The Unconstitutionality of Rod J. Rosenstein

There are no real legal or investigatory justifications for the appointment of a special counsel in relation to the "Russia" matter. Indeed, the main or most unarguable effect of this appointment is not its likely effect upon the 2018 congressional elections, but it is the continued delegitimization of Trump's administration over the course of the special counsel's investigation -- and what could fairly be called the unconstitutional suppression of the will of the people as expressed in this last presidential election.

As pointed out by professor John C. Eastman, the peculiar nature of the special counsel's investigation poses grave threats “to our body politic and our liberty more broadly.” According to Eastman, the special prosecutor in essence now possesses a general warrant. As the Supreme Court has stated, “[i]t is familiar history that indiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”

Eastman continues,

“The special counsel will not track down the details of a crime known to have been committed and determine “who dunnit,” but will scour the personal and business affairs of a select group of people -- the President of the United States, members of his family, his business associates, and members of his presidential campaign and transition teams—to see if any crime can be found (or worse, manufactured by luring someone into making a conflicting statement at some point). This is not a proper use of prosecutorial power, but a “witch hunt,” as President Trump himself correctly observed.”

Note that some claim that every American commits several federal offenses a day.

Moreover, much has been written about Mueller's (and Rosenstein's) conflicts of interest.

If you are worried, join the crowd.

The thing about Watergate was that there was a scandalous crime (the break-in) which provoked the appointment of a special prosecutor, thus precipitating a constitutional crisis. Here, today, the scandal is the appointment itself.

Which brings us to the crux of this writing. The appointment of the special counsel was a massive blow to the people's will. It is an illegitimate use of power, akin to an attempted coup.

In order to put this in focus, let us step back a bit.

When one candidate wins the presidency, another loses. It is natural for people who supported the losing candidate not to like some of the policies that the person who was elected president puts into effect, but he did win the presidency and it's his call. 

But who the heck is this Rod J. Rosenstein to be waltzing us around?

By this we do not mean to focus on his background. The question is posed on a constitutional level. And on that level, Rosenstein is a zero, a nothing, not even a shadow.

That is because our American concept of the executive is unitary. The central concept, as formulated by Steven G. Calabresi and Christopher S. Yoo in their recent book The Unitary Executive: Presidential Power from Washington to Bush is that "all of the executive power, whatever its source, falls within presidential control." (430). That is because all the executive power is "vested in a president" (Const. Art. II Sec. 1). And all former presidents have asserted the same, from Washington to Bush 43.

The president moreover has the power to supervise the actions of policy-making subordinates (such as this unhappy Rosenstein) in the executive branch by means of both removal and by direction. (430).

This is because, as all Americans should know from basic civics, that a multiple (divided) executive was considered and rejected by the Founders.

Why? As James Wilson stated at the Constitutional Convention, "In order to controul [sic] the executive we must unite it." (155)

The essence of the matter is that we do control the president. We exercise our control over matters within his discretion by means of election. We exercise our control over matters which are high crimes and misdemeanors by impeachment.

But we do not control the Rosensteins, nor the Comeys, nor any of the rest of them, in anything like the same manner.

We cannot remove them, we cannot direct them.

Therefore it must be understood that either the president controls these people, or they control him -- and more importantly, they control us.

Such a state of constitutional (dis-) order would be extremely dangerous.

But many people of a particular political extreme wish to impose this upon us. They care less about the danger. That is because they wield and rely upon a different type of control, which has only recently been challenged. One which has nothing to do with law; which, indeed, is its antithesis. It is in essence a religious concept -- the power to declare and condemn heresy.

Others have called this PC bullying. It is called forth by high priests -- the media -- and so many virtue-signaling by casting stones at the indicated targets.

(Before moving on to the next point, it is worth contemplating the immense power persons such as Comey, Rosenstein and their ilk wield even by their decisions not to do something. The DNC server, crucial to the "Russia" story, has never been examined by the FBI nor by any other governmental agency, including the special counsel. Comey could have pursued legal means to obtain access, but chose not to do so. Meaning, someone has to control, supervise, and take responsibility for these people, and that someone in our system is the president. As Madison pointed out, these people are not angels we can place complete trust in.)

Perhaps it needs to be pointed out that the unconstitutionality of Rosenstein's action is not a case or controversy that can be adjudicated in a court. That is why it is even more dangerous.

In today's political climate, it is doubtful that the president will act as we might like him to. We, nevertheless, do not have to give that whole crew any respect. They obtain much of their power from our believing they are not only competent but wise and fair and upright.