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The Collision of Constitutional Powers

Restraint is in Congress’s best interest when it comes to the impeachment inquiry. Will they heed the Framers or succumb to the temptation of “constitutional hardball”?
October 23, 2019
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“Constitutionally, not legally” is the new “Seriously, not literally” (GettyImages)

The White House Counsel’s recent letter to the House of Representatives, protesting Democrats’ “impeachment inquiry,” was overstated and full of politically charged language beneath the dignity of the Counsel’s office. Yet underneath its obvious flaws lie fundamental questions difficult to dismiss: How much procedural protection should the House give to the President, and how much transparency should the House give to the people?

These are “constitutional” questions but not necessarily “legal” ones. When the White House Counsel phrases his arguments legalistically, asserting that the Constitution requires both a formal House resolution and the full procedural protections of a criminal trial, his arguments are easily dismissed: The Constitution’s text, and the judicial and legislative precedents pursuant to it, do not actually require what the White House demands.

In fact, the Constitution itself prescribes very little on the impeachment processes. And that is what makes this such a challenging constitutional subject: An impeachment inquiry invites a collision of two bodies of profound constitutional power.

On one side, we find the House of Representatives’ express constitutional powers, especially its power to impeach and its power to “determine the rules of its proceedings.” These powers are categorical and limited only loosely by constitutional requirements of due process; their major limits are those of the House’s own self-restraint.

And the House’s express constitutional powers are reinforced by implicit powers, such as Congress’s power to undertake oversight hearings and perhaps even to detain those who defy oversight subpoenas—a power not actually specified by the Constitution but well established and indispensable.

On the other side, we have the president’s own express constitutional powers, especially “the executive power,” which the Constitution vests in the president alone.

And this express constitutional power is reinforced by implicit powers, including the president’s “executive privilege” and his power to bind administration officials with the Justice Department’s legal determinations—powers, like Congress’s, that are not actually specified by the Constitution but are well established and for good reason.

Executive privilege presents an example of occasional but necessary discretion. The confidentiality that surrounds and protects a president’s deliberations with administration officers and staff creates space for a president and his advisors to discuss issues frankly—and not deterred by fears that their candid views will be broadcast. We are naturally suspicious of government secrecy, but constitutional government requires, as Alexander Hamilton famously put it, the “steady administration of the laws” by an energetic executive, which in turn often requires “secrecy.” The need for secrecy is not unlimited, and thus executive privilege is not unlimited either. But we need to preserve at least some space for it, as a crucial, if implicit, constitutional value—not for the sake of a particular president, but for the sake of the constitutional presidency.

We can expect the legislative and executive branches to press their respective powers as aggressively as possible. Indeed, our constitutional system generally counts on the collision of their mutual avarice to produce public benefit: “Ambition must be made to counteract ambition,” James Madison explained. When this particular president shows no sign of relenting from constitutional brinkmanship, as the White House Counsel’s letter makes clear, then House Democrats may feel well justified in following suit.

But to do so would also risk confirming the Framers’ view of impeachment. As Alexander Hamilton observed in Federalist 65, impeachment prosecutions “will seldom fail to agitate the passions of the whole community.” Often impeachment “will connect itself with the pre-existing factions, and will enlist all their animosities [and] partialities.” And “in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

This is why Framers empowered the House to impeach the President, but they entrusted the eventual trial of impeachments not to the House, but to the Senate, which at least in its original form would be (per Hamilton) “a tribunal sufficiently dignified [and] independent” of the dangers of passion and faction. The House, they recognized, is a much different body: the part of our government tied most closely to political winds, and thus the part at highest risk of being distorted by short-sighted political zeal—a body that can be trusted to accuse a president of wrongdoing, not trusted to reliably adjudicate a president’s guilt or innocence.

So far, the House has not hesitated to wield the full power and discretion that the Constitution affords it. Empowered to make the rules of its proceedings, the House chose to commence the impeachment inquiry with Speaker Pelosi’s announcement, not with a full House vote on a specific resolution.

Not required to conduct its hearings in public, the House is interviewing witnesses behind closed doors, leaving the public to learn only what happens through selective disclosures or leaks. Not required to share the subpoena power with the minority House Republicans, the Democratic majority controls the fact-finding process. House leaders insist that such secrecy and tactics are necessary for them to question witnesses and build a case, as if they were prosecutors building a criminal case and not legislators making legal and political judgments on behalf of the voters. (This is yet the latest example of a generational trend of congressmen misunderstanding themselves to be prosecutors instead of legislators.) Such uncompromising assertion of the House’s constitutional power may help to impeach the president. It will also help to foster the skepticism that the Framers themselves had toward the House’s poor capacity for rendering neutral, dispassionate judgment.

The president’s critics face an inevitable temptation to play “constitutional hardball,” asserting their constitutional powers without self-restraint against a president who no doubt will do the same. They should reject that temptation, if not for the sake of constitutional virtue then for their own institutional self-interest. In the present conflict, the House inquiry’s legitimacy rests largely on its ability to avoid not just the substance of partisan bias, but also the perception of such bias. To avoid this, the House should begin by formally commencing the process with the public accountability of a vote, and then by carrying out the process transparently, even affording the president and witnesses an extra measure of process and evenhandedness beyond what the letter of the law requires—not for the president’s sake, but for the House’s, and for the people’s.

While the Constitution does not require a formal resolution voted upon by all representatives, such a vote would explain to the voters precisely what matters the House is directing committees to investigate and by what means. And while the Constitution’s due-process protections do not automatically entitle the president in this proceeding to all of the rights a criminal suspect would enjoy before a grand jury or at trial, the fact remains that every effort by the House to prevent transparency and to strong-arm witnesses will reinforce the perception among many that the House’s “impeachment inquiry” is not a dispassionate investigation but a partisan prosecution.

As the Supreme Court observed long ago, while the House undoubtedly has broad oversight powers not easily susceptible to judicial management, some minimal constitutional safeguards are a “small price to pay if it serves to uphold the principles of limited, constitutional government without constricting the power of the Congress to inform itself.”

Self-restraint, voluntarily adopting procedures and protections not required specifically by law, may make it slightly more arduous for the House to declare the president guilty of impeachable offenses. But self-restraint will make it much easier for the House to win the judgment of history.

Adam J. White

Adam J. White is a resident scholar at the American Enterprise Institute and director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.