If the Democrats are not allowing Republican committee members equal questioning time or the ability to call their own witnesses, that would appear to violate Rule XI, clause 2(j). Yes, technically the House can change its own rules for this inquiry in particular. It would lose the semblance of bipartisanship, but it is still constitutional as far as I can tell. But the relevant rules haven’t changed with the incoming 116th Congress, so if the Republican minority is being denied equal questioning time and the ability to call their own witnesses, not only are Democrats appearing partisan, they are also violating their own rules.
Or perhaps the rules have changed. H.Res.6 sec. 103(a), passed in January, gives the chair of every standing committee (other than the Committe on Rules), and the chair of the Permanent Select Committee on Intelligence (Mr. Schiff), with mere consultation of the minority ranking member, the power to order the taking of depositions pursuant to subpoena. If that’s the rule being used/abused, it’s new.
Regarding the actual subpoena power, both the Nixon and Clinton impeachment inquiries the relevant committees allowed the minority party to issue subpoenas. The cites are in the letter and those resolutions were specifically adopted for the Judiciary committee’s impeachment inquiries. If the general subpoena power has changed in the meantime, that does not diminish the fact that this inquiry would be breaking a pattern of deference to the minority party during presidential impeachment inquiries.
The president need not comply. He is under no obligation to do any such thing, even if Congress unanimously ordered the President to produce some document, the President is within his power to refuse that order on even the flimsiest of grounds until the courts strike down those grounds. But I doubt the Supreme Court will attempt to compel the President to do anything. They might resolve a controversy or question of law between the branches, but that’s it. Notably, the Congress is also free to impeach and convict the president for refusing a lawful order.
Right, I agree with you there. I had assumed that the witnesses want the agency’s lawyers, if they want and are allowed to bring their own lawyers then the agency lawyers are unnecessary.
Aside from House Rule XI clause 2 (k)(3) which guarantees all witnesses the right to an attorney of their choice, we have the Fifth Amendment right to due process. This requires that the witness is told their rights, and the scope of what he is required to answer. Although due process alone does not require the presence of a lawyer during testimony, it would be reasonable to have one on hand.
During Congressional testimony, it is a crime to refuse to answer “any question pertinent to the question under inquiry”. 2 U.S.C. § 192. The witness has “the right to have available, through a sufficiently precise statute, information revealing… the pertinency of the questions propounded to the witness”. Also, he “must decide at the time the questions are propounded whether or not to answer. As the Court said in Sinclair v. United States, the witness acts at his peril… An erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule that the questions were pertinent to the question under inquiry.” Watkins v. United States, 354 U.S. 178, 208 (1957).
Certainly it is enough to tell the witness their rights, the scope of the inquiry, and that it is a crime to refuse pertinent questions. But it still makes a lot of sense (would be prudent) to let the witness bring a lawyer in to help them make that determination, as each question comes, as to whether he must answer the question.
Add in the additional possibility that the witness will be asked questions that may or may not invoke executive privilege or national security or a variety of other concerns, and that the witness is not the whistleblower and is on the President’s side, and it makes sense for the witness to want an agency lawyer.
Congress can sue witnesses who invoke the fifth amendment right against self-incrimination. They can reject the privilege claimed and argue in court that it is invalid. Quinn v. United States, 349 U.S. 155 (1955). Technically, Congress could arrest and jail the witness on their own authority until the end of the legislative session. Anderson v. Dunn, 19 U.S. 204 (1821). That would probably be subject to habeas corpus, though.
You seem to be begging the question. Did the House of Representatives, as a matter of fact, authorize the relevant committees to subpoena the administration for the stated reason, “as part of the House’s impeachment inquiry”?
The Constitution doesn’t say that a Committee gets to decide the rules in the House of Representative. The word of one or three committee chairs, or even the Speaker of the House, does not constitute prima facie evidence that they have the full backing of the House of Representatives as an institution, especially in such a politically sensitive case as the impeachment of the President. The constitution says that the House decides its own rules, and the House rules - approved by a House vote each legislative session - say that committees can only issue subpoenas “For the purpose of carrying out any of its functions and duties” under rules X, XI, and XII.
The cited October 4 subpoena was signed by the chairs of three committees:
[ul][li]Elijah E. Cummings, Chairman of the House Committee on Oversight and Reform[/li][li]Adam Schiff, Chairman of the House Permanent Select Committee on Intelligence[/li][li]Eliot L. Engel, Chairman of the House Committee on Foreign Affairs[/ul][/li]The subpoena was ultimately “issued by the Committee on Oversight and Reform under the Rules of the House of Representatives in exercise of its oversight and legislative jurisdiction”. That committee’s jurisdiction is specified in House Rule X, clause 1(n), reproduced in the spoiler below:
A matter is then said to be “referred” to the committee of proper Rule X, clause 1 jurisdiction by the Speaker of the House, pursuant to Rule XII, clause 2:
The question is this, did Speaker Pelosi refer the matter of impeaching the President to a committee or committees? There is some precedent in referring an investigation, in that the first attempt to impeach President Johnson was made by indirectly requesting an ad-hoc committee investigate the administration (Hinds III, § 2399, 822-823). Or are they trying (as it would appear) to fit the impeachment inquiry into their jurisdiction over the “[f]ederal civil service”? That flies in the face of precedent (re: Nixon and Clinton, cites in White House letter), which seems to imply that the House Judiciary Committee has jurisdiction over impeachment inquiries.