draft
I
have done a lot of reading on the issues of (a) what the House has to
do to start an investigation and (b) who can issue subpoenas. This
email is a report on what I have discovered so far and what my sources
were. If you can point me to any other relevant material, by all means
do so.
So far as I know the following is accurate but
somewhat simplified. In broad strokes, the situation is clear and
unambiguous although when it comes to the individual merits of a
specific subpoena and whether executive privilege or attorney privilege
applies then that opens a different set of issues that we are not
addressing here. What we are discussing is the assertion that the House
did not follow the rules when it came to starting an investigation and
that therefore all the subpoenas are invalid. Both of these assertions
are false.
The primary sources are (a) the
constitution, (b) articles about the constitution and impeachment
written in various law journals (Harvard and Georgetown seem to be the
leading ones so far), (c) Congressional Research Service (CRS) Reports
which are a fabulous resource see below, and (d) a funny blog I read a
lot called www.lawfareblog.com,
which is a blog about congress and national security. They try to be
bipartisan, but I think in this case what it means is that smart people
of different opinions write articles on a topic and then ignore each
other. Theoretically, one should be knowledgable about all the times
the House has investigated someone to see what the precedent is, but
that is going to be much harder to do. (As an aside, I love the CRS
reports and they are a great resource. The idea is that you are (for
example) a new member of Congress and you have no idea what the history
of our relationship with Turkey and the Kurds are, and you dont have
that much time to read. So the CRS will probably have written a nice
background paper for you. Many of the papers can be found at https://fas.org/sgp/crs/)
So
as I understand it, it goes something like this. The constitution
gives the sole right to the House to "impeach" which is essentially to
act as a grand jury (i.e. to choose to bring an indictment, or not) in
any matter involving the executive, the judiciary and, for that matter,
themselves. The Senate is not involved unless Articles of Impeachment
are passed by the House by a simple majority of the present and voting
members. Both the House and the Senate may investigate pretty much
whatever they want, but only committees can issue subpoenas. Each
committee has its own rules and its own traditions about all sorts of
things, but certainly about subpoenas. In general the rules are voted
on, accepted, and then published at the beginning of each session of
congress. Sometimes the rules are modified in mid-session, for example
the House Judiciary Committee recently changed the rules to allow more
time for a witness to be questioned. So far as I can tell, there is no
special procedure which has to be followed before an impeachment
investigation has begun. I find no reference to one anywhere. There is
however a variety of rules involving what a committee must do to issue a
subpoena and those rules seem to be different between the different
committees.
Some committees need a vote before a
subpoena can be issued. Some committees delegate this ability to the
Chairman or to the Chairman and the ranking minority leader acting as a
team. Some committees allow the minority members to block a subpoena.
An excellent discussion of this is
Each
committee has its own rules about what can be delegated to the chairman
of the committee, what the ranking minority member can do, how much
notice must be given, whether the ranking minority member can, for
example, block a subpoena, and so forth. There is no one standard here,
each committee has its own rules. I recommend you read the CRS report
on the issue which can be found at: https://fas.org/sgp/crs/misc/
As
I suspected there is no magical procedure that has to be followed to
start an investigation. Do you really think that the Democrats would be
so stupid as to "forget"? I sure dont. But I was surprised a bit at
the different rules of the different committees, that was news to me.
What is not at all clear is what Congress can do when you have a rogue,
obviously corrupt administration like the current Republican/Trump one.
Ultimately, Congress has the power to put people in jail for contempt
of Congress and I think that is likely to be where this leads. You can
do your friends a favor by feeding this back to them. Its their
credibility that gets hurt by stuff like this.
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