Tuesday, January 21, 2020
The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.
The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).
The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.
(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)
In short, OLC reasoned this way:
(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"
(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;
(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;
(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;
(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and
(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.