“Time is up.” That is how Rep. Mark Meadows (R-N.C.), chairman of the House Republicans Freedom Caucus, explained the filing of articles of impeachment against Deputy Attorney General Rod Rosenstein on Wednesday. Less than a day later, the congressman backed off that strategy, saying he would pursue a contempt vote instead in late August. That decision however is unlikely to quell continued demands for impeachment by some advocates in and outside of Congress.
His effort would have been the first impeachment of a senior executive officer 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 impulse-buying response to a fairly common conflict with the executive branch. No matter how one may feel about Rosenstein’s tenure, his impeachment would come at a far greater cost to our Constitution and political system.
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 more than a decade I have testified in Congress calling for it to more aggressively use its contempt authority in such cases, including reexamining 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 in both purpose and standards.
Disagreements over the disclosure of information have existed between the legislative and executive branches from the very start of the Republic. George Washington invoked the precursors of what would become known as executive privilege in refusing to share some information with Congress. While he should have done more in relation to these investigations, Rosenstein has actually produced far more than prior administration. The Justice Department already has handed over about 880,000 documents to Congress. There is remaining information that should have been turned over months ago. However, this action by 11 congressional members takes a disagreement to DEFCON 1.
I previously have written academic pieces arguing for the use of impeachment for non-presidential figures 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 ratification of the Constitution, in times not unlike our own: The country was deeply, 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 President 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 countries to retake lost territory or even overthrow the nascent American republic.
In that very first impeachment, Blount, a Republican from Tennessee, was accused of conspiring with the British to invade the Southwest; the evidence included an incriminating letter with British operatives. Blount was expelled from the Senate under its inherent authority to discipline its members. The reason: “a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.” The House, however, instituted its own proceedings and debated an impeachment; Blount was impeached and all of the “House managers” taking the case to the Senate for trial were Federalists. Ultimately, the Senate, including seven Federalists, voted that legislative officials are not civil officers subject to impeachment.
The second analogous impeachment was that of William Belknap, who served as President Grant’s secretary of War and 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 he still was 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 ultimately prevailed.
These cases were hugely important in laying the foundations for the rules and procedures governing 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 that 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 would be shown in later impeachments such as the trial of President Andrew Johnson, when seven Republicans abandoned the party – and their careers – to vote to acquit.
The point is that the Constitution was not just written for times like this, 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.
Articles of impeachment 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 its control of the budget 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.