(Jonathan Ernst/Reuters)It is not for the Speaker and her adjutants to decree that there is an inquiry.
‘The House of Representatives . . . shall have the sole Power of Impeachment.”
It’s right there in black-and-white: In article I, section 2, clause 5, our Constitution vests the entirety of the power to call for removal of the president of the United States in a single body — the House.
Not in the Speaker of the House. In the House of Representatives. The institution, not one of its members.
To be sure, Speaker Nancy Pelosi is a very powerful government official: second in the line of succession to the presidency; arguably, the most powerful member of Congress. She wields decisive influence on the business of her chamber. She even has the power to induce the House to vote on whether to conduct an impeachment inquiry.
But she does not have the power to impeach on her own.
In the end, Speaker Pelosi is just one member, a representative elected biannually by one district (in her case, the 12th district of California, centered in San Francisco and not particularly representative of the nation at large). Sure, she enjoys primus inter pares status because she is chosen by a majority of the House’s 435 members. But like each of those other members, her vote counts as just one — in a body that generally requires 218 votes to get the important things done.
She is the Speaker. She is not the House. She does not have the authority to call for the president’s removal. She can argue for it, like the other members. She can vote on it, like the other members. But she cannot do it by herself. Only the House, acting as an institution, can do that.
The House acts by voting. It has never voted to conduct an inquiry into whether President Trump should be impeached. Consequently, there is no House impeachment inquiry. There is a partisan exhibition of synchronized dyspepsia.
This exhibition includes strident letters from a cabal of committee chairs, all Democrats, falsely claiming that a refusal by Trump-administration officials to comply with their demands for information and testimony “shall constitute evidence of obstruction of the House’s impeachment inquiry.”
In point of fact, the House has no impeachment inquiry; congressional Democrats have an impeachment political campaign.
Under federal law, the offense of obstructing Congress applies when “any inquiry or investigation is being had by either House, or any committee of either House.” Again, neither the House nor any of its committees has voted to conduct an impeachment inquiry. There is no formal impeachment proceeding to obstruct. Furthermore, the letters in question are not actually demands carrying the compulsory force of law; technically, they are just informal requests. No one is required to comply with a mere request, and refusing to do so is not evidence of anything, let alone obstruction.
The House has issued some subpoenas. For example, the House Oversight Committee has just directed a subpoena to the White House, addressed to chief of staff Mick Mulvaney, reportedly demanding the production of a vast array of records (documents, communications, etc.) pertaining to the president’s conduct of relations with Ukraine.
Typical of the Democrats’ legerdemain in this matter, the Oversight Committee has not voted to conduct an impeachment inquiry, nor did it vote to issue subpoenas (as, by contrast, the Oversight Committee voted to subpoena the White House just a few weeks ago for records germane to a suspected violation of federal recordkeeping laws). Instead, Chairman Elijah Cummings (D., Md.) strategically waited until the House closed for a two-week recess; then issued a memo on Wednesday, absurdly claiming that there was too much urgency to wait so a vote could be taken; then issued the subpoena late Friday, thus ensuring that no Republican could object and no Democrat would be forced to go on record supporting impeachment, which much of the public strongly opposes. Under House rules, the Oversight chairman has been delegated unilateral authority to issue subpoenas, so the subpoena is valid, but it is also pure gamesmanship.
So is the explanation for the subpoena — offered in a letter that Chairman Cummings jointly signed with Chairmen Adam Schiff and Eliot Engel, respectively of the Intelligence and Foreign Affairs Committees. After a couple of pages of throat-clearing about the purported “impeachment inquiry,” the chairmen observe that, even without such an inquiry, the Oversight Committee has its own independent authority to conduct oversight investigations and issue subpoenas. In other words, information is actually being demanded under Congress’s routine authority to scrutinize executive activities. There would be nothing extraordinary about it . . . except that senior Democrats have decided to hang an “impeachment” sign on the exercise, hoping you won’t notice that the House has not voted to explore impeachment, and that its Democratic leaders are going out of their way to avoid such a vote.
In their letter, Cummings, Schiff, and Engel give Mulvaney the Democrats now standard admonition about obstruction. It is nonsense. Even when a formal House committee proceeding is underway, such that the obstruction statute could clearly apply, there is no legal presumption that the recipient’s refusal to comply with a subpoena is evidence of obstruction.
Obstruction happens when there is tampering with documents or witnesses. Presumptively, a person who refuses to comply with a lawful document demand is not tampering with the documents; to the contrary, the subpoena recipient is asserting a legal claim of privilege that excuses compliance. If I am a lawyer, for example, and a congressional committee subpoenas notes from my meeting with a client, my refusal to surrender the notes is not an obstruction of the House’s investigation. It is an assertion that the attorney–client privilege justifies my withholding of confidential communications. If I am right about that, the legal wrong is Congress’s issuance of a subpoena, not my refusal to honor it.
But am I right about it? We won’t know until we go to court and sort it out. Until a subpoena is litigated, it is scurrilous to claim, as Democrats do, that noncompliance with it amounts to felony obstruction. And equally scurrilous is the Democratic chairmen’s extortionate claim that noncompliance creates “an adverse inference” against the president and his chief-of-staff. If a prosecutor claimed that a suspect’s refusal to answer questions created an adverse inference of guilt, Democrats would likely have the prosecutor brought up on disciplinary charges for flouting the Fifth Amendment. There is no adverse inference drawn against a person who, in good faith reliance on a lawful privilege that plausibly applies, refuses to comply with a government demand.
Congressional Democrats are well aware of this. What do you suppose would happen if the Justice Department or a litigant in a civil case decided to issue a grand-jury or trial subpoena to a member of Congress, or a House staffer? Actually, you need not suppose, because the House has elaborate rules for this situation (they’ve been in place for years, with each new Congress essentially reaffirming them — see, e.g., here, pp. 5–6). The House prescribes a thorough review, with paramount consideration of all “the privileges and rights of the House” to withhold information from the executive branch, the grand jury, the courts, and the public. The demand is examined so that the House may make its own determination of whether the information sought is relevant and material to the investigation or proceeding in question (i.e., do they really need this information? Is the demand overly broad and intrusive?). And most significantly, the House weighs its constitutional immunity, particularly under the Speech or Debate Clause, to refuse compliance even if the evidence in question is critical. As any lawmaker will tell you, when the House relies on its privileges to tell an investigator to go pound sand, that is not obstruction; it’s the law.
So, too, for the president. The conduct of foreign relations is a near-plenary power of the chief executive. We are not talking here about oversight of executive agencies created by Congress. The committees are aiming their subpoena demands at the place where the president’s constitutional power and privileges are at their most formidable. Of course the White House is not going to start surrendering records just because Chairman Cummings wrote a subpoena. This is going to be a protracted court battle, not because anyone is obstructing but because both sides have legitimate interests to protect.
Now, let’s be clear about something.
None of us should object in principle to the Democrats’ position that they are entitled to explore whether the president should be impeached. I do not agree that President Trump has committed high crimes and misdemeanors. But to the extent Democrats do, or at least say they do, they have the authority to make that case to the country.
In 2014, I wrote a book called Faithless Execution, which explored the case for impeaching President Obama. Naturally, I was castigated in Democratic (and many Republican) circles for having the temerity to mention the I-word in connection with The One. But that was to be expected — which, essentially, was my point.
The Framers designed impeachment as a political remedy, not a legal one. I argued not that President Obama was a bad person but that he was behaving as the kind of chief executive the Framers feared — i.e., defying, in several ways, the separation-of-powers structure of the Constitution. Nevertheless, because impeachment is political, it is not enough to have acts that arguably qualify as impeachable abuses of power; there must also be a public consensus that gives Congress the political will to remove the president from power.
That will does not spontaneously appear. It is up to Congress to build a political case that convinces Americans. It must be a strong case that cuts across partisan lines, because impeaching a president is a profound challenge to national cohesion, and because the two-thirds’ supermajority vote required in the Senate for removal ensures that impeachment is reserved for only truly egregious misconduct.
Therefore, if lawmakers have a genuine belief that the president should be removed, it is their obligation to make that political case to the public, and they must have the opportunity to do so. I concluded that it would be foolish to attempt to impeach Obama absent public support for his removal. If you’re really worried about abuse of power, an unsuccessful impeachment attempt is apt to encourage more of it. My point, though, was to stress how essential impeachment was in the Framers’ design — “indispensable,” as Madison put it. If congressional Republicans believed it would be too politically damaging to try to build the case for impeachment, that was a rational choice, but one that had real downsides — namely, if there is no credible threat of impeachment, a president has no incentive to modify his behavior; the president is free to ignore laws and constitutional restraints, limited only by his own sense of political vulnerability.
While I don’t share their conclusions, I have a grudging admiration for the Democrats’ willingness to do what Republicans would not: Make the public case that a president they see as deeply objectionable should be ousted. Making the case does not oblige congressional Democrats to vote on articles of impeachment; they are entitled to explore whether there should be articles of impeachment.
But the question is: Do the Democrats have a good-faith belief that President Trump has engaged in high crimes and misdemeanors, or are they engaged in a political stunt, the objectives of which are to appease irrational elements of their base and to batter Trump for 2020 election purposes?
If they have a good-faith belief that the president’s impeachment must be considered, they owe it to the country to vote on conducting an impeachment inquiry, rather than continue dodging accountability. Indeed, if Democrats really believe what they say — if they really believe there have been appalling abuses of power, rather than mere missteps or political disputes — then they should be proud to vote on it.
Only the House can impeach the president. If there is to be an inquiry about invoking this most solemn and consequential of the House’s powers, the House must vote to conduct it. It is not for the Speaker and her adjutants to decree that there is an inquiry. If the inquiry is to be legitimate, the House as a whole must decide to conduct it.
Members of the House are the representatives of the sovereign — the People. In November 2020, the People are scheduled to vote on whether Donald Trump should keep his job. If Democrats, who control the House, truly believe the president has committed impeachable offenses and is so unfit for his duties that we can’t wait just 13 months for the sovereign to render that verdict, then they should vote to conduct an impeachment inquiry. If they are afraid to vote on it, then they shouldn’t be doing it. And, as their committee chairmen are fond of saying, we should draw a negative inference against them.