Molly Reynolds & Margaret Taylor make some great historical points here. If you are invested in questions of Hors subpoena power, read @lawfareblog "What Powers Does a Formal Impeachment Inquiry Give the House?" lawfareblog.com/what-powers-do…
Impeachment proceedings against "both Presidents Nixon & Clinton began with a vote by the full House of Representatives directing the judiciary committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise ...
its constitutional power to impeach” the president in question." Might be good in 2019 but why all the fuss, why isn't that as necessary now? Then it was needed to grant "several specific powers to the committee for it to use in the course of completing the investigation"
This included: First, the authorizing resolutions outlined procedures for issuing subpoenas. Second, the measures laid out a process for taking staff depositions."
"Specifically, the Nixon & Clinton resolutions allowed subpoenas to be issued by the chairman and the ranking minority member “acting jointly.” If either declined to act, the individual proposing the subpoena could issue it alone unless...
the other requested the issue be referred to the full committee for a vote."
Back in 1974 & 1998 "it was important for the House to enhance the judiciary committee’s subpoena powers in ...because of the state of the chamber’s rules at the time. In 1974, only a few House committees had subpoena power under the rules of the House—...
though other committees, including the judiciary committee, were granted subpoena authority through separate investigative authorizing resolutions reported from the House Committee on Rules in each Congress."
Post-Watergate there were reforms, though, in 1975 the House voted tho permit all committees to have subpoena power. "In 1977, the House adopted a rule change that allowed individual committees to, if they wished, delegate the power to issue subpoenas to the chairman alone...
without the need to consult the full committee. But in 1998, when the House commenced impeachment proceedings against Clinton, the judiciary committee had no such provision granting that authority to its chair."
This is what current GOP is unaware of/ignoring, from 1974 to 1998 into 2000s chairs & committees increased in broad, strong powers. The "judiciary committee chair retains this authority in the current Congress; its rules stipulate that “a subpoena may be authorized and issued...
by the Chairman … following consultation with the Ranking Minority Member.” And while Chairman Jerrold Nadler indicated in January 2019 that he would hold votes on any subpoenas to which Ranking Member Doug Collins objected, the rules do not specifically require that he do so."
Past is not prologue. Neither is a clear model for rules, process, or outcome. Taylor & Reynolds:"The need to seek full House authorization for expanded subpoena powers as part of an impeachment inquiry, then, is not as pressing as it was in 1974 or 1998." lawfareblog.com/what-powers-do…
And yet, to be fair, as they explain, "It is worth noting that in both 1974 and 1998 impeachment proceedings, the House judiciary committee voted to give the president procedural rights in the committee’s deliberations."
"The current judiciary committee would not be bound by precedents to afford the president these same procedural rights, but committees often adhere to precedents unless there is a good reason to deviate."
How do you avoid the circus but permit some meaningful engagement? "One can imagine President Trump sending Attorney General William Barr, White House counsel Pat Cipollone, White House Special Counsel Emmet Flood or his personal attorney Rudy Giuliani to the House impeachment...
proceedings to take full advantage of such rights in televised proceedings. He could even show up personally. So while impeachment proceedings do not unlock significant new procedural avenues for the judiciary committee...
they could, in theory, afford the president more opportunities to inject himself or his lawyers into the spotlight." And thus we come back around to the core Constitutional element: the House is given sole authority to impeach, the Senate is the sole venue for the trial.
House committees & chairs now have vast powers (post-2015 GOP move giving the majority supremacy). In light of the key differences between 1974, 1998, and 2019, & transformation of House investigation & subpoena powers, the calls for a "return" to precedent seem way off base.
@lawfareblog Molly Reynolds & Margaret Taylor make some great historical points here. If you are invested in questions of House subpoena power, I recommend reading
@lawfareblog "What Powers Does a Formal Impeachment Inquiry Give the House?" lawfareblog.com/what-powers-do…
@lawfareblog "What Powers Does a Formal Impeachment Inquiry Give the House?" lawfareblog.com/what-powers-do…
As this thread blew up a few people asked for an even deeper dive on Congress’s subpoena and contempt powers, as well as enforcement ... on the Law, History, Practice, and Procedure, I recommend this great Congressional Research Service report (2017): crsreports.congress.gov/product/pdf/RL…
The Congressional power to investigate, compel testimony goes back to Constitution (“All legislative Powers herein granted shall be vested in a Congress") & precedent from 1790s, reaffirmed by Warren & SCOTUS (1957) as "inherent in the legislative process"
Big open question here to be decided in 2019 & 2020, as we've already seen with the DOJ opinion about US vs. Nixon (White House tapes) being wrongly decided pertains to Trump's expanded claims of executive privilege; strategy as much or more than skirmishes will be determinative.
As an historian, I would like to note that impeachment was debated & established consciously in the 1770s & 1780s as a constitutional power (Article II, Section 4); it thus cannot be “unconstitutional,” as WH Counsel Cipollone claimed in his "president won't comply" letter.
The House has the constitutional sole power to investigate & impeach; the Senate has the sole power to hold the trial. There is no formal role for the executive. Impeachment is, by definition, a constitutional act.
One more time: “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.”-U.S. Constitution, Article II, Section 4
Here's some useful brief analysis from the National Constitution Center on the ambiguities of interpreting Article II, Section 4, with more related articles available @ConstitutionCtr constitutioncenter.org/interactive-co…
