Ever since President Trump found out that the FBI raided his private lawyer’s home and office, he’s made it very clear that he wants to fire someone involved. And now, a faction of House Republicans has drafted paperwork to help him do his dirty work. The Washington Post reported that conservative lawmakers drafted articles of impeachment for the No. 2 at the Justice Department, Rod J. Rosenstein.
If Trump or his allies in Congress want to get rid of someone related to the Russia investigation, Rosenstein is arguably the most endangered, for a few reasons:
- He set up the special counsel investigation into Russia by appointing special counsel Robert S. Mueller III.
- The president technically can’t fire Mueller, but he is allowed to fire Rosenstein. And Congress can impeach whomever it wants for whatever it deems an impeachable offense.
- Getting rid of Rosenstein would be supremely helpful to Trump. He could nominate someone in Rosenstein’s place who would be willing to shut down or blunt both the Russia investigation and the FBI investigation into his lawyer.
But while firing or impeaching Rosenstein might not cause a constitutional crisis the way firing Mueller would, it could cause a political crisis. That’s because legal experts say Trump doesn’t have a solid reason for firing his deputy attorney general. And by extension, House Republicans don’t have a solid reason for impeaching Rosenstein.
Here’s how Trump and House Republicans might try to justify getting rid of Rosenstein — and why their most likely justifications fall flat.
Here's how he might try to justify firing Rosenstein — and why the most likely justifications he could offer fall flat.
They could say: Rosenstein authorized a raid that I think is unlawful
The New York Times and Washington Post reported in April that Rosenstein signed off on the FBI raid of the residences and offices of Trump’s private lawyer, Michael Cohen. Shortly after the raid, Trump seemed to be setting up to criticize Rosenstein for it.
But: Experts say that Trump’s legal opinion doesn’t matter nearly as much as whether Rosenstein followed the rule of law around such raids. Jeffrey Jacobovitz, a white collar lawyer in Washington, points out that the FBI authorized the raid, which a high-level official in the U.S. attorney’s office in New York signed off on, as did a federal judge.
“Investigative steps go in sequences,” said former FBI agent Asha Rangappa. “You can’t get a search warrant until you have an investigation and gather evidence. You can’t execute it until it’s approved by a judge. Everything moves very methodically; one person can’t just choose to do something.”
That’s a lot of people serving as checks — and basically all of them, including Rosenstein, are Republicans or Republican appointees. Trump would have to convince his critics that all of these people were in on a conspiracy to get him via his personal lawyer.
That’s where the House impeachment draft comes in.
They could say: Rosenstein authorized FBI spying on my former campaign aide
House Republicans have been setting this one up for months. Rosenstein’s name is mentioned in a declassified GOP memo about how the FBI got a warrant to spy on former Trump campaign adviser Carter Page. The memo alleges that the FBI made mistakes and was even driven by political bias when it got a secret court to authorize a warrant to spy on Page during the campaign.
Trump approved the GOP memo’s release in February over the FBI’s objections, in part, we reported, to help him build a public argument against how Rosenstein handled the case. Now, House Republicans list Rosenstein’s involvement in this memo as a key reason he should be impeached.
But: Legal experts, Democrats and federal law enforcement officials have all argued the Republican memo was cherry picked to make it seem as if the FBI did something wrong when really it was following the rules.
Plus, Rosenstein wasn’t even on the job when the FBI made the original decision to get a warrant to spy on Page. He did sign off on at least one subsequent warrant application, but he was just one of a cascade of people who signed off on that.
First, the FBI has to prepare an application that former director James B. Comey once described as thick as his wrist. Then agents argue their case in front of federal judges on a secret court. Next, they have to go back to those judges every 90 days or so to argue the warrant is giving them valuable information, said Rangappa.
There are just too many legal and bureaucratic hoops to jump through for Republicans to feasibly blame any alleged spy wrongdoing by the FBI on Rosenstein, experts say.
Trump could say: I don't like you, so you're fired (with the help of Republicans)
Trump technically doesn’t need a reason to fire Rosenstein. The president can fire executive officials at any time for any reason. “Trump could fire Rosenstein if he doesn’t like his tie,” said longtime D.C. lawyer Mark Zaid.
The big question is how Republicans in Congress would react if Trump did fire Rosenstein for any reason. Republicans have not been nearly as vocal about Democrats about how they’d react. But we saw some defect from Trump after he fired Comey.
Here’s where House Republicans’ impeachment memo comes in very handy for the president. The document claims Rosenstein was simply a bad actor: that he “engaged in a pattern of conduct incompatible with the trust and confidence placed in him” and “knowingly provided misleading statements” during congressional testimony.
Those facts are in dispute, but it may be all Trump needs to pin firing Rosenstein on, given the rest of his case is quite flimsy.