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- Congress Can Exercise Its Broad Oversight Authority: According to Mr. Cipollone, "you simply cannot expect to rely on oversight authority to gather information for an unauthorized impeachment inquiry that conflicts with all historical precedent and rides roughshod over due process and the separation of powers."100 But, of course, the present impeachment inquiry does neither. Moreover, the Supreme Court has made clear that Congress' "power of inquiry" is "as penetrating and farreaching as the potential power to enact and appropriate under the Constitution."101 The subject matter of the impeachment inquiry implicates the House's impeachment-specific as well as legislative and oversight authorities and interests. The activity under investigation, for instance, relates to a broad array of issues in which Congress has legislated and may legislate in the future, including government ethics and transparency, election integrity, appropriations, foreign affairs, abuse of power, bribery, extortion, and obstruction of justice. In fact, Members of Congress have already introduced legislation on issues related to the impeachment inquiry.102 The House does not forfeit its Constitutional authority to investigate and legislate when it initiates an impeachment inquiry. 103 Congress passed sweeping legislative reforms following the scandal over the Watergate break-in and President Nixon's resignation. 104
- "Confidentiality Interests" Do Not Eliminate Congress' Authority: According to Mr. Cipollone, the Administration would also not comply with the Committees' demands for documents and testimony because of unspecified Executive Branch "confidentiality interests."105 There is no basis in the law of executive privilege for declaring a categorical refusal to respond to any House subpoena. In an impeachment inquiry, the House's need for information and its Constitutional authority are at their greatest, and the Executive's interest in confidentiality must yield. Only the President can assert executive privilege, yet he has not done so in the House's impeachment inquiry. Prior to asserting executive privilege, the Executive Branch is obligated to seek to accommodate the legitimate informational needs of Congress, which, as discussed below, it has not done.106 In any event, much of the information sought by the Committees would not be covered by executive privilege under any theory,107 and the privilege-where validly asserted on a particularized basis and not outweighed by the legitimate needs of the impeachment inquiry-would protect any legitimate Executive Branch interest in confidentiality.108
- President's Top Aides Are Not "Absolutely Immune": According to Mr. Cipollone, the President's top aides are "absolutely immune" from being compelled to testify before Congress.109 This extreme position has been explicitly and repeatedly rejected by Congress-which has received testimony from senior aides to many previous Presidents-and by federal courts. In 2008, a federal court rejected an assertion by President George W. Bush that White House Counsel Harriet Miers was immune from being compelled to testify, noting that the President had failed to identify even a single judicial opinion to justify his claim.110 On November 25, 2019, another federal judge rejected President Trump's claim of absolute immunity for former White House Counsel Don McGahn, concluding: "Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings," and that "Executive branch officials are not absolutely immune from compulsory congressional process-no matter how many times the Executive branch has asserted as much over the years-even
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