Ignore the hype — this is not an impeachment inquiry
By Andrew C. McCarthy, opinion contributor, THE HILL – 10/03/19
There is no impeachment inquiry. There are no subpoenas.
You are not to be faulted if you think a formal inquest is under way and that legal process has been issued. The misimpression is completely understandable if you have been taking in media coverage — in particular, reporting on a haughty Sept. 27 letter from House Democrats, presuming to direct Secretary of State Mike Pompeo, on pain of citation for obstruction, to cooperate in their demands to depose State Department officials and review various records.
The letter is signed by not one but three committee chairmen. Remember your elementary math, though: Zero is still zero even when multiplied by three.What is portrayed as an “impeachment inquiry” is actually just a made-for-cable-TV political soap opera. The House of Representatives is not conducting a formal impeachment inquiry. To the contrary, congressional Democrats are conducting the 2020 political campaign.
Moreover, there are no subpoenas. As Secretary Pompeo observed in his fittingly tart response on Tuesday, what the committee chairmen issued was merely a letter. Its huffing and puffing notwithstanding, the letter is nothing more than an informal request for voluntary cooperation. Legally, it has no compulsive power. If anything, it is rife with legal deficiencies.The Democrats, of course, hope you don’t notice that the House is not conducting a formal impeachment inquiry. They are using the guise of frenetic activity by several standing committees — Intelligence, Judiciary, Foreign Affairs, Oversight and Reform, Financial Services, and Ways and Means — whose normal oversight functions are being gussied up to look like serious impeachment business.But standing committees do have subpoena power, so why not use it? Well, because subpoenas get litigated in court when the people or agencies on the receiving end object. Democrats want to have an impeachment show — um, inquiry — on television; they do not want to defend its bona fides in court.They certainly do not want to defend their letter. The Democrats’ media scribes note the chairmen’s admonition that any failure by Pompeo to comply “shall constitute evidence of obstruction of the House’s impeachment inquiry.” What a crock.
In criminal proceedings, prosecutors demand information all the time and witnesses often resist — just as congressional Democrats encouraged the Justice Department and FBI to resist when Republican-controlled committees were trying to investigate such matters as Foreign Intelligence Surveillance Act abuse. Presumptively, resisting an information request is not evidence of obstruction. It is evidence that the recipient of the demand believes he or she has a legal privilege that excuses compliance. The recipient can be wrong about that without being guilty of obstruction.
Congressional Democrats know this, of course — many of them are lawyers. They are issuing partisan letters that pose legally offensive threats, rather than subpoenas, because this is a show, not an impeachment inquiry. Subpoenas don’t require chest-beating about obstruction. Everyone knows they are compulsory, but everyone also knows they may be challenged in court. Such challenges take time, though, and Democrats are in a hurry to close this show after a short run.
To be sure, the Constitution vests the House alone with the power of impeachment (as opposed to impeachment trials, which are the sole responsibility of the Senate). The judiciary has no authority to tell the House how to conduct impeachment proceedings. And the House is a “majority rules” institution, so if Speaker Pelosi and her partisans want to ipse dixit their way to impeachment articles, no one can stop them.
That said, the courts maintain their authority to protect the legal rights of persons and institutions ensnared in kangaroo tribunals. The fact that House Democrats invite you to their circus does not require you to beclown yourself.