"A Shameful, Cynical Attack on the Rule of Law"

House Republicans seeking to impeach Rod Rosenstein embarrass themselves.

|The Volokh Conspiracy |

On Wednesday, a handful of House Republicans introduced a resolution to impeach Deputy Attorney Genral Rod Rosenstein. It is a piece of work.

Harvard law professor Jack Goldsmith, former head of the Department of Justice Office of Legal Counsel, took the resolution apart in the Weekly Standard.

"The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document," Goldsmith explains. The document contains multiple factual errors, including the accusation that Rosenstein is somehow responsible for things that occurred over six months before he took his position at DOJ, and makes legally unsupported charges. Goldsmith concludes:

The articles of impeachment are a shameful, cynical attack on the rule of law. They are all the worse since they come in the context of our government's trying to figure out the undoubted efforts by the Russians to manipulate our democracy in 2016.

Apparently Goldsmith was not the only person to notice the impeachment resolution's failings. The House leadership opposes consideration of the resolution and one of the resolution's drafters—Rep. Mark Meadows—is now reportedly tabling the effort. (The resolution's other drafter, on the other hand—Rep. Jim Jordan—is reportedly considering a run for Speaker.)

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  1. Jim Jordan is really a piece of work. We see politicians often whore their integrity for political gain. But rarely in so nakedly obvious and hackish ways. Thank God actual Republicans in Congress are embarrassed by this idiocy and have moved to nip it in its bud.

    Maybe he and Devin Nunes could run on some sort of shared, pro-Russia-pro-mental-defect, ticket?? It couldn’t be any worse than what we’ve seen so far.

    1. Actual Republicans?

      Not sure what that means.

      1. He means Republicans who act like Democrats.

        1. When I think “Democrat,” I don’t really think “Paul Ryan.”

  2. Apparently, under “The Rule Of Law”, Congressional oversight of the DOJ is reduced to PR efforts. Holding someone in contempt of Congress has zero effect [viz. AG Holder] since the DOJ will not prosecute itself.

    Technical issues with these articles of impeachment aside, does Professor Goldsmith offer any way for Congress to fulfill its oversight role, or has he, as “former head of the Department of Justice Office of Legal Counsel”, internalized the concept that the DOJ is immune to such oversight. Prosecutorial immunity writ large, as it were.

    1. Um. The criticism is not that Congress shouldn’t be allowed to impeach. It’s that this attempt is stupid and baseless, not to mention that it’s one more example of complete Trump toadyism.

      “See no evil” Jordan is a pretty loathsome character, and his “Freedom Caucus” pals are not much better.

      1. Correct.

        goldsmith was not arguing that this was unconstitutional. an impeachment of Rodenstein would be as constitutional as pardoning Marc Rich.

        1. Marc Rich? Sweet burn, bro.

          1. I think Marc Rich is a damn fine example of an act that we should acknowledge is entirely constitutional and concurrently entirely wrong.

            Some people get really mixed up between the legal/ethical, it’s good to have an incontrovertible counter example.

            1. Oh, yeah, sure. But you needn’t dip into the last century to find those examples. Scooter Libby and those two jackasses who set fire to federal lands to cover for their poaching are much more recent.

              1. You misspelled “setting a backfire to protect their property from deliberate federal arson designed to run them off.”

                1. That’s okay because, though spelled correctly, what you wrote is a lie.

          2. Yeah, Marc Rich’s pardon was as illegitimate as it gets.

            When is he getting out anyway?

            What do you mean he’s never been in?

            Sometime somewhere I suggest a politician should make an issue about this. Like maybe Eric Holder in 2020. If you think you have heard a lot about Pocahontas from Trump, you’ll here a lot more about Marc Rich if Holder runs. It’s not something any presidential candidate could defend, even as being a total mistake.

        2. Yeah. Sometimes pardons do seem to be undeserved. Lots of examples. Why single out Rich except to get a cheap pointless snark in?

          1. The problem with the Rich pardon is not that it “seem[s] to be undeserved”. The problem is that it was granted to a fugitive from justice and appeared to be based on campaign contributions by the recipient’s former wife, as acknowledged by President Carter, among others.

      2. “Complete Trump toadyism…” Is that what you call supporting the duly elected President of the United States?

        1. Yes, when the support is aimed at protecting him from legitimate investigations.

          Also when the support is blind fealty to a lying, corrupt, ignorant, bigoted President.

          1. “lying, corrupt, ignorant, bigoted President”

            That creature did not win thank goodness.

            1. Ahhh, the ol’ “I am rubber, you are glue” gambit. A BfO classic.

              1. Otis,
                I think Bob’s point was: Okay, he is a pathological and consistent liar. And he’s racist–going back decades. But “ignorant” is more subjective and it therefore has not been proven. And corrupt? That also can be disputed. He obviously is happy to legally cheat his creditors via bankruptcies. And happy to illegally cheat other people (see: Trump University). And happy to screw hardworking businessmen who provided services to his organization. But I am not convinced that = “corrupt.”

                If Bernard had stuck to “liar” and “bigoted,” almost no one would have disputed those factual & falsifiable claims. But for the other two, I can see how ardent Trump supporters could dispute them while still maintaining their integrity.

        2. “Complete Trump toadyism…” Is that what you call supporting the duly elected President of the United States?

          Yeah. Congress’s job is not to “support” the president. They don’t work for him or report to him.

          1. Correct; they [supposedly] work for the people who elected them. Mirable dictu those same people elected President Trump, which implies that by supporting the President their constituents voted for, they are supporting their constituents’ preferences.

            Of course, there may be a sub-text to your comment: that Congress’s job [as self-described other than while actually campaigning] is not to support their constituents’ preferences either, and that they actually work for themselves primarily. Which is probably true in fact. But when a Congresscritter actually represents his voters, it should be praised, not denigrated.

  3. The 2016 reference is a shoddy error. They could have made exactly the same complaint about his 2017 renewal instead.

    1. They should have based the complaint on his 2017 renewal; where he lied to the FISA court. He should have recused himself from oversight. Whereas now he is compromised in his oversight of the Mueller investigation where he, like Sessions, is a witness/possible subject of the investigation.

  4. I don’t think it would ever happen due to political reasons, but I wonder at what point congressional efforts to scuttle the investigation would themselves constitute obstruction of justice.

    If Meadows and Jordan were the target of a corruption investigation and attempted to impeach the AG or Deputy AG running the investigation they would be at least as guilty as Trump may or may not be for firing the AG investigating his campaign. I’m not sure why it would absolve them if they’re trying to protect Trump instead.

    I’m not sure if would even matter if they actually believed the basis of the investigation (collusion) had occurred. If it could be shown that they believed the investigation was in fact being carried out legitimately, but they were attempting to shut it down, put a political ally in charge, or merely intimidate Rosenstein, then that seems like a textbook case of obstruction of justice.

    1. That’s actually an interesting idea…something I had not even thought of. At the very least; it would make a good movie.

      (Realistically speaking, it’s a non-starter. You’d need a huge margin of one party to get past the Senate, of course. And you’d need to convince a ton of members on both sides to prosecute one of their own, which would be a heavy lift indeed.)

      But it is an interesting concept…I will borrow it from you next time my friends and I head out for drinks.

    2. You ought to try reading the Constitution sometime. Try the Speech and Debate clause:
      “and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

      Anything business they conduct in the house is immune from any criminal investigation or charges.

      Talk about abuse of power, suggesting prosecution for elected Congressmen for investigation of unelected bureaucrats.

    3. You mean as a practical matter in its effect, or legally?

      As a practical matter a congressional investigation or action could, theoretically, amount to obstruction of justice, though I don’t think we’re anywhere near that point now.

      As a legal matter? I think the answer is “never”. This would be getting levels of priority in the law backwards, declaring the source of laws as obstructing the execution of laws by legal actions.

      1. This would be getting levels of priority in the law backwards, declaring the source of laws as obstructing the execution of laws by legal actions.

        No. The source of laws != the laws. Just because Congress has the authority to pass laws does not mean individual Congressmen have the right to ignore or obstruct those laws.

        Now, it can’t happen for the reason Kazinski said: the Speech and Debate clause.

        1. “Now, it can’t happen for the reason Kazinski said: the Speech and Debate clause.”

          Perhaps, though a non-Congressman might be prosecutable for such actions despite the first amendment. I’m not sure why the Speech and Debate clause should be interpreted as providing broader protection than the 1A.

          1. The Speech and Debate clause is an absolute privilege. Whether you think it should be or not, it is. There’s no balancing test or the like.

            1. I didn’t think that there was alot of case law on the issue. I would imagine that in the right case, prosecutors could argue that the clause was subject to strict scrutiny, time place manner restrictions, exceptions for child porn, threats, fighting words, libel, etc.

              1. I didn’t think that there was alot of case law on the issue.

                There’s enough. It’s absolute.

        2. If the potential impeachment is reasonable, and I don’t know, obstruction claims would also seem to fail as impeachment is the exercise of a direct constitutional power, and thus no non-constitutional constraints (read: laws, such as obstruction) on it may be made.

          1. I don’t think your defence would work. Just because someone has the power to do X doesn’t mean they can’t perform X in an illegal manner.

            You have a constitutional power to free speech… but you still can’t order a hit.

            You can have all sorts of licensing to fire a gun, but you’ll still get charged for firing at someone.

            And in a very analogous situation Trump is being investigated for obstruction of justice for using his constitutional power to fire Comey.

            However, as other pointed out it sounds like the Speech or Debate Clause would be an effective shield for pretty much any action a legislator undertakes as a lawmaker.

  5. In addition to what Goldsmith wrote, Article I charges Rosenstein with dereliction of duty for not appointing a second special counsel to look into other matters. The truth is that the Deputy Attorney General doesn’t have that authority because the Attorney General hasn’t recused himself from those matters. The Attorney General wrote Congress a letter explaining he did not feel a second special counsel was warranted but would assign the issue to a competent United States Attorney.

  6. The state of the Mueller investigation now is like if I started a public investigation into whether Prof Somin molests children because somebody once saw his son talking to Bill Clinton who is a known friend of Jeffrey Epstein. Once I started. instead of doing an actual objective investigation I’d just wander around Somin’s house and office aimlessly rifling through random stacks of paper and chatting with random people here and there to make it look like stuff is happening and to stretch out the ‘investigation’. Every now and then I’d find something like a dvd of dora the explorer or a picture of his baby in the bathtub which I’d release to CNN or WAPOO who would then blare headlines about how this proves he’s a pedo and how he’s going to prison any minute now or if nothing like that happened they’d just conjure something up based on the random stacks of paper I’m pretending to flip through. Basically I’d stretch it out as long as possible to keep these headlines coming in as long as they can hopefully until he left or got fired from his job. Then once he yells at me at midnight while I’m digging through his fridge for the Haagen-Daaz on the 10th year of the ‘investigation’ I’ll let CNN and WAPOO know about this too so they can blare headlines about how he is maliciously interfering with my efforts,probably because he has something to hide.

    1. You Trump fanboys write the best free form poetry.

    2. There have been indictments. Guilty pleas; a trial is about to start.

      Also your argument has nothing to do with this impeachment attempt being dumb and bad.

      1. There have been, yes. Just not about the supposed aim of the investigation.

        1. That a former Trump campaign manager was an unregistered lobbyist for Russia means nothing, of course.

          1. the media are unregistered lobbyists for the DNC.

            What is your problem?

            1. “the media are unregistered lobbyists for the DNC”

              “The media” include AM talk radio and a certain cable-and-broadcast news network.

              1. “The media” aren’t the Rooskies, either. Regardless of how close an approximation of Russian Communists some may have been.

                1. Why is that a substantial difference?

          2. Yet there is no indictment of the former HRC campaign manager; who’s brother was the partner of the former Trump campaign manager and an unregistered lobbyist too.

            BTW: unregistered lobbyists for Ukraine not Russia.

        2. The indictments involving Russians is “not about the supposed aim of the investigations?

          1. The indictments involving US citizens are not about the supposed aim of investigations.

      2. And I would add, guilty pleas (confessions) can be compelled by the worst forms of strong-arm prosecutorial intimidation practiced in American history, by two guys (Mueller and Weissman) who have a track record of destroying lives that appeals courts much later have to try to restore. This duo will threaten to convict everyone in your family of something. They have all the power, all the resources, you will go broke quickly trying to fight them and when it dawns on you that this pair really don’t care what is true and what is justice, they intend to win with the case they’ve got, you learn true despair.

        Ask Michael Flynn.

        1. Ask Michael Flynn.

          I would, but he’d probably lie.

          1. Ask Martha Stewart then.

            1. Martha Stewart was undoubtedly guilty of insider trading.

              I happen to agree that her punishment was far too harsh, likely because she was a celebrity and someone decided to make an example of her.

              1. “undoubtedly guilty ”

                Says who?

                Not convicted. Not even charged criminally.

                An SEC civil settlement. No admission of liability.

                1. She was convicted at trial of conspiracy, obstruction of justice, and two counts of lying to investigators (I always find that somewhat redundant). All this in connection with the stock sale.

                  She settled an insider trading complaint with the SEC for around $200,000.

                  So yes. She used material non-public information to avoid taking a loss on her shares, just as Sam Waksal did.

                  1. Incidentally, the prosecutor, a certain James Comey, claimed that he used ”my discretion” in deciding not to bring insider trading charges against Ms. Stewart and her broker. He said case law would support such charges, but he called them ”unprecedented.”

                    I’m not sure why, but it may have had to do with the size of her trade, or possibly that she was a second-hand “tippee.”

        2. Michael Flynn. Innocent as a newborn babe.

          I see you’ve been notified of the latest RWNJ cause celebre and have signed on enthusiastically.

      3. How many of those actually relate to Trump & russia colluding to influence or rig the election in his favor?

        Oh, yeah…zero.

        1. The purpose charged is Russian election interference. Nothing about Trump.

          Plus, of course, anything else that comes up in the course.

    3. Is that what they tell you over at Breitbart and Fox?

  7. I’d rather worry about rogue impeachments of innocent prosecutors, which won’t send anyone to jail, than read about rogue prosecutors sending innocent people to jail.

    If once in a blue moon a man bites a dog it gets a lot attention, while there are a lot of dogs running around biting men for no good reason and because it’s the dogs nature no one cares much except the one he bit.

    Fuck those fucking prosecutors. They already enjoy the extra-constitutional perk of qualified immunity, now they are supposed to be untouchable by congressional impeachments too.

    If I were running Congress I’d impeach at least one federal official a week just to keep them on there toes, with special attention to the DOJ, IRS, and ATF.

    1. Fuck those fucking prosecutors. They already enjoy the extra-constitutional perk of qualified immunity, now they are supposed to be untouchable by congressional impeachments too.

      Actually, prosecutors have absolute, not qualified, immunity.

      And of course they’re not untouchable by congressional impeachments — just frivolous ones.

      1. And of course frivolity is for Congress to decide.

  8. Is the resolution to impeach Rosenstein a silly, cheap political stunt? Yes, not unlike the parade of silly, cheap political stunts that seem to have become de rigueur in American politics on both sides of the aisle.

    But is it a “shameful, cynical attack on the rule of law” that threatens “our democracy?” Please, can’t we put the hyperbole away for just a minute or two? Can’t we?

    1. I wish I could upvote this.

    2. Yes. Yes it is.

      The President is being investigated and almost since the start his congressional allies have been doing everything they can to discredit the investigation.

      They are clearly building political cover so they can either ignore any crimes uncovered by the investigation, or enable Trump to fire/pardon his way out of the investigation.

      It’s a direct attempt to protect the Executive branch from an investigation into obstruction of justice and interference in an election.

      I’m not sure what other criteria you need in order to call something a shameful, cynical attack on the rule of law that threatens your democracy.

  9. “Yes, not unlike the parade of silly, cheap political stunts that seem to have become de rigueur in American politics on both sides of the aisle.”

    (Two sentences later…)

    “Please , can’t we put the hyperbole away for just a minute or two?”

    It is to laugh.

    Besides, the impeachment of Rosenstein isn’t a cheap political stunt anyway. It’s a cynical and calculated attempt to throw more sand in the eyes of the public regarding the legitimacy of the Mueller investigation, and possibly to give cover to any attempt by Trump to fire Rosenstein.

    1. As if to prove my point…

      “It’s a cynical and calculated attempt to throw more sand in the eyes of the public regarding the legitimacy of the Mueller investigation, and possibly to give cover to any attempt by Trump to fire Rosenstein.”

      No it isn’t. It is clearly the first step in creating a Fascist dictatorship that will reintroduce slavery, legalize rape, push grandparents off of cliffs, and let little children die in streets, preferably by eaten by the packs of wild dogs that will be set loose in every urban center!

      1. How does my comment prove your point?

    2. As opposed to russia collision “investigation” and campaign surveillance coordinated by Obama’s intelligence personnel at the behest of the DNC & Clinton campaign.

      1. campaign surveillance coordinated by Obama’s intelligence personnel at the behest of the DNC & Clinton campaign.

        Which has been conclusively disproven multiple times. Everything was warranted searches well over-determined by evidence of probably cause and signed off by Republican judges.

  10. One of the most interesting things when you’re dealing with someone who has been conned, is that they will often go to great lengths to defend the person that defrauded them.

    It’s bizarre, really. I mean, you might say, “How can anyone fall for X (whether it’s a Nigerian Prince scam, or whatever)?” but human nature is what it is- once you’ve bitten, you have to keep justifying to yourself that you were right. Which can be an incredibly expensive proposition.

    Most people who were even vaguely aware of Donald Trump before 2016 knew exactly what he was- a congenital liar about everything, even those things that were easily verifiable like how tall a building was. A person who eagerly sought out funding from underworld sources, such as the Mafia. A person who actually called up journalists pretending to be someone else in order to talk about how many women he slept with. The type of guy who bought the rights to a women’s pageant so he could watch teenage girls get dressed (yeah … I mean, c’mon). In short, the worst type of short-fingered lying vulgarian you could imagine.

    It is truly sad to watch the contortions that people have gone through to defend this. But eventually all frauds get found out; the only hope is that the damage isn’t too great.

    1. And, we aren’t even getting into Russia yet.

    2. One of the most interesting things when you’re dealing with someone who has been conned, is that they will often go to great lengths to defend the person that defrauded them.

      Yes. I just finished Bad Blood, about the Theranos fraud, and the number of people who she dragged down with her because they refused to believe blatant evidence of fraud is astonishing.

  11. Trump is president and MAGA, the progressives are outraged, life is good!

    1. America was already great, so in order to MAGA he had to first make it NOT great.

      1. Outraged?

  12. It may be not make any legal sense. But it doesn’t have to make any legal sense. Just as the President has the power to bully long-term allies and cozy up to long-term adversaries based on nothing more than who will give his family business a better hotel deal, so nothing constrains members of the House from impeaching any federal official they want based on nothing more than political disagreement and settling political scores. Sure, the Constitution says high crimes and misdemeanors. But they are the ones who determine what that means. Like Alice in the Lookin Glass, it means whatever they say it means.

    A workable constitution requires respect for the rule of law. If the Court starts saying the constitution ought to be regarded as a living document whose mere text surely needn’t constrain That Which Needs to be Done and claim that it means whatever they say means, it shouldn’t be surprising if the rest of the country follows suit and starts doing exactly the same thing.

    This is what we get. The Court said it was for the country’s good. But so are these people.

  13. I am mentally chanting my secret mantra* non-stop and doing my deep breathing to get the BP down from where some of the posts here put it. Next I will apply reality therapy by recollecting:

    (1) Trump will not be impeached
    (2) Continued good economic news will likely translate to a no-show Blue Wave.
    (3) At some point voices like mine will convince brainy and influential undecided power brokers (a tiny number, but important) of a critical understanding about Russian agents/hackers/lobbyists/free lancers/starving ex-patriates:
    (a) most of them are free lance probing for weakness or insider info that can be turned to profit,
    (b) if they turn up some, then they scroll thru contacts in their phones (used to be a Rolodex) looking for
    a buyer
    (c) Putin and official agencies often are not involved until the point significant profit potential
    surfaces. Word of profits spreads fast in Russian culture. Then it behooves the free lancer
    to very quickly start sharing with the bigger gangsters all the way up the chain to Putin himself.
    (d) not just intelligence networks tend to work this way, but their rent-a-militia mercenaries as well who
    can show up seemingly spontaneously in Georgia, Crimea, Ukraine, wherever.
    (4) We had all better pray that Putin is mostly driven by lust for respect (personal and national) and money.

    * non illegitamous carborundum

  14. JFC, impeachment of executive officers is part of the “rule of law”. It is specifically authorized in the Constitution and is a underused check on executive malfeasance.

    The idea that the Department of Justice is some sort of Fourth Branch immune from both Presidential and Congressional control is what is really against the “rule of law”.

  15. Today’s declarations of “Threats to Rule of Law” appear to have become totally unhinged from my pre-2016 understanding of what Rule of Law means.

    You see, before 2016 I understood rule of law to mean that the law applied equally to everyone, including equal scrutiny and leniency. Thus, people understood that it was good to allow the (probably unconstitutional) Independent Counsel Act to expire (justifying Scalia’s dissent in Morrison v. Olson). In that light the Special Counsel should also be used judiciously. The DOJ should only target people already suspected of a crime, delegate to regional offices, and let the chips fall where they may.

    Then, in the middle of 2016 somehow this was not good enough. The rule of law now demanded clearly flaunting all those good guidelines. Instead the rule of law demanded investigations out of the central office, rewriting statutes, and ignoring chain of command. Fine enough, better to err on the side of the defendant I suppose.

    But now, in 2018 I am told that the rule of law demands all of the opposite of the things we thought before 2016. The Special Counsel must be revered rather than treated with skepticism. All things should be conducted from central office. Rewriting of statues should be done not to exonerate, but to implicate. And the DOJ had a duty to follow Lavrentiy Beria’s apocryphal motto, “Show me the man and I’ll show you the crime.”

    1. Lol!

      Wut?

  16. You’d think that articles of impeachment would be a serious enough deal that you’d try to eliminate obvious factual errors.

    Top Men

  17. My diatribe was simply to say, if Trump wins in 2020, then certainly Rosenstein is fired and all those ridiculous redactions come off. Then we see how un-founded the stampede to launch the Special Counsel was (particularly in a way that would so specifically target Trump and Republicans and turn the blindest of Blind Eyes on blatant Democrat transgressions), and how dangerously abused for political purposes the FISA courts became during the Obama administration.

    Then we stumble into the light of truth. That may not matter a whit legally, or even be apparent at all after historians of a certain bent finish writing up the story, but I will be glad to know how it all went down for all that.

    1. all those ridiculous redactions come off. Then we see how un-founded the stampede to launch the Special Counsel was

      I don’t know why we need to remove the retractions when you already know everything about what it says underneath them.

      Of course, you are very confused here, since the redactions and the appointment of the special counsel have literally nothing to do with each other. Mueller was named because Trump fired Comey to stop the investigation into Russian interference in the election. If the only thing behind the redactions are baseball box scores, that wouldn’t somehow change that fact.

      But I don’t know why I’m bothering to try to explain someone so stupid that he doesn’t know that the adjective form of “Democrat” is “Democratic.”

  18. Trump fired Comey to stop an “investigation into Russian interference” by a man who had pre-determined Hillary’s innocence in her own serious security transgressions and who was clearly intent upon pre-determining Trump’s guilt. Good firing, but too late .

    Mueller has presided over the bitterest, most intensely cynical, and legally nasty completely political witch hunt in American history. I may be dumber than Wolf Blitzer, or even Joe Biden, but I can predict this will not end well for Democrats..

    My ultimate fantasy would be Trump winning a second term in 2020 and Repubs having firm enough control of the Senate and the House that a new Special Counsel can be appointed, with a broad and vague mandate to investigate anything that Russian lobbyists during the Obama administration were prioritizing or funding and which Democrats they were communicating with, to include all the activities of former Obama officials, all their associates, and all deals and unmasking communications they may have had with any foreign entity that even vaguely reeks of caviar or vodka.

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