The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Since the news broke of President Trump's phone call to the Ukrainian president, Republicans have been scrambling to find an argument that might slow the momentum toward impeachment. The worst possible approach would be for the Republicans to circle the wagons around the president and contend that actually it is a good thing for presidents to use the tools of American foreign policy to advance their personal electoral interests, but some seem willing to run with that argument.
The initial effort to try to stave off impeachment has focused on various procedural complaints, which as often as not have been overtaken by events as President Trump and Rudy Giuliani concede the substance of the revelations. One procedural talking point still on offer is the complaint that the full House has not yet voted on whether to have a formal impeachment inquiry. This is not a serious objection.
House minority leader Kevin McCarthy recently sent a letter to House Speaker Nancy Pelosi requesting that the impeachment inquiry directed at the president be suspended until "transparent and equitable rules and procedures are established to govern the inquiry." In particular, McCarthy wants a floor vote on the question of authorizing an impeachment inquiry. Republicans expect that at least a few Democrats would find it electorally difficult to cast such a vote, perhaps enough that such a vote would actually fail. Unsurprisingly, Pelosi continues to decline to schedule such a vote.
The Constitution does not require such an authorization vote. The Constitution simply gives the House the sole power of impeachment. The procedures that the House might follow to exercise that power are left to the House itself to determine. Formally, the House need do nothing other than vote on a final resolution of impeachment. The House could take such a vote based on nothing more than press reports or the report of an outside counsel or disciplinary committee. It need not conduct any independent investigation at all.
The articles of impeachment against the president introduced by Representative Al Green in 2017 turned entirely on the president's public statements and the claim that they had brought the office of the president into "contempt, ridicule, disgrace, and disrepute." There was nothing more to investigate. Everyone could see what the president had said about Charlottesville and other matters. The members of the House needed only to decide whether they thought such conduct justified impeachment.
There are occasions in which an authorization vote is needed. If the standing rules of the House do not empower a committee to issue subpoenas or if a committee lacked the resources to collect documents and interview witnesses, then the House might need to vote to bolster a committee's resources so that it could conduct the kind of investigation that might lead to impeachment charges. If the House did not want a standing committee to do the relevant investigation under its preexisting authority, the House might prefer to create a select committee with a different membership and a more narrow mandate. But the modern House already provides adequate resources to its committees to conduct the kind of investigations that might provide the factual basis for an impeachment, and so no additional votes are generally necessary. The House does not currently need such special authorization.
A House impeachment is sometimes analogized to a grand jury indictment, and with good reason. An impeachment launches a process that will result in a trial where a defense can be presented, evidence weighed, and a vote on whether to convict on charges of misconduct can be taken. Like a grand jury, the House has an interest in going through enough of a process that it feels confident that there is a case of misconduct and that the House will be able to present a credible case in the Senate that might win a conviction. Politically, the House might want to lay out the case in public in order to build the political support it might need to justify impeachment and removal. It might want to hear the arguments of the accused in order to help it decide whether a case for removal is justified and whether the case is likely to be persuasive in a Senate trial. But those are pragmatic considerations, not constitutional requirements, and there are circumstances in which the House might think elaborate proceedings are unnecessary or counterproductive.
What matters in the end is whether a majority of the members of the House think that impeachment is justified and are thus willing to vote for articles of impeachment. A majority of the chamber might not know that until an investigation has been concluded and the facts laid on the table. In a reasonable world, it should be possible for politicians to be able to vote to conduct an investigation without knowing where the investigation will lead and how it might conclude, but we do not live in a reasonable world. If a vote on whether to conduct an impeachment inquiry is politically equivalent to a vote on whether to impeach, then we should want House leaders to protect their members from having to cast such a vote prematurely. An inquiry might be justified on the basis of very little, and an inquiry might determine that upon investigation there is smoke and no fire. We should want it to be possible to conduct investigations of misconduct before we know what the conclusion of such an investigation will be, and in our current political environment that probably means that we should want it to be possible to conduct investigations without having to hold prior votes to authorize such investigations. If the House decides to impeach the president, a majority of the members will have to go on record affirming their support for an impeachment. That is enough.