Thread by @KDbyProxy

In today's CADC decision upholding the House's right to subpoena Trump's records from Mazars, Judge Rao misstates important points about the Nixon impeachment – points that seem key to her dissent.

First, her use of "only" here is incorrect – ie, it miscites Deschler's.

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The Judiciary Committee found the president failed to comply "with subpenas issued by the committee for things and papers relative to the impeachment inquiry."

And so Judge Rao is wrong to assert that HJC found "the President must comply *only* with [impeachment] subpoenas".

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Judge Rao also writes that the impeachment article re Nixon's failure to comply with HJC subpoenas applied "only those issued after formal authorization of the impeachment investigation."

One could say that's technically correct, but it is certainly misleading because...

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Because (iirc) HJC didn't issue subpoenas for its Nixon investigation until after the House passed its "formal authorization" resolution on Feb 6, 1974 – because until then they couldn't. That resolution (H Res 803) is what specially granted them subpoena power.

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@MargLTaylor So when Judge Rao says the Nixon articles reference "only [subpoenas] issued after formal authorization of the impeachment investigation"… it would have been odd if they'd referenced any subpoenas issued before that because (but correct me if I'm wrong) there weren't any.

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@MargLTaylor Now onto some other things about Judge Rao's dissent.

If she were correct here, then the House could not compel by subpoena *any* Senate-confirmed official of the Executive Branch to appear re his/her alleged misconduct – except pursuant to an impeachment investigation.
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@MargLTaylor Also if she were correct about that, then the Senate could not compel by subpoena *any* Senate-confirmed official to appear before any Senate committee about his/her alleged misconduct. Not ever.*

(* – except presumably to appear an an impeachment trial)
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@MargLTaylor It is a crime to violate the Antideficiency Act, which bars federal employees from spending more money than has been appropriated.

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And so if Judge Rao were correct, if the Senate Ag Cmte wanted to investigate an allegation it had received that the Deputy Ag Sec'y had violated the Antideficiency Act, it could not compel him/her to appear to – not by subpoena or by any other means.

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By Judge Rao's reasoning, the only way Congress could compel the Deputy Ag Sec'y to testify or provide docs re an allegation s/he'd overspent an appropriation would be if a House cmte subpoenaed him/her *pursuant to a House-passed impeachment investigation resolution*.

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Judge Rao claims the House "approved the […] proposal" of the select cmte that had been created to investigate charges against former SecState Daniel Webster.

Problem: The Cong. Globe. citations show only that the House approved *printing* the committee's report. And…
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… In a paper on the Webster case, Todd Garvey, a legislative attorney with CRS, wrote, "Congress took no action" on the select committee's report. constitutionproject.org/wp-content/upl…

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As an aside: That Webster case (aka Webster-Ingersoll case, Ingersoll being a House member & Webster's accuser) shouldn't be used as a legal precedent as it was intramural mess. Far starters, there was also a second select cmte investigating Ingersoll.

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And as for the care taken by the Speaker when deciding who to choose to serve on the select committee to investigate Webster, I'll let Representative Brinkerhoff of Ohio explain...

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Back to Judge Rao's dissent: Devoting ~two pages to the Webster case, she relies on language in a report issued by just a 5-member select cmte, one member dissenting – ie, relies on a report supported by only 4 of the 228 members of the House. And misrepresents its outcome.
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The Seward case, which Judge Rao discusses on page 29 of her dissent, was as messy & as legally inconsequential as the Webster case.

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Judge Rao relies on arguments made in an HJC report, which (tbf) on their face do suggest HJC was concerned abt the law. But HJC was really just trying to win a pissing match they were having against the Cmte on Expenditures in the State Dept – re which cmte ran impeachments.
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Overall, and it's central to her dissent, Rao evinces a misunderstanding of the import of House precedents. That even if the House did make a statement in 1846 on "What the Constitution means", it isn't binding on the House in 2019. It wasn't even binding past March 3, 1847.
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How key were House precedents to Judge Rao's dissent?

Rao in her dissent:
4 cites to Deschler's Precedents
21 cites to Hinds' Precedents of the House

Tatel & Millet in their majority opinion:
0 cites to Deschler's Precedents
0 cites to Hinds' Precedents of the House

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