The Volokh Conspiracy

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Congress

The Other Impeachment Article

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Over at the New York Times, I have an op-ed on Article II of the impeachment of President Trump. This article charges the president with obstruction of Congress because of his refusal to provide witnesses and documents to the House as part of its impeachment inquiry.

The House Democrats have not done a particularly good job of laying the groundwork for this article. They devoted hardly any time in congressional committees to the issue of presidential obstruction. They largely ignored it in their presentation of the president's misconduct. They muddied the waters by also pursuing a lawsuit hoping the courts will weigh in in favor of their right to this material. They are "threatening" to sit on the articles of impeachment unless the Republicans agree to hear in trial the very testimony that forms the basis of the obstruction charge.

Nonetheless, the president's unusual and extreme defiance of Congress demands a response if Congress is going to be able to preserve its own constitutional prerogatives. Impeachment is not the only possible response to such obstruction, but it is a possible response. Hopefully, the Republicans in Congress will not succumb to the temptation to defend the president by arguing that it is actually a good thing for a White House to engage in blanket obstruction of congressional oversight, up to and including impeachment inquiries.

Here's a taste:

The White House has claimed that it is not for Congress to question how executive officers are conducting their duties, but rather that it is for the executive to judge whether legislators are performing theirs — and to ignore, stonewall and obstruct Congress when the executive is not satisfied with the answer. In doing so the Trump administration is, in effect, seeking to undo the constitutional checks put in place at our founding.

Read the whole thing here.