Majority's refusal to engage the Executive Branch in the traditional accommodations process, [1] or seek redress from the Judicial Branch, has rendered this Article as baseless as the first. The system of checks and balances is neither theoretical nor dispassionate; the Founders fully intended to put the three branches in conflict, and expected they would argue self-interestedly for their respective powers.[2] The inclusion of the second Article may be due to the Majority's reticence to propose only a single unsupported Article.
No president has been impeached for obstruction of Congress. The Majority seeks to impeach the President not for violating the Constitution but, instead, for asserting privileges that are part of its very structure. Though Legislative frustration with Executive resistance has previously inspired calls for impeachment and even the drafting of Articles of Impeachment, in this instance, the Majority is rushing to impeachment without attempting to engage available alternative avenues to obtain information. They have failed to do so because the Majority has set an arbitrary, politically-motivated deadline, by which it believes it must finish impeachment. Quite simply, further negotiations or the courts would take too long for the Majority's liking. This situation is truly unprecedented.
The obstruction of Congress allegations in this second Article do not meet the impeachable standard demanded by the Constitution. The Founders intended to create interbranch conflict. The fact that conflict exists here does not mean the President has committed either a high crime or a high misdemeanor. Most significantly, Congress has not pursued any of its many remedies to resolve interbranch disputes.
Congress has legislated remedies for itself to enforce its investigation requests, but it has not pursued those remedies.[3] Congress may also turn to the Judicial Branch to resolve interbranch disputes over subpoenas, as it has done many times in the past.[4] The Majority has neglected to do so. The Majority's claim that the current administration's "total" declination to participate in the effort to unseat him either by the President himself or other Executive Branch officers-is somehow unprecedented is, simply, incorrect.[5] The Majority has engaged in a
- ↑ Cf. U.S. v. Nixon, 418 U.S. 683, 703 (1974) ("In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its power by any branch is due great respect from the others.").
- ↑ The Federalist No. 51 (James Madison) ("This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights...As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.").
- ↑ See, e.g., 2 U.S.C. $ 192.
- ↑ See, e.g., H. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d (D.D.C. 2008).
- ↑ Many presidents have instructed Executive Branch officials not to comply with congressional demands. See Theodore Olson, History of Refusals By Executive Branch Officials to Provide Information Demanded by Congress, Part I, December 14, 1982, 6 Op. Off. Legal Counsel 751. The Olson OLC Opinion describes, for example, President Jackson stating, "It is now, however, my solemn conviction that I ought no longer, from any motive nor in any degree, to yield to these unconstitutional demands. Their continued repetition imposes on me, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive." President Theodore Roosevelt stated,[I have] instructed the Attorney General not to respond to that portion of the resolution which calls for a statement of his reasons for nonaction." And President Eisenhower, in a May 17, 1954, letter to the Secretary of Defense said: "[Y]ou will
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