OfTheCross
Veteran
The House Should Pause Impeachment
A Different Path: Pause and Gather Power
The House could immediately vote for subpoenas for testimony, and subpoenas duces tecum for documents, from the Cabinet level officials and former officials who are likeliest to possess first-hand knowledge of the president’s actions and state of mind. That includes the same witnesses Schumer identified in his letter. The refusal of these current and former officials to comply with such demands can be taken to the federal courts in the District of Columbia. That Congress has power to enforce its subpoenas is clear (see the exhaustive treatment in the Cornell Law Review, Congress’s (Limited) Power to Defend Itself in Court by Grove and Devins). A clear federal statute (28 U.S.C. 1361) confers mandamus jurisdiction to compel officials to comply for which Rule 81(b) of the Federal Rules of Civil Procedure supplies procedures.
Even if the district court were to slow walk the proceedings, there is good reason to believe that the DC Circuit Court would entertain an expedited appeal. If the President thinks the conservative majority of the U.S. Supreme Court will protect him and overrule U.S. v. Nixon’s recognition of a sharply qualified privilege of executive immunity, he has been sadly misinformed. Whatever the parameters of executive privilege are after the Nixon case, they do not support absolute immunity from testimony before Congress. Moreover, the constitutional investigative powers of the House are at their zenith in an impeachment inquiry following the adoption of a resolution authorizing such investigations like the one passed in November, and thus Congress’ chances of success in the courts are now at their highest.
Resort to the courts may take many weeks, but there is no reason it would take many months. The ultimate guidance given the parties—as in the Nixon case—can preclude endless re-litigation.
Success in getting a judicial order to produce documents and testimony is the only way to overcome the partisan impasse we currently face. The only possibility left lies in public attention, which will be substantial when Secretaries Pompeo and Perry, chiefs of staff Mulvaney and Kelly, national security adviser Bolton, White House Counsel McGahn and the president’s lawyer Giuliani are compelled to testify under oath. Some of these individuals are known to have had direct conversations with the president about Ukraine; others are knowledgeable about the president’s alleged obstructions that predate the Ukraine matter. Pausing now may afford other pieces of the story to fall into place.
What’s more, action by the courts broadens the legitimacy of the inquiry beyond the acts of one highly partisan body of one branch of the government.
A Different Path: Pause and Gather Power
The House could immediately vote for subpoenas for testimony, and subpoenas duces tecum for documents, from the Cabinet level officials and former officials who are likeliest to possess first-hand knowledge of the president’s actions and state of mind. That includes the same witnesses Schumer identified in his letter. The refusal of these current and former officials to comply with such demands can be taken to the federal courts in the District of Columbia. That Congress has power to enforce its subpoenas is clear (see the exhaustive treatment in the Cornell Law Review, Congress’s (Limited) Power to Defend Itself in Court by Grove and Devins). A clear federal statute (28 U.S.C. 1361) confers mandamus jurisdiction to compel officials to comply for which Rule 81(b) of the Federal Rules of Civil Procedure supplies procedures.
Even if the district court were to slow walk the proceedings, there is good reason to believe that the DC Circuit Court would entertain an expedited appeal. If the President thinks the conservative majority of the U.S. Supreme Court will protect him and overrule U.S. v. Nixon’s recognition of a sharply qualified privilege of executive immunity, he has been sadly misinformed. Whatever the parameters of executive privilege are after the Nixon case, they do not support absolute immunity from testimony before Congress. Moreover, the constitutional investigative powers of the House are at their zenith in an impeachment inquiry following the adoption of a resolution authorizing such investigations like the one passed in November, and thus Congress’ chances of success in the courts are now at their highest.
Resort to the courts may take many weeks, but there is no reason it would take many months. The ultimate guidance given the parties—as in the Nixon case—can preclude endless re-litigation.
Success in getting a judicial order to produce documents and testimony is the only way to overcome the partisan impasse we currently face. The only possibility left lies in public attention, which will be substantial when Secretaries Pompeo and Perry, chiefs of staff Mulvaney and Kelly, national security adviser Bolton, White House Counsel McGahn and the president’s lawyer Giuliani are compelled to testify under oath. Some of these individuals are known to have had direct conversations with the president about Ukraine; others are knowledgeable about the president’s alleged obstructions that predate the Ukraine matter. Pausing now may afford other pieces of the story to fall into place.
What’s more, action by the courts broadens the legitimacy of the inquiry beyond the acts of one highly partisan body of one branch of the government.
fukk a flynn.
