The RoanokeSlant

This file is a US personal journal of commentary of examples of the Roanoke Times and Liberal Media Slant...... lbhagen@aol.com

Tuesday, May 08, 2018

WSJ: The Two Rod Rosensteins

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 started.

Obama-DOJ-Persecutors: First McDonnell Now Trump

http://roanokeslant.blogspot.com/2018/05/obama-doj-persecutors-first-mcdonnell.html

Why the Justice Department Is Defiant

http://roanokeslant.blogspot.com/2018/05/why-justice-department-is-defiant.html

posted by Lars Hagen # 9:00 AM

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