Unless one side or the other backs down in some way, the demands by means of subpoena by key House Democrats for Executive and related communications could result in Supreme Court action. A subpoena was sent to Giuliani 16 days ago with a deadline, now passed, of October 15. Giuliani is on record as refusing to comply. Giuliani’s letter to Congress gives his legal position. He incorporates the letter of Mr. Cipollone of Oct. 8, 2019.
One possible resolution in which the House Democrats back down is for them to declare Giuliani in contempt. They would then take the refusal to answer the subpoena as evidence of obstruction. Their letter to Giuliani explicitly threatens this course of action, stating
“Your failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against you and the President.”
But what if that impeachment inquiry is not actually a House effort? What if it’s being conducted as a partisan effort? What if it’s both unfair and unconstitutional by virtue of being a partisan Democrat inquiry that’s suppressing the Republican side?
According to the Constitution, in Article 1, Section 2, Clause 5, “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” The House is a body. It is a whole, an undivided whole for purposes of its official and legal actions. Only the House can pass legislation. The Constitution empowers the House of Representatives. Furthermore, it says explicitly that “The House of Representatives shall be composed of Members…” This clearly means all of its members. The House of Representatives is a body of all the elected Representatives. When it comes to legally constitutional actions to be enacted or passed, the House is not a person, a committee, a sub-committee, a Speaker, an Officer or Officers, a collection of members of a given party, or any other sub-group that is less than the entire body.
Notice that the threats contained in the letter sent to Giuliani rely upon “the House’s impeachment inquiry…” It is agreed by all that an “inquiry” is not a resolution. Further, it is clear that the initiation of impeachment may have any number of sources:
“The Constitution does not specify how impeachment proceedings are to be initiated. Early in our history, a Member would rise on the floor of Congress and propose an impeachment, which would then be assigned to a committee. In recent years, Members of the House Judiciary Committee have initiated the proceeding and then made recommendations for the whole House’s consideration.”
An inquiry precedes a recommendation for an indictment, which takes the form of a resolution of the House and articles of impeachment. The key contentious issue between the House Democrats and the White House is in the manner in which this potential indictment is formed. How is the inquiry to be conducted? What will be the rules followed? How will due process of law be implemented so as not to violate the constitutional rights of the accused?
Since the House is the body that’s forming a possible indictment and also the body that will vote on it and its component articles (if amendments to it are allowed), the conduct of the inquiry, its procedures, are likewise the responsibility of the House. This means that unless any Democrat-controlled inquiry provides the Republicans with a host of powers, the House as a body is not being allowed to act. The inquiry is then a one-sided partisan deal. This becomes unconstitutional because during the inquiry and before a vote, only a portion of the House is acting as if it were the entire House. In the committees gathering testimony, House Republicans want subpoena power and the power to call witnesses.
The Cipollone letter goes further. It asserts the due process rights of the Executive:
“…right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry.”
Must a House inquiry conform to these rights, or are they to be denied? This is a constitutional question. At some stage in the process, due process of law does entail procedures such as those mentioned in this quote. But when? The earlier in the process of inquiry, the better. The reason is to minimize the effects of disinformation. Disinformation undermines due process of law. We live in a political world of selective leaks, unsupported accusations, slander, libel, attacks, innuendoes, exaggerations and partisan interpretations. This is definitely the case already with the Democrat-controlled calling of witnesses who testify behind closed doors, and with the denial to Republicans of opportunities to call witnesses and subpoena materials.
Superficially, a House impeachment is often said to be like a Grand Jury proceeding and indictment. In the latter, the defense has no access to the indictment procedures. Due process rights come in later, in the trial.
However, there are several big differences between the House and a Grand Jury. First, the House proceedings cannot be kept secret; there are always leaks. This is already happening, as with Fiona Hill’s testimony and as with leaks about those parties involved in leaking the Trump-Zelensky conversation. The leaks influence opinion, both of members of Congress and the public, especially when they are selective and then interpreted for political advantage. Transparency and open hearings are the remedy for this problem.
A second big difference is that a Grand Jury hearing is generally not a political matter. There is one prosecutor, whose political party is not supposed to make a difference in forming an indictment. Any House inquiry, however, involves two opposing political parties. Impeachment is highly political, and this impeachment commotion could not be more political. This impeachment inquiry is partisan and unfair. That being the case, the remedies are to afford both parties the same powers to call witnesses and subpoena materials, and to conduct the inquiries in public.
What we really need and have not gotten are extensive hearings along the lines of the Watergate hearings, open hearings that build upon thorough investigations that go back to the very earliest beginnings of Russiagate.11:47 am on October 16, 2019 Email Michael S. Rozeff