On May 1, U.S. Deputy Attorney General Rod Rosenstein spoke at the Newseum, a Washington DC-area museum that features journalism-related exhibits. Laura Jarrett from CNN posed the following question: “As you think about the importance of separation of powers on Law Day here, any reaction to news that certain members of the House Freedom Caucus have talked about drafting Articles of Impeachment despite your best efforts to comply with their document requests?”
Rosenstein had to pause to laugh before he could move on to answering the question.
“They can’t even resist leaking their own drafts,” he said, then paused again as the entire audience joined his continued guffawing at Congress. After he collected himself, he provided a condescending and irrelevant lecture on the requirement that the Department of Justice sign documents that accuse people of wrongdoing. Moving on to yet another non-sequitur, Rosenstein then explained that a Foreign Intelligence Surveillance Act application is a request for a warrant that requires a supporting affidavit signed by a career law enforcement officer.
Rosenstein then mocked Congress, saying he doesn’t have anything to say about drafts of impeachment articles that “nobody has the courage to put their name on and that they leak in that way.” He then said “There have been people making threats against me privately and publicly for quite some time, and I think they should understand by now the Department of Justice is not going to be extorted. We are going to do what’s required by the rule of law and any kind of threats that anyone makes are not going to affect the way we do our job.”
Then Rosenstein praised DOJ for its employees’ oath to protect and preserve the Constitution. He reassured the audience that if a member of the Department of Justice violates that oath, he or she will be held accountable. He held a stern and earnest face as thunderous applause washed over him.
I decided to research Congress’s authority to request documents from the DOJ by consulting the DOJ’s own website. Therein, a DOJ author publicly proclaimed, “The constitutional role of Congress is to adopt general legislation that will be implemented –‘executed’ – by the executive branch. The courts have recognized that this general legislative interest gives Congress investigatory authority.” The DOJ also wrote, “Congress’ oversight authority is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
Recently, the Heritage Foundation published an assessment of DOJ’s compliance with congressional oversight of the Russia investigation. Author Hans A. Von Spkovsky wrote, “[Devin] Nunes chairs the House Intelligence Committee. For almost eight months, [FBI Director Christopher] Wray and Rosenstein stalled his request for an unredacted copy of the memo that launched the Obama administration’s investigation/surveillance of the Trump campaign. Eight months.”
He goes on: “The only constitutionally recognized way the Justice Department can protect such documents from disclosure is if the president claims executive privilege….But neither President Trump nor Attorney General Jeff Sessions, and not even Rod Rosenstein, has ever asserted that any of the documents involved in the counterintelligence surveillance of the Trump campaign are covered by executive privilege.”
Finally, he writes, “Refusing to turn over this memo until threatened with contempt and impeachment is evidence of a Justice Department that refuses to recognize the legitimate authority of Congress to conduct oversight and investigate an executive branch agency.”
Indeed, the president has repeatedly tweeted that DOJ is acting against his wishes in withholding documents (for example here, here, and here). Not only is the president declining to assert executive privilege, he’s publicly urging his subordinate executive department to comply with these congressional requests. Where does the president get the authority to order the Department of Justice to turn over documents? You can find it in Article II of the Constitution, which reads, “The executive Power shall be vested in a President of the United States of America.”
I’m not following Rosenstein’s constitutional arguments for delaying responses to Congress’s document requests (from the Article I branch of government) endorsed by the elected president (the Article II branch of government). The Constitution does not designate the DOJ as a separate branch of government.
If I understand Rosenstein correctly, he deems calls for his impeachment as “threats” which are “not going to affect the way we do our job.” Rosenstein is literally laughing at Congress’s right to oversee his actions and publicly declared that he will not change the way he does business because of anything Congress might do. He publicly mocked the institution created by Article I of the Constitution while claiming unwavering fealty to the Constitution.
Unfortunately, Rosenstein seems to have confused his obligation to defend the Constitution with the power to rewrite it.