The risk of not pursuing an impeachment inquiry

As House Democrats wrestle with the question of whether to begin an impeachment inquiry, they need to consider the danger failing to do so poses to congressional oversight authority.

That was made clear on Wednesday when President Donald Trump declared that he could not work with Democrats as long as Congress continues to exercise its oversight of his administration, calling it “phony investigations.”

In response, House Speaker Nancy Pelosi, who has pushed back against calls for impeachment from members of her Democratic caucus, said Trump is obstructing justice and that his actions amount to an impeachable offense.

That was bracketed by favorable rulings on the release of Trump’s tax returns and his financial records by federal courts this week. But that should not obscure the risks congressional oversight faces from a Supreme Court deeply skeptical of Congress.

An impeachment inquiry most likely would help the House obtain favorable rulings to overcome the administration’s stonewalling, as conservative judges recognize the need to investigate in the impeachment context.

There are signs the House understands that an impeachment inquiry would bolster the case for judicial enforcement of subpoenas. The resolution seeking a contempt citation against Attorney General William Barr for failing to provide the unredacted Robert Mueller report mentions determining “whether to approve articles of impeachment” against Trump and other officials as one of the purposes of the Judiciary Committee investigation now underway.

Outside the impeachment context, congressional investigatory authority stems primarily from the need to write informed legislation. Treasury Secretary Steve Mnuchin has challenged the constitutional authority of Congress to subpoena tax returns, saying the request “lacks a legitimate legislative purpose.” Claims that the investigation of Trump’s misconduct significantly aids legislation will likely strike conservative judges as weak.

There is plenty of room for judges’ respect for impeachment and disrespect for the use of misconduct investigations outside that context to influence their rulings on requests to enforce subpoenas. The precedent on grand jury materials recognizes the need to release them to support an impeachment inquiry, but not to support oversight outside of that context. The Watergate case U.S. v. Nixon subjects executive privilege claims to a balancing test that weighs the institutional interests in disclosure against the need to safeguard candid advice to the president. Judges will give more weight to interests in making an impeachment decision than to claims that investigation of Trump’s misconduct will somehow aid legislation.

Indeed, given the creativity Supreme Court justices have shown in advancing pro-presidential legal theories, the House places its subpoena powers at risk if it proceeds without an impeachment predicate, despite all the precedent in its favor. This court might create constitutional law protecting the executive branch from “encroachment” by limiting statutory authority to investigate the executive branch outside the impeachment context. Impeachment-related subpoenas reduce the risk of more constitutional innovation tilting the equilibrium of power still further toward the president.

Now that the House Judiciary Committee has all but acknowledged an impeachment inquiry is underway, House leadership needs to embrace the inquiry. They must explain to the public why Trump’s conduct merits that action. And they need to fight Trump’s concerted effort to destroy checks and balances without tying one hand behind their backs.

David M. Driesen is a professor at the Syracuse University College of Law.