There’s Nothing Special About an Impeachment Inquiry, and Congress Risks Harm to Itself When It Acts Otherwise

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

• Ciara Torres-Spelliscy on the president’s campaign finance violations as a basis for impeachment.
• Austin Evers on why obstruction of congressional investigations could be grounds for impeachment
• Neil Kinkopf on the mechanics of the impeachment process
• Heidi Kitrosser on the president’s abuse of executive secret-keeping powers.
• Gabe Lezra on emoluments clause violations
• Barbara McQuade on why Attorney General Barr should recuse himself from the Ukraine affair.
• David Driesen on how executive privilege may not apply in this current scandal.

Three House committees took a dramatic step on Friday to escalate the ongoing clashes between Congress and the White House over congressional investigation and oversight authority. The committees issued a joint subpoena to Secretary of State Mike Pompeo for information related to President Trump’s effort to strongarm Ukranian President Volodymyr Zelensky into investigating Joe Biden and his son. While the committee previously subpoenaed this same information under their routine investigatory and oversight power, Friday’s move was different: the committees for the first time invoked the House’s impeachment authority.

The move raises an important question for our system of checks and balances: does Congress have more power to investigate the administration when it relies on its impeachment authority than when it relies on its ordinary investigation and oversight authority?

The answer: no. And by acting otherwise, Congress only risks harm to robust power to engage in everyday investigations and oversight.

Constitutionally speaking, there is no difference in kind between Congress’s power to engage in routine investigations and oversight of the administration, on the one hand, and its power to impeach, on the other. Both are powers that the Constitution gives to Congress. And both operate as significant checks on the executive branch. Moreover, routine investigations and oversight can lead to impeachment just as certainly as an impeachment inquiry can lead to impeachment. There is no constitutional dividing line between the two, and there is no constitutional trigger that signals when Congress moves from its routine oversight role into its impeachment-investigation role. Unless the House adopts special rules for an impeachment inquiry—something not required by the Constitution—the two powers are the same, serving the same purpose: to check the President.

You might say that the two powers are different because one goes to Congress’s general lawmaking function, and the other goes to its unique law-enforcement function (of impeachment). But this claim unduly stovepipes Congress’s various authorities, which aren’t distinct, but instead are complementary. Congress certainly has the power to make laws, and to engage in fact-finding and investigations to that end. But it also has the power to investigate and oversee how its laws are enforced by the executive branch, and to investigate and oversee how the executive branch is using the funds that Congress appropriated. Ultimately, Congress has the power to impeach executive officials for “high crimes and misdemeanors.” In short, Congress’s routine powers to investigate and oversee the executive branch aren’t limited only to serve its lawmaking function; they also serve as an important check on the executive branch, ultimately serving an impeachment inquiry.

If there is a difference between routine investigation and oversight and an impeachment inquiry, it is a difference in magnitude, not kind. After all, impeachment can lead to an official’s removal from office (if convicted in the Senate). But any difference in magnitude can’t mean that congressional authority to engage in routine investigations and oversight is less than its power to investigate a possible impeachment. That’s because at the point of an impeachment investigation, Congress is still just investigating. Again, unless the House offers up special rules for an impeachment investigation—and again, something not required by the Constitution—then its powers to investigate and oversee routine matters is the same as its power to investigate impeachment.

Some say that congressional authority to investigate a possible impeachment is greater because an impeachment investigation neutralizes the three constitutional arguments that the Trump administration has lodged in stonewalling routine House investigations and oversight. First, the administration says that congressional requests are merely designed to embarrass the President and therefore have no “legitimate legislative purpose.” Next, it claims that the nature of the congressional requests show that Congress is engaged in law-enforcement, not law-making, in violation of the separation of powers. Finally, the administration asserts its newly expanded, but grossly deformed, version of executive privilege.

But these arguments, or close variations, apply with equal force against an impeachment inquiry. As to the first, that House investigations serve no “legitimate legislative purpose,” the administration can simply claim in a similar vein that House impeachment inquiries serve no legitimate impeachment purpose. In particular, the administration can claim that inquiries aren’t tailored to obtain information going to “high crimes and misdemeanors.”

As to the second, that congressional inquiries signify impermissible law enforcement, the administration can similarly argue that impeachment inquiries represent impermissible law enforcement. For example, the administration can claim that impeachment inquiries may seek to root out ordinary, or “low,” crimes, but not “high crimes and misdemeanors.” The administration can argue that it’s not Congress’s job to enforce those “low” crimes.

Finally, as to the third, that routine inquiries impermissibly encroach upon executive privilege, the administration can make the exact same claim with regard to impeachment inquiries. The administration can argue that executive privilege protects certain communications, information, and testimony whether requested in the context of a routine congressional inquiry or an impeachment inquiry. And given the administration’s gross expansion of executive privilege, it surely will make these arguments.

Thus, the administration’s constitutional arguments against routine congressional investigations and oversight apply with equal force against an impeachment investigation. The fact that Congress has moved into an impeachment inquiry doesn’t fundamentally neutralize them. And they therefore don’t mean that Congress has greater power to engage in an impeachment inquiry.

The real problem with these arguments is that they are frivolous. They undermine neither Congress’s routine investigation and oversight authority nor its impeachment inquiry authority.

As to the first, the Supreme Court has recognized Congress’s power to engage in routine investigations both in aid of its lawmaking power and also to oversee the executive branch’s enforcement of the law. And it has given wide berth to Congress in exercising this power. Put plainly, almost any congressional inquiry can serve a “legitimate legislative purpose.”

As to the second, congressional investigations for any purpose simply do not amount to impermissible law enforcement. By definition, they can’t. Impermissible law enforcement would require Congress to do something more, like take a truly extraordinary step of appointing its own prosecutor and initiating actual enforcement proceedings. Routine congressional inquiries to the Trump administration don’t even come close to that level of law enforcement.

As to the third, this administration has stretched executive privilege beyond all recognition in its dogged efforts to shield information from Congress. The Trump administration has invoked executive privilege on behalf of a far wider range of individuals and communications than the courts have recognized. And the administration has invoked it categorically and prospectively (before even learning of the precise congressional request), contravening plain court rulings and the very nature of a privilege.

None of these arguments carry any weight, either against routine congressional investigations and oversight, or against an impeachment inquiry.

But by acting as if an impeachment inquiry neutralizes these specious arguments, Congress risks validating them. In other words, when Congress invokes its impeachment inquiry as a stronger basis for obtaining information from the administration, it risks implicitly acknowledging the force of these arguments against its routine investigations and oversight.

More generally, by treating an impeachment inquiry as a stronger basis for obtaining information, Congress risks diminishing its routine investigation and oversight powers. But those powers are robust—every bit as robust as its power to engage in an impeachment inquiry. By treating the powers differently, Congress risks undermining its own authority to engage in routine investigations and oversight in the future.

All this isn’t a reason not to investigate possible impeachment. Given the evidence, Congress should move ahead. But it should also acknowledge that its power to engage in routine investigations and oversight is every bit as strong as its power to investigate possible impeachment. And it should continue to press the administration in the courts to comply with its many outstanding routine requests.

Executive Power, Separation of Powers and Federalism