President Trump won’t budge: He refuses to comply with demands for information because the House has not formally voted to conduct an impeachment inquiry.
House Democrats won’t budge: Speaker Nancy Pelosi says nothing requires the House to vote for an impeachment inquiry before conducting one.
So who is right? They both are.
We are an over-lawyered society that likes to see itself as governed by the rule of law. In truth, our fundamental law, the Constitution, is about the division of political authority — particularly between the Congress and the executive, the federal government’s political branches.
The ultimate check on presidential power is impeachment. Article I vests the sole power over impeachment in the House of Representatives. (The Senate is assigned the sole power to conduct impeachment trials and decide whether the president should be removed from office.)
Often overlooked, though, is a critical constitutional check on Congress: It is powerless to enforce its own laws and demands for information. Only the president can execute. Congress needs the executive branch’s cooperation.
When presidents believe congressional actions are unconstitutional, they often refuse to cooperate. Congress may threaten contempt and impeachment, but it cannot make the president comply. Our brows furrow as we try to sort out the legal ramifications of all this. But in the main, the fallout is not a legal dispute; it is a political contest.
The Constitution is designed to promote both cooperation and competition between the political branches. Often, the judiciary stays out of these duels, prudently reasoning that the Framers endowed the executive and the legislature with powerful tools to confront each other.
The political damage sustained by the side that appears to be acting unreasonably becomes a powerful incentive to compromise. Public opinion is the court that matters here.
The president is correct that the Constitution gives the impeachment power to the House of Representatives. The power is not given to the speaker of the House or to a cabal of partisan committee chairmen. It belongs to the House as an institution.
The House acts as an institution by voting. On the matter of conducting an impeachment inquiry, the House has not voted.
This is a cold political calculation by Pelosi.
She knows Democratic control of the House hinges not on the AOC lefties, for whom impeachment is an easy vote; it hinges on about 41 Democrats who hold seats in districts Trump won in 2016. Impeachment is apt to be unpopular among those voters. Democrats who support it may imperil their re-election and party’s majority.
The president’s also right that the Framers worried that impeachment could be invoked out of partisanship rather than truly egregious offenses. Indeed, that’s why a Senate supermajority of two-thirds is required to convict and oust a president.
The idea is to limit impeachment to situations of misconduct so gross that a consensus for removal emerges, cutting across factional lines.
Therefore, Trump has taken a reasonable position that the House’s failure to vote and its unabashedly partisan drive to impeach render the purported impeachment inquiry illegitimate.
Yet, the Constitution’s commitment of impeachment solely to the House’s discretion is a two-edged sword: Yes, it means the House should act as an institution; but it also means no one — not the courts, and certainly not the president — may dictate to the House whether, when and how to conduct an impeachment inquiry.
There is nothing in the Constitution that says the House must vote, or that it cannot act through such standing committees as Intelligence, Foreign Affairs, Oversight and Judiciary. In fact, nothing in the Constitution directs the creation of committees; they exist because Congress, with nearly plenary power over the way it conducts business, created them.
Yet, the House should vote on conducting an impeachment inquiry. It should conduct related hearings in public — since it is not conducting a grand-jury investigation but an exercise in political accountability.
It should afford the president and the Republican minority some due-process rights — e.g., to cross-examine witnesses and subpoena their own.
But no one can make the House do these things. It should do them out of self-interest: Its work will otherwise lack political legitimacy. Just as the president’s failure to cooperate — which could be an impeachable offense — will be punished by voters if it comes to be seen as political, not principled.
Andrew McCarthy’s new bestselling book is “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.”
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