Your impeachment questions, answered

By Elie Honig

Updated 3:55 p.m. ET, October 31, 2019
5 Posts
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6:47 p.m. ET, October 16, 2019

Rick (Arizona): If Nancy Pelosi decides to hold a full House vote on an impeachment inquiry, would the minority party gain procedural rights including, for example, the right to subpoena their own witnesses?  

In a recent letter to Congress, the White House argued that in the absence of a full House vote, the impeachment inquiry is “constitutionally invalid and a violation of due process.” In fact, there is no Constitutional or statutory requirement that the House take a full vote, and a federal Court of Appeals ruled just days after the White House’s letter that the House is not legally required to vote before issuing subpoenas in an impeachment inquiry.  

Nonetheless, the White House claims entitlement to certain procedural protections in the House impeachment process, including the right to subpoena its own witnesses and cross-examine the House’s witnesses. In both the Nixon and Clinton impeachment inquiries, the minority party was given limited subpoena power (subject to override by the investigating committee, which preserved the right of the majority party to block those subpoenas).  

But Pelosi is under no legal obligation to make the same concessions, or any procedural concessions, here. On one hand, Pelosi might consider giving House Republicans some procedural rights to blunt an argument that the process was unfair or unduly one-sided. On the other hand, House impeachment is an investigative and (potentially) accusatory process requiring no particular protections for the subject -- much like a subject of a criminal investigation has essentially no right to subpoena witnesses at the grand jury stage. The proper place for due process protections, the argument goes, is at a Senate trial to determine the President’s ultimate culpability.

6:54 p.m. ET, October 16, 2019

Diane (Ohio): If the Supreme Court eventually has to rule on any aspect of impeachment -- turning over documents or tapes, for example -- do the Justices nominated by Trump have to recuse themselves?

No. A Supreme Court justice always has the discretion to recuse himself or herself from a given case if there is a conflict of interest. In fact, Supreme Court justices -- unlike all other federal judges -- are not subject to a specific code of ethics, so they have essentially free reign to do whatever they choose. But generally, justices need not recuse from a case merely because it involves the same President who appointed him or her.

The 1974 United States v. Nixon case provides historical precedent. The court ruled 8-0 against Nixon, requiring him to turn over the White House tapes (Nixon resigned weeks later). Three of the eight Justices on the case were appointed by Nixon himself: Warren Burger, Harry Blackmun and Lewis Powell. A fourth Nixon-appointed Justice, William Rehnquist, did recuse himself -- not because he had been appointed by Nixon but because he had worked in the Nixon administration’s Justice Department.

6:48 p.m. ET, October 16, 2019

Bruce (California): Can the President be forced to appear at an impeachment trial in the Senate to be interrogated? 

No. A president, like any person in the United States, enjoys a Fifth Amendment right against self-incrimination. That means that any person, including the President, can decline to give testimony in any proceeding if that testimony might lead or contribute to future criminal charges against him. While current DOJ policy counsels against indicting a sitting president, a President still can be charged criminally after his term ends, so a president does have Fifth Amendment rights even while in office.

There is precedent for witnesses invoking the Fifth Amendment to avoid answering questions in Congressional hearings. Perhaps most famously, in 1987 Lt. Col. Oliver North took the Fifth repeatedly during Congressional hearings relating to the Iran-Contra scandal.  

Trump can, of course, choose to give up his Fifth Amendment rights and testify in a Senate trial. But such a move is exceedingly unlikely, given the potential risk of self-incrimination and the high profile and stakes of a Senate trial. Do not expect to hear testimony from Trump if he is tried in the Senate.  

6:49 p.m. ET, October 16, 2019

Keith (Texas): The White House argues that the House must hold a full vote before this is a valid impeachment inquiry. Is that right, and shouldn't House Republicans have the ability to subpoena materials and make their own arguments?

In its letter to House Democrats on Tuesday, the White House served notice of its blanket rejection of all congressional subpoenas and information requests relating to the ongoing impeachment inquiry. Essentially, the letter memorializes under formal legal cover Trump's prior vow to "(fight) all of the subpoenas."

The White House's primary objection is that the full House has not voted to open an impeachment inquiry, rendering the inquiry -- as announced at a press conference by House Speaker Nancy Pelosi, without any formal House action -- "constitutionally invalid and a violation of due process." The White House argues that the House has not established "even the most basic protections demanded by due process under the Constitution and by fundamental fairness," including the ability for Trump's legal team to cross-examine witnesses and to subpoena its own evidence.

Article I of the Constitution broadly grants the House the "sole power of impeachment." There is nothing in the Constitution, statute or prior judicial decision to indicate that a vote of the full House is required to start an impeachment inquiry. However, the full House did formally vote to initiate impeachment proceedings against both Presidents Richard Nixon and Bill Clinton.

The White House appears to have two primary strategic goals. First, the White House demands several procedural protections (or, depending on perspective, privileges) including the ability to subpoena its own witnesses and evidence. In the Nixon and Clinton cases, the House did grant subpoena power to the minority party, subject to override by majority vote of the investigating committee.

Second, the White House likely aims to force vulnerable Democrats in closely contested districts to vote either for an impeachment inquiry (and risk alienating voters opposed to impeachment) or against it (and risk alienating base Democratic voters and independents who favor impeachment).

Pelosi has signaled little interest in holding a formal vote. This is a calculated risk. On one hand, if the House does vote and approves the inquiry, Pelosi eliminates one of the White House's primary legal objections to House subpoenas. (There is little risk of Pelosi holding a vote and losing; as Speaker, she almost certainly would only take that step if she knew she had enough votes to carry the motion). On the other hand, a formal vote could enable Republicans to extract concessions including the subpoena power, as in the Nixon and Clinton impeachment proceedings.

Even if the House does vote to open a formal inquiry, do not expect the White House to suddenly start complying with House subpoenas. Nowhere in its letter does the White House so promise. And given the White House's well-established pattern of obstructionism, I'd expect it simply to turn to another basis to fight House subpoenas -- executive privilege or absolute immunity, for example. So, while a full House vote would defeat one of the White House's primary objections, Congressional investigators still would have to overcome other obstacles to obtain evidence from the executive branch.

6:53 p.m. ET, October 16, 2019

Dave (Kansas): If Trump is impeached and removed, and Mike Pence becomes president, then how is a new vice president selected?

The 25th Amendment, which was ratified in 1967, provides that (1) the new president (in this hypothetical, Pence) selects a new vice president and (2) that person must then be confirmed by majority votes of both the House and Senate.

Just a few years after its passage, the amendment was put into use -- twice. In 1973, Vice President Spiro Agnew resigned in the midst of a federal bribery investigation, President Richard Nixon selected Gerald Ford as the new vice president, and Ford was confirmed by the House and Senate. Then in 1974, Nixon resigned during the Watergate scandal. Ford became president and selected Nelson Rockefeller as vice president, who was then confirmed by both houses of Congress.