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The Bottom Line on the Impeachment Process

(Illustration: CJ Ostrosky/POGO)

On Tuesday, White House Counsel Pat Cipollone issued a now-infamous eight-page letter to House Democratic leadership announcing that President Donald Trump would not cooperate with the impeachment inquiry. While the letter set out a host of perceived grievances, perhaps none is as concerning—and misleading—as the complaint that the impeachment inquiry is “constitutionally invalid and a violation of due process.” We are not naive enough to think that this letter was actually meant as a serious attempt to persuade the House to pull back the impeachment inquiry. But its contents have been cited and circulated widely enough that we think it’s important to take a closer look.

The charges in the Cipollone letter represent one of the most dangerous attacks on Congress’s prerogatives in recent memory.

The Project On Government Oversight (POGO) has long championed congressional oversight as an essential component of the checks and balances the Constitution demands. The charges in the Cipollone letter represent one of the most dangerous attacks on Congress’s prerogatives in recent memory.

The White House’s claims notwithstanding, a look at history and the law shows that Congress has broad powers and few requirements as it carries out its impeachment duties. However, in these charged times, we urge the House to go beyond the basic requirements of the Constitution to better ensure the public’s faith in and understanding of the process.

What’s Required?

When it comes to impeachment, the text of the Constitution is spare: The House acts as the prosecution in formulating any articles of impeachment, and the Senate serves as the jury in an impeachment trial, which is overseen by the chief justice of the United States. Other than mandating that the president cannot be convicted and removed from office without a two-thirds vote of the senators present, the Constitution sets out no minimum rules, procedures, or processes that are to be followed.

Art. I, Sec. 2: “The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.”

Art. I, Sec. 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.”

Art. I, Sec. 5: “Each House may determine the rules of its proceedings.”

Art. II, Sec. 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.”

In the Cipollone letter, which contains nearly 30 footnotes, there is only one reference to a court case concerning the legal parameters of an impeachment proceeding (and it’s a ruling that was vacated just months after it was decided). No wonder: The Supreme Court has held that questions of impeachment procedure are a no-go zone for the federal courts.

Two impeached judges learned the hard way that the courts cannot overturn Congress’s impeachment rules. Take, for example, the case of then-Judge (and current Representative) Alcee Hastings, who challenged his impeachment because only a committee of 12 senators, rather than the full Senate, heard the evidence in his trial before the full Senate held a vote. At first, a district court agreed that it was unfair for only a Senate committee to try Hastings, and thus ordered his impeachment overturned and remanded the case to the Senate for a new trial.

But before the ink was dry on this opinion, the Supreme Court issued a unanimous decision in January 1993 that would upend Hastings’ brief win. That case involved the removal of another federal judge, Walter Nixon Jr., who made a similar appeal concerning the role of a Senate committee in his impeachment.

Nixon found no takers on the high court. The Supreme Court held that because the Constitution explicitly confers the impeachment power on Congress—and because of the “lack of finality and the difficulty of fashioning relief” in cases of impeachment before the courts—the Senate’s procedure was not subject to judicial review. 

In short, there is scant case law on the question of the amount of process due to a president (or any other impeachable federal official) during an impeachment proceeding, and what guidance there is kneecaps Cipollone’s arguments. The Supreme Court has made clear that when it comes to the rules of impeachment, the Senate’s say is final.

The court’s ruling in the case of Walter Nixon’s impeachment discussed two additional reasons that argue for the judicial branch staying out of impeachment proceedings. First, impeachment of judges is the primary means for Congress to serve as a check on the judicial branch. And second, the Framers contemplated that it was entirely likely that a criminal trial would follow an impeachment, so it is hardly appropriate for the courts to have a role in the impeachment process when they might need to review the impeached official’s criminal case on appeal.  

But What About Due Process in the House?

The Supreme Court hasn’t addressed whether specific procedures would be required for impeachment in the House, but the answer would almost certainly be the same. The Constitution stipulates, “the House of Representatives ... shall have the sole power of impeachment,” just as the Senate has the sole power to try impeachments. In fact, the case for due process in House impeachment proceedings is far weaker than in the Senate trial as the House process is “most analogous [to] the process by which grand juries approve indictments.” And as any person familiar with the American criminal justice system knows, there is little room for a defendant to produce evidence and witnesses before a grand jury indicts.

Weren’t Past Impeachments Different?

The Cipollone letter complains that the House has taken the “unprecedented” step of refusing to hold a House floor vote to authorize an impeachment investigation. It is true that the House voted to authorize an impeachment process when it began proceedings examining the conduct of Presidents Richard Nixon and Bill Clinton. But, as Article I, Section 5 of the Constitution makes clear, both the House and Senate make their own rules. There is no requirement for Congress to formally vote to commence an impeachment investigation. In fact, the House did not approve resolutions authorizing impeachment investigations into three federal judges who were subsequently impeached and removed from office: Harry E. Claiborne, Alcee Hastings, and Walter L. Nixon.

And context is important. The circumstances of the current impeachment inquiry differ significantly from those of the past two modern impeachments of American presidents in several important respects. Looking at the history shows why an initial authorizing vote isn’t as important in this case.

This Time, There’s No Independent Counsel Report

Both Presidents Nixon and Clinton faced impeachment following an outside investigation authorized by the Department of Justice. It was upon the completion of those independent investigations (or, in the case of Nixon, the firing of the prosecutor conducting the investigation) that the House leapt into action to formally adopt a resolution to investigate whether grounds for impeachment existed. 

In the case of Nixon, then-Attorney General Elliot Richardson appointed Archibald Cox to investigate the Watergate break-in and related matters concerning Nixon’s reelection campaign in May 1973. This appointment occurred at the same time that the Senate commenced public hearings on the scandal, as did the House Judiciary Committee. In October 1973, Nixon’s “Saturday Night Massacre” led to the firing of the special prosecutor, which precipitated various resolutions approved by the House to authorize additional investigations. By February 1974, the House had approved a formal resolution to mandate an investigation of whether it should impeach the president. It passed 410-4.

Congress has the inherent authority to investigate: It doesn’t need to give itself permission to do what it already can.

In the case of Clinton, then-Attorney General Janet Reno appointed Robert Fiske to investigate various matters involving the president’s financial and real estate dealings in 1994, pursuant to the Independent Counsel Act. Later that year, Kenneth Starr replaced Fiske and the investigation expanded to several other matters, which ultimately gave rise to Starr’s finding in 1998 of information that could be grounds for impeachment. A month after the House adopted a resolution to authorize transmission of the Starr report to Congress, the House debated and then adopted a second resolution to allow the Judiciary Committee to commence an impeachment investigation of the president.

In contrast, the events precipitating House Speaker Nancy Pelosi’s announcement of an impeachment inquiry have not been the subject of any publicly known outside investigation. (The Mueller report was limited to the events surrounding Russian interference in the 2016 election.) Thus, the House is presently serving as the full-time investigator of the president’s alleged misdeeds rather than an external entity. As a result, it doesn’t need to bless an outside entity’s investigation with the formality of an authorization vote. Congress has the inherent authority to investigate: It doesn’t need to give itself permission to do what it already can. And Congress’s more prominent investigative role in this case means it is still very early in the process. There is plenty of time for addition procedural votes once there’s been a comparable amount of fact-finding to the Nixon and Clinton impeachments.

The Committees Already Have Subpoena Power

One of the notable features of the votes authorizing the Nixon and Clinton impeachment investigations was language granting House committees expanded powers. The contemporary rules governing House committees largely obviate the need to confer special powers on House committees to conduct an impeachment investigation and gather information. As Molly Reynolds and Margaret Taylor of the Brookings Institution note, the Nixon and Clinton resolutions allowed the House Judiciary Committee to issue subpoenas and enabled committee staff to take depositions.

Reynolds and Taylor point out that such authorization is unnecessary today, as most House committees, including the Judiciary Committee, have subpoena power, and the Judiciary Committee’s chair has the power to issue subpoenas on his own. Further, they write, House rules permit “either a member or committee counsel” to take depositions. In fact, one could argue that by not adopting a formal impeachment investigation resolution—one that could confer additional powers on committee chairs—House Democrats are limiting their power to the existing rules.   

More Clarity Can Only Help

While the House does not need to meet specific requirements in its impeachment proceedings, and there is good reason this process looks different from ones in the past, we still believe that the House, and the country, can only benefit from developing a more formal procedure and affording the White House some of the same courtesies past administrations have enjoyed. As Keith Whittington, a professor at Princeton University, has observed, the process and rules governing the impeachment inquiry in the House do not serve a legal purpose so much as a political one:

Ultimately, this is where the Republican position has some traction: on the political question of how the public will evaluate the impeachment process. The White House can make its case to the voters that the House should make use of a more elaborate process before voting on a presidential impeachment, or that the Democrats have pursued impeachment with unseemly zeal, or that an impeachment is not substantively justified and that the Democrats are grasping at straws.

The modern history of congressional investigations is replete with examples of the success of formal power-sharing agreements between the majority and minority, such as during the Watergate investigation. Likewise, there are plenty of instances illustrating the futility and waste of those investigations without any semblance of cooperation, as in the Benghazi saga. We believe the best congressional investigations involve true bipartisanship, though we recognize that requires good faith in addition to rules.

Past impeachments have also adhered to rules and norms to better safeguard the actual and perceived integrity of the proceedings. While the House could move directly to a vote on articles of impeachment without hearing the president’s side, that hasn’t been the practice, and we certainly don’t believe that the House should do so. House leadership should honor past precedent by offering the president an opportunity to be heard prior to a vote on any article of impeachment. As detailed by the Congressional Research Service, during the Clinton impeachment, the Judiciary Committee held four hearings, including two days of testimony by the White House counsel. Federal officials under impeachment investigation have also been afforded the right to counsel and the hearings were generally public.

It’s important to note that some protections are already on the books. The Judiciary Committee’s impeachment rules grant majority and minority staff equal time for questioning witnesses and allows the chair of the committee to solicit the White House counsel’s response to evidence. The committee’s rules also call for consultation with the ranking member before subpoenas are issued.

We recognize that the White House has declared that it would not cooperate with the impeachment inquiry, which may itself constitute an impeachable offense (as it did for President Nixon). The White House’s claims that the inquiry is illegitimate do not hold water, and Congress should not tolerate the deliberate defiance that has been this administration’s standard practice.

But given the stakes, Congress would do well to err on the side of affording procedural protections and facilitating minority engagement as early and as often as it can. The Constitution doesn’t require it. But the politics of our age demand no less, even in the face of utter recalcitrance by the White House.