Limiting Congress but letting
the special counsel do pretty much what he pleases.
WSJ: By William McGurn May 7, 2018 6:24 p.m. ET
In federal court last Friday,
Robert Mueller’s prosecutors claimed it was no big deal if they didn’t abide by
the Justice Department’s own regulations in their prosecution of former Trump
campaign manager Paul Manafort. Before a manifestly skeptical judge, they
argued their real authority to do what they did is rooted in (secret)
“discussions” with Deputy Attorney General Rod Rosenstein.
Three days earlier, Mr.
Rosenstein had himself taken a distinctly different approach when the authority
in question belonged to Congress. When asked about nascent efforts to impeach
him because of dissatisfaction with the way he has responded to congressional
subpoenas, Mr. Rosenstein’s choice of words was arresting. “The Department of
Justice,” he said, “is not going to be extorted."
Meet the two Rod Rosensteins.
The first Rod Rosenstein, who
oversees the special counsel, seems to have signed off on everything Mr.
Mueller has done, from his choice of a prosecutorial team devoid of any Trump
supporter to the expansion of Mr. Mueller’s authority well beyond his public
mandate. The president may bellow about witch hunts, and federal Judge T.S.
Ellis may complain that no special counsel should have “unfettered power,” but
if Mr. Rosenstein believes there are limits on what Mr. Mueller can do, he
isn’t letting on.
By contrast, Mr. Rosenstein
has been less than accommodating in signing off on documents Congress has
demanded. The documents are essential to informing lawmakers about what went on
in the 2016 presidential election. Today Congress is rightly frustrated, at not
only the pace of production but also the heavy redactions.
This is why congressional
requests for documents have turned into subpoenas, and why subpoenas are now
turning into calls to hold Mr. Rosenstein in contempt or impeach him. At stake
is the ability of Congress to fulfill its oversight responsibility.
The transcript from Friday’s
oral argument in Judge Ellis’s courtroom illuminates another area of Mr.
Rosenstein’s contributions to accountability. Specifically, the judge was
dealing with a motion from Mr. Manafort contending that the bank- and tax-fraud
charges lodged against him are illegitimate because they a) had nothing to do
with the 2016 election and b) didn’t “arise” from the Russia-collusion
investigation (the charges originated in an earlier and separate Justice
investigation picked up by the special counsel).
The big question—which Judge
Ellis also raised—is whether “the special prosecutor has unlimited powers to do
anything he or she wants.”
In theory Mr. Mueller’s
powers are limited in two ways: He reports to Mr. Rosenstein, and he operates
under two 2017 Rosenstein memos (of May 17 and Aug. 2) authorizing and
clarifying his investigation. It isn’t clear, however, that Mr. Rosenstein has
in fact imposed any limits. And Mr. Mueller’s own team told Judge Ellis they
don’t consider themselves limited by the two Rosenstein memos.
David Rivkin, a
constitutional lawyer who has served in the Justice Department and the White
House Counsel’s Office, says what matters isn’t whether Mr. Mueller technically
reports to the Justice Department but whether he actually operates under any
real limits. “A special counsel with unlimited jurisdiction, who cannot be
removed but for ‘cause’ and isn’t effectively supervised by an attorney
general, is completely unaccountable and therefore constitutionally
unacceptable,” he says.
In his courtroom, Judge Ellis
characterized the Mueller team’s claims about the initial Rosenstein letter
authorizing the special counsel investigation this way: “We said this is what
the investigation was about. But we’re not going to be bound by it, and we
weren’t really telling the truth in that May 17 letter.”
Ditto for the argument that
Justice can defy a lawful congressional subpoena if the release of documents
might compromise a criminal investigation. Certainly Congress should not seek
to wreck a criminal investigation, and should be open to acceptable
compromises. But Congress shouldn’t let the mere fact of a criminal
investigation lead it to step aside and shirk its core constitutional
responsibility: holding the government accountable to the people.
Impeachment is a perfectly
appropriate means to this end, which is why the Constitution provides for it.
True, the last appointed federal executive impeached by Congress was a cabinet
member in the administration of Ulysses S. Grant. But Congress impeached a
judge as recently as 2010, and there are no constitutional exemptions for
deputy attorneys general.
The bar for impeachment is
set high, and for good reason. The process requires Congress to act as a
coequal branch of government, which means acting collectively as a body. If
Congress ever does hold an impeachment vote to express its displeasure with Mr.
Rosenstein’s actions, Republican and Democratic members alike will have to
calculate the risks knowing that, however they voted, the American people would
judge them by their decision.
Which would be more political
accountability than we’ve seen since the Russia-collusion investigation
McDonnell Now Trump
Why the Justice Department Is