Impeachment

The Other Impeachment Count

Count Two's charges against the President are both more serious in their long-term implications for the constitutional separation of powers, and less defensible on Trump's part, than Count One's.

|The Volokh Conspiracy |

[UPDATED 12/16 AT END]

Although public attention appears to be focused, understandably enough, on Count One of the Articles of Impeachment – the Abuse of Power—I think that Count Two, Obstruction of Congress, presents the far stronger case for impeachment.

Let's put aside—just for the moment, and just for argument's sake—whatever opinions we might have about the Count One allegations. I happen to think that the evidence produced thus far is sufficient to prove that Trump abused his presidential power in his dealings with the Ukrainians, but I can at least understand that there is a contrary argument: that whatever his subordinates were doing, or thought they were doing, there is no direct, first-hand evidence that Trump himself was acting with an improper motive—exchanging military aid for damaging information on a political opponent.

So I'll accept, for now, that a Member of Congress could, acting in good faith and weighing the evidence fairly and unbiasedly, vote "No" on Count One.

But Count Two? I am having a hard time coming up with any reasonable argument that could support a "No" vote on Count Two.

The facts are clear and not in dispute. The President publicly directed his subordinates in the Executive Branch not to "participate" in the House's "partisan and unconstitutional" impeachment inquiry, because that inquiry "lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections."

The argument that this violates the President 's oath to "take care" that the Laws and the Constitution be "faithfully executed" strikes me as clear and straightforward and, as far as I am aware, unrebutted.

Article I Sec. 2 gives the House the "sole power of impeachment." If, in the exercise of that power, it demands that Executive Branch officials provide it with testimonial or documentary evidence, who decides whether those officials must comply with the demands?

Although the Constitution doesn't answer that question explicitly, it cannot seriously be maintained that it gives the president himself the power to decide that question. "No man shall be judge in his own cause."  The Framers were not stupid men.  They realized the obvious: if you lodge that decision with the president, he will decide it—surprise!—in his favor. The whole point of the impeachment process, recall, is to uncover, and punish, presidential wrongdoing, and it is precisely in those cases where there actually is presidential wrongdoing that the president is especially likely to decide that question in his own favor—to make his own determination that the inquiry is "unconstitutional" and "baseless," etc. and to act accordingly.

The President's position is not only a failure to "faithfully execute" the Constitution's impeachment provisions, it poses a substantial threat to the very existence of the impeachment power and its effectiveness as a constitutional check on the president.  Without the power to get evidence of a future president's wrongdoing from those within the Executive Branch—the very people with whom the president interacts most closely, on a daily basis, and who are responsible for carrying out his orders—makes the impeachment power a bit of a joke, though its implications for the conduct of future presidents are far from funny.

What possible constitutional argument can be mustered for the proposition that the Constitution gives the president the power to make this decision? That because the president has determined that the House inquiry is "unconstitutional" and "baseless," members of the Executive Branch need not comply with House subpoenas? Even if you agree (as I most emphatically do not) with the White House position—that the impeachment inquiry is unconstitutional, baseless, a deprivation of due process, etc.—it does not follow that the president is constitutionally empowered to make that determination. Does it?

It is not enough, it seems to me, to say that the President would direct subordinates to comply when (and only when) there has been a court determination that the request was lawful and proper.  That stands the constitutional scheme on its head.  The Constitution gives the House the "sole power of impeachment."  The House, by issuing its requests and subpoenas, has made its decisions about what information it needs to exercise that power. The President is of course free to fight those in court. But until he obtains a court order saying that the House's requests are not within the scope of the impeachment power, he (and the members of the Executive Branch) have to comply; he can't arrogate the decision about compliance to himself.

Because I can't conjure up a reasonable counter-argument, I therefore can't understand how on Count Two a Member of Congress, acting in good faith and weighing the evidence fairly and unbiasedly, could vote "No." I'm sure ever-alert VC readers will let me know what I'm missing.

*********  [UPDATE 12/16]  *********

Many Commenters took me up on my request to provide some reasonable justification for a "No" vote on Count Two.  Some of the proffered justifications strike me as deeply unpersuasive:  various versions of the argument that "It's really not that big a deal" (to which my response is "Wreaking substantial damage on a constitutionally-sanctioned procedure is a big deal"), or "Other presidents have done this or worse and were not impeached" (to which my response is "That's neither true nor relevant").

But one line of argument deserves a more detailed response.  The argument goes something like this:  It's true that the judiciary is, ultimately, the arbiter of the question at issue here (whether Executive Branch officials can be compelled to give evidence to a House Committee conducting an impeachment inquiry).  But because the Democrats chose not to go to court to enforce their subpoenas, we don't have an authoritative judicial determination on the question. And in the absence of any authoritative judicial determination that compliance with Congress' demands is required, the president is entirely within his rights to implement his particular view of the matter (that compliance is not required).

It's not an unreasonable argument, in the abstract. Questions about the boundaries between Congressional and Presidential power come up all the time, and the president is certainly entitled, as a general rule, to act in accordance with his views of the location of those boundaries, at least so long as those views are reasonable and held in good faith.

While that is true enough in the abstract, I don't believe it justifies a "No" vote on Count 2, largely because I believe that the president's position here is not merely incorrect but unreasonable. Read White House Counsel's letter for yourself. Try, if possible, to separate the constitutional arguments from the irrelevant and nonsensical hand-waving ("partisan bias," and "the dire implications of impeachment for the Nation," and the Democrats' desire to "reverse the outcome of the 2016 election," and what a naughty boy Adam Schiff has been, etc.) and see if you find those arguments remotely convincing.

Indeed, I challenge you to see if you can even find them at all. No court in the land has ever held, and it is inconceivable to me that any court in the land would ever hold, that members of the Executive Branch are categorically immune from compulsion to testify at any proceeding, let alone an impeachment proceeding. The President may believe such an immunity exists.  But the Constitution, by specifically placing the "sole power of Impeachment" in the House's hands, has given the House the upper hand in the matter; in the absence of a judicial determination on the question, it is the House's view, not the President's, that must prevail.

NEXT: Tide Pods, Nazis, and Bees: The Top 10 Moral Panics of the 2010s

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  1. Well, then we should see about impeaching the other living president’s who also ordered their subordinates not to participate in Congressional investigations…or is this another special rule that only applies to Trump.

    1. Individual invocations of privilege are not the same as blanket immunity.

    2. Impeachments are not the same as other investigations. No “sole power” clause for other investigations.

      1. You are misreading the Constitution, “sole power” in art 1, sec 4. means that no other body can try impeachments, not that Congress has plenary power to call out the army to ransack the Whitehouse for evidence. It is section 5 that gives the House the power to set their rules of impeachment: “Each House may determine the Rules of its Proceedings,” which of course includes impeachment, but doesn’t confer any extra special impeachment power over and above Congress inherent powers. Here is a handy guide to reading the Constitution, if you think it’s being redundant you are misinterpreting it.

        The courts have always been the arbiters of the relative powers of the branches. Let the courts rule on the question, it’s not Trump’s fault they want to get this over before the primaries start.

        1. “The courts have always been the arbiters of the relative powers of the branches”

          That’s a gross oversimplification. In a dispute between the executive and the legislative, the judicial branch is the logical arbiter.
          But not all conflicts are between the executive and the legislative.

          For example, back in the 50’s, there was a dispute over whether or not the Supreme Court could tell the states what to do with regards to their public schools. President Eisenhower settled that particular dispute rather decisively in the favor of the Court.

    3. I guess we know why you’re at Temple. The President invokes a claim a privilege and Congress goes to court to resolve that claim; the President does not comply unless & until a court intervenes – it’s simply never been done that way for a good reason: courts resolve legal disputes, not Congress. What you are suggesting is that Congress decides legal disputes unless the courts intervene, which is simply NOT our legal system. Indeed, how would this work? Congress subpoenas the president’s attorney, who (because he’s fallen out with POTUS) complies before the president even knows he’s been subpoenaed – how would the courts put that toothpaste back in the tube? That is, it’s impossible to place the onus on the person holding the privilege when the info at issue is held by another person because there’s no way for the privilege holder to prevent the leak under your “disclose until the courts intervene” theory. At the very least, he’d have to be able to order some sort of standstill until a court could intervene, which would often prove impractical. (And, under your theory, moot because he’d have been impeached for insisting on the standstill).

    4. Sorry, Goober, the last impeachment was Clinton.
      In your delusional investigations, how many were for impeachment?
      Or did his clearly explained difference just whoooosh over your head?

  2. Those who blindly defend President Trump’s actions should ask themselves if it was President Obama committing the same actions if they would feel the same way. I think not.

    1. How about president Obama failing to turn over Fast and Furious documents and having subordinates fail to comply with subpoenas?

      1. Good point. You agree he should’ve been impeached or otherwise held liable. So why not Trump here?

        Or are you just using this as some defense of illegality?

        1. Alternatively, Jerry is arguing that Obama was not and should not have been impeached for that behavior – and therefore, neither should Trump.

          By the way, wearingit, what’s your opinion? Should Obama have been impeached for obstruction of the Fast and Furious investigation?

          1. I will answer for me. If the House was investigating Fast and Furious to get evidence for impeachment, then Obama has to turn it over. No obstruction. If not, it’s just another investigation. Go to court.

            1. So the House gains special powers if the Maj. Leader utters the word “impeachment” in a press conference?

              1. If so, welcome to the new normal of permanent impeachment.

                1. There is no new normal of permanent impeachment, as much as Republicans might wish for illegitimate revenge. The suspension of separation of powers an impeachment implies in no way equals a loss of accountability. It means instead that accountability shifts away from responsibility to other branches of government, and toward responsibility to the sovereign People themselves. It is they who hold the House accountable during impeachment.

                  That is what it really means to say, “Impeachment is a political process.” That never meant a mere struggle for partisan advantage. It did mean, and does mean, the accountability becomes more directly political, and more directly the sovereign People’s prerogative to administer.

                  You may suppose you see in that a flaw dangerous enough to bring down the nation. I doubt the People will be so careless of their own prerogative as the nation’s joint sovereign.

                  1. So the House gains special powers and defeats executive privilege if the word “impeachment” is uttered in a press conference?

          2. Yes, he should have, and yes, he should have been impeached (same with Trump for dozens of reasons that come to mind)…….. if we lived in a world that hadn’t settled into a different equilibrium. But I think the equilibrium we have now (albeit a bit unsettled over the past few years) is a good one overall, and it’s not worth the risk of moving from a good-in-practice equilibrium to a better-in-theory equilibrium, because we really may dislike the new equilibrium and it will be too late to undo it in the new world.

            But a world where it’s bad if a Republican does it but not if a Democrat does (or the opposite) isn’t an equilibrium and will end badly, of that I’m sure.

          3. “Alternatively, Jerry is arguing that Obama was not and should not have been impeached for that behavior – and therefore, neither should Trump.”

            On the OTHER other hand, the truth is that Obama could have been impeached for that. The House, which has the sole power to decide the questions, chose not to impeach. This doesn’t mean that no other House can choose differently, or that all other Houses for all of history must follow their lead.

          4. No Obama should not have been impeached for withholding the fast and furious records, Eric Holder should have been the one impeached. After all they were DOJ records, subpoenaed first from Holder, Holder then said they were Whitehouse records and then they claimed executive privilege.

            And Holder was found in contempt of Congress.

        2. No I don’t agree. They should have taken the subpoenas to SCOTUS to resolve the dispute between the other two co-equal branches of government. If SCOTUS sided with the Legislative branch and the President continued to refuse the documents or witnesses then one would have grounds for impeachment.

      2. The two are not the same at all. The allegation here is that President Trump used political office for personal gain, and then refused to respond to subpoenas categorically.

        President Obama responded to congressional subpoenas with thousands of documents. The AG and assistant AG both testified to Congress. The only thing at issue are 1,300 documents that the administration claimed specific executive privilege over because they were not created during the course of the ATF gunwalking policy. There’s no allegation that President Obama started the ATF gunwalking policy, much less that he used it for personal gain. In fact, the administration put an end to the policy (started in 2006).

        Nobody here is claiming that every assertion of executive privilege must result in impeachment. President Trump asserted executive privilege asserted it regarding the full Mueller Report as well, although to my knowledge that assertion is not the subject of the current articles of impeachment. He also asserted it in response to documents re: citizenship question on the 2020 census. I don’t understand that to be part of the impeachment either.

        1. So you are saying that if personal gain is alleged, then there is no executive privilege (or its assertion is impeachable)? That would surely be an interesting new precedent for national politics.

          President Trump not only responded to subpoenas with thousands of documents . . . he has responded to thousands of subpoenas.

          “In the report, the Special Counsel noted that, in completing his investigation, he employed 19 lawyers who were assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants, and other professional staff. The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.”

          1. I’m saying if no personal gain is alleged, the case for impeachment in the first place is soft, since the impeachable high crime is using the office of the Presidency for personal gain.

            “President Trump not only responded to subpoenas with thousands of documents . . . he has responded to thousands of subpoenas.”

            That’s for the Mueller investigation, not the impeachment inquiry. These are different things. And are you sure the President responded to subpoenas during that investigation? Because I was assured his office was not under investigation.

      3. “How about president Obama failing to turn over Fast and Furious documents and having subordinates fail to comply with subpoenas?”

        How about it? Congress considered the matter, and decided not to impeach.

        1. I’m going to agree with you, and Post, to my shock and horror.

          Trump’s ignoring the subpoenas is legitimate grounds for impeachment, if Congress so chooses. And they could easily decide as in Obama’s case that it was not.

          And the Senate is going to decide that it isn’t sufficient grounds for conviction and removal. But I can certainly see a case in the future where conviction and removal would be warranted under similar facts, but it would have to be a much more serious underlying charge.

          I thought that impeachment and even possible conviction and removal of Holder was warranted over fast and furious, but the same conduct by Obama would not be.

          In fact I could even see impeachment of Mulvaney as head of OMB as being the kind of proportionate response the temporary withholding of funds might justify in a separation of powers spat. But it doesn’t nearly rise to the level of removing a president.

          But of course this isn’t a separation of powers or abuse of power spat, it’s a were going to lose the election desperation Hail Mary.

          1. Agreed across the board, with the footnote that the Republicans declining to impeach Obama doesn’t mean they didn’t think it appropriate, but merely meant that within the political norms of the time what he did hadn’t risen to a need to impeach him. Given how many (not all, and likely not even most) Democrats have actively sought Trumps impeachment from election day I don’t think we’ll be able to keep that balance, and the next time the political tables flip we’ll see a Democrat being impeached, and almost everyone will play musical chairs and switch roles. (I did say almost)

          2. Kazinski: I’m going to agree with you, and Post, to my shock and horror.”
            Will wonders never cease!

    2. Sounds like you’re speculating about the positions of Trump’s defenders just as so many of the accusers in this case were speculating about Trump’s mindset.

      ‘Tis the season for mindreading, it seems.

    3. You’re truly optimistic if you think the same people who defend Trump’s every action ever look at some rationally or in a non-hypocritical manner. Rules are for Dems of course, not Republicans.

    4. Those who blindly defend President Obama’s actions should ask themselves if it was President Trump committing the same actions if they would feel the same way. I think not.

      Those who blindly defend President Bill Clinton’s actions should ask themselves if it was President Trump committing the same actions if they would feel the same way. I think not.

      1. If I wanted to go to the trouble, I could articulate several differences between Clinton and Trump, none of them favorable to Trump. But for sake of argument, suppose the two cases are legally identical. Clinton hasn’t been president for 20 years. He is politically irrelevant. That all some seem able to do is to bring up stuff that happened 20 years ago is not a sign of a good defense. And even if Clinton should have been impeached but wasn’t, that’s not a reason to not impeach Trump. People get away with stuff all the time, but that’s not a legal defense for those who get caught.

        1. “legally identical”

          Irrelevant. If 34 or more Senators say its a defense, it is.

          Its the politics that are identical between Clinton and Trump. In each one party is/was impeaching with little support of the other party. Leading to inevitable acquital. Even some of the same people [like Graham/Nadler] are involved and they have switched their positions.

          1. Bob, I’m not disagreeing with you on the political realities. Barring the political equivalent of an earthquake, the House is going to vote to impeach and the Senate is going to vote to acquit. But I care about that far less than I do about what the substantive rules *should* be and the really bad precedents this administration is setting. Sooner or later, Trump will no longer be president, but the damage he and his Republican enablers are doing to sound constitutional governance will remain.

            1. And you think everything the Democrats have done in the House is above reproach and not deeply harming sound Government?

              If so, you are the kettle calling the pot black.

              1. AustinRoth, please show me where I said that everything the Democrats have done in the House is above reproach.

          2. “Irrelevant. If 34 or more Senators say its a defense, it is. ”

            Although this may ultimately cause them to no longer be Senators.

      2. “Those who blindly defend President Bill Clinton’s actions should ask themselves if it was President Trump committing the same actions if they would feel the same way. I think not.”

        Your faith, as a partisan, that everyone else is also partisan, is not correct.

        1. Everyone who is interested in politics outside of the pox on both their houses crowd is a partisan.

    5. Those who blindly defend President Trump’s actions should ask themselves if it was President Obama committing the same actions if they would feel the same way. I think not.

      He did. Over and over again. A few times, they’re counted among his greatest accomplishments.

      And no one tried to impeach him over them.

  3. Having the sole power of impeachment is hardly the same as having the power to do anything the chamber thinks convenient towards that purpose. And, further, impeachment is a power of the House as a chamber of the legislature; I find the idea that any incident powers can be invoked without a vote of that chamber questionable.

    At such time as the House votes to conduct an impeachment inquiry, and empower some subset of the chamber to issue subpoenas to that end, you may have an argument that the President may not refuse his cooperation. Indeed, I take that to be the administration’s position: That until the House as a whole holds a vote on the matter, there is nothing, constitutionally, for the President to comply with, beyond the whims of individual members.

    1. We have this 3rd branch of government, the Courts, that could have resolved the dispute over whether and how much the Executive Branch must participate in the impeachment process. This was never tried by the House, making it essentially a situation where any failure to comply is impeachable.

      1. You may not like the political question doctrine, and I may not like the political question doctrine, but it exists and is currently the law of the land.

        1. And doesn’t historically apply to questions of whether Congressional subpoenas have to be complied with.

          1. But it does in questions of impeachment.

            Now, I’m fine with the Court saying political question doesn’t apply here.

            But that doesn’t mean Congress can’t use it’s own powers to prevent the President from preventing all executive employees from going before Congress on a given matter.

            1. Sarcastro – please show us where the president is rquired to cooperate with an impeachment investigation .

              Article 1 Section 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

              1. If the impeachment power is not to be a dead letter, it must include investigatory power as well.

            2. “But it does in questions of impeachment.”

              Can you cite any authority to support that contention?

              1. Nixon v. US. Come on, dude.

                1. “Dude,” all that case held is that the Supreme Court will not review how the Senate decides to try an impeachment. It says nothing about the President’s obligation to respond to a Congressional subpoena, nor whether an Article III court would hear a challenge to a subpoena or an action to compel enforcement of one.

            3. The sole power to impeach is the power to impeach. Not to do anything they feel like doing along the way. It doesn’t imply that, as soon as they decide they’re doing something impeachment related, all limits on their power are out the window.

              It just means nobody else has a say in whether they impeach.

              1. You’re being ridiculous. If the power to impeach does not include the power to compel witnesses, you just have a prosecutor with no police powers.

                1. Except, as usual, you are beating up on a straw man.

                  Congress has the power to subpoena witnesses, not only to investigate a possible impeachment, but for its general investigatory and oversight powers.

                  The issue is, how is that to be handled and what limits are placed on that power. The traditional way is to serve a subpoena, allow the recipient to object based on privilege or any other basis, and have a court sort it out. There is no reason the same process cannot be used if we are subpoenaing a witness or documents to investigate impeachment as opposed to any other purpose. And doing so would hardly mean the impeachment power is a dead letter.

                  Your position, OTOH, seems to be that as soon as the possibility of impeachment is invoked, then all limits go out the window. Heck, in one post, you even argued that all privileges, including the 5th Amendment privilege against self-incrimination, are inapplicable. That is simply absurd.

                  1. “There is no reason the same process cannot be used if we are subpoenaing a witness or documents to investigate impeachment as opposed to any other purpose”

                    Except for Constitutional text, which grants the impeachment power to the House, not to the House (with a court’s consent).

            4. We get it, for this president there is no separation between oversight and impeachment. Hell there is no difference between the whims of a subcommittee leader and a formal house investigation into impeachable offensives to be named later.

              This is little more than a soviet show trial run by the three stooges.

              1. We get it – everything you disagree with is a lie born from spite against your guy.
                And you’re willing to devalue the horrorshow that was the USSR to make political hay.

    2. So the House’s impeachment decision must be made without access to whatever executive branch witnesses or documents the President doesn’t want made available? I find it hard to believe that the founders intended such a hobbled process.

      1. Apologies for misreading your comment. I missed the word “inquiry.” I withdraw my previous comment.

    3. The House (as a chamber) has voted on its own internal rules for issuing subpoenas. The Executive doesn’t get to tell the House how its subpoenas can issue. Executive Privilege is a recognized basis for not responding to a subpoena. “You didn’t have a full vote” is not, and can’t be.

    4. At such time as the House votes to conduct an impeachment inquiry, and empower some subset of the chamber to issue subpoenas to that end, you may have an argument that the President may not refuse his cooperation. Indeed, I take that to be the administration’s position: That until the House as a whole holds a vote on the matter, there is nothing, constitutionally, for the President to comply with, beyond the whims of individual members.”
      But the House has done precisely that, on Oct. 30th. See https://www.nytimes.com/2019/10/31/us/politics/house-impeachment-vote.html. So that’s no longer a viable argument – right?

      1. Assuming that points to the bill I think it does (I can’t click through NYT on my iPad) it is not in fact a vote to conduct an impeachment inquiry, but rather a bill specifying rules to be followed if there were an impeachment inquiry to be made.

        It would be like telling your kids that if they ever get a car it needs to be an automatic. “So you’re going to get me a car?” “Hell no, but if you ever get one be sure it’s an automatic.”

        That bill (again, assuming it’s the one I think it is, and I didn’t read a draft) didn’t actually authorize such an investigation but merely set constraints on what the House committees could do if an investigation was authorized.

        That’s probably an oversight by Democratic leadership, who (I think) heard the objections that there were no procedural protections and tried to add them (funnily enough, without actually granting any since they were all at the whim of the chair) but didn’t understand the largely unrelated point that the House had never actually authorized the use of their impeachment power, unlike the 2014(?) rule change by the Republicans which gave legislative oversight subpoena power to committee chairs.

        You might think that’s too narrow a reading of what the House did, since the Speaker said it was an impeachment authorization, but what the Speaker says isn’t what the House authorizes (unless they delegate that power to her via a bill – I think it entirely within their power to delegate the entirety of impeachment to the Speaker so she could impeach whenever she wanted for whatever reason she wanted – stupid, but within their power).

        1. It was in fact a vote “[d]irecting certain committees to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach” the President. It specifically directed the “Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, the Judiciary, Oversight and REform, and Ways and Means” to “continue their ongoing investigations” into impeachment. It also specifically authorized the use of subpoenas to further the impeachment investigation. The majority of the House voted on it.

          Are you thinking of another bill?

          1. So the squirrels just ate a long explanation.

            Short version: yes, that’s the one I read.

            It means
            A) the House retroactively changed the rules of the game which is wrong for obvious reasons, or
            B) the House authorized what it was already doing, and redundancy is disfavored, or
            C) the House authorized a conversion of legislative investigations into impeachment ones

            Obviously preferring (C), have the Committees issued any new subpoenas under their recently(ish) expanded powers? If yes that’s a much better case for impeachment, though I don’t know the answer.

            1. Even this may be a bit too obtuse.

              Another way of thinking about it is that HR 660 authorized ongoing impeachment investigations, of which there were none (since no prior delegation existed), and so the bill was a complete nullity. I find this version much like the ACA case in Texas, that the mandate can no longer be saved as a tax and combined with the prior ruling that it’s integral means the whole law must be struck, as too clever by half. Good for a laugh, but that’s the end of it.

            2. The resolution refers to the “existing” inquiry into whether the House should impeach the President, so your alternative (B) is the correct meaning. The reason that “redundancy is disfavored” is that normally a legislature wouldn’t bother to pass something that had no legal effect. In this case, the reason for authorizing an impeachment investigation that had already been authorized was to undercut Trump’s claim that the impeachment investigation was invalid.

              1. But arguably in passing that authorization, they conceded the argument that the unauthorized investigations were invalid, therefore any subpoenas issued prior to that authorization are void.

                1. Which is why the nuances should have been resolved by the judiciary. Contrary to partisans on both sides, this was not an obvious line to draw.

                2. It is not arguable that House Resolution 660 “conceded the argument that the unauthorized investigations were invalid”. HR 660 does not state that the prior investigations were unauthorized. It says they are authorized per the terms of the Resolution for their “continuing investigation”. The committees were “directed to continue their ongoing investigations” not “begin as authorized here” or some such.

              2. It looks like you’re assuming the conclusion here.

                “ authorizing an impeachment investigation that had already been authorized”

                How do you know an impeachment investigation had already been authorized? Not a legislative investigation (under the 2014+ rules), but an impeachment investigation. You may know of some action I don’t that’s germane here, but a mere assertion by a congressman, even by the Speaker, can’t suffice (longer explanation elsewhere) because then any congressman could invoke the full power of the House on their mere assertion.

                Setting aside the ultimate right answer – how do we know what the right answer is? Your interpretation is entirely reasonable (and I think the one Democrats would adopt if they thought about it), but it’s not the only reasonable one. In our system we generally have two ways of resolving things like this: the House can say more clearly, or the Judiciary can tell us what effect the words the used will have.

                But here the House has failed to clarify, and they’re impeaching the President for insisting on their getting a judicial ruling if some individual congressmen disagree with his view. That seems obviously wrong, as then an impeachment arises from the President not doing what the House wanted him to, regardless of the law.

                1. “How do you know an impeachment investigation had already been authorized?”

                  Committees decide when and how they’re going to conduct investigations and are entitled to conduct investigations into anything within their legislative preview. And there’s no requirement that subpoenas be subject to an “impeachment inquiry” test. Subpoenas can be for investigations, generally.

                2. I know Resolution 660 refers is talking about an impeachment investigation rather than a legislative investigation because it describes the investigation as an “inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.” I don’t know how the House could state more clearly that it is referring to an impeachment inquiry.

                  For that matter, Pelosi’s Sept. 24 statement is not ambiguous either: “Therefore, today, I am announcing the House of Representatives is moving forward with an official impeachment inquiry. I am directing our six Committees to proceed with their investigations under that umbrella of impeachment inquiry.”

                  You state that the full power of the House cannot be invoked by mere assertion by an individual member, but that’s not what happened here. The House passed a set of rules at the beginning of the session. An impeachment inquiry was started in accordance with those rules. Then the House, in resolution 660, resolved that there was, in fact, and “existing” inquiry. So there are two votes on the House floor: one creating the rules, and one confirming that the impeachment inquiry was set up in conformity with the rules. We know that there was an existing impeachment inquiry under the rules because the people who wrote the rules tell us that.

            3. “Obviously preferring (C), have the Committees issued any new subpoenas under their recently(ish) expanded powers?”

              This is a when did you stop beating your wife question. The Resolution does not expand House power. It reiterates that existing power applies to an impeachment inquiry, to defeat one pointless defense made by the President’s counsel.

    5. ” I find the idea that any incident powers can be invoked without a vote of that chamber questionable.”

      Perhaps you should re-read the Constitution looking for any sign of who is authorized to determine the House’s policies and procedures… the membership of the House, or some guy on the Internet. If, for example, a majority vote that no bill can go to a vote unless a majority of the majority caucus favors it, that means that some bills that would have passed with an overall majority of members voting for it will fail because too many of the members who’d vote for it are from the minority party, but they still get to set the rules up that way, and people who’d prefer otherwise are encouraged to do a better job of marshalling similar thinkers in time to vote for the next batch of Representatives.

      1. Perhaps you should re-read the Constitution seeing where the power of the House is given. It is given to the House. A collective which expresses its will by voting.

        I’m open to the argument that, with HR 660, the House did just that, and there is NOW an actual constitutional impeachment investigation in progress. So, agreeing with Beckman above, has the House issued any new subpoenas since the investigation gained that legitimacy?

        1. “Perhaps you should re-read the Constitution seeing where the power of the House is given. It is given to the House.”

          Indeed. Yet you seek arrogate that power to yourself, which is why I’m mocking you. The House set its rules, as is its sole power, and you seek to tell them they’re doing it wrong.

    6. And, further, impeachment is a power of the House as a chamber of the legislature; I find the idea that any incident powers can be invoked without a vote of that chamber questionable.

      At such time as the House votes to conduct an impeachment inquiry, and empower some subset of the chamber to issue subpoenas to that end, you may have an argument that the President may not refuse his cooperation.

      Even if your argument weren’t silly, you’re six weeks behind in your talking points. The House voted already.

      Indeed, I take that to be the administration’s position:

      Well, you’re wrong.

  4. “No man shall be judge in his own cause.”

    So, if the President claims the right to judge certain issues on his own behalf, in disregard of anything the Article III courts may say, then the only remedy would be the High Court for the Trial of Impeachments – i. e., the Senate.

    So far, though, President Trump has complied with all sorts of court decisions against him, without presuming to defy the Article III courts or instruct others to do so.

    Is “executive privilege” a clearly bogus doctrine? I certainly think so, especially since there seem to be no clear boundaries and it’s based on seat-of-the-pants judgments by courts, Congress and the President. However, the courts, Congress and the President don’t seem to care what I think, and they’ve all agreed on the existence of some form of executive privilege.

    The main dispute seems to be how broad that privilege is. Believing as I do that it’s a bogus doctrine which the government concocted on it’s own, it’s hard for me to say with a straight face that any given use of “executive privilege” is clearly wrong – that is, if you accept the premise that such a privilege exists.

    Andrew Johnson violated the Tenure of Office Act (assuming it applied to his situation), and I think the Act was constitutional, but I acknowledge that people can disagree in good faith on this subject, just as apparently they disagree in good faith on “executive privilege.” So in either case, if the President is willing to let the courts overrule his constitutional interpretation, he can – pending a court decision – act on his misinterpretation in good faith.

  5. McGrain v. Daugherty requires compliance with a subpoena after a resolution in the Senate.

    But can the House delegate the subpoena power to a single member such as a committee chairman? Is that constitutional? Or does a valid subpoena require a vote of the House?

    This must at least be an arguable question.

    1. That, I think, is the best response to Post: The House has not acted yet.

    2. Yes, the House can delegate the subpoena power so long as it meets the three prongs of Wilkinson v. US (1961). And the courts don’t generally get stand in the way of subpoenas, per Eastland v. United States Servicemen’s Fund (1975). See also United States v. Bryan (1950).

    3. It may be an arguable question, but it is one without a forum to argue it in, except the House. The sole power clause means nobody else gets a say.

      Just by way of reminder: Article 1 Section 8 says Congress has the power (not “sole power,” mind you) to declare war. No one supposes the judiciary or the executive get to second guess that in any way. Same with the power of impeachment.

      1. But how do you know the House is wielding their impeachment power? A vote, right? Has the House actually voted to delegate the use of their impeachment power (or a part thereof, specifically investigations) to a subset of itself? See above in greater detail, but the bill I read (which may not have been the last) didn’t actually do that, it merely out constraints on any subset should they be authorized to use that power.

        And if you think you can merely look to what various Congressmen say, including the speaker, then you also must agree that any random Republican congressman could himself impeach anyone at any time – he can simply claim that he’s using the power of the House. So the answer must be that you have to look at what the House passed, and if they delegated power to a subset, look at what that subset did persuade to the delegated power.

        It could even be idiotic empowerment, though I agree not all others will follow me there. If the House passed a resolution saying “we delegate all power of the House to Adam Schiff, who may accept advice if he so chooses but may otherwise do as he pleases” and he then walks into the Senate and tells them Trump is impeached for the high crime of eating fried chicken with a knife and fork, even that would be within the Houses power. Though I don’t think they can throw away their power, nor intentionally strip themselves of it – in that crazy land if Schiff said he disbanded the House the rest of the House could ignore him and vote to strip him of that delegated power, though now were much further into crazy land.

        1. “…but the bill I read…”

          Can you tell us which bill you read? The rest of us are talking about H. Resolution 660. If you have something else in mind, let us know.

          Of course Congress doesn’t need an impeachment inquiry resolution to issue subpoenas to the President, since Congress has countless times authorized the use of subpoenas to investigate stuff it cares about.

          1. Answered above in detail before the squirrels ate it, but the short version as I see it is:

            House granted committees subpoena power for legislative oversight in 2014, which has been renewed each Congress and is still in effect.

            House expanded the powers of some committees with restrictions (HR 660), but did not convert the prior investigations into impeachment investigations because they can’t (ex post facto). Any subpoenas issued after which referenced the new grant of powers has additional penetration because it’s for impeachment, subpoenas still outstanding don’t get any new powers.

            * I think the impeachment subpoena power must be greater than the legislative one as it necessarily applies to non-legislative acts, such as an agreement with a foreign power to split up Germany into East/west without a treaty. Congress could decide that was so outrageous that it deserved impeachment (hypothetical) even though it broke no laws an even revolves around areas exclusive to the Executive.

            1. That’s not what ex post facto means.

            2. “…subpoenas still outstanding don’t get any new powers.”

              The outstanding subpoenas don’t need any new powers. They were proper subpoenas when issued.

              “I think the impeachment subpoena power must be greater than the legislative one…”

              This is a distinction that is silly and makes no difference in any event. The legislative subpoena power was sufficient to support the subpoenas issued before HR 660. Full stop.

        2. “But how do you know the House is wielding their impeachment power?”

          They issue articles of impeachment after the president obstructs them.

  6. Is this post serious? The president didn’t obstruct anything. If the House committees really wanted evidence or testimony, then they could have gone to court. They could have even gotten expedited proceedings. They did nothing in their partisan rush to push this nonsense forward.

    1. “If the House committees really wanted evidence or testimony, then they could have gone to court.”

      SCOTUS, the President, and Congress are all coequal branches. If Congress wants documents or testimony from the President, it asks for them. Which it did, here. If the President isn’t going to listen to Congress, he’s not going to listen to SCOTUS. (You might as well ask why the President didn’t go to court to prevent the subpoenas.)

      1. But that is manifestly not true. Nixon refused to turn over many documents, but then agreed to do it when SCOTUS said he had to. In part that was because Burger wrote the opinion, whom Nixon had appointed as CJ with great fanfare, so it would be hard for him to defy that judgment.

        If Congress were to seek judicial enforcement, and SCOTUS unanimously said Trump had to produce the goods, in an opinion authored by Gorsuch, then Trump would have a much harder time resisting. Not that I would put it past him.

        1. If memory serves, SCOTUS didn’t determine that Nixon had to comply with a congressional subpoena. The case involved an FRCP 17 subpoena issued by the special prosecutor. Although Congress had issued subpoenas (through a Senate committee, I believe), US v. Nixon addressed the FRCP 17 subpoena.

      2. “Co-equal branches” proves too much though. Why should the Congress automatically win if they disagree with the Executive?

        I don’t know how intentional it was, but that’s a big advantage in an odd number of equal branches – if two are at loggerheads the third can break the tie……which is how it’s been resolved in every dispute before now, including during Trump, so there’s little reason to think that’s now how it would go this time.

        1. “Why should the Congress automatically win if they disagree with the Executive?”

          How does “Congress automatically win if they disagree with the Executive”?

          “…which is how it’s been resolved in every dispute before now…”

          This isn’t true.

          1. Can you think of an example where the Congress and the President disagreed on something and it was resolved outside of the courts?

            Not merely something that one side cedes while disagreeing, but that actually gets resolved.

            1. Congress passes a bill, the President vetos, and then Congress overrides the veto. You don’t normally see Presidents responding to that super majority vote by going to court and claiming the veto stands anyway.

              1. Sorry, I phrased that poorly. I meant any time the executive and legislature disagreed on the meaning of something, not the wiseness of enacting it.

                Something like “DOMA is unconstitutional, but we’ll resolve that outside of court and without passing a new bill by doing _______”

            2. If Congress and the courts disagree…can you think of a way where the president gets involved to break the tie? I think that, in such cases, the courts “trump” what Congress says. And this happens routinely enough, when the courts invalidate some law that Congress has passed (even in cases where Congress overrode a presidential veto). So, I think I would argue with your theory of “Three branches, so we should go to C whenever A and B disagree…or go to B whenever A and C disagree.”

              1. In the mine run of cases yes, but how does the legislature express its intent for what the law should be? It passes a new law or amends the Constitution.

                Not something easily done, but that’s where their ultimate power lies.

            3. “Can you think of an example where the Congress and the President disagreed on something and it was resolved outside of the courts?”

              Yes. By design. I did not understand “Ambition must be made to counteract ambition” to mean that the President and Congress call their lawyers to ask someone else to resolve the dispute.

              Anyway, for a disagreement between the President and Congress that they asked the Judiciary to resolve, but which the Judiciary nonetheless declined to resolve, see Goldwater v. Carter.

        2. Robert, not the Congress. The House. The House should automatically win, because it is investigating with an eye to impeachment, and in that the House enjoys explicitly decreed “sole power.” That means the House wins disputes, because other parties have no say.

          Sole power for the House in impeachments is like sole power for the President in pardons. The Congress and the Court get no say in those. Or, Congress gets to declare war. The President and the Court get no say about declarations of war. Or, the Senate gets advice and consent on judicial nominations. The House, the President, and the Court get no say in that process.

          Co-equal branches does not mean branches co-equal in every particular, and at all times. Sole power decrees, especially, are part of a structure designed to enable the sovereign People to enjoy continuing oversight of the operations of government. The founders required that, because they believed every government required over it a greater power to keep government operations within whatever constraints the sovereign preferred.

          In the case of impeachment, the People’s concern is that a chief magistrate who becomes obnoxious to them may prove destructive to the People’s Constitution, or even become a rival for the People’s sovereignty. Either of those situations is an emergency which tolerates no delay. To assure prompt, forceful action, and enhanced accountability, the People thus decreed sole powers relating to impeachment for the House and Senate.

          When acting under those powers, within their respective scopes, those divisions of government are thus temporarily elevated above the rest of government, and act with fewer constraints. And all the constraints there are come from the People themselves, not from other parts of government.

          That is the true meaning of the often-repeated, “Impeachment is a political process.” That was never meant to refer to mere contests for partisan advantage. It was meant to describe the method of accountability the People intended to use, to reserve to themselves the ultimate power during emergencies which by their nature might put the People’s sovereignty itself in question.

          1. I understand the point you’re making in general, but we either disagree on some points, you’re over reading my intent, or I’m doing the same to you 🙂

            On House v Congress – I don’t think that matters for the principle of the matter. In this specific case it’s the Houses power, just as it will be the Senates power at trial, but the general form of the rule applies – how do we know who is right when it’s not clear who is exercising which power?

            When a congressman talks to a foreigner is she interfering in foreign relations in violation of the Constitutions delegation of that to the President?

            When an individual Congressman asserts that he’s impeaching the President, can the Senate hold a trial and remove him even if no other Congressman agrees? If not it must be because a single congressman isn’t the House, but how do we know what the House has done? If the mere assertion isn’t enough then what is?

            Or suppose that the Congress passes a bill authorizing the use of military force to enforce “… All UNSC regarding Iraq…” and a later President asserts that this authorized him to invade China because he also asserts that the U.N. Security Council passed a resolution calling China the new Iraq, and thus the US had already declared war on China? What if he made up all of those facts? The Senate can’t do anything about it, they’d need to House to impeach him, so are you saying that the Judiciary couldn’t determine that no such authorization had been passed and enjoin all executive officers from following those unlawful orders?

            What if no assertions in any of these hypos are made, just the actions themselves, and someone is harmed? How does a citizen get relief from being conscripted into an unlawful war, if only the Senate can do anything while simultaneously having no method to do so?

            That’s why I say that when the actions of one branch are in doubt (what did they do, and under what authority) and that changes the relationship with another it’s up to the third branch (usually the Judiciary, but “he’s made his ruling, now let him enforce it” shows it’s broader than that) to determine which is really right. And that’s especially so when one branch can easily clarify its actions but chooses not to.

          2. The power to impeach is separate from the issuance of subpoenas. The subpoenas may produce the evidence desired for impeaching the president, but that doesn’t make them part of the impeachment power.

            The power to impeach is solely the power to pass articles of impeachment and (should the senate agree after trial) remove the offending person from office (or prevent future office holding). No more, no less.

            Congress’s power to issue subpoenas is a separate power from the House’s ability to impeach. Subpoenas don’t gain any unique power because they’re used to generate one kind of information (ie, for impeachment) rather than another.

            (Nor are subpoenas necessary for impeachment. Should the House have already had all the necessary information, no subpoenas would be necessary).

            While this means ‘impeachment subpoenas’ aren’t special, it also means that you don’t need to declare an ‘impeachment investigation’ either. Impeachment is the end product, so to speak. The House only uses its impeachment power when it passes articles of impeachment, and there is no impeachment until that happens.

            (None of this should be construed to mean that Congress cannot differentiate subpoenas by their purpose – ie, authorization for legislative oversight isn’t authorization for any purpose. But the constitution doesn’t differentiate subpoenas by purpose nor give some more power than others).

            1. Nick, you’ve now argued the power of impeachment into a dead letter. It’s a generally assumption that the Founders avoided such constructions in the Constitution.

              1. Hardly. Subpoena powers aren’t *necessary* for impeachment. Do they sometimes help? Sure. But there are tons of scenarios in which malfeasance will be obvious without needing to pierce the shield of ‘legitimate executive privilege’. (That such a thing exists seems to have been already countenanced by the Court, so I’ll leave my personal feelings aside).

                Conduct demanding impeachment may well be public. No subpoenas necessary.

                Conduct demanding impeachment may be revealed during the course of normal congressional oversight. No need to pierce executive privilege then.

                Similarly, conduct demanding impeachment could be revealed through non-subpoena processes like Freedom of Information Act requests. No subpoena necessary.

                And *claims to privilege* can be weighed by the courts. Subpoenas can proceed without special impeachment powers.

                So not only are subpoenas not necessary for the impeachment power, but Congress *separately* has the power to subpoena, and can use that separate power to access information.

                To prove I make the power of impeachment a ‘dead letter’, you’d have to prove that subpoenas (with powers exceeding the usual subpoena power) are *necessary* for any possible impeachment to proceed.

                More importantly, to prove that a subpoena power is enhanced by or included in the impeachment power, you have to positively demonstrate it’s existence in the constitution. Implied powers are BS, and the court should be ashamed for having ever legitimized such a concept. (Our government is supposed to be a government of limited enumerated powers. If the constitution doesn’t grant a power, it doesn’t and shouldn’t exist. So lack of a specific impeachment-related super-subpoena power in the constitution does constitute proof that no such thing exists).

                1. Good lord, you’re twisting in pretzels to argue that Congress needn’t have the power to investigate that’s part-and-parcel with the power to prosecute in just about any institution you’d care to see.

                  Your ipse dixit that sometimes you don’t need an investigation is not supported by how real life administrations work.
                  This flies in the face of history. Iran-Contra. Church Committee. Eisenhower Committee. If this whistleblower hadn’t stirred things up, or if the House had been GOP, do you think this would have come to light?

                  Saying Congress’s proper avenue of investigation is Freedom of Information Act requests is pretty silly considering who made that Act.

                  As to your argument that the subpoena power doesn’t exist in the Constitution, and therefore doesn’t exist because implied powers aren’t a thing…well, you’re one of those libertarians who thinks so hard they manage to forget the real world beyond their own cushy existence.

                  Read https://en.wikipedia.org/wiki/McCulloch_v._Maryland, and consider.

                  1. Even if there are no example of impeachable offenses which didn’t require investigation, that doesn’t mean that there are no possible impeachable offenses which wouldn’t require investigation. To say that impeachment without subpoena is meaningless would require as a corollary that the set of *possible* impeachments which don’t require investigation is the empty set.

                    But, we do have an historical example of an impeachment which didn’t require subpoenas – that of Andrew Johnson. Charges 1-3 and 8-11 certainly required no subpoenas, as they were all based on publicly available information. As conspiracy charges, the remaining charges could conceivably have been bolstered with subpoenas, but given the rapid pace of the impeachment, it seems unlikely any subpoenas were issued at all. The House voted to impeach 3 days after Johnson violated the Tenure of Office Act, and had drafted all eleven counts within a week. So regarding your contention that impeachment requires subpoenas, I’d say that’s historically disproven.

                    Third, congress is free to investigate with the regular subpoena power, which the court has acknowledged exists (see McGrain v. Daugherty, which relates specifically the subpoena of executive branch departments for maladministration). The court has never found impeachment to justify special subpoena powers with more reach. It has similarly decided there’s such a thing as executive privilege, which shields the executive from some types of congressional inquiries.

                    It follows that, given current SCOTUS jurisprudence, there is only one subpoena power, that this sole subpoena power is the one used for impeachment investigations, that impeachment confers no special reach to the subpoena power, and that executive privilege still applies in case of impeachment. The courts should adjudicate which subpoenas are invalid because of privilege, and which are not. That suggests executive refusal to comply with a subpoena is only ‘obstruction’ if the subpoena is backed up by a court order declaring privilege doesn’t apply.

                    Now, it’s true the constitution doesn’t include *any* subpoena power. It also doesn’t include any mention of executive privilege, or that the doings of the executive should be secret. In an ideal world, all the executive’s doings would be public knowledge, and no subpoena would be needed to examine the actions of the executive.

                    Regardless, if it’s neither in the constitution nor created by SCOTUS decision, you’re just making stuff up and it doesn’t exist.

                2. More importantly, to prove that a subpoena power is enhanced by or included in the impeachment power, you have to positively demonstrate it’s existence in the constitution. Implied powers are BS, and the court should be ashamed for having ever legitimized such a concept. (Our government is supposed to be a government of limited enumerated powers. If the constitution doesn’t grant a power, it doesn’t and shouldn’t exist.

                  The Constitution does not grant any power at all, to anyone. The sovereign People grant the various powers. The Constitution is the sovereign’s decree, to let everyone know which powers it has pleased the sovereign to grant to whom.

                  Folks who comment as if the Constitution were the font of American government—while ignoring the notion of sovereign power—have always been plentiful, even at the time of the founding. But the founders themselves were (mostly) not among them.

                  Just so you will know. The Constitution does not constrain the People. The People’s government is limited by the Constitution. The People themselves are not limited by the Constitution. So please, just forget that line of argument, and see if you can then dope out the meaning of America’s founding documents according to principles the founders intended, and explicitly set forth in the documents themselves.

                  1. I fail to see how this is a reasonable response to anything I wrote.

                    The government is constrained by the constitution. If a power isn’t explicitly in it, the government doesn’t and shouldn’t have it.

                    That the constitution is merely the contract between the ‘sovereign people’ and the government is pedantic hair splitting which doesn’t change anything about the underlying argument. If you prefer, the people never granted the government powers which the constitution doesn’t explicitly include.

                    This level of pedantry is only relevant if it makes a material difference in the argument (which it doesn’t). The use of materially inconsequential metaphors as shorthand facilitates communication. (To say that the constitution grants powers is best understood as shorthand for the more unwieldy ‘the people confer powers on the government as codified by the constitution’).

                    1. What your stubborn conflation of the Constitution with the People overlooks is that the abiding sovereign power of the People is unlike constitutional power decreed for government. They are different in kind, and different especially because sovereign power is unlimited and exercised at pleasure, whereas constitutional power is limited and exercise under constraints. And in this nation, both operate continuously.

                      Try to let that sink in, and give it some thought. If you get it, you should have plenty of questions. If you remain confident you were right, you didn’t get it.

                    2. Mr. Lanthrop,

                      I apparently can’t respond directly to your post.

                      So i have a couple of questions for you:
                      1. What material difference does your point make to the argument I advance? (As far as I can tell, it doesn’t. We both agree the government has limited powers – so… when we’re talking about government powers and which ones it has, we would seem to be solely operating in that sphere).

                      2. Who are “the People”, how do they have sovereign power, and how do you determine what they’re doing with it?

                      Frankly, I think the ‘abiding sovereign power of the People’ is hogwash. There is no ‘the People’. It’s a theoretical fiction. There are a bunch of individual persons, but collective entities are contradictions in terms. The whole point of natural rights is that there *is no sovereign power* at all, and all people have rights that must be respected. Rights are supreme, so there can be no sovereign power, because any individual’s rights trump it.

                    3. Squirrelloid, you are far gone in libertarian fantasy. Probably, the original locus of your fantasy is some belief that libertarianism has something to do with the founders’ original understanding for American government. It does not. Nothing in history supports that notion.

                      Start with this. Constitutionalism and natural rights are at odds. Constitutionalism creates an actual, workable system for the creation and enforcement of rights. Not so with natural rights.

                      In a constitutional republic It works like this. The sovereign, having attained the power to do so, forms a government, at pleasure, by decree (that decree we call the Constitution). If it pleases the sovereign to do it, the decree will include various explicitly defined rights of subjects. That arrangement will give an ordinary subject of the sovereign recourse, should the sovereign’s government violate that subject’s right.

                      Weak though the subject may be, and overmatched by the power of government, the government is in turn overmatched by the yet-greater power of the sovereign. So the subject enjoys a reasonable and practical expectation that such a right can be vindicated. Best of all, in the American system, where citizens enjoy dual status—at once subjects individually, but jointly the sovereign People—there is inherently good alignment between the interests of the sovereign and the interests of the subjects. So rights exist at the pleasure of the sovereign, meaning the People jointly, who enjoy means for their practical vindication in individual cases.

                      Compare that to the situation with natural rights. Nobody has the same idea about what those are. There is nothing about any of them that obligates any government to honor it. If you and the government disagree about a right, you can look to nature to enforce it. Good luck.

                      That should give you a start. If you intend to argue that I am mistaken about the history, and America really was founded on natural rights, libertarian principles, I could blow you out of the water on that, but it would take more time than I am now prepared to give it. So if that is your approach, let’s just agree to disagree.

      3. So, NToJ, you would agree that the president, heading a co-equal branch, is perfectly (actually constitutionally) entitled to refuse a simple request. Why then should this constitute an impeachable act?

        1. No. See my reply to Robert, above.

          1. Here at least I think Stephen and I agree: it’s impeachable only (me) and always (both of us) the requester is executing a superior power that is directly obstructed by the act of the other.

            House member is curious if Trump really is a billionaire and requests his tax returns. President tells him to pound sand. No problem.

            House passes a resolution stating “inquisitive congressman shall determine if the president shall be impeached using the full powers of the House” repeat above and it’s impeachable – one branch explicitly used its superior power.

            Senate declares war on North Korea, and the President declares that no US citizens shall enter NK or they will be considered valid military targets even if they’re trying to negotiate a peace and will be killed via drone (trying to tie in two explicit powers). Congressman goes to NK, President has him killed via drone. It’s another example of one branch explicitly using this superior powers.

            * I tried not to make any of these edge cases, but adjust if you spot a hole.

        2. Whatever you think “entitled” means here, answers the question. If the President, as a co-equal branch, is “constitutionally” “entitled” not to answer a request, the House is “constitutionally” “entitled” to impeach the President for anything it wants.

          If you’re asking if I think the President should be impeached for what he actually did in this case, the answer is yes. And I don’t have to get into a pointless, hyper technical discussion of constitutional entitlements. I think Presidents (of either party) who seek out foreign leaders and withhold aid to try and get them to announce a false investigation into a political opponent’s family is utterly beneath the office and precisely why we would have impeachment in the first place. This isn’t fucking Guatemala, man.

  7. “The President is of course free to fight those in court. But until he obtains a court order saying that the House’s requests are not within the scope of the impeachment power, he”

    Shouldn’t the House get a court order? House doesn’t have absolute power over the Executive as implied. Should SCOTUS have declined on 12/13 to hear the cases on financial records? Seems to shoot a hole in item #2.

    1. Generalized subpoena power is hardly absolute power.

  8. If a federal court were to rule that particular congressional subpoenas were defective or invalid, would it still be an impeachable offense for the President to refuse compliance with them? If one’s answer to that question is no, then what is the rationale for saying such non-compliance is an impeachable offense before the case is finally decided by the courts?

    1. The House can, as a formalistic matter, impeach a President because they don’t like his comb-over.

      The Senate can, in responding to their impeachment, take into account whether it’s over a bad comb-over, or bribery.

      So, yes, it makes a difference, but not in whether the House can impeach, only in how seriously everybody else is likely to take that impeachment.

  9. As the article notes from the outset, these were Trump’s subordinates. They were not Congress’s subordinates, and with separation of powers in place, Congress has no authority to direct those employees.

    Therefore, no, there’s no factual basis for claiming obstruction since there was nothing to obstruct. Democrats called on the employees of another branch to act, and the other branch declined to do so. That’s not obstruction; it’s failure to promote their cause.

    There’s nothing odd about this. The Democrats were free to make their cases based on other sources while also negotiating with the other branch to get the other side of the story. They’re also free to impeach the president because they don’t believe he was properly directing his employees.

    We need to be clear about it though: that’s not about obstruction. That’s about policy disagreements even if the Democrats believe those disagreements to rise to the level of impeachment.

    1. Congress has no authority to direct those employees.

      Between advise and consent, delegations of authority, and as here Congressional oversight power, the idea that Congress can’t touch executive employees is quite incorrect.

      1. Which would be a stronger argument (your still right, of course, but stronger) if Congress actually used its power of the purse to get its way, instead of delegating everything to the Executive (except for boondoggles, of course, gotta buy pork that no one wants).

        1. Shutting down the government to bring the President to heel isn’t politically viable these days.

  10. The argument seems to be that the President is guilty of high crimes unless he submits himself and all his subordinates to whatever process the congress comes up with, no matter how abusive that process is or whether it’s even possible to comply with it. He can’t delay or negotiate or temporarily withhold or imperfectly cooperate because that’s automatically a high crime.

    The counter-argument is that the President isn’t owned by Congress just because partisans passed a vote on impeachment. “Obstruction of congress” isn’t a high crime. Not even close.

    1. Ben_, you’ve excluded the middle. Presidents have indeed kept back specific witnesses due to concerns with the process, etc.

      But Trump is saying no witnesses at all – a blanket ban on anyone working for an administrative agency to go before Congress. That’s not the same thing as delaying or negotiating; that’s a full-on denial of the legitimacy of Congressional investigatory authority.

      1. Don’t you see? These people will have him as a king- they’ll fashion a crown as soon as you give them the word.

      2. Post excluded the middle. And Schiff excluded the middle.

        High Crimes is supposed to mean something serious.

        1. …Do you know what excluded middle means?

          1. You guys are the ones who were saying “due process” isn’t a thing for impeachment and that congress need not follow any rules or take the other side seriously at all.

            If “obstruction of congress” is a high crime, then due process has to be a right. Or the whole enterprise loses legitimacy and becomes a naked power exercise.

            We’ve seen it now. The Senate won’t have to struggle too hard, if it even gets that far.

            1. None of this has to do with you excluding the middle.

              I legit think you don’t know what that is.

              1. Congrats on thinking that.

          2. What middle is excluded? Does congress have any responsibility before the President is obligated to surrender to whatever congress asks under the impeachment banner?

            Point out the middle. Point out how Post acknowledged a middle. Point out Schiff’s good faith attempts to compromise on rules so “obstruction of congress” could be avoided.

        2. Ben, the impeachment power is a bearing wall in the constitutional structure. Knock it down and the structure collapses. That is serious.

          1. Congress isn’t taking it seriously.

          2. Well then Democrats shouldn’t be wielding it to enact their temper tantrum at losing an election. The house in their destructive abuse of impeachment are the ones wailing away at that support.

            1. Ahh yes ‘you’ve abused this load-bearing wall, so I’m going to take it away.’

              Such foresight and statesmanship!

              1. It didn’t get taken away in reality.

                In your fantasy where something got taken away, your comments about foresight and statesmanship aren’t objectively dumb.

  11. I agree the abuse of power is weak.

  12. “But Count Two? I am having a hard time coming up with any reasonable argument that could support a “No” vote on Count Two.”

    These mental gymnasts are capable of more than you know. Only truth Trump spoke was that he could shoot someone on 5th avenue and not lose a supporter. They’re that far into the cult.

  13. “public attention appears to be focused” on the NFL and Christmas

    This is mainly a Beltway/Twitter/Media thing. Not real life.

    Everyone knows that the Senate will acquit.

  14. Let’s stipulate for the sake of argument that refusing to participate in a Congressional hearing, having not been subpeona’d to do so, is obstruction of Congress. No criminal act is alleged, so this is the equivalent of a process crime–you didn’t do anything else wrong, but you said you were washing your hair on a certain date ten years ago when the security camera shows you were actually buying aspirin at Walgreens. The entire impeachment process is purely political, and my policy view is that process crimes are bullshit. Add one onto a real criminal charge if you can sustain one, but we will not be putting people in jail, or removing them from office, for process crimes when the investigation has turned up no underlying criminal act.

    And as long as we’re imputing the tropes of a criminal prosecution to this impeachment process whenever it suits us, it also occurs to me that in some sense demanding that the administration provide witnesses against itself violates the 5th Amendment. Sure, that’s a big stretch, but we’re stretching everything else, so why not?

    1. But think where your ‘I hate all process crimes including this one’ logic leads –
      If Congress is the one that impeaches, Congress must be given the power to investigate the President. If they can’t subpoena any the President’s people, then they can’t investigate and thus can’t build a case to impeach.

      Presto, you have turned the President into a king who is without a check for 4 years. 8 if he abuses his unreviewable actions properly. More if he really goes for the gusto while Congress must look away.

      In other words, don’t fool yourself – process matters. More than substance, most of the time, since a given procedure is usually more widely applicable.

      1. “If they can’t subpoena any the President’s people, then they can’t investigate and thus can’t build a case to impeach.”

        Congress could impeach based strictly on publicly known facts.

        Isn’t what they are largely doing here? All their evidence really amounted to nothing but cumulative of Trump’s public statements and the released transcripts. Only one fact witness had even spoken to Trump.

        They are impeaching anyway.

        1. Congress could impeach based strictly on publicly known facts.

          Trump’s also not allowing that, though. Lots of people suggested by the current evidence – Bolton, Pompeo…

          1. Biden?

            Unless you think whether there was corruption or not isn’t probative into what the President was thinking?

            I think proving Bidens innocence (both of them) will do a lot to show that Trump either didn’t believe there was real corruption there, or was unreasonable in doing so and thus weaken any claim that an investigation would have been for legitimate governmental purposes. We’ll also need to know what he knew at the time – for all we know the NSA has been telling him about the Bidens laundering embezzled money this whole time. I doubt it, but my point is that we don’t know, and it’s important that the Senators do – even if we’re kept in the dark.

            1. What the President was thinking is an inquiry into what the President knew at the time.

              Whatever Biden did or not is immaterial to such an inquiry.

  15. I think the very worst part of the Trump presidency is all the awful precedents he’s setting, in this case the precedent that presidents can refuse to comply with congressional investigations. George Will said in 2016 that if Trump won, it would be the end of the American experiment. At the time, I thought he was exaggerating. Now I’m not so sure.

    1. Sarcastro -“But think where your ‘I hate all process crimes including this one’ logic leads –
      If Congress is the one that impeaches, Congress must be given the power to investigate the President. If they can’t subpoena any the President’s people, then they can’t investigate and thus can’t build a case to impeach.”

      Yet somehow Obama’s refusal to cooperate with congressional investigations was okay.

      1. Yet again. Blanket refusals are not the same thing as an individual refusal.

      2. Joe, “investigations,” and impeachment investigations are not the same. How can you tell? Look in the Constitution. It’s right there.

  16. From David Post’s statement –
    “The argument that this violates the President ‘s oath to “take care” that the Laws and the Constitution be “faithfully executed” strikes me as clear and straightforward and, as far as I am aware, unrebutted.

    Article I Sec. 2 gives the House the “sole power of impeachment.” If, in the exercise of that power, it demands that Executive Branch officials provide it with testimonial or documentary evidence, who decides whether those officials must comply with the demands?”

    Post’s argument is not persuasive – The president is required to faithfully execute the laws of the United States.
    A ) a law is passed by congress and signed by the president – therefore, the impeachment is not a law required to be faithfully executed.
    B) the president is required to abide by the constitution. Art 1 section 2 rest the sole power of impeachment in the house.
    However there is nothing in Art 1 section 2 that requires the president to cooperate with the House impeachment

    Mr. Post – What law or constitutional requirement has the president violated?

    1. Article 1 section 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

    2. there is nothing in Art 1 section 2 that requires the president to cooperate with the House impeachment.

      This formalism is ridiculous – you can impeach, but not have the power to gather info to impeach!

      1. Well, they don’t have the power to conscript caterers to supply the House with meals while they’re debating the impeachment, either. Just because a power would be convenient doesn’t mean they have it.

        I agree that the House can impeach over the President refusing to cooperate with their information demands. Which is not quite the same thing as their having the right to that cooperation. And the Senate can judge whether the demands were reasonable when deciding whether to convict.

        1. Yeah, Congress can’t break the 13th Amendment.

          This power isn’t convenient – it’s necessary. Look at just about every investigation of executive power in American history.

          Your distinction between having a right and having the power to enforce that right is not one with an applicable difference.

          Senate doesn’t need to judge anything. We all know what is. We’re talking here about what should be, and the price for falling short of that with increasingly ridiculous arguments.

    3. Joe, your last question is hopeless. The Constitution is the supreme law of the land. It has an impeachment clause. That clause delegates sole power over impeachments to the House. Trump violated both law and constitution at once, flagrantly, and you are asking someone to point to something else? Who needs it?

    4. Mr. Post – What law or constitutional requirement has the president violated?
      No, the Constitution does not explicitly say “The President must comply with subpoenas issued by the House in an authorized impeachment inquiry.” But as I was trying to say in the O.P., the impeachment power is a virtual nullity if the President’s position were to prevail and presidents were free to ignore House demands whenever they thought the inquiry was “baseless.” And so your question can be rephrased: What constitutional provision forbids the president from rendering the House impeachment inquiry a virtually impossible exercise?” The question, I think, answers itself.

      1. Agreed, and yet at the same time how do we resolve disputes between branches? Was one side of the dispute refusing to seek that resolution? Maybe the side that was asking the other side to do something they didn’t think they had to?

      2. Not even slightly a nullity. They are perfectly free to add refusal to cooperate to the bill of impeachment, or even impeach solely on that basis alone. That’s a pretty big stick they’re swinging there.

        Until it becomes obvious that they’re going to impeach the President regardless. “I’ll shoot you if you don’t do as I say!” stops being a threat once you know you’re going to be shot anyway.

        It would be an effective threat to compel cooperation, though, if it were in any way an open question whether the Democrats were going to impeach. That’s the problem, it isn’t an open question. The worst they can do is already baked in, leaving them with no remaining threat.

      3. “But as I was trying to say in the O.P., the impeachment power is a virtual nullity if the President’s position were to prevail and presidents were free to ignore House demands whenever they thought the inquiry was “baseless”

        Not even close. The House can impeach whenever it wants. As has been described in depth, the House can impeach on whatever grounds it wants, for whatever reasons it wants. But strictly speaking, constitutionally, that is all the power gives. The right to forward impeachment charges to the Senate.

        The impeachment power doesn’t however give some magic right to any and all documents, testimony, from anyone, anywhere, no matter what, by waiving a magic “impeachment” wand.

        1. I think that’s an implied power as it’s necessary for the impeachment power to be both meaningful and not simply partisan hackery. Where the edges are is less clear though.

          This is one of the few places where the Necessary and Proper clause actually comes in, rather than the “do anything you assert would be nice to do vaguely related to an enumerated power” that it is today.

          In the alternative, the House could only get information the Executive chose to give them, or obtained from whistleblowers (who are more useful to tell you there’s a problem than the details of it), or through subterfuge.

          I know what the Admirals Gestapo is like, and funny as it would be to see poisons incorporated into the US political establishment I think that’s a pretty bad idea.

          1. It’s implied power, but it’s not unlimited. And when there is conflict, the courts should decide.

  17. Obstruction was also a charge against Bill Clinton, and in both his impeachment and that of Richard Nixon there were conflicts between Congress wanting information and the President invoking privilege.

    Saying that the President must turn over any requested data to Congress if they say it’s an impeachment investigation guts the concept of executive privilege. Whatever your opinion of privilege, if Congress gets to the point it can ask the executive for all of the discussion of any decision then it’s an extreme power grab. And the reason behind an executive branch decision is the basis of this impeachment. Trump is being impeached for wanting an investigation into a political opponent. If it can be proved that wasn’t the reason then the impeachment case collapses.

    Another question (and reason to vote no) is whether the offense is serious enough to warrant impeachment. Suppose a sitting President were driving down the highway and gets a speeding ticket (ignore the practicality that Presidents are driven everyplace). In many states speeding is a misdemeanor offense. This fits the definition of an impeachable offense. Should Congress impeach?

    1. Richard Nixon was NOT impeached.

      While the House of Representatives was debating an impeachment against Nixon, he resigned before any bill of impeachment was voted out of the House.

      1. Are you just being pedantic here or do you believe you’re making a substantial point? If the former, you’re correct. But if your comment reflects more than the technicality, then your point is pointless. Nixon resigned because his impeachment was inevitable at that stage. And it’s likely the senate would’ve voted to remove.

    2. “Another question (and reason to vote no) is whether the offense is serious enough to warrant impeachment. Suppose a sitting President were driving down the highway and gets a speeding ticket (ignore the practicality that Presidents are driven everyplace). In many states speeding is a misdemeanor offense. This fits the definition of an impeachable offense. Should Congress impeach?”
      That’s a terrible analogy. Speeding by a president does not call into question the constitutional separation of powers; ignoring Congressional subpoenas and declaring the entire Executive Branch to be immune from Congressional process does. End of story. One is trivial; the other is very far from trivial.

    3. “Obstruction was also a charge against Bill Clinton,”

      But in Clinton’s case the obstruction consisted of a series of criminal acts by Clinton and by his subordinates at his direction. NOT, refusing to comply with a subpoena until a court commands it.

      1. Indeed, Clinton was charged with Obstruction of Justice, not “Obstruction of Congress”.

        Clinton did refuse to comply with Congressional demands (until a court ordered otherwise). And there was no count of impeachment for this.

  18. “it poses a substantial threat to the very existence of the impeachment power and its effectiveness as a constitutional check on the president.”

    Evidence that the impeachment power has ever been effective as a constitutional check on the President is severely lacking.

    The standing record on Presidential impeachments for the entire history of the US is 2 bills issued, 0 convictions.

  19. The standing record on Presidential impeachments for the entire history of the US is 2 bills issued, 0 convictions.
    That’s like saying “Who needs these umbrellas? I never get wet …” Impeachment can – and has – functioned as an important check on presidents, even if only as a threat to deter improper behavior that is only rarely invoked. No law professor, to my knowledge, has ever been charged with stealing money from the law school account – but that does NOT show that the law prohibiting stealing is not effective.

    1. “” Impeachment can – and has – functioned as an important check on presidents, even if only as a threat to deter improper behavior that is only rarely”

      I don’t argue that it can’t function that way. Your statement does not constitute evidence that it has. Cites required.

    2. “No law professor, to my knowledge, has ever been charged with stealing money from the law school account – but that does NOT show that the law prohibiting stealing is not effective.”

      Neither does it show that prohibiting stealing is effective.

      There has never been a tiger in my back yard, therefore my secret formula tiger repellent must be 100% effective. Not.

  20. What could be more obstructive than a clearly legal veto?

  21. The Founders, in their wisdom, divided the sovereign power three ways. This means that, in any case where two branches of the federal government find themselves in conflict with each other, there is a co-equal power remaining to break the tie.

    So, when Congress wanted Nixon’s tapes, they asked the Supreme Court to weigh in on whether or not he had to produce them.

    1. And this is indeed happening, with the Supreme Court having agreed to hear some of the claims against Trump’s refusal to turn over documents.

      Post has postulated an unfettered right by the House to override any and all assertions of Executive Privilege, merely (at best) through the mere incantation of the word “impeachment”. This isn’t Separation of Powers, but rather putting the House in a position of being In a significantly superior position to the Executive. anything that the House wants, they get, whether it affects the country, exceeds their other powers, interferes with the Executive’s plenary powers (as was the case of questioning his foreign policy actions with Ukraine, or Even the President’s bathroom schedule. Post would have the House able to demand this information, just by saying “impeachment”.

      As is well known, all Constitutional rights and powers are ultimately limited, even those rights of citizens explicitly specified in the Bill of Rights. You can’t yell “fire” in a crowded theater unless it is indeed on fire. Etc. Yet Post here posits an unlimited power by the House to interfere with and oversee anything and everything that the President does, with no apparent limits indicated I his opinion piece.

      Come back when you can at least plausibly posit some realistic limits to this “impeachment” power that potentially can severely hobble the operation of a coequal branch of government.

  22. Sigh,

    Since David asked….

    Count 2 is actually the much, much weaker article of impeachment. What Trump is doing is utilizing executive privilege to keep confidential conversions that he has with his advisers from Congress. The use of executive privilege has a long, long history within the US, and every president since Eisenhower has used executive privilege in some respect or another. Often Congress has contested this use of executive privilege, and in a debate between the two branches of government, what happens is the third branch (the judiciary branch) decides whether the material needs to be presented, or the material is kept confidential under executive privilege. (Alternatively, Congress and the President settle).

    And that is exactly what is going on here. Congress is demanding the President’s advisers testify on confidential discussions they had with the President and his affairs, and the President says “No, that falls under executive privilege, I need honest confidential advice, and I can’t get it if every word is going to be repeated to Congress.” And under every other previous situation, under every previous president, what would happen is, Congress would go “Well, we’ll take it to the courts, and they’ll decide if that privilege applies in this situation or not”.

    But now, for the first time, Congress is saying “No, the act of even going to the courts to try to defend your executive privilege is impeachable, we don’t CARE whether the courts say you need to disclose it or not, we’re going to impeach you for keeping it from us”

    Which is absurd. It breaks all previous precedent under almost every previous President. It violently breaks the separation of powers between co-equal branches. And it’s pretty damned disrespectful to the courts themselves.

    1. “Congress is demanding the President’s advisers testify on confidential discussions they had with the President…”

      And if Trump had limited himself to directing his subordinates not to testify about confidential discussions they had with the President, this would be relevant. Trump directed people like Ambassador Taylor, who never spoke with the President, not to testify.

      1. …and his affairs” These are his affairs.

        There’s excellent precedence to extend this just beyond confidential discussions. Most notably Obama’s fast and the furious case.

        1. First, Obama withheld certain documents, specifically citing executive privileged. Those are two distinctions from what Trump is doing.

          Second, yet again. A. Blanket. Refusal. Is. Not. The. Same. As. A. Single. Incident.

          1. It would be exactly the same if the committee requesting the documents immediately impeached Obama for withholding them.

  23. David,
    Why is count run so obvious in your view?

    If Joe Biden were not running for office would you still say Trump’s actions (assuming all charges made by Dems are true) are an abuse of power? If not, why not?

  24. that should read count “one” of course.

  25. Some one else made the point that if the case went to SCOTUS, and SCOTUS were to rule in Trump’s favor, could the Dems impeach SCOTUS as well for Obstruction of Congress?

    If no, then they are admitting that simply claiming a privilege is not obstruction.

    If yes, they are doubling down on the crazy, but at least consistent.

    1. Of course they could impeach SCOTUS, it’s right there in the constitution. But your question doesn’t really make sense, because SCOTUS ruling in Trump’s favor wouldn’t constitute SCOTUS refusing to comply with a Congressional subpoena.

      And claiming a privilege that doesn’t apply and probably doesn’t exist is indeed obstruction.

      1. “And claiming a privilege that doesn’t apply and probably doesn’t exist is indeed obstruction.”

        Claiming the privilege doesn’t exist would be stronger if Trump were the first president to invoke it. He isn’t even the tenth.

        Congress has NEVER asked SCOTUS to rule that there is no such thin as executive privilege. Congress has acted for decades as if the privilege is real.

        1. Again, Trump is claiming something much broader than executive privilege: complete immunity from testimony.

  26. Alpheus,
    So if SCOTUS upholds presidential privilege, Trump would still be Obstructing Congress by invoking a privilege he is legally allowed to use? And that would still be an impeachable offense?

  27. This is one of those issues where leftists pretend to adhere to principles to damage someone and the only people following them are the limp dicked cucks who wilt at the first sign of criticism. We all know the ploy. Create a reason to get people to testify and that’s when you start getting gaffes, perjury traps, etc. Oppose the process and that will serve as the basis instead. That’s always been the point of these investigations. Trump is right to call it for what it is and refuse to partake. If you think Congress can just ask for anything it wants, then go be a slaver somewhere else.

    1. limp dicked cucks

      Not to indulge in pop-psychology, but you seem to have some issues with your wanger. Sorry ’bout that.

      Crying perjury trap about upcoming Congressional testimony is just a redressing of arguing the other side is in bad faith so you don’t need to follow the rules anymore.

      1. Peak projection, but you would have to be a moron to not see how this process hasn’t been in bad faith since T-120 or however many days pre-election this bullshit started.

  28. The president has invoked privilege. Is the claim of privilege legitimate? I don’t know. That’s why we have courts arbitrate those disputes.

    But Congress has chosen not to attempt to vindicate its position in court, but simply declare that its position is correct and impeach the president for the high crime of disagreeing with Congress.

    The Congress’ position, with which Prof. Post apparently agrees, is that in the context of impeachment, it can have whatever it demands. If Congress demands an attorney divulge communications from a client, the attorney must comply, or else he has obstructed Congress. Because “sole power” apparently means unfettered power. Do any evidentiary privileges constrain Congress in an impeachment? Does the Fifth Amendment right against self-incrimination apply even apply under this theory of “sole power”?

    1. F.D. Wolf: “The president has invoked privilege. Is the claim of privilege legitimate? I don’t know. That’s why we have courts arbitrate those disputes.”
      Correction: the President has not “invoked privilege.” He has invoked a total immunity. He’s done it several times recently in court (and lost, every time), and he’s done it here, in connection with impeachment. The difference is very important: NOBODY is suggesting that Exec Branch officials, when they give evidence, can invoke any of the well-established privileges: attorney-client, executive privilege, 5th Amendment, etc. Depending on what the evidence consists of, those claims of privilege may sometimes be valid, sometimes not; it depends on many factors. The witness would have the burden of showing that, notwithstanding the possible relevance of the evidence and the duty to turn it over, the privilege applies and shields the testimony.
      But that’s not what’s going on here. Trump has declared that the Executive Branch officials don’t even have to show up; that means they don’t have any burden to explain why the evidence requested is privileged. They’re not going to produce ANY evidence, privileged or not.
      That position has absolutely no constitutional or legal basis whatsoever. If you don’t believe me, read Cippolone’s letter – it’s laughably and rather pathetically devoid of anything resembling legal argument. If it becomes the law of the land, we will never – ever – be able to discover and punish presidential wrongdoing. Forget about Trump – think about the next guy.

  29. Reply to update:

    If, in light of the acknowledged ambiguity in what testimony may be correctly deemed privileged, the committee would like to negotiate rules about what testimony will be offered and what testimony will not, then the committee should make a good faith effort to negotiate those rules.

    The Post post declares that the committee need not negotiate, need not seek a court ruling, and may take essentially any action under the banner of impeachment. And the President must comply with it or the President is automatically guilty of “obstruction of congress” — which is supposedly serious enough to remove an elected President but not serious enough to bind the impeachment committee to follow any standards of procedure or fairness.

    This Post post is typical: no standards for one side, impossibly high standards for the other. That’s why this stuff is so unpersuasive, guys. Start showing fair judgement and eventually a non-obsessed person might listen to your perspective instead of skimming through it to find the fatal mistakes so it can be dismissed like all the others.

    1. Ben_: “The Post post declares that the committee need not negotiate, need not seek a court ruling, and may take essentially any action under the banner of impeachment. And the President must comply with it or the President is automatically guilty of “obstruction of congress”
      Look – the Constitution gives the House the “sole power” of impeachment. So yes: the House gets to say, in the first instance: this is how impeachment proceeds, and this is how we will investigate and resolve the questions. That, then, is – presumptively – a valid exercise of its power. The President can challenge that in court if he thinks it’s invalid. But while we wait for the courts to act, he has to comply with it – he can’t just declare that it is invalid. It is NOT the House that has the obligation to seek a court decision validating the exercise of its power; it’s the President who has the obligation to seek a court decision invalidating the House’s action if he wants to behave in a constitutional manner.

      1. So if a future President cannot refuse to appear during an impeachment that they claim is frivolous, what is the remedy to the damages? I get where your concern is coming from, but if nobody can declare the process is invalid prior to it beginning, how do you stop future Congresses from abusing impeachment for short-term political gain? Impeach the impeachers? Bar them from office? The party machines will always find someone willing and gullible enough to fill shoes.

        1. Biannual elections and the two-thirds requirement for removal are how you stop future Congresses from abusing impeachment.

          1. The house can just declare continuous, round the clock “impeachment” hearings for an indefinite period of time, make a rule that no one can communicate outside the hearing room during the hearings, and require the President to appear at those hearings.

            What does it say about your position when your position supports something like that?

            1. The House might try to do that. But how many divisions does the Pope have? The House can’t “require” the president to do so; all they can do is threaten that if he doesn’t do so, they’ll impeach him.

              So then he defies them, doesn’t appear. At that point they can impeach him for refusing to cooperate and try to get two thirds of the senate to convict. Seems rather unlikely that so many members of the senate would do so if the House was acting frivolously. If 2/3 of the senate votes to remove a president, then either the president is hopelessly unpopular or the charges are likely substantial.

              If the house and senate both act frivolously, they’ll have to answer to the voters for it. Either the voters will rebuke them, or the voters will endorse their actions by reelecting them.

              1. So to high crimes and misdemeanors you add unpopular. On what basis?

      2. The counter-argument that Senators may make: I disagree with this extreme definition of the impeachment power. It is not an unchecked, supreme power. Rather it is an ordinary congressional power subject to limits like all the other powers in the Constitution..

  30. I disagree with your support of both articles of impeachment. Indeed, the first article says more about the President’s opponents than it does about Trump. They say that, in your words, “Trump abused his presidential power in his dealings with the Ukrainians.” The Democrats evidently think that getting elected to high office is something done to benefit oneself. To wit, Obama was a salaried academic before getting elected, and now, three years out of office is worth about 140 million dollars.

    Can one legitimately say that President Trump is in office to benefit himself? He benefits from no salary. He works X-teen hours a day on the affairs of the country. He cannot run his own businesses to further enrich himself. He has had to put up with all of the hatred and insults form his opponents since before his election. How has Trump tried to benefit *himself* by being President? How would he benefit himself by getting elected to a second term, as opposed to preserving the ability of his supporters to elect him again?

    I would counter by saying that *all* of his actions described in the articles of impeachment were directed toward preserving the decision made by the electorate who voted him into office. He acted to *preserve* the will of the Constitution, not tear it down.

    Viewed in this manner, there was no abuse of power, but instead a use of the office of President to rescue the will of the voters from those who wished to destroy it *years* before they had even such flimsy excuses for bringing a charge of impeachment. I would suggest that any House member who looks at the whole situation fairly and impartially would have to vote “No” on the first article.

    Now for the second article of impeachment. You say “The President publicly directed his subordinates in the Executive Branch not to “participate” in the House’s “partisan and unconstitutional” impeachment inquiry, because that inquiry “lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.””

    Who are these subordinates whom he ordered not to participate? They are his executive branch employees. In terms of them testifying in the impeachment hearings, they are *the President*! Whatever they say is ipso facto the same as if the President has said it!

    As in any trial, the accuser has to make his/her case on its own, without compelling the assistance of the accused. Trump’s order to his subordinates was identical to a refusal to testify *himself* in the Democrats’ hearings.

    Amendment 5 of the Constitution says: “No person … shall be compelled in any criminal case to be a witness against himself … .” You say this is not a criminal case, so the Fifth Amendment doesn’t apply? Article III, Section 2 says: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury … .” This introduces something different, i.e., that impeachment might just be a criminal proceeding.

    If that is the case (and even if it is not the case, basic fairness would dictate) that the President cannot be compelled to help his accusers. By saying “the President,” it also means the President’s subordinates. [As an aside, Section 2 also says that in an impeachment situation, the Senate is not (merely) a jury; it doesn’t say what the Senate *is*, but is *not* a jury.]

    That says to me that the President had every right to refuse to have his subordinates testify in the impeachment hearings, and even in the Senate trial to come. Had the Democrats taken the issue to the courts and had the courts ruled against the President, the situation might have changed, but that didn’t happen.

    The result is, in my view, that the President didn’t do anything wrong regarding the second article of impeachment, either, so House members ought to vote “No” here, also.

    In the comments to a previous post on a related subject (https://reason.com/2019/11/12/impeachment-and-the-sixth-amendment/#comments), I wrote:

    “Caltrop0
    November.12.2019 at 4:59 pm

    One wonders if the Senate could decide that it would not begin an impeachment trial unless the impeachment proceedings in the House gave the President all of the rights he would have had in a criminal trial.”

    And the response was:

    “John
    November.12.2019 at 5:12 pm

    I would say they absolutely could. The Senate has the power to try whatever Articles of Impeachment the House votes out. As the trier of fact, the Senate necessarily has final say on the sufficiency of any Impeachment allegations against the President. They could just declare the Articles defective and send them back to the House in the same way a trial judge declares an indictment defective before trial.”

    I still think that that should be the Senate response to the articles of impeachment.

    1. Who are these subordinates whom he ordered not to participate? They are his executive branch employees. In terms of them testifying in the impeachment hearings, they are *the President*! Whatever they say is ipso facto the same as if the President has said it!

      Every time you think Trumpkins can’t get any dumber, they prove you wrong.

  31. Sigh,

    Response to the update.

    Post essentially says that absent a judicial decision, the executive branch has the right to defend some items against a Congressional subpoena. In his words “And in the absence of any authoritative judicial determination that compliance with Congress’ demands is required, the president is entirely within his rights to implement his particular view of the matter” Excellent. Then, he undercuts himself by saying “so long as those views are reasonable and held in good faith.”

    The problem here is clear. Who exactly is officially judging whether or not the President’s views are “reasonable”? Ideally you would want a third party who isn’t Congress or the President to make the judgement on whether the President’s views are reasonable. Such as the Judicial Branch. But that leads us back to the initial issue, a lack of Judicial determination.

    Instead, Post implies that CONGRESS (Really the House, in this situation) gets to officially decide if the president’s views are reasonable. Which basically eliminates any “right” the President might have. The series of events is clear. Congress: “Gimme these documents”. President: “No, get a court decision, I’ve got executive privilege”. Congress: “Your view is unreasonable. Impeach”.

  32. I disagree with your support of both articles of impeachment. Indeed, the first article says more about the President’s opponents than it does about Trump. They say that, in your words, “Trump abused his presidential power in his dealings with the Ukrainians.” The Democrats evidently think that getting elected to high office is something done to benefit oneself. To wit, Obama was a salaried academic before getting elected, and now, three years out of office is worth about 140 million dollars.

    Can one legitimately say that President Trump is in office to benefit himself? He benefits from no salary. He works X-teen hours a day on the affairs of the country. He cannot run his own businesses to further enrich himself. He has had to put up with all of the hatred and insults form his opponents since before his election. How has Trump tried to benefit *himself* by being President? How would he benefit himself by getting elected to a second term, as opposed to preserving the ability of his supporters to elect him again?

    I would counter by saying that *all* of his actions described in the articles of impeachment were directed toward preserving the decision made by the electorate who voted him into office. He acted to *preserve* the will of the Constitution, not tear it down.

    Viewed in this manner, there was no abuse of power, but instead a use of the office of President to rescue the will of the voters from those who wished to destroy it *years* before they had even such flimsy excuses for bringing a charge of impeachment. I would suggest that any House member who looks at the whole situation fairly and impartially would have to vote “No” on the first article.

    Now for the second article of impeachment. You say “The President publicly directed his subordinates in the Executive Branch not to “participate” in the House’s “partisan and unconstitutional” impeachment inquiry, because that inquiry “lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.””

    Who are these subordinates whom he ordered not to participate? They are his executive branch employees. In terms of them testifying in the impeachment hearings, they are *the President*! Whatever they say is ipso facto the same as if the President has said it!

    As in any trial, the accuser has to make his/her case on its own, without compelling the assistance of the accused. Trump’s order to his subordinates was identical to a refusal to testify *himself* in the Democrats’ hearings.

    Amendment 5 of the Constitution says: “No person … shall be compelled in any criminal case to be a witness against himself … .” You say this is not a criminal case, so the Fifth Amendment doesn’t apply? Article III, Section 2 says: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury … .” This introduces something different, i.e., that impeachment might just be a criminal proceeding.

    If that is the case (and even if it is not the case, basic fairness would dictate) that the President cannot be compelled to help his accusers. By saying “the President,” it also means the President’s subordinates. [As an aside, Section 2 also says that in an impeachment situation, the Senate is not (merely) a jury; it doesn’t say what the Senate *is*, but is *not* a jury.]

    That says to me that the President had every right to refuse to have his subordinates testify in the impeachment hearings, and even in the Senate trial to come. Had the Democrats taken the issue to the courts and had the courts ruled against the President, the situation might have changed, but that didn’t happen.

    The result is, in my view, that the President didn’t do anything wrong regarding the second article of impeachment, either, so House members ought to vote “No” here, also.
    In the comments to a previous post on a related subject (https://reason.com/2019/11/12/impeachment-and-the-sixth-amendment/#comments), I wrote:

    “November.12.2019 at 4:59 pm

    One wonders if the Senate could decide that it would not begin an impeachment trial unless the impeachment proceedings in the House gave the President all of the rights he would have had in a criminal trial.”

    And the response was:

    “John
    November.12.2019 at 5:12 pm

    I would say they absolutely could. The Senate has the power to try whatever Articles of Impeachment the House votes out. As the trier of fact, the Senate necessarily has final say on the sufficiency of any Impeachment allegations against the President. They could just declare the Articles defective and send them back to the House in the same way a trial judge declares an indictment defective before trial.”

    I still think that that should be the Senate response to the articles of impeachment.

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