Yes. I’m amazed people w/these credentials are taking this position. It’s clearly wrong to say the committee can’t issue a subpoena. It doesn’t need statutory authority. As long as the House Rules authorize it that’s the end of the analysis under separate of powers principles./1
I notice the focus is mostly on the statutory authority, which is irrelevant because that’s not where the House gets its subpoena power. Also irrelevant is whether the subpoena is directed at a company versus an individual. There’s no legal basis for that distinction at all. /2
The only point made in the article that actually matters is whether the committee- as opposed to the whole House -was authorized to issue a subpoena. That is governed exclusively by the House Rules, which are enacted as a first step in Jan when they get sworn in. /3
Under the separation of powers principle, no entity is empowered to say what the requirements are for House committees to issue subpoenas except the House. Whatever those rules say is the final word. The courts are crystal clear on that. /4
I have just looked at this Congress’ (the 116th) Rules again and it clearly says that a committee or subcommittee with a majority present can issue subpoenas. Also that committees & subcommittees can delegate that power further to the chair, even to act unilaterally. /5
The scope of these subpoenas is “the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it [the committe] considers necessary.”/6
I would be astonished if these subpoenas were issued in violation of the HPSCI’s own rules. Surely the Republicans would have objected to them if there was a violation of the committees’ own rules. They were shown the subpoenas & permitted to object, but they didn’t. /7
The relevant part of the HPSCI Rules adopted Feb 2019 says: “All subpoenas shall be authorized by the Chair of the full Committee, upon consultation with the Ranking Minority Member, or by vote of the full Committee.” There’s just no question of the authority for the subpoenas./8
Mukasey is an excellent lawyer, but as he was an Executive branch lawyer in his own career, perhaps he’s not as familiar as he could be with the powers of the legislative branch. He’s clearly wrong in this case. /9
The only viable legal argument here would be that the phone log records are not properly within the scope of the impeachment inquiry. To figure that out, a court would have to look at Schiff’s theory for why they are within the scope of the inquiry. /10
Schiff’s theory is that Giuliani’s investigation into alleged Ukranian interference in the 2016 election & DJT’s request to Zelinsky to help Giuliani with it are the abuse of power. He wants Giuliani & Parnas’ records to see who they’re talking to (& when) to establish that. /11
The courts are very likely to say that that is a legitimate part of the inquiry, even not taking into account the extreme deference they ordinarily show to congressional subpoenas under separation of powers principles, (even if the theory is wrong or ultimately unsuccessful.) /12
