On Monday, Rep. Adam Schiff, the Chairman of the Permanent Select Committee on Intelligence, Rep. Elijah E. Cummings, the Chairman of the Committee on Oversight and Reform, and Rep. Eliot L. Engel, the Chairman of the Committee on Foreign Affairs, sent a letter to Department of Defense (DOD) Secretary Mark Esper and a letter to Office of Management and Budget (OMB) Acting Director Russell Vought conveying “subpoenas” for key documents as part of the House of Representatives’ impeachment inquiry of President Donald Trump.
A key part of the letters is the use of the word subpoena.
Subpoenas normally carry judicial penalties if they are not honored. Does Congress have the right to issue subpoenas?
The answer is “yes”, Congress can issue subpoenas. However, in order to do this, the congressional committee doing so must meet certain requirements. Failing to meet such requirements would mean that the subpoenas would not be “legally sufficient.” This means there is NO LEGAL remedy for non-compliance. There would be no legal obligation to produce the documents requested.
Subpoenas are a legal process. As such, they can be challenged in court. Pelosi and the Dems have already lost in court over subpoenas issued by Nadler’s Judiciary Committee. The Democrats do not want to have witnesses compelled to testify in court over their secret activities to overthrow the government of the United States. And it would appear that Pelosi has lost whatever little confidence she had in Jerry Nadler being able to handle the task of impeachment within the Judiciary Committee. This has led her to announce a “formal impeachment inquiry” using multiple House Committees.
So what are the requirements? First and foremost, “the committee’s investigation of the broad subject area must be authorized by its chamber.” The chamber for a House committee is the full House membership.
Second, “the investigation must pursue “a valid legislative purpose” but does not need to involve legislation and does not need to specify the ultimate intent of Congress.” In other words, a congressional committee cannot subpoena just anything. While the subpoena power may be broad, it is not unlimited. If it was, partisan congressional committees could go fishing for anything they want at any time. The Democrats have already lost several court battles over subpoenas they have issued. And there are a number of court battles ongoing.
Third, “the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation.” Again, there are limits on each congressional committee about what it can exercise subpoenas for. Each congressional committee has specific responsibilities. For example, the Intelligence Committee, chaired by Adam Schiff, cannot subpoena records from the IRS unless they can demonstrate that such records are pertinent to an issue within the responsibilities of the nation’s intelligence agencies.
As lawyer Ristvan has noted,
These “subpoenas” from the committees do not meet the first requirement. The “impeachment inquiry” has not been authorized by the House. Pelosi claims that the votes to do so are there. If so, the obvious question is why hasn’t she called for such a vote?
An impeachment proceeding carries with it rights, duties and responsibilities. This applies to both sides in such a process. The accused has rights within the Constitution. Pelosi is attempting to deny these rights by not having a vote. She, her fellow cohorts and the media are trying to have an “impeachment show” where the rights of the accused do not exist. In other words they want a star-chamber proceeding.
The media is very complicit in this since they should know better about the process. Yet, the media constantly refers to the letters as “subpoenas” which they are not.
As Sundance over at CTH notes,
KEY POINT – Remember, the Legislative committee intent is to pierce the constitutional firewall that creates a distinct separation of powers; and the Legislative branch is trying to force documents from the Executive branch, overriding executive privilege. This is a constitutional issue.
This level of committee intent is why judicial authority (the full house authorization to grant weight to legal subpoena power) becomes much more important.
The House must vote to authorize the committee investigation, and through that process the committee gains judicial authority. A demand letter only becomes a subpoena, technically meaning: ‘a request for the production of documents with a penalty for non-compliance’, when the committee has judicial authority.
Which committee(s) would have jurisdiction if an impeachment is authorized by the full vote of the House? Only the Judiciary Committee. Only this committee could issue subpoenas that would carry judicial authority. So these letters from these committees would not become subpoenas even if the House votes impeachment.
These “subpoenas” were made under the House’s legislative and oversight power (Article I, Section 1). The House has little, to no, legislative or oversight jurisdiction over the White House, since it is a separate Constitutional branch of government, authorized under Article II. They only have legislative or oversight power over portions of the government that they created. This does not include the Presidency.
This is an attempt to deprive rights under color of law, pure and simple. These are fake subpoenas and not only non-binding, they are illegal.
The authors of these “demand” letters are still trying to bully production of documents by threatening that failure to do so is obstruction.
Since these are not subpoenas, does this language rise to the level of extortion or blackmail? Only an attorney can tell us.
In the real world of federal civil litigation, if a lawyer asked a court for enforcement of these letters/attachments, the lawyer asking for the order would be laughed out of court and sanctioned. And the Democrats know this. This is why the scheme they are using exists.
Schiff, Cummings and Engel at the behest of Speaker Pelosi are on a partisan fishing expedition. This partisan approach completely removes the rights of the minority (Republicans) and the impeachment due process rights of the executive. This is an attempt by the Democrats to grab power that does not exist.
All the news sources keep reporting these letters are being sent as subpoenas. All day long, the top of the hour “news” blips breathlessly informed us of yet another round of “subpoenas.” “The President and the White House received several more subpoenas today…” And on and on.
When the White House refuses to produce documents and will not allow Executive branch members to testify as they are starting to do, the media will try to build support for the Democrats actions with the public by claiming a cover-up is underway. This is all part of the scheme that the media and the Democrats are following
The media and the Democrats think that the American people are idiots. However, the larger American electorate is catching on to these impeachment word games.
Another important point to remember is this. Sundance at CTH said this after the 2018 mid-terms,
When it comes to political weaponization and political power constructs the Marxists have exceptional work ethics; they will outwork anyone on the other side who opposes them. They are far, far, better at political strategy and scheme than conservative politicians. Part of the reason for their success is that crooks, cons and swindlers are far more cunning than honorable, virtuous and moral people. It is unfortunate, but true; and the same truth applies beyond politics.
[…] We are the normal people who don’t spend every moment of our day scheming, conniving, and developing plans to dismantle the lives of your freedom loving community and rebuild it as a collective society. For these Marxists who are about to take power that’s all they do.(emphasis added) Every moment of their existence they spend thinking about how to gain power and dominate, 24/7/365 that’s all they do…. (link)
The Democrats and the media believe they can take away the inalienable rights of life and liberty from the common people of America. Americans need to push back and let them know that most Americans have caught on to their schemes by broadcasting this far and wide by any means available.