For months, President Donald Trump’s attorneys have argued that subpoenas seeking testimony and records during the House of Representative’s impeachment investigation were illegitimate. This defense backing up the White House’s decision not to cooperate with the inquiry was also a talking point during Senate questioning this week in the president’s impeachment trial.
On Wednesday, Trump attorney Patrick Philbin claimed that the House is required to pass a resolution declaring an impeachment investigation in order for committees to issue subpoenas connected to the inquiry. That’s not true, according to constitutional law, court records, a House manual and previous impeachment proceedings.
The Trump legal team’s argument
Before its resolution declaring an impeachment investigation in October, the House issued more than 20 subpoenas. However, Trump told his administration not to respond, and for the most part, they didn’t.
At least a dozen individuals refused to testify, and the White House, Office of Management and Budget, state, defense and energy departments never provided documents in response to the subpoenas.
During the impeachment trial and elsewhere, Trump’s attorneys said the subpoenas are invalid without a House resolution. Their argument is that House committees can’t issue impeachment-related subpoenas without first being authorized to do so in a resolution. This requirement doesn’t exist.
What happened in previous impeachment investigations?
In October, days before the House resolution was passed, a federal judge ruled that the impeachment inquiry was legal and the House could receive grand jury evidence from the Mueller investigation.
In that ruling, the judge wrote: “Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry.”
Trump’s legal team is correct in saying that every other impeachment investigation involving a president had a resolution declaring the inquiry. But court records show that a House committee began its investigation into President Richard Nixon before a resolution was passed. A resolution declaring an impeachment investigation into President Andrew Johnson was also passed after a House committee had begun looking into the issue.
At least three federal judges, Walter L. Nixon, Alcee L. Hastings (now a member of the House) and Harry Claiborne, were impeached without the House ever passing a resolution declaring an investigation.
How does the resolution claim fall in line with the Constitution?
It doesn’t. The Constitution doesn’t require a resolution for impeachment investigations to take place.
But the bigger issue is this: Part of Congress’ job is oversight – to inspect and hold other parts of the government accountable. That responsibility comes with the ability to issue subpoenas.
In a nutshell, the House doesn’t need a resolution to hold public officials accountable. The House always has that Constitution-sanctioned responsibility.
In the court case mentioned earlier, the judge wrote that suggesting a resolution is required “would be an impermissible intrusion on the House’s constitutional authority” to set rules and exercise its impeachment power.
But can individual committees issue subpoenas?
Yes. House committees first received the power to issue subpoenas in 1975. Nothing in the House rules requires the body to first pass a resolution to allow impeachment-related subpoenas.
A House manual also says: “Under the modern practice, an impeachment is normally instituted by the House by the adoption of a resolution calling for a committee investigation of charges against the officer in question.”
So, a resolution is “normally” adopted before an investigation, but not always, because it’s simply not required.
Contact Big If True editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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