Does Congress Have More Investigation Power in Impeachment Proceedings?

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

Three House committees together issued the first subpoena under the House's impeachment inquiry, notably citing the impeachment power (and not oversight power) as authority for the subpoena.

The subpoena is significant because the committees twice previously requested the exact same information citing the commitees' oversight authority. The administration ignored those requests. The new impeachment subpoena takes away the administration's arguments for stonewalling congressional inquiries under its oversight authority and may test whether Congress has more power when it engages in an impeachment than when it engages in regular oversight.

The subpoena, issued by the chairs of the House Foreign Affairs, Permanent Select Committee on Intelligence, and Oversight and Reform, is directed at Secretary of State Mike Pompeo. It seeks information related to President Trump's efforts to urge Ukraine to interfere with the 2020 election.

The subpoena letter begins, "Pursuant to the House of Representatives' impeachment inquiry . . . ."

The committee twice before asked for the same information, but citing only their oversight authority. Those requests are here and here.

The administration has now made a habit of ignoring congressional oversight requests, arguing that they (1) lack a legitimate legislative purpose, (2) violate its new and sweeping version of executive privilege, and (3) constitute law enforcement (not lawmaking) in violation of the separation of powers.

But by invoking the House's impeachment authority, the committee undermine those arguments (to the extent that they had any force in the first place). In an impeachment, there is no legislative purpose. Impeachment, as a significant constitutional check on the President, weighs stronger against a President's claim of executive privilege. And Congress is engaged in an impeachment inquiry, not law enforcement.

The administration will undoubtedly come up with constitutional arguments to ignore this latest subpoena, too. But the impeachment power seems to take away these three.

So: Does Congress have more authority when seeking information under its impeachment power? We don't know for sure. But Molly Reynolds and Margaret Taylor survey the arguments in this May 2019 piece over at Lawfare.