fundamentally unfair process and created a scenario in which the President's assertion of valid constitutional privileges is being used as a weapon against him.
The Intelligence Committee Majority served numerous subpoenas for documents and testimony. However, in at least one case, when the witness sought judicial review of the subpoena, the Majority withdrew it. Former Deputy National Security Advisor and Assistant to the President Charles Kupperman was one of the few people to listen in on the call between President Trump and President Zelensky on July 25 and received a subpoena to testify. When the White House instructed him to not testify, he asked the court to resolve "irreconcilable commands" from the Legislative and Executive Branches.[1] Inexplicably, the Majority promptly withdrew the subpoena and moved to dismiss the lawsuit.
Additionally, at least three subpoenas authorized and signed by Intelligence Committee Chairman Schiff were served prior to the passage of House Resolution 660 ("H. Res. 660").[2] Since H. Res. 660 gave Chairman Schiff jurisdiction to pursue this impeachment inquiry, an authorization he did not previously wield, it is likely these subpoenas would be defective and unenforceable since they were issued prior to its passage. Notably, the House of Representatives has chosen not to ask the federal judiciary to opine on such questions, instead rushing straight to impeachment without engaging the courts to resolve this interbranch dispute.
The federal judiciary's recent ruling that White House Counsel Don McGahn must appear before the Judiciary Committee demonstrates that assertions of privileges by the White House do not foreclose the House of Representatives' ability to hear testimony from relevant witnesses.[3] For the price of legitimacy, the Majority is only required to pay a small amount of patience and deference to the courts.
The Majority's claim that the courts are too slow or deliberative only demonstrates the Majority's pessimism about the merits of this case.[4] The Majority's actions show the American people disdain for working within the constitutional framework. Any case filed pursuant to an impeachment inquiry can be expedited in the courts. In the Nixon litigation, courts moved relevant cases quickly to and through the Supreme Court.[5] The decision to adopt an abbreviated schedule for the investigation and not to seek to compel testimony is a strategic choice by the Majority. It is not an appropriate justification for impeachment.
The feebleness of the Obstruction of Congress charge is rooted not only in the Majority's refusal to petition a court for enforcement of its subpoenas, but also the Majority's disregard for the typical process of accommodation that necessarily requires more time than the Majority has allowed. The "gold standard" of impeachment inquiries was with President Nixon.[6] But in that case the "Obstruction of Congress" Article of Impeachment authorized by the Judiciary
- ↑ Brief of Plaintiff, Charles M. Kupperman, Kupperman v. House of Representatives, Case No: 1:19-cv-03224 at 2 (D.D.C. Oct. 25, 2019).
- ↑ Subpoena of Secretary of State Mike Pompeo (Sept. 27), Subpoena of Vice President Mike Pence (Oct. 4), and Subpoena of Acting White House Chief of Staff Mick Mulvaney (Oct. 4).
- ↑ H. Comm. on the Judiciary v. McGahn, Opinion of the Court, Case No: 1:19-cv-02379 (D.D.C. Nov. 25, 2019).
- ↑ See supra note 49.
- ↑ Two months elapsed between the ruling of Judge Sirica of the U.S. District Court for the District of Columbia and the Supreme Court's final decision.
- ↑ Turley, supra note 2, at 17.
instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications, or to produce any such documents or reproductions."
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