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The House has already opened an impeachment investigation against Trump

Forget the political optics. As a matter of law, the Judiciary Committee’s actions are clear.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) on July 26 said the committee is considering steps, including "articles of impeachment." (Video: Reuters)
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Has the House of Representatives opened an impeachment inquiry? That question is starkly presented by a petition that the House Judiciary Committee filed in federal court on Friday. It is also answered by that petition. No matter what certain House Democratic leaders might say about the politics of the matter, there can now be no doubt that the committee is engaged in an investigation of whether to impeach President Trump.

Through its petition, the committee seeks access to portions of the report by former special counsel Robert S. Mueller III that were redacted to protect grand jury secrecy. The panel also seeks grand jury testimony bearing on Trump’s knowledge of criminal acts, Russian interference in the 2016 presidential election and Russian connections to his campaign. Finally, the committee seeks grand jury testimony about actions taken by former White House counsel Donald McGahn; this last request probably anticipates the committee’s rumored plans to seek an order compelling McGahn to testify.

It is settled law that House committees can obtain grand jury materials as part of impeachment investigations. So the legal dispute will probably center on whether such an inquiry is underway.

The Constitution itself does not use phrases like “impeachment investigation” or “impeachment proceedings.” This has led some to mistakenly assume that the House is disregarding its impeachment power because it has not yet held a floor vote approving articles of impeachment (or expressly instructing the Judiciary Committee to deliberate on such articles).

But to those who specialize in these matters, that all-or-nothing vision of the impeachment power is mistaken. The Constitution’s text and structure — supported by judicial precedent and prior practice — show that impeachment is a process, not a single vote. And that process virtually always begins with an impeachment investigation in the judiciary committee, which is already occurring.

Impeachment isn't optional. If the facts point in that direction, Congress must act.

To understand why, look to the constitutional text. Article I vests Congress with “all legislative Powers.” The House, in turn, enjoys the “sole Power of impeachment.” Because tyrants often seek to conceal and confuse, the power to impeach would mean little without the power to investigate and deliberate. By necessity, the House’s “sole Power of impeachment” therefore encompasses more than final floor votes on articles of impeachment. It also covers fact-finding, hearings and debates undertaken in an effort to reach a sound judgment on whether to accuse the president of “high Crimes and Misdemeanors.” In other words, the impeachment power includes the power to investigate impeachable offenses.

The Constitution imposes few limits on how the House exercises this “sole Power.” Instead, it implicitly gives the House the tools it needs to investigate (namely, subpoenas and contempt citations) — and it expressly vests the House with authority to “determine the Rules of its Proceedings.” The House thus enjoys near-total control over the procedures by which it activates and wields the impeachment power.

As Harvard law professor Laurence H. Tribe and I have observed, “there are many ways to initiate an impeachment.” Historically, the House has exercised its power to investigate impeachable offenses primarily through the Judiciary Committee. Every impeachment to reach the Senate since 1900 has been based on resolutions from that committee, and most impeachment proceedings in the House have been initiated (and largely carried out) by the committee.

Trump isn't just defying Congress. He's rejecting the whole idea of oversight.

Democratic presidential candidates have increased their calls to begin impeachment proceedings against President Trump following Mueller's July 24 testimonies. (Video: The Washington Post)

In President Richard M. Nixon’s case, the committee formally opened an impeachment investigation in late 1973, hiring a special counsel dedicated to that inquiry and issuing subpoenas. Several months later, with the committee’s efforts in full swing, the House approved a resolution directing the committee to pursue its impeachment investigation. As a leading expert on legislative practice explains, the committee already “had been conducting an investigation into the charges of impeachment against President Nixon under its general investigatory authority.” This resolution merely “served to confirm the delegation of authority from the House to … conduct the investigation.”

In President Bill Clinton’s case, too, the House passed a resolution directing the committee to investigate potential articles of impeachment. There, however, the committee itself had done virtually no work before the House vote — and did virtually none after it. It instead relied on the infamous, salacious Starr report.

Yet Clinton’s saga is the exception. Just as the committee kicked off the impeachment investigation for Nixon, so has it done for several federal judges — including Judges Walter Nixon and Alcee L. Hastings in 1989 (who were impeached by the House and convicted by the Senate), as well as Justice William O. Douglas in 1970 (who was not impeached). In each case, individual House members introduced impeachment resolutions that were referred to the committee for consideration. The committee then opened an impeachment investigation.

Notably, for both of the judges who were removed from office, the committee prevailed in judicial petitions for access to secret grand jury material as part of its impeachment investigation. And in Douglas’s case, the investigating subcommittee obtained swift access to federal tax records for the justice and five others. In all three of these cases, the committee acted only on the basis of an impeachment resolution introduced in the House and referred to it.

The lesson is clear. Consistent with its “sole Power of impeachment” and its prerogative to “determine the Rules of its Proceedings,” the House can launch impeachment investigations in many ways. It most often does so through its judiciary committee, either based on the committee’s own actions or a resolution directed to the committee; it may also pass — but isn’t required to — a resolution directing the committee to investigate grounds for impeachment.

That constitutional precedent allows only a single conclusion: The committee is engaged in impeachment proceedings and is entitled to access the grand jury material that it has requested.

Nadler is going to court to enforce Mueller-related subpoenas

Consider the petition itself. In an official court filing, the committee has described its activities as an impeachment investigation. The committee’s word on that matter should be all but final (and subject to substantial judicial deference). After all, under the Rules of the House for the 116th Congress, it alone has clear jurisdiction over presidential impeachment. “We are exercising our full Article 1 authority and continuing our investigation of the president’s malfeasances,” Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) told reporters on Friday.

But there is more. On Jan. 3, Rep. Brad Sherman (D-Calif.) introduced an impeachment resolution that was immediately referred to the Judiciary Committee. Since then, the committee and Nadler have repeatedly and unequivocally expressed their intent to investigate potential grounds for impeachment.

On June 6, for instance, the committee recommended that Attorney General William P. Barr be held in contempt for failing to produce the full, unredacted Mueller report. In so doing, the committee stated that it was “considering whether any of the conduct described in the Special Counsel’s Report warrants the Committee in taking any further steps under Congress’ Article I powers. That includes whether to approve articles of impeachment with respect to the President or any other Administration official.”

Four days later, before a hearing on the report, the committee issued a memo stating that the purposes of its ongoing investigation include “whether to approve articles of impeachment with respect to the President.” In advance of a similar hearing on June 20, the committee reiterated its pressing need for evidence bearing on “whether to recommend ‘articles of impeachment’ with respect to the President.”

The committee confirmed this point in a memo released on July 11: “Articles of impeachment have already been introduced in this Congress and referred to the Judiciary Committee. They are under consideration as part of the Committee’s investigation, though no final determination has been made.” The same day, Nadler stated at a hearing that “the Committee has the authority to recommend its own articles of impeachment for consideration by the full House of Representatives.”

What would happen if Trump resists an investigation by the Democratic House?

While these events unfolded at the committee level, the House approved H. Res. 430, a resolution stating that the committee “has any and all necessary authority under Article I of the Constitution” to seek key grand jury material and compel McGahn’s testimony. Given that Article I enumerates the “legislative Powers,” including the “sole Power of impeachment,” the message wasn’t subtle. And it was bolstered by a report accompanying H. Res. 430, which cites the Judiciary Committee’s contempt referral for Barr as an example of using “all necessary authority under Article I” — adding that the committee is investigating “whether to recommend articles of impeachment with respect to the President or any other administration official.”

Pulling this all together: the House has approved a resolution telling the committee to use “all necessary authority under Article I of the Constitution”; a report accompanying that resolution refers expressly to impeachment; an impeachment resolution has been referred to the committee; the committee and its chair have repeatedly said they are investigating whether to approve articles of impeachment; and the committee has now filed a petition in federal court seeking grand jury material on the ground that it falls within an exception applicable to impeachment investigations.

At the level of political rhetoric, the House, and especially Speaker Nancy Pelosi (D-Calif.), has sent plenty of mixed messages. But when we look at what the House has done — and at what the Judiciary Committee is doing — the message is clear: An impeachment investigation has begun. Where these proceedings will go remains one of the most hotly disputed questions in American politics. There is no denying, however, that they are impeachment proceedings — and that the House is therefore entitled to the evidence it needs to answer the weighty questions before it.

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