The Thoughts of an Actual Legal Expert on Impeachment
The White House letter on Tuesday refusing all executive branch cooperation with the ongoing House impeachment inquiry is, simply put, a public relations exercise. The legal arguments it intersperses between insults to members of the House Democratic leadership and appeals to the president’s base voters are without foundation. The errors and mischaracterizations are so numerous that they cannot all be addressed in this space. Instead, I will consider only the fundamental misconceptions at the heart of the White House argument as well as a single illustrative historical incident: the impeachment proceedings against President Andrew Johnson.
The White House justifies its refusal to respond to the House’s investigative demands on three basic grounds: First, it claims that the House impeachment inquiry is “constitutionally invalid” because the full House has not passed a resolution specifically authorizing an impeachment inquiry of this president. Second, it maintains that the House inquiry now underway is illegitimate because it does not afford the president the “due process” rights the letter suggests are required under the Constitution. Third, it asserts that the first two points are established by “every past precedent.” All these assertions are wrong.
First, there is no constitutional requirement that the full House pass a resolution authorizing a formal impeachment inquiry before committees of the House begin gathering evidence of impeachable conduct. The Constitution’s provisions on impeachment are few but clear in their assignment to the House of plenary authority over impeachment and the rules for conducting this and all other elements of its business.
Article I, Section 2 states, “The House of Representatives shall … have the sole Power of Impeachment.” Article I, Section 5 states, “Each House may determine the Rules of its Proceedings.”* In short, the Constitution confers no authority on a president to demand that the House set the rules of impeachment to his liking.
The point is made even clearer by recognition that impeachment is only one of the many powers granted to Congress. Article I, Section 7 confers the power of initiating revenue bills exclusively on the House, while Section 8 lists a cornucopia of powers shared by the House and Senate acting together: the powers to regulate interstate commerce, to lay taxes, to borrow money, to establish a uniform rule of naturalization and uniform rules for bankruptcies, to establish post offices, to raise armies, and on and on. The exercise of all these powers requires collection of information enabling Congress to formulate specific responses—bills in the case of routine legislation or specific charges framed as articles in the case of impeachment.
The Constitution no more requires the House to pass a special resolution to gather facts relevant to a particular potential impeachment than it requires a special resolution of the whole House before a committee may gather facts related to legislation on interstate commerce, taxation, or establishing a post office.
The White House is correct that in the three main presidential impeachment controversies—Andrew Johnson, Richard Nixon, and Bill Clinton—the House chose to pass such resolutions, largely in recognition of the solemnity of the undertaking. But there is no constitutional warrant for the idea that such a resolution is required. Again, the Constitution makes the House the sole arbiter of its own rules.
The second White House argument, that the ongoing House impeachment inquiry is constitutionally illegitimate for lack of a list of particular “due process” protections, is even more specious. To begin, in the only Supreme Court ruling bearing on the question, the court found in Nixon v. United States that challenges to the procedures of a Senate impeachment trial are non-justiciable—in other words, a matter not to be resolved by the courts. (The 1993 judgment by the court involved the impeachment of Judge Walter Nixon, not President Richard Nixon.)
Judge Walter Nixon argued unsuccessfully that, because Article I, Section 3 confers on the Senate the sole power to “try” impeachments, the full Senate must sit and conduct a proceeding with all the trappings of a formal court trial. While Justices Byron White and David Souter intimated in concurrence that some minimal procedures might be implied by the mention of a trial, the suggestion was, at best, dicta.* But that’s the Senate in any case. Critically, there is not a hint that that the court would presume to decree a specific list of required procedures for the far different House process of approving articles of impeachment. Indeed, the Constitution’s explicit commitment that the House has the “sole power of impeachment” leads to the same conclusion: The procedures are, in essence, for the House to decide.
What’s more, as any lawyer knows, “due process” is an almost infinitely malleable phrase. The process due in one kind of proceeding will be quite different than that in another kind of proceeding. Even if there were some requirement of “due process” before the House could vote out articles of impeachment, one would need to consider carefully what the House is charged by the Constitution to do. The House’s constitutional function is merely to approve charges, not to adjudicate them. Thus, the legal procedure to which the duties of the House are most analogous is the process by which grand juries approve indictments.
The White House demands that the House afford Trump the rights to confront witnesses, call witnesses, and be represented by counsel. And it claims that unless the House yields to these demands, the whole procedure is constitutionally invalid and can be ignored with impunity. But of course, thousands of defendants are indicted every day by federal grand juries, in trials where those defendants have no right to call or confront witnesses or be represented by counsel. To suggest that “due process” requires that a president facing only loss of office get more rights at the accusatory stage than a criminal defendant facing loss of liberty or even life is not only constitutionally unsupportable, but ludicrous.
Finally, the White House proclaims that its demands for specific rules and “due process” procedures are supported by “every past precedent,” a phrase it places in bold italics. This is, not to put too fine a point on it, untrue.
Historical examples are too numerous to mention here, so I will focus on the impeachment of Andrew Johnson.
The House made two efforts to impeach Johnson. The first began in November 1867. It did commence with a resolution charging a committee to perform an inquiry, but the committee’s work was performed ex parte. That is, the only persons present were the members of the committee (or in one case another congressman, Ben Butler, who was not a member of the committee) and the witnesses. The president was neither represented, nor did he present witnesses.
The first impeachment effort failed in December 1867, after the Judiciary Committee first rejected and then approved recommending impeachment, and the full House voted against impeaching Johnson 108–57. A new impeachment drive commenced in early 1868. The development that revitalized the effort was Johnson’s firing of Secretary of War Edwin Stanton in violation of the Tenure of Office Act. Here is the timeline of what followed.
On Feb. 21, 1868, Johnson fired Stanton. On the same day, a letter from Stanton advising the House of the firing was referred to the Committee on Reconstruction (not, you will note, the Judiciary Committee). On Feb. 22, the Committee on Reconstruction sent to the full House a report and supporting documents recommending that Johnson be impeached. On Feb. 24, the full House voted to impeach Johnson with the proviso that it would draft articles of impeachment formalizing the charges in short order.
The task of drafting the articles was delegated to a special committee, which returned five days later, on Feb. 29, with proposed articles. Meanwhile, the full House had passed a special resolution limiting floor debate in the full House on any proposed articles to 15 minutes for the majority and minority members of the committee, with an additional five minutes per member as to any amendments proposed on the floor. The express purpose of the resolution was, as Hinds’ Precedents puts it, “to prevent obstructive action on the part of the minority.” On March 2, 1868, nine days after Johnson fired the secretary of war, the House of Representatives approved articles of impeachment and conveyed them to the Senate. So far as can be determined, none of the “due process” measures the Trump White House claims to be constitutional prerequisites of a valid impeachment proceeding were employed.
Now, one may consider the management of the Johnson impeachment inquiry to have been overly expeditious, even unseemly. But that’s what happened. And there is no serious question that the House had the constitutional authority to act as it did.
Later impeachments, whether of judges, presidents, or in one case a Cabinet officer, employed various procedures depending on the times and circumstances. But the point is that the House was at constitutional liberty to adopt whatever rules it thought appropriate. That remains true today.
The bottom line is that the White House letter is neither more nor less than a list of invalid excuses to defy the legislative branch in its exercise of a power expressly granted by the Constitution. Such defiance cannot go unanswered if our constitutional system is to prevail.