Constitution gives the House the final word.[1] It would also raise complexities in the case of a President who directed Executive Branch officials to defy House subpoenas—and then used his pardon power to immunize them from contempt orders if instructed by the Judiciary to honor those subpoenas.[2]
To be sure, judicial review may at first blush seem desirable because "it would be an independent determination by an entity with no interest in the proceedings."[3] But as this Committee has noted: "[T]he impeachment process itself provides an opportunity for such a determination— initially by the House in deciding whether to prosecute the Article of Impeachment, and, ultimately, by the Senate, the tribunal for an impeachment trial. Neither the Committee nor the House would be the final judge of the validity of the Committee's subpoenas. Whether noncompliance with the subpoenas is a ground for impeachment would ultimately be adjudicated in the Senate."[4]
Consistent with this understanding of the constitutional plan, the House has never before relied on litigation to compel witness testimony or the production of documents in a Presidential impeachment proceeding.[5] Some members of the Minority have suggested otherwise, but there is no law or practice to support such a theory.[6] As explained above, the history of House impeachment inquiries teaches a single lesson: compliance with subpoenas is the rule, defiance the exceedingly rare (and impeachable) exception. No President has ever issued a blanket ban on compliance with House subpoenas and challenged the House to find a way around his unlawful order. Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review. Indeed, whereas the Minority suggests that recourse to litigation is required, President Trump has repeatedly argued that the House is forbidden to seek judicial enforcement of its subpoenas. In pending lawsuits filed by the House or its Committees, the Justice Department has raised jurisdictional arguments on behalf of President Trump that, if accepted, would hamper or negate the House's ability to enforce subpoenas in court.[7] Those arguments are mistaken and have already been rejected several
- ↑ Id. at 210 ("The Committee concluded that it would be inappropriate to seek the aid of the courts to enforce its subpoenas against the President. 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.").
- ↑ See id. at 212.
- ↑ Id. at 212.
- ↑ Id.
- ↑ In President Nixon's case, the Special Prosecutor subpoenaed certain Oval Office tape recordings and then litigated the President's failure to comply with the subpoena. See United States v. Nixon, 418 U.S. 683, 686 (1974). The Judiciary Committee did not file suit when the President failed to comply fully with its own subpoenas.
- ↑ H. Res. 755, Articles of Impeachment Against President Donald J. Trump: Markup Before the H. Comm. on the Judiciary, 116th Cong. (2019) (Statement of Rep. James Sensenbrenner).
- ↑ Brief for Defendant-Appellant at 14-47, Comm. on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II, No. 19-5331 (D.C. Cir. filed Dec. 9, 2019) (arguing courts lack jurisdiction to adjudicate subpoena enforcement suits by the House and that the House is not even injured for purposes of Article III standing when Executive Branch officials defy subpoenas); Memorandum of Points and Authorities in Support of Defendants' and Defendants-Intervenors' Motion
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