By Frank Bowman
Andrew Feinberg of the UK-based Independent just wrote a nice piece on White House preparations and strategy for the coming impeachment fight. He was kind enough to ask me about the argument one commonly hears from the President’s defenders that a really, truly official impeachment inquiry can’t happen without passage of a resolution by the full House of Representatives officially authorizing an inquiry.
Impeachment is one of the powers specifically granted to the House by the Constitution. Article I, Section 2, says, “The House of Representatives shall have the sole power of impeachment.” Article I, Section 5, further states that, “Each House may determine the Rules of its Proceedings.” In sum, the House has plenary authority to conduct impeachments and to set its own rules for doing so.
Nothing in the House rules requires that a resolution be passed before the full House or any committee in it can take steps to exercise the impeachment power. In this respect, impeachment is no different than any other constitutionally-authorized power of the House.
As I told the Independent, the House “doesn’t need to pass a resolution to start [an impeachment inquiry] any more than they need to pass a resolution to engage in appropriations activity.”
One can expect Mr. Trump’s defenders to raise a variety of other “due process” type arguments in the coming weeks and months. This is normal in presidential impeachments. The president’s people nearly always want to slow the process down, and always, quite understandably, want to maximize their opportunities to present the president’s case. Moreover, those seeking impeachment will, almost always, want to be fair, and always will want to be seen to be so. So the tendency is to afford the president and his defenders plenty of chances to air their case and make their arguments.
Still, there is no way the president can force the House to proceed in any particular way. Again, the House has the sole power of impeachment and of making its own rules. More importantly, the question of what procedures the House must use is almost certainly, as we lawyers say, non-justiciable. Which means that, despite what Mr. Trump seems to think, he can’t appeal to the courts on either the substance of articles of impeachment or the procedures the House used to produce them. History makes clear that all such questions are within the control of the House itself.
In 1868, President Andrew Johnson fired Secretary of War William Stanton, the act that triggered his impeachment, on February 21. As I told the Independent, “Three days later, the House voted 168-47 to impeach the President. There’s some due process for you.”
To read the Independent article, see this link