Andrew McCabe, was removed for alleged lying that was painstakingly documented by the inspector general’s report. The texts of FBI officials Lisa Page and Peter Strzok exposed animus against the president by the bureau’s lead agents.

Christopher Steele was paid for by the Democrats and did become a vendor of the FBI when he spread completely unsubstantiated allegations of the worst kind against the president to the press and, allegedly, lied about it. These transgressors are all giving interviews and writing books, basking in support from the “resistance.”

The point is straightforward. There are plenty of serious questions about the foundation of all these investigations, and it is entirely legitimate for congressional committees to demand documents and answers. This is especially important here because while, technically, the president should be able to demand answers, he is blocked from doing so by the threats of the special counsel to subpoena and prosecute him for even raising doubt about the Mueller operation.

Now, quite stunningly, Rosenstein, who has been behind Justice Department stonewalling of Congress for months, dares threaten even Congress for merely carrying out its fully protected duty. Talk about thin-skinned. We need to now restore the true, unbiased and fairly administered rule of law here that answers the question of whether Donald Trump colluded with the Russian government without attempting to trap the president into obstruction of justice for a nonexistent crime or turning this into a circus.

We need to get to the bottom of what Comey did in all of these investigations, and whether they were compromised. We must have both tasks carried out fully and fairly. It’s clear now that Rod Rosenstein, with his comments, is part of the problem, not part of the solution.

Mark Penn (@Mark_Penn) served as pollster and adviser to President Clinton from 1995 to 2000, including during his impeachment. He is chairman of the Harris Poll and author of “Microtrends Squared.”