House Freedom Caucus: Don’t Trivialize Impeachment

By | 2018-05-07T23:57:38-07:00 May 7th, 2018|
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House Freedom Caucus members have prepared articles of impeachment against Deputy Attorney General Rod Rosenstein. The reasoning behind this absurd tactic? They don’t like the way he is doing his job.

Impeachment was one of the most hotly debated topics at the Constitutional Convention in Philadelphia, and its inclusion in the Constitution was carefully crafted by the Framers after serious consideration and discussion.

Section 4 of Article II states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

Members of the Freedom Caucus claim to be “constitutional conservatives” who believe in, among other things, the rule of law. Might I suggest that before they proceed further with this embarrassing exercise that they carefully review the Constitution, and the volumes of commentary that have been written about it, including very thorough discussion by one Alexander Hamilton in Federalist 65 about what the founders had in mind.

The Freedom Caucus is irritated over Rosenstein’s failure, in a timely manner, to provide documents the Congress has requested in relation to Special Prosecutor Robert Mueller’s investigation into Russian collusion by the Trump Administration and the department’s investigation into Hillary Clinton’s emails.

You do have to wonder how serious these members of Congress are about all of this. Press reports indicate that they have no intention of actually moving forward with their impeachment effort, but are just using the draft articles as a “warning shot” to the Department of Justice.

Since the Constitution was ratified nearly 230 years ago, 19 federal officials have been impeached by the House of Representatives, and only eight of those—all federal judges—convicted by the Senate and rem0ved from office. Charges against them included tax evasion, perjury, bribery and, in one case, supporting the Confederacy. Two presidents—Andrew Johnson and Bill Clinton—have been impeached by the House, but neither was convicted by the Senate. Only one member of the Executive Branch—in 1876—has ever been impeached by the House of Representatives, and even he was acquitted by the Senate.

The Constitution’s framers realized that impeachment would always be a matter of politics rather than a matter of law, which was why they provided that they be adjudicated by the Congress—a political body—rather than by the courts. They also knew that removing a federal official from office by the impeachment process would be enormously disruptive to the country, which was why they reserved the process for the most serious offenses, namely treason, bribery, and other high crimes and misdemeanors. By requiring a two-thirds vote for conviction in the Senate, they assured that only offenses so serious that they crossed partisan lines would reach the threshold of conviction.

Alexander Hamilton stressed that impeachment was not designed for the punishment of the offender, or for a punitive purpose, but as a way of protecting the public from future behavior predictable by a pattern of misbehavior.

Nor was impeachment perceived as a substitute for elections, which the Founders believed to be the best remedy for misbehavior or failure of government officials to do their job adequately while in office.

I find very little with which I can agree in the opinions of Rep. Adam Schiff (D-Calif.). But he got it exactly right in his recent piece for the New York Times, where he wrote: “Impeachment and removal for federal officials is an extraordinarily rare event . . . an extraordinary remedy, not to be entertained lightly . . . It is instead a remedy that must be considered soberly, mindful of the fact that removing a president from office should be the recourse for only the most serious transgressions.” The same standard, I might add, must be applied to any other applicable public official.

The Freedom Caucus would be well advised, in this rare instance anyway, to take their colleague Adam Schiff’s advice.

The Freedom Caucus’ threat to file articles of impeachment against Rosenstein trivializes the importance of the seldom-used process and could even backfire. These congressmen know full well that there is no chance—zero—that the House would proceed to conduct impeachment proceedings. Threats that we do not intend to advance rarely change any behavior.

So, we can assume that Rosenstein, as he indicated subsequent to the impeachment threat, is not in the least bit intimidated and will continue to do his job in the manner he sees appropriate.

And backfire? Like perhaps encouraging the impeachment of Trump? Don’t forget the conventional wisdom:

There was a young lady of Niger
Who smiled as she rode on a tiger;
They returned from the ride
With the lady inside,
And a smile on the face of the tiger.

Photo credit: iStock/Getty Images

About the Author:

Alfred S. Regnery
Alfred S. Regnery is Chairman of the Law Enforcement Legal Defense Fund. He served in the Justice Department during the Reagan years.