Q&A of the Day – How an Impeachment Inquiry Works
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Today’s Entry: Brian, a little help here. What I’m unclear on is the change in investigative authority with an “Impeachment Inquiry” as opposed to the House Oversight’s existing role in the investigation. What actually changes with this designation?
Bottom Line: In answering this question I’ll start by taking a step back to discuss what an impeachment inquiry actually is. Though we experienced two impeachment processes in recent years, as House Democrats twice impeached President Trump, only one of those two impeachment proceedings included a formal inquiry process. The first impeachment, over the alleged pressure applied by Trump to Ukrainian President Zelenskyy to investigate the very corruption allegations Joe Biden is now being investigated for in the House, included a formal impeachment inquiry process preceding the formal impeachment proceedings in the House. The second impeachment, over Trump’s alleged role in the January 6th riot at the Capital did not. The distinction between the two helps to explain the relevance of an impeachment inquiry. In the first protracted impeachment process there was an investigation, a trial and an impeachment vote. In the second impeachment process there was no investigation, and thus no impeachment inquiry. The House opted only for only presenting publicly available footage and moving straight to a vote. The process undertaken by House Speaker Kevin McCarthy follows the processes undertaken in the Bill Clinton impeachment proceedings and in the first Trump impeachment. In terms of what the official inquiry actually changes...
On the surface there may not appear to be much of a difference between the House Oversight and Judiciary committees' investigations into Joe and Hunter Biden’s alleged pay-for-play foreign business dealings to date with the impeachment inquiry. And actually, in the day-to-day there may not be. The House retains full subpoena authority to obtain records at their request under Article I, Section 6 of the United States Constitution. Given that constitutional authority any committee investigation may subpoena all records requests that they have pertaining to an open investigation. This is something that the House investigative committees have regularly been doing to date to obtain the information that’s led this to this stage of the investigation. You might ask what then is the benefit of an Impeachment Inquiry?
Throughout the course of the investigative process thus far you’ve likely heard of numerous occasions on which the Biden Administration, the DOJ and IRS specifically, have stonewalled records requests made by the House investigative committees. While the House retains subpoena authority, the Executive Branch is a coequal branch of government and retains its own Constitutionally protected authority. Included within that authority are matters pertaining to executive privilege, the right to protect ongoing investigations, etc. In the event that the House issues a subpoena that’s refused by the Executive Branch in the name of its Constitutional authority, it’s a matter that’s settled by the Judicial Branch. While it’s possible that the House may win its appeal without an Impeachment Inquiry, an argument which has previously and successfully been used by previous administrations, is that if Congress’ request for information was so great such that it superseded the authority of a coequal branch of government, why wasn’t there a formal inquiry into the matter? In other words, the level of seriousness in the investigation carries legal weight. Enter the Impeachment Inquiry.
The Constitutional authority of the impeachment process is the most powerful check provided to Congress on the Executive Branch. The formal inquiry process legally creates a “tie goes to the runner” (to borrow a baseball analogy) effect, with the House being the runner, in disputes of requested material for an investigation. This level of authority of Congressional subpoena power has been legally tested and as recently as 1975 the United States Supreme Court ruled: The power to investigate and to do so through compulsory process plainly constitutes an indispensable ingredient of lawmaking. The subpoena (is) immune from judicial interference. What this means is that the House not only retains the authority to see to it that their subpoenas are adhered to, but that lower courts lack the authority to attempt to thwart the process if legally challenged by the Executive Branch.
All of this serves to speed up the process by which the investigation can take place while limiting the ability of the Biden Administration to use legal maneuvers to slow walk or stop the investigation.