This clip from Donald Trump’s favorite morning show is notable for both its placement and its argument against the effort to impeach Rod Rosenstein. “The people behind this are longtime friends of mine,” Judge Andrew Napolitano tells his Fox & Friends hosts, “but on this I profoundly disagree.” Impeachment is reserved for crimes, not for disagreements, Napolitano argues, and Rosenstein’s conduct falls far short of the mark, even if one agrees with the House Freedom Caucus in the dispute:
.@Judgenap on efforts to impeach Rosenstein: Improperly signing off on a FISA warrant & staying in a position of a conflict of interest are good arguments for ethical violations, but not for impeachable offenses pic.twitter.com/c69xmUA2PN
— FOX & friends (@foxandfriends) July 26, 2018
Reps. Mark Meadows and Jim Jordan disagree with that, obviously:
“We’re tired of the Justice Department giving us the finger and not giving us the information we’re entitled to to do our constitutional duty,” Jordan said Wednesday night in a Fox News Channel appearance alongside Meadows. “More importantly, the American people are sick of it. That’s why we filed the resolution.”
Rep. Matt Gaetz says it’s time for Congress to flex its muscle:
In an appearance on Fox Business Network on Wednesday, Rep. Matt Gaetz (R-Fla.) said that while the next step remains uncertain as the House leaves town for its summer recess at the end of this week, “it was very important for those of us who believe that norms have been violated to step out and say Rod Rosenstein needs to be impeached.”
“The mountain of evidence against Rod Rosenstein is very compelling when you look at the extent to which documents and witnesses have been withheld,” said Gaetz, one of the lawmakers who introduced the resolution.
If that’s the issue, why not take the case to court? Disputes between Congress and the executive branch routinely get handled by federal courts. It’s far more normal to do that than to impeach executive-branch officials over disputes like access to materials. It’s an option that apparently hasn’t yet been tried, either, and seems a lot less disruptive than impeachment … and perhaps a little more likely to succeed.
Napolitano’s right on impeachment, of course. It’s not going to happen, in part because of the norms Napolitano cites here. Impeachment and removal are rare events in Congress; only 19 people have ever been impeached by the House, and only eight of those got removed from office by the Senate — all of whom were federal judges. (At least one of them, Alcee Hastings, later joined Congress.) While in theory the House can impeach on any grounds they can fit into “high crimes and misdemeanors,” in practice they have limited the effort to provable crimes, and for good reason. Without that limiting principle, Congress would constantly be firing people in the executive branch for all sorts of misdeeds and incompetencies, usurping the role of the executive in dealing with those issues.
That brings us to the other reason that it won’t happen in this case. Republican leadership isn’t going to do Donald Trump’s job for him, forcing out Rosenstein to allow Trump to appoint a deputy AG that will shut down the Robert Mueller probe. It’s all but over anyway, as the transfer of cases out of his office strongly suggests. If Trump wants to fire Rosenstein, he has full authority to do so, but then he’ll be responsible for the consequences.
That might be Napolitano’s point, too, in delivering that message on Trump’s must-see-TV show.