Your impeachment questions, answered (opinon)

In its letter to House Democrats on Tuesday, the White House served notice of its blanket rejection of all congressional subpoenas and information requests relating to the ongoing impeachment inquiry. Essentially, the letter memorializes under formal legal cover Trump’s prior vow to “(fight) all of the subpoenas.”

The White House’s primary objection is that the full House has not voted to open an impeachment inquiry, rendering the inquiry — as announced at a press conference by House Speaker Nancy Pelosi, without any formal House action — “constitutionally invalid and a violation of due process.” The White House argues that the House has not established “even the most basic protections demanded by due process under the Constitution and by fundamental fairness,” including the ability for Trump’s legal team to cross-examine witnesses and to subpoena its own evidence.

Article I of the Constitution broadly grants the House the “sole power of impeachment.” There is nothing in the Constitution, statute or prior judicial decision to indicate that a vote of the full House is required to start an impeachment inquiry. However, the full House did formally vote to initiate impeachment proceedings against both Presidents Richard Nixon and Bill Clinton.

The White House appears to have two primary strategic goals. First, the White House demands several procedural protections (or, depending on perspective, privileges) including the ability to subpoena its own witnesses and evidence. In the Nixon and Clinton cases, the House did grant subpoena power to the minority party, subject to override by majority vote of the investigating committee.

Second, the White House likely aims to force vulnerable Democrats in closely contested districts to vote either for an impeachment inquiry (and risk alienating voters opposed to impeachment) or against it (and risk alienating base Democratic voters and independents who favor impeachment).

Pelosi has signaled little interest in holding a formal vote. This is a calculated risk. On one hand, if the House does vote and approves the inquiry, Pelosi eliminates one of the White House’s primary legal objections to House subpoenas. (There is little risk of Pelosi holding a vote and losing; as Speaker, she almost certainly would only take that step if she knew she had enough votes to carry the motion). On the other hand, a formal vote could enable Republicans to extract concessions including the subpoena power, as in the Nixon and Clinton impeachment proceedings.

Even if the House does vote to open a formal inquiry, do not expect the White House to suddenly start complying with House subpoenas. Nowhere in its letter does the White House so promise. And given the White House’s well-established pattern of obstructionism, I’d expect it simply to turn to another basis to fight House subpoenas — executive privilege or absolute immunity, for example. So, while a full House vote would defeat one of the White House’s primary objections, Congressional investigators still would have to overcome other obstacles to obtain evidence from the executive branch.