Late Friday evening, House Oversight Committee Chairman Elijah Cummings sent a letter to White House Chief of Staff Mick Mulvaney requesting he submit documents related to their impeachment inquiry by October 18th. In addition to Cummings, it was signed by Reps. Adam Schiff (Chair of House Intelligence Committee) and Eliot Engel (Chair of House Committee on Foreign Affairs). Cummings repeatedly insists that the letter is a subpoena.

The letter states, “We deeply regret that President Trump has put us—and the nation—into this position, but his actions have left us with no choice but to issue this subpoena.”

It cites several earlier deadlines which the White House has ignored.

Cummings writes that he is aware of President Trump’s intention to send a letter to House Speaker Nancy Pelosi on Monday informing her that the White House refuses to cooperate with any document requests until a full House vote on impeachment has been taken.

Pelosi has refused to do so because once a vote is taken, Republicans will receive “some” rights to participate in the impeachment process. (Although the rights would be minor, Republicans currently have no rights. They can’t even question witnesses that come before the committee.) Additionally, she does not want to force Democrats serving in districts Trump won in 2016 to go on record voting for his impeachment.

He writes, “Speaker Pelosi has confirmed that an impeachment inquiry is underway, and it is not for the White House to say otherwise.” Mr. Cummings is telling Mulvaney it’s an impeachment inquiry because “Pelosi says it is.”

 

Not so fast, says former U.S. attorney and author Andrew McCarthy. He calls the Democrats’ impeachment action “Kabuki theatre.” He writes:

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.

As mentioned above, McCarthy explains that until a formal vote is taken in the house, this is not an impeachment inquiry and their “subpoenas” are merely letters. “Legally, it has no compulsive power. If anything, it is rife with legal deficiencies.” Rather than conducting an impeachment inquiry, he says House Democrats are merely conducting their 2020 campaign.

He notes that “standing committees do have subpoena power,” but recipients often object to subpoenas and choose to litigate. “Such challenges take time, though, and Democrats are in a hurry to close this show after a short run. Democrats want to have an impeachment show — um, inquiry — on television; they do not want to defend its bona fides in court.”

McCarthy writes that the Democrats are trying to “ipse dixit” their way to impeachment. I had to look that one up. It means “an assertion made but not proved.” Yes, that’s exactly what they’re doing. That’s how the Russian collusion investigation began as well.

In both the letter to Mick Mulvaney and the letter to Secretary of State Mike Pompeo, it says that failure to comply “shall constitute evidence of obstruction of the House’s impeachment inquiry.” But that is just not true.

The House is an independent body and can conduct an impeachment anyway they chose. However, McCarthy points out:

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.

Any competent court asked to evaluate a demand for information under the rubric of impeachment will observe that the process has a history. When the Framers debated whether to include an impeachment clause in the Constitution, they had serious concerns. They were designing a separation-of-powers system that endowed the coordinate branches with checks and balances to police each other. They understood that impeachment authority was necessary, but feared it would give the legislature too much power over the executive.

They also worried that impeachment could be politicized. If it were too easy to do procedurally, or it could be resorted to for trifling acts of maladministration, factions opposed to the president would be tempted to try to overturn elections and grind the government to a halt.

To address these concerns, the Framers adopted a burdensome standard — high crimes and misdemeanors (in addition to treason and bribery) — that would restrict impeachable offenses to truly egregious abuses of power. Then they erected an even higher bar: a two-thirds supermajority requirement for conviction in the Senate.

All this was to ensure that the electoral will of the people must never be overturned in the absence of misconduct so severe that it results in a broad consensus that the nation’s well-being requires removing the president from power.

President Trump is not without defenses. He has various privileges available to him and McCarthy writes that judges are generally deferential toward an executive’s claims of privilege. But Congress is given wider latitude to probe in a real impeachment inquiry.

If the House went to court to enforce their demands right now, before a formal vote has been taken, a judge would be less apt to side with them. McCarthy said, “The first thing a court’s going to want to know is, ‘Has the House voted to have an impeachment inquiry?’ And, a lot hinges on that, including how much expansion a court would give a president’s claim of executive privilege and privilege over matters that are in the president’s duties under Article II.”

Impeachment actions in the past have followed bipartisan debate in the House. They are conducted when a president is perceived to have committed a crime. Trump has not committed a crime and Republicans are not part of this action. The Democrats know they don’t have an “impeachable offense,” which is why they want to move so quickly. They are using impeachment as a political tool which is the exact opposite of what our Founders had intended.

McCarthy notes that, “If Democrats truly thought they had a case, they wouldn’t be in such a rush — they’d want everyone to have time to study it. But they don’t have a case, so instead they’re giving us a show.”