Rebuttal to Rumor about House Impeachment and Subpoenas

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/R44247.pdf

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.

There is an amazing about of bullshit out there.  I dont know why the Republicans put up with this.