Changes in congressional rules and procedures in recent years mean that today’s judiciary committee may not need the same kind of special powers it was granted as part of previous impeachment
As the confrontation escalates between the House of Representatives and the White House over the production of documents, the appearance of witnesses and compliance with congressional subpoenas, so too have calls for Democrats to initiate impeachment proceedings. Speaker of the House Nancy Pelosi continues to push for further investigation of the president rather than an impeachment inquiry, while some members of her caucus and its leadership team and several candidates for the Democratic presidential nomination appear more willing to begin impeachment proceedings.
There are a number of different ways to frame the decision that House Democrats must make as they move forward. First, impeachment is a fundamentally political phenomenon: A wide range of political goals and motivations bear on whether individual, elected members of Congress see it as an appropriate path. The aggregation of those preferences, as filtered through party leaders with agenda-setting power, may or may not lead to the opening of an impeachment inquiry. Another framing focuses on the question of whether Congress has a responsibility to pursue impeachment, conveyed by the portion of the oath members take that requires them to “faithfully discharge the duties of the office.”
A third framing, which we address here, is a more practical one: whether, for the purposes of carrying out further investigation, the House’s hand would be strengthened significantly if it initiated impeachment proceedings. A May 15 letter from White House Counsel Pat Cipollone to Jerrold Nadler, chairman of the House Committee on the Judiciary, brings this question into stark relief. The 12-page letter states, in essence, that the White House will not be providing any documents or information requested by the committee as part of an investigation announced on March 4 “into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration.” In its response, the White House outlines a host of political and legal arguments, relying heavily on the premise that Congress has no “legitimate legislative purpose” for requesting the materials. This sweeping repudiation of Congress’s oversight powers brings into stark relief the question of whether there are procedural advantages in pursuing the same information and lines of inquiry under the banner of impeachment proceedings.
Several experts have argued that the House might have a stronger legal position in disputes with the executive branch over information and witness appearances if it were undertaking impeachment proceedings rather than investigations. Michael Conway, who served as counsel on the House judiciary committee during the Watergate investigation, has advanced a similar argument. In particular, he points to a staff memo written in April 1974, which argues that “the Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations. From the beginning of the Federal Government, presidents have stated that in an impeachment inquiry the Executive Branch could be required to produce papers that it might with‐hold in a legislative investigation.” Others are more skeptical—like Alan Baron, a former attorney for the House judiciary committee on four judicial impeachments, who has cautioned that impeachment proceedings don’t “make all the problems go away.” Certainly—as was suggested during our conversation on the Lawfare podcast last month—we would expect members to ask different kinds of questions during hearings if the goal is to establish a case for impeachment than if they are doing more general investigative work. But that is a separate issue from whether impeachment proceedings would meaningfully change the process members can use to obtain information in committee, the kind of material the committee could obtain and the speed at which the committee would be likely to obtain it. The answer to all these questions is: It depends.
While several House committees are engaged in oversight work that could bear on an impeachment inquiry, the House judiciary committee, which would conduct impeachment hearings, will be our focus here. Historically, the initiation of impeachment proceedings has had implications for the way the judiciary committee obtains relevant material. But broader changes in congressional rules and procedures in recent years mean that today’s judiciary committee may not need the same kind of special powers it was granted as part of previous impeachment inquiries.
The impeachment proceedings against both Presidents Nixon and Clinton began with a vote by the full House of Representatives directing the judiciary committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach” the president in question. In both cases, the resolution granted several specific powers to the committee for it to use in the course of completing the investigation with which it was charged by the full House. First, the authorizing resolutions outlined procedures for issuing subpoenas. Second, the measures laid out a process for taking staff depositions.
Specifically, the Nixon and Clinton resolutions allowed subpoenas to be issued by the chairman and the ranking minority member “acting jointly.” If either declined to act, the individual proposing the subpoena could issue it alone unless the other requested the issue be referred to the full committee for a vote. (Alternatively, the full committee vote could be the first step in the process.) As described in the 1998 report from the judiciary committee accompanying the authorizing resolution, this approach balances “maximum flexibility and bipartisanship.”
It was important for the House to enhance the judiciary committee’s subpoena powers in 1974 and 1998 because of the state of the chamber’s rules at the time. In 1974, only a few House committees had subpoena power under the rules of the House—though other committees, including the judiciary committee, were granted subpoena authority through separate investigative authorizing resolutions reported from the House Committee on Rules in each Congress. As part of broader reforms to the committee system that took effect in 1975, the House provided all committees with subpoena power as part of the rules. In 1977, the House adopted a rule change that allowed individual committees to, if they wished, delegate the power to issue subpoenas to the chairman alone, without the need to consult the full committee. But in 1998, when the House commenced impeachment proceedings against Clinton, the judiciary committee had no such provision granting that authority to its chair.
Indeed, until recent years, unilateral subpoena power was relatively rare for House committee chairs. But between the 113th and 114th Congresses, the number of chairs given this power by their committees doubled—and the judiciary committee was among them. The judiciary committee chair retains this authority in the current Congress; its rules stipulate that “a subpoena may be authorized and issued by the Chairman … following consultation with the Ranking Minority Member.” And while Chairman Jerrold Nadler indicated in January 2019 that he would hold votes on any subpoenas to which Ranking Member Doug Collins objected, the rules do not specifically require that he do so. The need to seek full House authorization for expanded subpoena powers as part of an impeachment inquiry, then, is not as pressing as it was in 1974 or 1998.
There has been a similar evolution in the rules surrounding depositions taken by committee staff, which allow committees to pursue additional information without imposing on members’ time and in a private setting that may be more likely to produce candor from witnesses. Under practices in place in 1974 and 1998, deposition power for committee staff was periodically authorized by the full House for the purpose of specific investigations. The resolutions authorizing both the Nixon and Clinton impeachment proceedings granted the judiciary committee this authority.
Since 1998, however, the rules of the House governing staff depositions have evolved to give committees access to the tool more regularly. In 2007, the House Committee on Oversight and Government Reform was given the ability to set its own rules “authorizing and regulating the taking of depositions by a member or counsel of the committee.” In 2015, the House gave four committees (Energy and Commerce; Financial Services; Science, Space, and Technology; and Ways and Means) the ability to conduct staff depositions; this power was initially granted for the first session of the Congress only but was later extended to the second session. Under subsequent rules issued by the House Committee on Rules for the conduct of such depositions, “at least one member of the committee shall be present … unless the witness to be deposed agrees in writing to waive this requirement.” In 2017, the rule permitting staff depositions was extended to cover almost all standing committees, and the member attendance requirement was modified such that it did not apply if the committee authorized the staff deposition to take place when the House was not in session.
In January 2019, the opening day rules package for the 116th Congress again provided committee chairs with the authority to order the taking of a deposition; under the current rules, either a member or committee counsel is permitted to do so. Members may participate, but their presence is not required. So the judiciary committee already has the power to conduct staff depositions and does not need a special grant of authority to do so.
Yet while today’s judiciary committee already has some of the useful powers for impeachment proceedings available, it could pursue additional procedural items if the House chooses to specifically authorize impeachment. For example, under a resolution introduced by Reps. Rashida Tlaib and Al Green directing the judiciary committee to “inquir[e] whether the House of Representatives should impeach” President Trump, the power to take depositions and affidavits would be extended to “any subcommittee or task force designated by the [Judiciary] Committee,” and depositions could be taken by “consultants” as well as members and staff. The Tlaib/Green resolution also provides for additional funding for the judiciary committee in the context of an impeachment inquiry. (The 1974 resolution authorized the committee to use its existing resources on the investigation, and while funding was not addressed specifically in the 1998 resolution, there had been an earlier dispute in the 105th Congress about whether additional resources allocated to the committee were meant to prepare for possible impeachment.)
It is worth noting that in both 1974 and 1998 impeachment proceedings, the House judiciary committee voted to give the president procedural rights in the committee’s deliberations. The president and his counsel were invited to attend all executive session and open committee hearings, and the president’s counsel was entitled to cross-examine witnesses, make objections regarding the pertinence of evidence, respond to the evidence produced and even suggest additional evidence the committee should receive. Attorney James D. St. Clair represented Nixon before the House judiciary committee during the impeachment proceedings, essentially arguing that Nixon’s statements looked bad but were not criminal. Although St. Clair was not a government employee and was acting as Nixon’s private attorney, he insisted at the time that he was representing the office of the presidency rather than Nixon personally: ”I don’t represent Mr. Nixon personally …. I represent him in his capacity as president.” He made his final arguments before the House judiciary committee in July 1974 as it prepared articles of impeachment against Nixon. During the House judiciary committee’s proceedings to consider impeachment of Bill Clinton in 1998, Clinton’s private attorney David Kendall questioned Independent Counsel Kenneth Starr for an hour.
The current judiciary committee would not be bound by precedents to afford the president these same procedural rights, but committees often adhere to precedents unless there is a good reason to deviate. One can imagine President Trump sending Attorney General William Barr, White House counsel Pat Cipollone, White House Special Counsel Emmet Flood or his personal attorney Rudy Giuliani to the House impeachment proceedings to take full advantage of such rights in televised proceedings. He could even show up personally. So while impeachment proceedings do not unlock significant new procedural avenues for the judiciary committee, they could, in theory, afford the president more opportunities to inject himself or his lawyers into the spotlight.
Impeachment proceedings may also give the judiciary committee a stronger case for obtaining certain materials protected from disclosure by statute, like the grand jury materials from Special Counsel Robert Mueller’s investigation. Under Rule 6(e) of the Federal Rules of Criminal Procedure, certain people—including the government attorney presenting the case—involved in a grand jury proceeding “must not disclose a matter occurring before the grand jury.” There are certain exceptions in the statute that would allow a judge to authorize disclosure for certain specified purposes, including “preliminarily to or in connection with a judicial proceeding.”
As we wrote on Lawfare last month, there is some historical precedent for the House judiciary committee to obtain such information from the court—most notably in the context of the Watergate impeachment proceedings. The relevant court opinion relied largely on a theory of inherent judicial authority, rather than an exception in statute, to turn the Watergate “road map” over to the House judiciary committee.
But on April 5, the U.S. Court of Appeals for the D.C. Circuit ruled that judges don’t have inherent authority to release grand jury materials and must instead rely solely on exceptions outlined in Rule 6(e). So if the committee wishes to access that information, Nadler will likely need to convince the judge overseeing the Mueller grand jury that release of materials to the committee is “preliminarily to or in connection with a judicial proceeding.” Bottom line: It is easier to argue that an open impeachment proceeding is akin to a “judicial proceeding” than it is to argue that any run-of-the-mill oversight activities are preliminary to a judicial proceeding.
There are also important questions about whether impeachment proceedings would produce compliance with congressional subpoenas—by either the executive branch or the courts.
The White House’s principal justification for its current stonewalling strategy for ongoing House investigations would not be relevant in the context of impeachment. On April 24, the president told reporters, “We’re fighting all of the subpoenas,” and Cipollone’s May 15 letter supplies various legal arguments in support of this approach. First, the letter relies heavily on the argument that there is no legitimate “legislative purpose” for the request. (Congress’s general investigative powers are derived from its power to legislate.) Whatever the merits of this argument, it would simply not be relevant in the context of impeachment proceedings, because the power to impeach is contained in an entirely separate and discrete section of the U.S. Constitution.
Second, the letter argues that even if a legitimate legislative purpose can be articulated, committees have limited authority to explore in detail any particular case of alleged wrongdoing, because Congress does not need such details in order to craft legislative fixes. Again, this would likewise not be relevant in the context of impeachment proceedings. The decision of whether to impeach requires the development of a detailed, backward-looking factual record of specific conduct by the president. While it is of course possible the White House could come up with different theories for stonewalling in the context of impeachment proceedings, these two arguments would fall away, leaving only arguments related to executive privilege to be made before the courts.
Beyond the substance, it’s unclear whether courts would consider and decide such cases more quickly in the context of impeachment proceedings than similar cases pursued under the Congress’s investigative authority. One district court judge expedited consideration of one of the current investigative impasses—the House oversight and reform committee’s quest for Trump’s financial and accounting records from Mazars—and ruled in favor of the committee. Trump has already appealed the case, and it is unclear how long this appeal and similar appeals will take. Moreover, the case does not involve any claims of executive privilege. Sorting out the scope of executive privilege is the most thorny and time-consuming issue in cases involving congressional requests for information from the executive branch.
We think it is entirely possible—probable even—that judges would recognize the primacy of impeachment proceedings against the president of the United States and expedite consideration of such cases. The case of U.S. v. Nixon—in which the Supreme Court ruled that the president had to turn over the infamous Oval Office recordings to the special prosecutor—was decided just over three months after the relevant grand jury subpoena had been issued. That was a criminal investigation, so the analogy is not entirely apt, but we think it reasonable to assume courts would take a similarly expeditious view in the context of a subpoena issued pursuant to impeachment proceedings. Of course, it is worth remembering that the Supreme Court has never decided a case concerning a congressional subpoena for information issued to an executive branch official where the president has asserted executive privilege. In theory, the Supreme Court could decide the issue is a political question and leave it to the other two branches to sort out in some other way.
What House Democrats ultimately choose as a course of action remains to be seen, Recent comments from Pelosi about how President Trump may “self-impeach” are open to several different interpretations about where Democratic leaders are headed. The uncertainty at hand isn’t just a matter of politics; it’s also a matter of information: what members of Congress would get and how they would get it.