Is a House Vote Necessary for an Impeachment Inquiry?

Probably not, but it is a bad idea to proceed without one.

On September 24, 2019, starting what became the first impeachment of President Trump, in connection with Ukraine, then-speaker Nancy Pelosi authorized several House committees to commence an impeachment inquiry absent a vote of the full House.

I argued at the time that this rendered the inquiry illegitimate. There was no question that the committees involved had the power to investigate Trump, as they had been doing, in their oversight capacities. But the jurisdiction of House committees is determined by House resolutions. That is why the proper way to start an impeachment inquiry is for the full House to approve a resolution that designates an impeachment committee (usually, the Judiciary Committee, but it could be any committee, a combination committee, or a committee created for the purpose) and establishes the scope and investigative powers of the committee.

Without such a resolution, committees must rely on the (admittedly broad) investigative powers the House has already granted them as standing committees. Of course, they could call the exercise anything they want — if House leadership chooses to label a committee investigation an “impeachment inquiry,” no one has the authority to overrule them. But the inquiry’s legitimacy could rightly be questioned — although that would justify ignoring subpoenas that would be within the authority of the existing standing committees if there were no impeachment inquiry.

The Trump Justice Department’s Office of Legal Counsel issued a formal opinion on January 19, 2020, asserting:

The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s power of impeachment.

Now, the executive branch has no power to dictate how the legislative branch conducts business. The Constitution (in art. I, §5) authorizes the House to make the rules for conducting its own proceedings. But that said, the just-cited constitutional provision vests the power of making the rules in the House, not in the speaker of the House — who holds an exalted position but is just a first among 435 equals for these purposes.

We should also note that Congress can abuse its power, too, and executive resistance (such as the 2020 OLC opinion) is a proper check on that — the best check on it when congressional abuse of power is directed at the executive. If the House demands that the administration cooperate with an impeachment inquiry, it is hardly unreasonable for the president to insist that it actually be an inquiry endorsed by the House, not by a minority partisan faction of the House.

The Supreme Court has never ruled on the question whether a House speaker has unilateral authority to commence an impeachment inquiry. In connection with his testimony at today’s hearing, George Washington University law prof Jonathan Turley, as is his wont, provided a highly informative submission, in the form of written testimony. In it (at p. 27), he explained that a federal district judge in the District of Columbia upheld subpoenas issued in the 2019 Trump impeachment inquiry, reasoning that “even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry.” That ruling was affirmed by the D.C. Circuit, mainly on the ground that courts should stay out of impeachment proceedings — and by then, I’d note, the House had belatedly (on October 31, 2019) authorized the impeachment inquiry.

Even though many of us have made the point time and again, it is not trite to note that impeachment is a political process, not a legal one. Given that the Constitution commits impeachment powers exclusively to Congress (other than the fact that the chief justice presides over presidential impeachment trials — and even there is bound by Senate directions), we should not presume that there are legal rules other than what is set out in the Constitution. And, as we’ve seen, it is doubtful that even the Constitution’s impeachment standards are judicially enforceable.

While I’m not confident about this conclusion, I wouldn’t quibble with Professor Turley’s view that the Constitution does not require a House vote to authorize an impeachment inquiry. In part, that’s because I don’t see how anyone could either force the House to conduct such a vote or stop it from investigating in the absence of a vote. But mainly it’s because Turley correctly concludes that, regardless of whether it’s required, prudence dictates proceeding with an impeachment inquiry only after a House vote authorizes it.

Let’s be practical. Impeachment is very hard to carry out to the conclusion of conviction, removal, and disqualification. That’s not due to bugs; it’s a feature: the two-thirds supermajority requirement at Senate impeachment trials. That is why there have been only four formal presidential impeachments in U.S. history (Andrew Jackson, Bill Clinton, and Donald Trump twice), and no Senate convictions. (President Nixon resigned after impeachment articles were voted out of committee but before they could be approved by the full House; he would probably have been convicted in the Senate had he fought to the end.) This makes sense in a mature democratic republic: The elected president should serve out his or her term, barring misconduct so egregious that the public strongly supports removal, which is the only kind of pressure that could possibly induce enough senators, especially from the president’s party, to convict.

That being the case, it is just foolish to launch an impeachment inquiry without majority support in the House of even an inquiry. If an inquiry can’t be approved because even the president’s opposition party, notwithstanding its House majority, cannot win a vote, then the chance that articles of impeachment would ever be approved is remote at best; and the chance of a Senate conviction would be nonexistent. Those who pushed for a premature impeachment inquiry would stand to be humiliated, damaging their party and enabling a potentially corrupt president to claim vindication.

Whether or not a vote of the House approving a formal impeachment inquiry before it begins is constitutionally mandatory, it ought to be an inviolable norm — a matter of common sense, a dictate of competence, and a precaution against ultimate political embarrassment.