Could Trump allies really impeach Deputy AG Rod Rosenstein? Not likely, experts say

Erin Kelly | USA TODAY

Show Caption Hide Caption Trump: Mueller and Rosenstein 'still here' President Donald Trump is passing up a chance to say whether he will fire special counsel Robert Mueller and Deputy Attorney General Rod Rosenstein. He says there's been speculation that he would get rid of them but "they're still here." (April 18)

WASHINGTON — Some conservative House allies of President Trump threatened to impeach Deputy Attorney General Rod Rosenstein — invoking an extreme punishment that has not been carried out against an executive branch employee in 122 years.

The Republicans who raised the specter of impeachment — including Intelligence Committee Chairman Devin Nunes, Freedom Caucus Chairman Mark Meadows and Rep. Jim Jordan — threatened a measure that the Constitution says is for "treason, bribery or other high crimes and misdemeanors."

Their complaint against Rosenstein is that he has been too slow in producing documents they requested involving the Justice Department's Russia investigation and its inquiry into Hillary Clinton's use of a private email server when she was secretary of State.

Rosenstein oversees special counsel Robert Mueller's investigation into whether there was collusion between the Trump campaign and Russians in the 2016 election — an inquiry Trump and his allies in Congress want to end.

"When you impeach an executive official, it's frankly branding them as a criminal," said Charles Tiefer, a law professor at the University of Baltimore. "It's not meant to use to go after officials who don't share your policy views or your political goals."

The previous executive branch official — other than a president — who was impeached by the House was Secretary of War William Belknap, who was charged in 1876 with bribery "for accepting payments in exchange for making official appointments," according to the House Office of the Historian. He was acquitted by the Senate a few months later.

If members of congressional committees believe Rosenstein or other executive branch officials are resisting their legitimate requests for information, the proper recourse is to issue a subpoena, then pursue a contempt of Congress case against them if they don't comply, Tiefer said.

To hold someone in contempt, a majority of committee members must vote for a contempt citation, which must then be approved by the full House. If approved, the contempt citation is referred to the U.S. attorney for the District of Columbia, who brings the case to a grand jury for action.

"A contempt case would end up in the courts where the House Republicans may well lose," Tiefer said. "Impeachment doesn't go to the courts."

"I don't think it will go anywhere," said Eric Herzik, chairman of the political science department at the University of Nevada-Reno. "I don't think leadership will ever bring it to the House floor."

Though going after Rosenstein might appeal to hard-core Trump voters, it could backfire with most of the electorate and hurt moderate Republicans in swing districts in the congressional elections in November, he said.

Even if the House impeached Rosenstein, the closely divided Senate would never convict him, Herzik said. It takes a two-thirds majority to convict someone in a Senate impeachment trial. Republicans hold a slim 51-49 majority, and many of the Republicans would side with Democrats against conviction, the professor said.

"I'm sure (Senate Majority Leader) Mitch McConnell is rolling his eyes and looking at (House Speaker) Paul Ryan and saying, 'Get your guys under control,' " Herzik said.

House conservatives "are having fun talking about" impeachment, said Jack Pitney, a political scientist at Claremont McKenna College in California. "But if they actually pulled the trigger, it might blow up in their face," he said. "If they moved forward and had impeachment hearings and an investigation, they could turn over some rocks that don't make the Trump administration look good."

GOP House leaders have said little about conservatives' calls to impeach Rosenstein.

"I think the leadership is silent because they don't want to anger the president," Pitney said. "The basic idea by the conservatives is to distract attention from Trump's troubles and reframe the debate."

The Justice Department released to Congress copies of former FBI director James Comey's memos, then agreed to release more documents to the House Judiciary and Oversight Committees investigating alleged pro-Clinton, anti-Trump bias by the FBI and DOJ.

Tiefer said he doubts that pressure from House conservatives affected what the Justice Department is releasing, since those decisions are made by career prosecutors.

"But the pace of release may well be increased by House Republicans' pressure," he said. He said the Justice Department has probably been reluctant to immediately release documents that could affect its Russia investigation.

Tiefer said conservative threats to impeach Rosenstein could set a dangerous precedent that may be turned against Republicans if Democrats win control of the House in the election in November.

"Then we could hear about the impeachment of (EPA Director) Scott Pruitt and (Education Secretary) Betsy DeVos," he said, referring to two Trump Cabinet members who are extremely unpopular with Democrats. "House Republicans should be careful what they wish for."