The resolution to set ground rules for an impeachment inquiry to be voted on in the House Judiciary Committee this week is, at best, a craven public relations gesture to placate both Democrat voters and the majority of House Democrats who have publicly called for an impeachment inquiry into President Donald Trump.
At worst it is a ploy to divert attention from the timidity of House Democrats who are, beyond such gestures, failing to pursue a serious effort to hold Trump accountable for alleged obstruction justice or his campaign’s acceptance of Russian interference in the 2016 election.
For months, Democrat leadership has slow-walked the prospect of an impeachment inquiry by employing a delay-riddled strategy of filing lawsuits to obtain documents and secure the testimony of witnesses before ever officially authorizing an impeachment inquiry. Instead, in court-filed complaints seeking the release of secret grand jury materials and the testimony of former White House counsel Donald McGahn, lawyers for the committee allege that an impeachment inquiry is simply happening.
The importance of that contention is undisputed: The Watergate-era ruling of the D.C. Circuit Court of Appeals, which upheld the delivery of a secret grand jury report to the Judiciary Committee, focused heavily on the fact that Congress had authorized an impeachment inquiry of President Richard Nixon, which was then underway.
But the committee’s current effort to enlist the aid of the courts, because it believes its efforts to be tantamount to an authorized inquiry, is seriously flawed.
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First, as any first-year law student will attest, lawyers’ statements in a complaint are only allegations — not proof. If the federal judges hearing the two cases against the Trump administration’s claims of privilege demand proof that an impeachment inquiry exists, there isn’t any to provide them. Unlike the impeachment proceedings against Nixon and Bill Clinton, the House has not voted to institute a proceeding.
And neither public statements by the committee chairman, Rep. Jerrold Nadler, D-N.Y., that an impeachment inquiry is underway nor references to such an investigation in the text of Thursday’s resolution is or will be enough. They are contradicted by House Speaker Nancy Pelosi’s repeated public statements opposing an impeachment inquiry and the failure of the full House to vote to institute an impeachment inquiry.
Second, the committee’s judicial strategy to investigate before an official impeachment investigation entails months of delay — perhaps up to the 2020 elections — with an uncertain outcome.
For instance, the committee showed no urgency when McGahn disregarded its subpoena to testify on May 21; it waited more than seven weeks before filing a lawsuit to compel his testimony. So if the committee was in no hurry to press the issue, there is no clear reason why a judge should give priority to this lawsuit; the court has not ruled yet and may not for weeks. A time-consuming appeal will then assuredly follow, with the ultimate outcome delayed well into 2020.
The committee’s strategy, at best, then seems to be predicated on the assumption that the committee will win, with the court rejecting the administration’s novel legal claim that White House aides cannot be compelled to testify to Congress. If that assumption is wrong, this effort will not only have been a waste of time but a dead end.
The House has a better and surer remedy to compel McGahn — who is a licensed attorney in D.C. — to testify. In response to the committee’s lawsuit filed in early August, William Burck, McGahn’s attorney, justified McGahn’s refusal to testify by citing a lawyer’s ethical obligation to protect client confidential information.
However, in ethics opinion 288, the D.C. Bar ruled that a licensed attorney may disclose confidential client information to a congressional subcommittee if the subcommittee votes to overrule the lawyer’s objection and threatens to hold the lawyer in contempt. Under the circumstances described in this ethics ruling, unless Trump obtains a court order barring McGahn from testifying, McGahn may then do so.
If McGahn’s lawyer is sincere in arguing that McGahn balked because of an ethical duty to keep client confidences, such a constraint would be negated by a congressional committee vote to overrule the privilege claim. The committee’s vote is the final step — unlike a court order, which can be appealed. The ethics opinion concluded: “The lawyer may comply with the directive as if it were a court order to comply with a subpoena after all appeals have been exhausted.”
Thus, rather than deal with months of delay waiting for a final court ruling, the committee could remove any ethical barrier for McGahn to testify over White House objections in a matter of days by overruling his objection and threatening to hold him in contempt — which it hasn’t done.
Third, the Judiciary Committee’s actions to implore the courts to enforce its subpoenas is an abdication of the authority vested in Congress by Article I of the Constitution. In 1974, faced with the president stonewalling congressional subpoenas in its impeachment inquiry, the committee rejected the proposition that it needed the courts to validate its constitutional authority regarding impeachment.
In explaining the Judiciary Committee’s approval of Article III impeaching Nixon for refusing to comply with the committee’s subpoenas, its final report stated that it was “inappropriate to seek the aid of the courts to enforce its subpoenas to the president.” The report added, “This conclusion is based on the constitutional provision vesting the power of impeachment solely in the House of Representatives and the express denial by the Framers of the Constitution of any role for the courts in the impeachment process.”
Plagued by a seeming lack of urgency and an apparent lack of confidence in its own constitutional prerogatives, despite the lessons of 1974, the current approach by House Democrats threatens to not only fail to impeach Trump, but also to undermine the authority of Congress as an institution.
It’s not too late yet for Congress to act … but it soon will be, at this current pace.
Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.