Can the impeachment inquiry proceed without a House vote?

News Analysis

  • Russ Walker

Two Republican House members from Pennsylvania this week said the impeachment inquiry into the actions of President Donald Trump is proceeding without clearly stated rules.

Fred Keller, who represents the 12th District encompassing much of the state’s central and north-central counties, told the Daily Item of Sunbury: “If the Speaker wants to hold this investigation, maybe she needs to hold a vote and that way we can all call witnesses and make sure the process is fair and transparent. Rather than meetings behind closed doors.”

Keller was specifically referencing the House Intelligence Committee, which held a closed-door interview with former Ambassador Kurt Volker last Thursday.

Keller’s GOP colleague, Scott Perry, whose 10th District includes Harrisburg and surrounding counties, took to YouTube to make a similar point: “You have an impeachment vote in the House of Representatives to set up the articles of impeachment, ‘This is what we’re accusing the president of. Here’s how we are going to proceed,’ so that everyone understands what the deal is.”

Perry, who spends 20 minutes discussing impeachment in his YouTube video, says President Trump’s unwillingness to cooperate with the House inquiry is appropriate because there’s no set of rules governing how witnesses will be questioned, whether counsel for the president can be present, and so on.

Is there merit to this argument? The most recent precedent is the 1998 impeachment of President Bill Clinton. And in that case, the record supports the core of the Perry-Keller argument: The House of Representatives voted on a resolution instructing the Judiciary Committee to investigate Clinton’s actions and recommend appropriate next steps back to the full House.

The resolution, which passed on Oct. 8, 1998, isn’t long on details. But to the points Perry makes in his video, the 1998 resolution spelled out the committee’s subpoena powers:

For the purpose of making such investigation, the committee is authorized to require–

            (1) by subpoena or otherwise–

                    (A) the attendance and testimony of any person (including at a taking of a deposition by counsel for the committee); and

                    (B) the production of such things; and

            (2) by interrogatory, the furnishing of such information; as it deems necessary to such investigation.

Another section says:

Subpoenas and interrogatories so authorized may be issued over the signature of the chairman, or ranking minority member, or any member designated by either of them, and may be served by any person designated by the chairman, or ranking minority member, or any member designated by either of them. The chairman, or ranking minority member, or any member designated by either of them (or, with respect to any deposition, answer to interrogatory, or affidavit, any person authorized by law to administer oaths) may administer oaths to any witness.

One major difference between the Clinton impeachment and the current investigation into President Trump is that the Republican congressional majority in 1998 could refer to the extensive investigation into Clinton that was conducted over a period of years by independent counsel Kenneth Starr. It was the Starr report, after all, that included much of the material that ultimately was used to write the articles of impeachment against the 42nd president.

What about the impeachment inquiry into President Richard M. Nixon? Before articles of impeachment were drafted by the House Judiciary Committee, the full House voted in February 1974 to authorize the committee to conduct an inquiry. That resolution read:

RESOLVED, That the Committee on the Judiciary acting as a whole or by any subcommittee thereof appointed by the Chairman for the purposes hereof and in accordance with the Rules of the Committee, is authorized and directed to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon, President of the United States of America. The committee shall report to the House of Representatives such resolutions, articles of impeachment, or other recommendations as it deems proper.

But again, the committee’s work actually began months before, shortly after the infamous “Saturday Night Massacre” when Nixon ordered the firing of the independent counsel investigating the Watergate scandal.

Back to Perry’s and Keller’s argument: They believe the full House should vote to authorize an impeachment inquiry, as what ultimately happened in the two most recent presidential impeachments. The Republican leader in the House, Kevin McCarthy of California, specifically referenced the rules established to govern the Clinton and Nixon impeachment inquiries in a letter last week to Speaker Nancy Pelosi.

In his video, Perry equates impeachment with a criminal trial, in which the defendant is presumed innocent and his rights are clearly established. Again, he argues that the inquiry needs structure to ensure it’s conducted fairly.

That’s not what impeachment is, however, as Franklin & Marshall University’s Terry Madonna and Michael Young make clear in their latest Politically Uncorrected newsletter.

“Impeachment is a political process – a political process cloaked in the legal framework provided by the U.S. Constitution,” they write.

And in his own video, Perry makes a related point: “There’s nothing in the Constitution that says, ‘This is how impeachment will be handled,’ from an administrative standpoint.”

Nowhere in the Constitution is it stated how witnesses should be questioned or what legal representation they are entitled to.  The Constitution makes clear that the House and Senate set their own rules in general. About impeachment specifically, this is all it says:

Article 1, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

For a president to be impeached, the House of Representatives must draft articles of impeachment and vote on them. A majority vote for an article sends the matter to the Senate, where a trial is held, after which it would take the vote of 67 senators to remove the president.

The rules about how the articles are drafted in the House and how the trial is conducted in the Senate are entirely up to each chamber of Congress, with the exception of the two-thirds majority needed to convict and the requirement that the Chief Justice of the Supreme Court presides over a trial involving the president.

Squabbling over how the current inquiry is being undertaken, and how it differs from past impeachments, is a political argument, not a legal one.

Again, F&M’s Madonna and Young remind us:

“In practice, Congress’ authority has been limited by its ability to convince the American people that a president should be impeached. The lack of public support for the impeachment of Bill Clinton was particularly damaging to Republicans in the 1998 midterm election. Similarly, in 2019, the strength of public support for Trump’s impeachment will determine the path the impeachment process will take. This is one reason why recent polls showing growing support for Trump’s impeachment loom so menacing to Trump supporters.”

Perry and Keller are playing their roles as supporters of President Trump, arguing to the electorate their belief that the impeachment inquiry is unfair and unnecessary. House Democrats, meanwhile, can shape their role however they want, up and until they decide to send articles of impeachment to the Senate.

And for now, Speaker Pelosi says she believes the full House doesn’t need to authorize the impeachment inquiry. Last Thursday she wrote to GOP Leader McCarthy:

“The existing rules of the House provide House Committees with full authority to conduct investigations for all matters under their jurisdiction, including impeachment investigations.  There is no requirement under the Constitution, under House Rules, or House precedent that the whole House vote before proceeding with an impeachment inquiry.”

Just as this story was published, the White House released a letter to the House stating its objections to the impeachment inquiry. Echoing the arguments of Perry, Keller and McCarthy, White House Counsel Pat Cipollone writes:

“In the history of our Nation, the House of Representatives has never attempted to launch an impeachment inquiry against the President without a majority of the House taking political accountability for that decision by voting to authorize such a dramatic constitutional step. Here, House leadership claims to have initiated the gravest inter-branch conflict contemplated under our Constitution by means of nothing more than a press conference at which the Speaker of the House simply announced an ‘official impeachment inquiry.'”

Buckle up. This is getting interesting.

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