Why “Impeachment Now” Kills the Constitution

There’s a very good reason the House has not yet started impeachment hearings. Very simply, if impeachment starts now, Congress becomes powerless.

It’s true, though it’s counter-intuitive. Let me explain.

Put aside that the Senate won’t convict, which means any impeachment of Trump is futile, and impeachment becomes forever after no more than a cruel joke. After all, if impeachment can’t remove a criminal puppet of an enemy power, then the threatened punishment of impeachment is clearly no deterrent at all. That’s bad enough, but that’s not my point.

The House has issued subpoenas for documents and testimony, which the Trump Reich is ignoring. Critics are arguing these items would be easier to get if they were issued through an impeachment process. Of course, Trump would ignore all subpoenas even if (and especially if) they were issued as part of impeachment proceedings. The House would still have to take Trump to court to enforce them, as they are doing now. The same legal proceedings the House is doing now would have to be done then anyway. We might as well get the precedent set before we move to impeachment.

But that’s not my point. Stay with me here.

It’s argued that courts would be more likely to uphold and enforce subpoenas under impeachment than under a “regular” inquiry. This thought holds that impeachment is more important than any other Congressional investigation, and that therefore courts would look more favorably on, and be more likely to uphold, an “impeachment subpoena.” That theory has never been tested. Never has a subpoena been ignored under “regular” proceedings, then been upheld if re-issued under impeachment.

But that’s not my point either.

One of the problems with the “impeachment subpoenas are particularly important” theory is that compliance with a Congressional subpoena is never optional. Everyone — even the president — must comply with a Congressional subpoena, regardless of what “kind” of subpoena it is. Federal courts must uphold them. This is settled law. The Trump Reich is weakly arguing that a Congressional subpoena must have a legitimate legislative purpose, but the courts are laughing at that notion, and saying, no, the only legitimate purpose that matters is that it’s a Congressional subpoena.

That’s also not my point, but it’s closer.

Imagine that argument is correct though, that courts will uphold “impeachment subpoenas” more surely and faster than “normal” ones. Let’s see where that leads. Imagine Congress gives up trying to enforce its current subpoenas, and moves right to impeachment.

The message Congress would be sending — the message Trump would hear — the message every president after Trump would hear — is this: Congressional subpoenas can be ignored with no consequence.

Any time Congress issues any sort of request or subpoenas for any documents or testimony, any president from now until the end of time can say, “No. I won’t give you want you want, because I don’t have to. Impeach me, and maybe I’ll think about it, and even then, you’ll still have to fight me in court. But until then, unless you’re gonna impeach me, fuck off.”

If Congress gives up now, Congress loses the ability to conduct any sort of investigation or oversight of any president, for as long as America lasts — unless it is part of an impeachment investigation. That possibility is horrifying.

Congress must establish that is has the power to compel compliance with its need for documents and testimony from the executive branch, or else the Constitutional system of checks and balances is utterly gone.

This is not an option. America cannot let this happen.

“So,” you may say, “why doesn’t Congress invoke Inherent Contempt, and start putting people in jail?”

Inherent Contempt is a power that Congress possesses to fine or jail people who ignore subpoenas, without the necessity of having to go through court. It’s an option that has seldom been invoked. The last time was in the 1930s.

Put aside the practical problems (ex: Congress does not have a prison, and would have to rent space somewhere — the last time, it was a suite in a luxury D.C. hotel). Even without practical considerations, Inherent Contempt is, and must be, a last resort.

First, cutting the courts out of the process does as much damage to Constitutional checks and balances as does surrendering the power of Congressional oversight by abandoning the attempt to enforce existing subpoenas. Enforcing subpoenas is the court’s job. Cutting them out of the process does violence to the American system.

And second, jumping to Inherent Contempt without first exhausting the remedies of the Courts is an admission that no president has to comply with any subpoena unless Congress is prepared to take that final, nuclear step of Inherent Contempt.

Congress must establish that its subpoenas are good — always — and that federal courts will enforce them. Otherwise, Congress is powerless to conduct regular business in any reasonable manner.

Our Constitutional system is under assault. We cannot defend the Constitution by dismantling it. Yes, we are facing unprecedented challenges. And yes, unprecedented steps may have to be taken. But if we jump right to those steps, we are surrendering our Constitution to the hostile foreign power who put a psychopathic puppet in the White House.

The purpose of Russia’s attack on America was to destroy our Constitution. It was to convince us — you and me and all other patriots — that the Constitution no longer works. Taking any of these extraordinary steps — without having first establishing the power of the less extraordinary steps — would be a surrender to Russia.

It would be an admission that the idea of three co-equal branches of government monitoring and limiting each others’ power, all controlled ultimately by the will of We the People — does not work.

There have been shameful episodes in America’s past where we suspended Constitutional rights and Constitutional checks — the Japanese internment camps, the treatment of Native Americans, Jim Crow laws, and on and on. We cannot make that mistake again.

We may have to take extraordinary steps of invoking Inherent Contempt, or of proceeding to impeachment simply because we’ve lost patience with the courts. But we’d damn well better be sure we need to, or else the Constitution is meaningless.

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A reader provided a response which raises some objections to my argument above. I will respond below, even though most of the arguments made are already answered in the original article.

In the presence of observable criminal conduct by the executive, it is the *sworn constitutional duty* of congress to hold the president to account.

This is true, but “impeachment” is not the only method of holding the president to account. Indeed, if an attempt to remove the president fails, then the process has failed to hold the president to account. Thorough investigations (of which Congress is now doing dozens) will reveal those crimes and will allow legal proceedings based on their findings. (Please note, I am not opposed to impeachment. The timing, however, matters.)

It doesn’t matter what hypothetical end result may or may not manifest.

It really does matter, because if the end result is that Trump is reelected, the Senate remains in fascist hands, and the House returns to fascist control. then democracy is dead and Trump has most certainly not been “held to account.” (Please note, I am not opposed to impeachment. The likely result, however, matters.)

Initiating impeachment proceedings will, at a minimum, guarantee that the breadth and depth of Trump’s impeachable actions in office are documented in the nation’s indelible historic record.

No, it won’t (not all by itself, not because of “impeachment”), for reasons I explained in the article. For Trump’s crimes to be documented in the nation’s record, we need live testimony and the physical evidence (documents, recordings, etc.). Since Trump is ignoring Congressional subpoenas, these can only be obtained through judicial proceedings and/or Inherent Contempt actions. As I explained. those are no more likely to be gotten through impeachment proceedings — and the consequences of abandoning the attempt to get them without impeachment are the topic of my article. (Please note, I am not opposed to impeachment. We should, however, be aware that the I-Word does not confer magical powers.)

Initiating impeachment proceedings will change congress’ standing with the courts.

No, it won’t. As I said in the article, this has occasionally been argued, but no court has ever said impeachment proceedings make compliance with any subpoena more mandatory than the mandatory it already is. Additionally, courts already are expediting consideration of Congressional subpoenas in these matters, and there is no reason to think they will do it expedited-er. (Please note, I am not opposed to impeachment. See above about magical powers.)

Ultimately, if Trump still refuses to comply after a final court order, congress could just send the FBI to collect the materials.

No, Congress cannot. The FBI is under the control of the Department of Justice, not Congress. The FBI takes no direction from Congress. And the DOJ has become Trump’s personal legal defense team. (Please note, I am not opposed to impeachment. Congress, however, has limits on its powers.)

Trump’s refusal to comply with lawful subpoenas and denying constitutionally mandated congressional oversight is literally one of actions over which he can/should be impeached.

Very true. But the court process of attempting to enforce those subpoenas must be undertaken first, and Trump must show he is unwilling to comply even after the subpoenas have been ruled as legally enforceable.

As I said in the article, impeachment proceedings may have to be undertaken at some point. But this is not yet that point, because the consequences of doing it now would destroy the very things we are trying to preserve.