Impeachment

Vox Symposium on The President's Refusal to Cooperate with the House Impeachment Inquiry

Thirteen legal scholars weigh in, including the VC's Keith Whittington and myself.

|The Volokh Conspiracy |

The Vox website has posted an insta-symposium on the White House counsel's recent letter announcing the president's refusal to cooperate with the impeachment inquiry initiated by the House of Representatives. The symposium includes contributions by thirteen legal scholars, including the Volokh Conspiracy's own Keith Whittington, and myself. There is very little disagreement about the awful nature of the arguments advanced in the letter, but more divergence over the question of whether the situation qualifies as a "constitutional crisis" (I myself am skeptical on the latter point, at least so far).

It's fair to point out that most of the symposium participants are liberals. On the other hand, that definitely is not the case for either Keith or myself, and our assessment of the White House counsel's letter differs little from that of the others.

Here's an excerpt from my contribution:

There is room for reasonable disagreement about many aspects of impeachment, including the fairness of the procedures used by the House. But Cipollone's arguments simply don't pass the laugh test.

The impeachment power belongs to the House. It applies in situations where there is reason to believe the president has committed "treason, bribery, or other high crimes and misdemeanors." The founders drafted the impeachment clause to cover a wide range of abuses of power, including ones where there is no violation of criminal law. If Trump withheld aid from Ukraine in an attempt to pressure them into investigating a political opponent, he likely both violated the Constitution and committed a crime.

Article I of the Constitution gives each house of Congress the sole power to "determine the rules of its proceedings." That includes rules governing impeachment. The House is not bound by the procedural requirements imposed on the criminal justice system. The constitutional requirement of "due process" cited by Cipollone applies to situations where an individual stands to lose her "life, liberty, or property," none of which is at risk here.

Once the House has decided to conduct an impeachment inquiry, it must have the power to subpoena witnesses and compel submission of relevant evidence. If the president could conceal evidence and ignore subpoenas, Congress' constitutional authority over impeachment would be seriously undermined. Indeed, failure to cooperate with a congressional impeachment process is itself likely an impeachable offense.

Some of the disagreement over the "constitutional crisis" question may be a result of divergent definitions of what qualifies as such a crisis. Keith and other commentators (including myself) canvassed various competing definitions in an earlier Vox symposium.

A few additional points I planned to make got cut because of considerations of space. Fortunately, we have no such constraints at the Volokh Conspiracy, so I will make them here:

The appropriate rules for a process that might deprive an office-holder of a position of power are not the same as those for one that could deprive the defendant of basic civil liberties. Conflating the two is part of a broader pattern in which many people tend to apply the standards of criminal trials to situations where they are not appropriate.

Even if we do accept the analogy to a criminal trial, Trump still would not be entitled to the rights demanded by the White House counsel. The closest criminal analogy to a House impeachment inquiry is a grand jury proceeding, potentially leading to indictment. Before a grand jury, the defendant does not have any of the procedural rights Cipollone lists.  Such rights are reserved for the  trial which is held if the grand jury chooses to indict the defendant – here the trial held by the Senate, if a majority of the House votes to impeach.

Despite the administration's claims to the contrary, nothing in either the Constitution or House rules requires the House to authorize an impeachment inquiry with a formal vote, as opposed to doing it through the committee process. Such a vote is no longer necessary to give those committees subpoena powers, ironically  because of a rule change the Republicans made when they last controlled the House. It is reasonable to argue that a vote is desirable for political or other reasons, but not reasonable to claim that it is legally required.

 

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  1. The appropriate rules for a process that might deprive an office-holder of a position of power are not the same as those for one that could deprive the defendant of basic civil liberties. Conflating the two is part of a broader pattern in which many people tend to apply the standards of criminal trials to situations where they are not appropriate.

    Yes, but thwarting the will of tens of millions of voters is arguably a more serious event than a criminal trial, not less, given the sad, long, sordid history of humanity. As such, The People should have confidence in the fairness and surface honesty of the process, and that it is not motivated by political desires to “get an opponent.”

    As such, an unnecessary vote to kick things off, as has been done in the past, gives assurance to The People by elected folk going on the record as feeling the evidence so far is serious enough to kick off an inquiry. The downside is if it is purely political, they would righy fear the voters for such a cheesy activity.

    You all are arguing about how many angels are dancing on the head of a pin.

    1. And, I might add, the constitutional protections for defendants in a criminal investigation and trial, are not there so much to protect the average yokel, but to protect against the powerful using the criminal powers of government against their political enemies.

    2. Krayt, every election thwarts the will of tens of millions of voters. Impeachment opponents might find more inner calm if they stopped imagining impeachment as a coup, and instead thought about it as an election by other means.

      Both elections and impeachments are exercises of the People’s sovereign power—the constitutive power in both cases. Both are constitutionally prescribed processes. Neither is a process which the citizens exercise directly, but instead through intermediaries. To take effect, elections must get over a much lower bar than impeachments, with their super-majority requirement. That suggests that elections are more likely than impeachments to miscarry the will of the citizenry.

      To oppose an impeachment because your preferred the political outcome which the impeachment would reverse is neither wrong in principle, nor inherently discreditable—although it might be blinkered, or even benighted. But to impose an impeachment on any claim against the process itself, or to call it a coup, is as great an offense against political morality as would be a demand to cancel the next election.

      1. I don’t even know what to say to this.

        That it requires a supermajority for removal indicates you need buy in from the president’s supporters, to make sure it’s a real problem, and a serious one, precisely so one side can’t do what you so cavalierly dismiss as not-coup.

        So, nope.

      2. Steven, it would help if you stopped pretending the “people” have any power here. This is a contest between one group of politicians and another, and the “people” have no say.

    3. thwarting the will of tens of millions of voters is arguably a more serious event than a criminal trial

      It is, and you can argue that the House is being unwise by not following (at least) the level of process required for a criminal trial, but they aren’t violating the Constitution — which means that by not submitting, Trump is committing another impeachable offense.

    4. Yes, but thwarting the will of tens of millions of voters

      Didn’t the Electoral College do that when it picked the candidate who only got 46% of the vote to be president?

  2. So I am to understand, a single committee can declare an impeachment investigation and start issuing subpoenas for Presidential communications?

    1. A single committee can declare an investigation into whatever it wants. There was a committee that subpoenaed Nixon’s tapes. A committee subpoenaed the last administration re: Benghazi.

  3. Krayt, as so many others have been doing, and not just with regard to the impeachment controversy, you disparage actions taken to be “purely political.” Maybe you say that because you are subdividing the category “political,” and addressing just a part of it, a part which you regard as unworthy, or which you think many citizens regard as unworthy. I can understand why you might do that. I don’t think it is wise. And it is an impulse in contrast with notions of the “political” during the founding era.

    The founders thought of politics as the principle tool which enabled self-government, and facilitated government management by involved citizens. I suggest it would be helpful to bring more of that spirit back into our views of government today. And it would be especially helpful in the case of these impeachment controversies, which inevitably challenge a general public with relatively little historical orientation to cope wisely with a process which depends quite heavily on that antique meaning of “political.”

    1. Again, removal requires supermajority, which is to say, buy in from the president’s supporters, or even at least plenty of people not out to get him. This is precisely to stop a simple majority from defeating an election because those not inherently against would, presumptively, only vote for it were it a real and serious issue.

      The process contains things to address this serious concern. Not sure why so many are whistling past the graveyard of dictatorship by pleading wholeheartedly of the joys of filching through papers until something is found.

      1. Krayt, stop worrying. Because of the super-majority requirement, if an impeachment overturns a close-popular vote-election, the impeachment will always be the more faithful expression of the popular will.

    2. I would suggest that your view of “popular sovereignty” is what gives us some of the most dangerous people in America, folks like the Michigan Militia and the sovereign citizens movement. People need to be told they AREN’T sovereign, not that they are.

      We would be a lot better off if the people viewed politics as a contest between groups of elites as to which will hold control of the sovereign, with the role of the people being to bring pressure upon them.

      1. I’m pretty sure the most dangerous people in America are the ones who work for the government, not the ones who oppose it.

  4. Do federal employees have a property interest in their continued employment? Does the President?

    In the former case I believe that they can. If so in the latter instance- a critical if to be sure- wouldn’t impeachment, which is an effort to strip one of his employment, be subject to DP?

    Moreover, an “Impeachment inquiry” seems to be – legally speaking- precisely nothing. If simply announcing an inquiry were sufficient to increase the Legislative Branch’s powers with respect to the Executive branch, wouldn’t a pro forma “impeachment inquiry” be announced every time the House was held by the party opposite of the President so as to avail themselves of these impeachment powers? Whatever powers the Legislative branch has- it has irrespective of their Impeachment inquiry announcement, no?

    1. Jon, is everyone’s job their property, or does that only apply to federal employees? Does the Takings Clause come into play whenever a federal employee is fired? Your “I believe they can” deserves some supporting argument.

    2. Assuming a property interest in continued salaried employment, the question becomes what process is due. The Constitution provides for impeachment by the House and a trial with certain safeguards in the Senate — the requirement of oath or affirmation, designation of the Chief Justice to preside, the two-thirds requirement for removal, and limitation of the applicable punishment.

      The procedures by which impeachment/trial are conducted present nonjusticiable political questions according to the Walter Nixon case. That is the process that is due.

      1. If the impeachment procedures are nonjusticiable, the President’s response to those procedures would be similarly nonjusticiable, yes?

  5. Vox symposium? I suppose the consensus was he doesn’t have to cooperate.

    /sarc

  6. The “rules” don’t say they have to conduct any specific sort of proceeding. It depends on whether they have a goal beyond mugging for the cameras and creating (what passes for) drama among political pep squads.

    Engage in a serious proceeding, people might take it seriously. So far it looks like the usual congressional clown show.

    1. Just as citizens don’t get to decide if a police investigation that involves them is serious enough for them to comply, Trump can’t be the one deciding whether Congress is serious enough for him to comply.

      1. But citizens DO get to say to the cop at their door, “Come back when you have a warrant.”

        Trump is saying, “Come back when you’ve held the vote.”; It’s about the same thing.

        1. It would be the same thing if the constitution imposed a vote requirement the way it imposed a warrant requirement.

          1. That man had a family.

  7. The same very technical arguments being made to claim that there is no requirement for a vote to start the impeachment inquiry and no right to due process can be made to claim that the House also has no power to compel testimony or cooperation from a co-equal branch of the government. Simply put, just like there is nothing in the Constitution that says the President gets due process protections, there is nothing in the Constitution that says the House gets to demand documents.

  8. The thing I don’t see addressed in any of the Vox pieces (maybe because it’s obvious to the initiated) is whether the House has indeed acted at all, as opposed to an individual citizen.

    I (at least) think it’s pretty clear that the House could hire one of its members to do their investigation, and delegate some of their power (specifically, the subpoena power) to her for that purpose. But how do we know that such power has indeed been delegated? The House passed a resolution so stating. Have they?

  9. “Vox Symposium”

    I see the problem right there. Strange that a Vox symposium found a group of lawyers that all thought the same way. They’re usually known for their diversity of thought.

    1. Or, when lawyers are uniformly rejecting (With straightforward explanations) the bad arguments made in Cipollone’s letter, then they might just be right. Crazy, I know. Do you actually have any disagreement on the substantive responses (assuming you read them)?

  10. I think this article is technically and actually right. However, I view the WH letter as a political appeal.

    Due Process is not necessary in an Impeachment inquiry nor a Impeachment vote. However, if it doesn’t bear some semblance to due process, to the public it is going to look like bullshit. The WH is appealing to these principles.

    I do believe there is a case for the Courts to stop proceedings if the House doesn’t establish its rules. So far, three votes on opening an impeachment inquiry have failed. The Constitution affords the House the Power of Impeachment unfettered, but right now the Democrat Leadership, not the House, are claiming the power to subpoena. The Democrats are out of order in the House they control.

  11. I did a ctrl+F on the symposium for “executive privilege.” One mention and it’s scarcely informative.

    As I mentioned on Adler’s post, these arguments seem to center on the issues of due process in impeachment proceedings. Maybe there are no due process requirements. Fine. But this does nothing to address what seems to be the bigger issue, which is what extent the President has no executive privilege, and is required to keep complying and providing information and witnesses for these endless circuses.

    1. I know Republicans want to mash every investigation of the President into one big “witch hunt” blur, but this is actually a new circus based on Trump’s specific, recent bad acts that were the subject of the recent whistleblower report.

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