A Game-Changing Provision in the House Impeachment Resolution

The House of Representatives adopted a resolution today to guide their continuing impeachment inquiry. That resolution sets out basic procedures governing, for example, how witnesses will be called and questioned as well as how written materials will be obtained. An important part of that resolution deserves special attention. The provision is not just a significant inclusion but a wise one, as well. It may, at some point in the process, become a game changer.

The House Resolution incorporates by reference procedures adopted by the Judiciary Committee that will be entered into the Congressional Record. Those procedures are contained in an accompanying document, which has this key language:

“Should the President unlawfully refuse to make witnesses available for testimony to, or to produce documents requested by, the investigative committees . . . in furtherance of the investigations described in the first section of [this resolution], the chair shall have the discretion to impose appropriate remedies, including by denying specific requests by the President or his counsel under these procedures to call or question witnesses.”

This is, in effect, a discretionary measure that would keep President Donald Trump’s lawyers from participating in the impeachment process if the Trump White House continues to refuse to produce documents and bar witnesses from testifying. The provision is smart, important, and possibly even alters the current balance of power between Congress and the White House. This provision recognizes that the White House should not be permitted to participate in the process only on its own terms. If the White House wants to participate in full, then it has an obligation to respond to legitimate requests for witnesses and documents from the House.

To understand the value of this provision, it is important to recognize the limitations and drawbacks of the other responses that the House has available to it, at least in theory, to address noncompliance by the Trump White House in the face of the impeachment inquiry. What are those other options?

First, the House could hold in civil contempt those who, after being subpoenaed, fail to testify or provide materials. Such a finding is then enforced in the courts. Here, the courts simply will not move fast enough to resolve the legal issues and facilitate the impeachment process. We have already seen the White House use the courts repeatedly to slow down a number of investigations by the House and others, like New York authorities, seeking to review President Trump’s conduct.

Second, the House could punish President Trump himself by making obstruction of the House’s impeachment inquiry a separate charge of impeachment. Chairman Adam Schiff has referenced that possibility. Such a course is completely worth taking if the recalcitrance continues. That option, however, does not carry much independent force. There is good reason to think the House will include obstruction charges anyway due to a variety of other actions the White House has already taken including the intimidation of the whistleblower and other witnesses. What’s more, the Senate is unlikely to convict the President of the obstruction charge unless it also convicts of the more serious abuse of office charge. For these reasons, this path will not cause the White House to reconsider its refusal to cooperate because the more important battle will be over whether he abused his office by pressuring a foreign government to benefit him personally by investigating a political opponent.

Third, the House could refer individuals who refuse to provide documents or testify in response to subpoenas for criminal contempt prosecutions. That path should undoubtedly be pursued, perhaps at the same time that the House votes on articles of impeachment. This path puts the responsibility squarely on the individual who is refusing in the face of a subpoena to comply. The punishment will not be on the White House or on President Trump but on the individual who is refusing. This course can be enormously effective, particularly against Administration lawyers who need to worry about losing their bar licenses. Other individuals may care about the damage to their personal and professional reputations having been found in criminal contempt by Congress. Under the statutory scheme, such criminal contempt findings are referred to the Department of Justice for prosecution. President Trump’s own Justice Department of course will not prosecute any criminal contempt findings referred by the Democrat-led House. Subpoenaed witnesses must remember, however, that there might be a very different Justice Department making prosecution decisions starting in January 2021 if President Trump is not re-elected. The statute of limitations will not have run.

This fact is what makes White House Counsel Pat Cipollone’s letter to the House of a few weeks ago so unwise and ultimately ineffective. A witness can resist a Congressional subpoena only if the witness has a valid privilege against testifying. Mr. Cipollone’s claim that the process is unfair so the White House will not make witnesses available is a public relations statement, but does not amount to a legal privilege. That is the reason that numerous current and former government officials have complied with their subpoenas and testified as required by the law. Witnesses, including numerous current government officials, began testifying before the House Intelligence Committee within days of Mr. Cipollone’s letter.

While some witnesses have testified, many have not, and numerous document requests to the White House and the Office of Management and Budget have not been answered. Punishing the White House’s noncompliance with nonparticipation in this impeachment inquiry itself makes good sense. Sanctions such as what the draft resolution contemplates are quite common in civil litigation where one side abuses the discovery process. Their impact is immediate, which makes their deterrent effect powerful.

Republicans will surely complain if House makes good on this provision’s threat; but the Trump Administration has the ability to get out from under this constraint if it simply provides appropriate witnesses and documents to allow the House get to the bottom of the issues it is investigating in the course of fulfilling its constitutionally authorized role to consider impeachment. Adding this provision to the House resolution and the accompanying judiciary Committee procedures document was wise, and the House Judiciary Chair should not hesitate to use it.

Speaker of the House, Rep. Nancy Pelosi presides over the U.S. House of Representatives as it votes on a resolution formalizing the impeachment inquiry centered on U.S. President Donald Trump in the House Chamber October 31, 2019 (Win McNamee/Getty Images)

 

About the Author(s)

W. Neil Eggleston

White House Counsel for President Barack Obama, 2014-2017.