As detailed in Section II above, many of the Majority's obstruction allegations are due to the Majority's failure to conduct its inquiry in accordance with precedent. Fundamentally, the Majority has offered conflicting accounts of when the inquiry even began.
On September 24, Speaker of the House Nancy Pelosi announced the House of Representatives was "moving forward with an official impeachment inquiry."[1] The media generally reported that this was the commencement of impeachment proceedings, and the Majority purported to act pursuant to the Speaker's pronouncement.[2]
Nonetheless, over a month later, on October 31, the House of Representatives voted to authorize the impeachment inquiry that preceded these Articles, with the passage of H. Res. 660. This resolution directed the Committees on Financial Services, Foreign Affairs, the Judiciary, Oversight and Reform, and Ways and Means "to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States."[3]
Prior to the formal vote on October 31, serious and legitimate questions were raised as to whether the Executive Branch was being asked to comply with an impeachment inquiry, standard legislative oversight, or a novel hybrid of the two. The White House raised those concerns with the Majority on October 8, but no steps were taken to accommodate reasonable concerns about due process and fundamental fairness.[4]
The unnecessary confusion caused by the Majority about the status of its investigation calls into question the legitimacy of any subpoena issued prior to October 31 claiming to be part of an impeachment inquiry, because subpoenas issued before that date were not issued pursuant to a formal impeachment inquiry, congressional oversight, or any cognizable legislative purpose. A case addressing the validity of actions taken pursuant to Speaker Pelosi's edict is pending before the D.C. Circuit court.[5]
The Executive Branch has resisted congressional requests since the administration of President George Washington.[6] Resisting and asserting privileges in response to congressional demands has never formed the basis of impeachment.
For example, President Obama cited executive privilege and barred essential testimony
- ↑ See supra note 49 (Remarks by Speaker of the House Nancy Pelosi).
- ↑ See, e.g., Nicholas Fandos, Nancy Pelosi Announces Formal Impeachment Inquiry of Trump, NY Times (Sep. 24, 2019).
- ↑ H. Res. 660, 116th Cong. (2019).
- ↑ Letter from Pat Cipollone, White House Counsel, to the Honorable Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019).
- ↑ See In re: Application of the H. Comm. on the Judiciary, Department of Justice's Notice of Appeal, Case No:1:19-gj-00048 BAH (D.C.C. Oct. 28, 2019).
- ↑ Washington famously declined to deliver to the House of Representatives documents recording the negotiations with Great Britain in what would be memorialized in the Jay Treaty of 1795.
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