# The Trump Impeachment Inquiry **URL:** \ **Category:** Politics & Elections\ **Created:** [September 24, 2019, 8:23pm UTC](https://boards.straightdope.com/t/the-trump-impeachment-inquiry/840771 "2019-09-24T20:23:47Z")\ **Posts on this page:** 1\ **Showing post:** 2297
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 9, 2019, 9:32pm UTC](https://boards.straightdope.com/t/the-trump-impeachment-inquiry/840771/2297 "2019-10-09T21:32:38Z")
> [@Left\_Hand\_of\_Dorkness](#): > > How do you respond to the points that: > a) these subpoena rules were adopted under Republican control of Congress, so it’s hardly Democratic partisanship to continue under them–arguably it’s a rare moment of bipartisanship to have both sides agree to the same rules; and [House Rule XI, clause 2](https://www.govinfo.gov/app/details/HMAN-116) > [@](#): > > … > _ **Calling and questioning of witnesses** _ > (j)(1)Whenever any hearing is conducted by any committee upon any measure or matter, the minority party members on the committee shall be entitled, upon request to the chairman by a majority of them before the completion of such hearing, to call witnesses selected by the minority to testify with respect to that measure or matter during at least one day of hearing thereon. > (2)(A) Subject to subdivisions (B) and (C), each committee shall apply the five-minute rule during the questioning of witnesses in a hearing until such time as each member of the committee who so desires has had an opportunity to question each witness. > (B) A committee may adopt a rule or motion permitting a specified number of its members to question a witness for longer than five minutes. The time for extended questioning of a witness under this subdivision shall be equal for the majority party and the minority party and may not exceed one hour in the aggregate. > (C) A committee may adopt a rule or motion permitting committee staff for its majority and minority party members to question a witness for equal specified periods. The time for extended questioning of a witness under this subdivision shall be equal for the majority party and the minority party and may not exceed one hour in the aggregate. > > _ **Hearing procedures** _ > (k)(1)… > (2) … > (3) Witnesses at hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights. > (4) … > (5) Whenever it is asserted by a member of the committee that the evidence or testimony at a hearing may tend to defame, degrade, or incriminate any person, or it is asserted by a witness that the evidence or testimony that the witness would give at a hearing may tend to defame, degrade, or incriminate the witness– > INDENT notwithstanding paragraph (g)(2), such testimony or evidence shall be presented in executive session if, in the presence of the number of members required under the rules of the committee for the purpose of taking testimony, the committee determines by vote of majority of those present that such evidence or testimony may tend to defame, degrade, or incriminate any person; and > (B) the committee shall proceed to receive such testimony in open session only if the committee, a majority being present, determines that such evidence or testimony will not tend to defame, degrade, or incriminate any person. > In either case the committee shall afford such person an opportunity voluntarily to appear as a witness, and receive and dispose of requests from such person to subpoena additional witnesses. > (6) Except as provided in subparagraph (5), the chair shall receive and the committee shall dispose of requests to subpoena additional witnesses. > …[/INDENT] > > … > > _ **Power to sit and act; subpoena power** _ > (m)(1) For the purpose of carrying out any of its functions and duties under this rule and rule X (including any matters referred to it under clause 2 of rule XII), a committee or subcommittee is authorized (subject to subparagraph (3)(A))– > INDENT …; and > (B) to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary. > (2) … > (3)(A)(i) Except as provided in subdivision (A)(ii), a subpoena may be authorized and issued by a committee or subcommittee under subparagraph (1)(B) in the conduct of an investigation or series of investigations or activities only when authorized by the committee or subcommittee, a majority being present. The power to authorize and issue subpoenas under subparagraph (1)(B) may be delegated to the chair of the committee under such rules and under such limitations as the committee may prescribe. Authorized subpoenas shall be signed by the chair of the committee or by a member designated by the committee. > INDENT In the case of a subcommittee of the Committee on Ethics, … > (B)… > (C) Compliance with a subpoena issued by a committee or subcommittee under subparagraph (1)(B) may be enforced only as authorized or directed by the House.[/INDENT][/INDENT] 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. > [@Left\_Hand\_of\_Dorkness](#): > > Even if it’s partisan, though, that’s irrelevant. The solution to partisanship is the 2020 election. If what they’re doing is totally skeezy but legal, the most partisan partisanship since McConnell last opened his mouth, the president must comply. 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. > [@Left\_Hand\_of\_Dorkness](#): > > There’s a tiny but crucial bit of equivocation here that I’d like to resolve before continuing. Are they being denied agency lawyers, or all lawyers? If it’s just the former, that’s totally fair: the DOJ is patently engaged in obstructionism, so there’s no reason to allow them to give the advice they’d give in this case. 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. > [@Left\_Hand\_of\_Dorkness](#): > > Even if they’re denied access to lawyers during their deposition, though, that’s irrelevant, unless you can point to controlling legal authority that says people have the right to an attorney when speaking before congress. 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. > [@Left\_Hand\_of\_Dorkness](#): > > They may, of course, plead the fifth amendment. 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. > [@Left\_Hand\_of\_Dorkness](#): > > Separation of powers lets Congress set their own procedures for exercising their authority; and if the House says they’re engaged in an impeachment, that’s what they’re doing. 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](https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20to%20Mulvaney-WH%20re%20Subpoena.pdf) 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: > [@](#): > > (n) **Committee on Oversight and Reform.** > (1) Federal civil service, including intergovernmental personnel; and the status of officers and employees of the United States, including their compensation, classification, and retirement. > (2) Municipal affairs of the District of Columbia in general (other than appropriations). > (3) Federal paperwork reduction. > (4) Government management and accounting measures generally. > (5) Holidays and celebrations. > (6) Overall economy, efficiency, and management of government operations and activities, including Federal procurement. > (7) National archives. > (8) Population and demography generally, including the Census. > (9) Postal service generally, including transportation of the mails. > (10) Public information and records. > (11) Relationship of the Federal Government to the States and municipalities generally. > (12) Reorganizations in the executive branch of the Government. 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: > [@](#): > > _ **Referral** _ > 2. (a) The Speaker shall refer each bill, resolution, or other matter that relates to a subject listed under a standing committee named in clause 1 of rule X in accordance with the provisions of this clause. > (b) The Speaker shall refer matters under paragraph (a) in such manner as to ensure to the maximum extent feasible that each committee that has jurisdiction under clause 1 of rule X over the subject matter of a provision thereof may consider such provision and report to the House thereon. Precedents, rulings, or procedures in effect before the Ninety-Fourth Congress shall be applied to referrals under this clause only to the extent that they will contribute to the achievement of the objectives of this clause. > (c) In carrying out paragraphs (a) and (b) with respect to the referral of a matter, the Speaker– > INDENT shall designate a committee of primary jurisdiction (except where the Speaker determines that extraordinary circumstances justify review by more than one committee as though primary); > (2) may refer the matter to one or more additional committees for consideration in sequence, either initially or after the matter has been reported by the committee of primary jurisdiction; > (3) may refer portions of the matter reflecting different subjects and jurisdictions to one or more additional committees; > (4) may refer the matter to a special, ad hoc committee appointed by the Speaker with the approval of the House, and including members of the committees of jurisdiction, for the specific purpose of considering that matter and reporting to the House thereon; > (5) may subject a referral to appropriate time limitations; and > (6) may make such other provision as may be considered appropriate. > (d) A bill for the payment or adjudication of a private claim against the Government may not be referred to a committee other than the Committee on Foreign Affairs or the Committee on the Judiciary, except by unanimous consent. > [/INDENT] 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](https://www.govinfo.gov/app/details/GPO-HPREC-HINDS-V3/), § 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. ~Max --- _[View the full topic](https://boards.straightdope.com/t/the-trump-impeachment-inquiry/840771)._