White House Letter Distorts Both Law and History on Impeachment

[mahatmakanejeeves]

It would be a historic mistake to agree to hold a vote when Trump demands one; there would just be another demand, and another. He will delay but never cooperate. #The House has “sole power of impeachment.” It will and must decide it’s own procedures.

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Not that the October 9 White House letter deserves or needs such a careful refutation, but here’s a devastating point-by-point takedown of the 8-page Pat Cipollone screed just in case you’re interested in why it would flunk even as a law school paper

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White House Letter Distorts Both Law and History on Impeachment
by Frank O. Bowman, III
October 10, 2019

This article was originally published on Wednesday, Oct. 9, 2019 at 6:21PM ET.

The White House letter of October 8 refusing all executive branch cooperation with the ongoing House impeachment inquiry is, simply put, a public relations exercise. The legal arguments it intersperses between insults to members of the House Democratic leadership and appeals to the President’s base voters are without foundation. The errors and mischaracterizations are so numerous that they cannot all be addressed in this space. Instead, I will consider only the fundamental misconceptions at the heart of the White House argument, as well as a single illustrative historical incident – the impeachment proceedings against President Andrew Johnson.

The White House justifies its refusal to respond to the House’s investigative demands on three basic grounds: First, it claims that the House impeachment inquiry is “constitutionally invalid” because the full House has not passed a resolution specifically authorizing an impeachment inquiry of this president. Second, it maintains that the House inquiry now underway is illegitimate because it does not afford the president “due process” rights the letter suggests are required under the Constitution. Third, it asserts that the first two points are established by “every past precedent.” All these assertions are wrong.

A full House vote: Not required

First, there is no constitutional requirement that the full House pass a resolution authorizing a formal impeachment inquiry before committees of the House begin gathering evidence of impeachable conduct. The constitution’s provisions on impeachment are few, but clear, in their assignment to the House of plenary authority over impeachment and the rules for conducting this and all other elements of its business.

Article I, Section 2 states, “The House of Representatives shall … have the sole Power of Impeachment.” Article I, Section 5, states, “Each House may determine the Rules of its Proceedings….” In short, the constitution confers no authority on a president to demand that the House set the rules of impeachment to his liking.

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The bottom line is that the White House letter is neither more nor less than a list of invalid excuses to defy the legislative branch in its exercise of a power expressly granted by the Constitution. Such defiance cannot go unanswered if our constitutional system is to prevail.

[alwaysinasnit]

1. K&R

[Igel]

2. It's going to be interesting.

There is precedent for a full House vote--decades-old precedent, in fact, whatever Madame Speaker may say--and for the inquiry not being deemed an impeachment inquiry until after a vote charging a committee with conducting the inquiry and with the authority to issue subpoenas on behalf of the House, not just a committee.

It was that kind of scenario that the court deemed adequate for releasing grand jury testimony in the '70s.

Currently we have a standing committee claiming additional authority for subpoenas but still issuing them as though they came from the committee with no additional authority. It'll be interesting to see if the lack of rules in the House for impeachment inquiries is taken to mean that the rules can be decided upon on the fly by whoever makes the decision. The lack of rules gives cover to any decision made, because it can't be against the (non-)rules; but it also makes the enhanced "impeachment inquiry" status that's claimed little more than a claim based on the lack of rules. AOC could have claimed authority to announce an impeachment inquiry with no less authority, given the Constitution and the current rules.

Complicating the matter is that the inquiry focuses on foreign policy issues, which is a different kettle of fish than previous inquiries.