1. Constitutional Authority for Congressional Oversight and Impeachment
Article I of the Constitution vests in the House of Representatives the" sole Power of Impeachment.'' Congress is to conduct oversight and investigations in support of its Article I powers. The Supreme Court-- and previous Presidents-- have acknowledged these
The House 's Constitutional and legal to conduct an impeachment inquiry is clear, as is the duty of the President to cooperate with the House 's exercise of this . The Constitution vests in the House of Representatives the" sole Power of Impeachment'' as well as robust oversight powers. As the Founders intended, the courts have agreed, and prior Presidents have acknowledged, the House 's sweeping powers to investigate are at their peak during an impeachment inquiry of a President. Congress has also enacted statutes to support its power to investigate and oversee the Executive Branch.
Unlike President Donald J. Trump, past Presidents who were the subject of impeachment inquiries acknowledged Congress ' to investigate and-- to varying degrees-- complied with information requests and subpoenas. Even so, the House has previously determined that partial noncooperation can serve as a ground for an article of impeachment against a President as it would upend the separation of powers to allow the President to dictate the scope of an impeachment inquiry. When President Richard Nixon withheld tape recordings and produced heavily edited and inaccurate records, the House Judiciary Committee approved an article of impeachment for obstruction.
Constitutional Power of Congress to Investigate-- and to Impeach
Article I of the U.S. Constitution gives the House of Representatives the" sole Power of Impeachment.'' The Framers intended the impeachment power to be an essential check on a President who might engage in corruption or abuse power. For example, during the Constitutional Convention, George Mason stated:
No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? ... Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?
Congress is empowered to conduct oversight and investigations to carry out its under Article I. 3 In light of the core nature of the impeachment power to the nation 's Constitutional system of checks and balances, Congress ' investigative is at its zenith during an impeachment inquiry.
As the House Judiciary Committee explained during the impeachment of President Nixon:
Whatever the limits of legislative power in other contexts-- and whatever need may otherwise exist for preserving the confidentiality of Presidential conversations-- in the context of an impeachment proceeding the balance was struck in favor of the power of inquiry when the impeachment provision was written into the Constitution.
This conclusion echoed an early observation on the floor of the House of Representatives that the" House possessed the power of impeachment solely, and that this certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect.''
The House 's" sole Power of Impeachment'' is the mechanism provided by the Constitution to hold sitting Presidents accountable for serious misconduct. The Department of Justice has highlighted the importance of the impeachment power in justifying the Department 's view that a sitting President can not be indicted or face criminal prosecution while in office. The Department 's position that the President is immune from prosecution has not been endorsed by Congress or the courts, but as long as the Department continues to refuse to prosecute a sitting President, Congress has a heightened responsibility to exercise its impeachment power, if necessary, to ensure that no President is" above the law.''
The Supreme Court has recognized that Congress has broad oversight under the Constitution to inquire about a wide array of topics, even outside the context of impeachment:
The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.
The Supreme Court has made clear that Congress ' to investigate includes the to compel the production of information by issuing subpoenas ,10 a power the House has delegated to its committees pursuant to its Constitutional to" determine the Rules of its Proceedings.''
The Supreme Court has affirmed that compliance with Congressional subpoenas is mandatory:
It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.
Federal courts have held that the" legal duty'' to respond to Congressional subpoenas extends to the President 's" senior-level aides'' and that the failure to comply violates the separation of powers principles in the Constitution. As one court recently explained:
[ W] hen a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly investigation, it has the Constitution 's blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States. If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary, take corrective action. Conducting investigations is the means that Congress uses to carry out that constitutional obligation. Thus, blatant defiance of Congress ' centuries-old power to compel the performance of witnesses is not an abstract injury, nor is it a mere banal insult to our democracy. It is an affront to the mechanism for curbing abuses of power that the Framers carefully crafted for our protection, and, thereby, recalcitrant witnesses actually undermine the broader interests of the People of the United States.
Laws Passed by Congress
Congress has enacted statutes to support its power to investigate and oversee the Executive Branch. These laws impose criminal and other penalties on those who fail to comply with inquiries from Congress or block others from doing so, and they reflect the broader Constitutional requirement to cooperate with Congressional investigations. For example:
• Obstructing Congress: Obstructing a Congressional investigation is a crime punishable by up to five years in prison. An individual is guilty of obstruction if he or she" corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede'' the" due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House.''
• Concealing Material Facts: Concealing information from Congress is also punishable by up to five years in prison. This prohibition applies to anyone who" falsifies, conceals, or covers up'' a" material fact'' in connection with" any investigation or review, conducted pursuant to the of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.'' • Intimidating and Harassing Witnesses: Intimidating witnesses in a Congressional investigation is a crime punishable by up to twenty years in prison. This statute applies to anyone who" knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person,'' with the intent to" influence, delay, or prevent the testimony of any person in an official proceeding.'' An individual who" intentionally harasses another person and thereby hinders, delays, prevents, or dissuades'' a person from" attending or testifying in an official proceeding'' is also guilty of a crime punishable by fines and up to three years in prison.
• Retaliating Against Employees Who Provide Information to Congress: Employees who speak to Congress have the right not to have adverse personnel actions taken against them. Retaliatory actions taken against Executive Branch employees who cooperate with Congress may constitute violations of this law .19 Any Executive Branch official who" prohibits or prevents'' or" attempts or threatens to prohibit or prevent'' any officer or employee of the federal government from speaking with Congress could have his or her salary withheld.
Precedent of Previous Impeachments and Other Investigations
Unlike President Trump, past Presidents who were the subject of impeachment inquiries-- including Presidents Andrew Johnson, Richard Nixon, and Bill Clinton-- acknowledged Congress ' to investigate and, to varying degrees, complied with information requests and subpoenas.
For example, President Johnson complied with the House 's requests for information. According to a report subsequently adopted by the House Judiciary Committee," There is no evidence that Johnson ever asserted any privilege to prevent disclosure of presidential conversations to the Committee, or failed to comply with any of the Committee 's requests.''
Similarly, President Clinton provided written responses to 81 interrogatories from the House Judiciary Committee during the House 's impeachment inquiry.
Even President Nixon agreed to let his staff testify voluntarily in the Senate Watergate investigation, stating:" All members of the White House Staff will appear voluntarily when requested by the committee. They will testify under oath, and they will answer fully all proper questions.'' As a result, numerous senior White House officials testified, including White House Counsel John Dean III, White House Chief of Staff H.R. Haldeman, Deputy Assistant to the President Alexander Butterfield, and Chief Advisor to the President for Domestic Affairs John D. Ehrlichman. President Nixon also produced numerous documents and records in response to the House 's subpoenas as part of its impeachment inquiry, including more than 30 transcripts of White House recordings and notes from meetings with the President.
However, President Nixon 's production of documents was incomplete. For example, he did not produce tape recordings, and transcripts he produced were heavily edited or inaccurate. President Nixon claimed that his noncompliance with House subpoenas was necessary to protect the confidentiality of Presidential conversations, but the House Judiciary Committee rejected these arguments and approved an article of impeachment for obstruction of the House 's impeachment inquiry.
In a letter to President Nixon, Judiciary Committee Chairman Peter Rodino explained that it would upend the separation of powers to allow the President to dictate the scope of an impeachment inquiry:
Under the Constitution it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version or portion of that evidence, is relevant and necessary to such an inquiry. These are matters which, under the Constitution, the House has the sole power to determine.
Consistent with that long-settled understanding, other Presidents have recognized that they must comply with information requests issued in a House impeachment inquiry. In 1846, for example, President James Polk stated in a message to the House:
It may be alleged that the power of impeachment belongs to the House of Representatives, and that with a view to the exercise of this power, that House has the right to investigate the conduct of all public officers under the government. This is cheerfully admitted. In such a case, the safety of the Republic would be the supreme law; and the power of the House in the pursuit of this object would penetrate into the most secret recesses of the executive departments. It could command the attendance of any and every agent of the government, and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to all facts within their knowledge.
Past Presidents have also produced documents and permitted senior officials to testify in connection with other Congressional investigations, including inquiries into Presidential actions.
For example, in the Iran-Contra inquiry, President Ronald Reagan 's former National Security Advisor, Oliver North, and the former Assistant to the President for National Security Affairs, John Poindexter, testified before Congress. President Reagan also produced" relevant excerpts of his personal diaries to Congress.''
During the Clinton Administration, Congress obtained testimony from top advisors to President Clinton, including Chief of Staff Mack McLarty, Chief of Staff Erskine Bowles, White House Counsel Bernard Nussbaum, and White House Counsel Jack Quinn.
Similarly, in the Benghazi investigation, led by Chairman Trey Gowdy, President Barack Obama made many of his top aides available for transcribed interviews, including National Security Advisor Susan Rice and Deputy National Security Advisor for Strategic Communications Benjamin Rhodes. The Obama Administration also produced more than 75,000 pages of documents in that investigation, including 1,450 pages of White House emails containing communications of senior officials on the National Security Council.