General Discussion

Grasswire2

(13,570 posts) Thu Jul 25, 2019, 01:31 PM Jul 2019

Former sr counsel to House article: How impeachment proceedings would strengthen Cong. powers.

[link:https://www.justsecurity.org/64318/how-impeachment-proceedings-would-strengthen-congresss-investigatory-powers/|

snip

While it is true that the House has substantial powers of inquiry apart from impeachment, there is little doubt that initiating impeachment proceedings would strengthen its investigatory position considerably. Historically the House’s impeachment powers are integral to its status as the “grand inquest of the nation.”* James Wilson, a framer of the Constitution and one of the original justices of the Supreme Court, explained in his 1791 Lecture on Law that the House’s role in impeachment derives from the law of England, where “[a]n impeachment is … a presentment to the most high and supreme court of criminal jurisdiction, by the most solemn grand inquest of the kingdom.” Because the House’s function in impeachment is judicial in nature, it implies the same authorities to obtain evidence as enjoyed by a court. As an 1843 House report stated: “The House has the sole right of impeachment … a power which implies the right of inquiry on the part of the House to the fullest and most unlimited extent.”

At a nuts and bolts level, a resolution establishing an impeachment inquiry enables the House to bestow on the Judiciary Committee special authorities for purposes of its investigation. Molly Reynolds and Margaret Taylor correctly point out that the most important powers conveyed in prior impeachment proceedings, such as subpoena and deposition authority, are now part of the standing authorities enjoyed by the Judiciary Committee (among others). Nevertheless, there are additional useful authorities, such as the power to gather information in foreign countries, that could be granted as part of an impeachment inquiry. That’s no small matter in an impeachment that may involve foreign emoluments and international affairs.

More importantly, an impeachment inquiry establishes with greater certainty the congressional need for evidence that bears upon the conduct of the office holder in question and any high crimes and misdemeanors he may have committed. The Executive Branch has long maintained that Congress’s need for information for ordinary legislative purposes is diminished because legislation can be crafted without a detailed understanding of any particular factual situation. The Executive Branch relies in part on the D.C. Circuit’s decision in Senate Select Committee v. Nixon, in which the court denied the Senate committee access to the Watergate tapes because the House Judiciary Committee, which was conducting an impeachment inquiry, already had those tapes. This shows, according to the Executive Branch’s consistent line of argument, that the legislative need for information is less compelling when it is merely for oversight purposes. Opening an impeachment inquiry undercuts any attempt by the administration to use Senate Select Committee in this manner.

elleng

(130,908 posts)

1. by Michael Stern

Reply to Grasswire2 (Original post)

Thu Jul 25, 2019, 01:33 PM

Jul 2019

Michael Stern served as Senior Counsel to the U.S. House of Representatives (1996-2004). He later served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs, and as former Special Counsel to the House Permanent Select Committee on Intelligence. You can follow him on Twitter (@mls1776).