When it comes to explaining the House proceedings currently known as an impeachment inquiry, I trust Andy McCarthy’s insights. When it comes to legal matters, Andy’s insights should be sought because he’s a legal genius. This article is another masterpiece by Mr. McCarthy. As is always the case with Mr. McCarthy, it’s a lengthy read but it’s totally worth it.
For instance, McCarthy starts by saying this:
The House of Representatives . . . shall have the sole Power of Impeachment.” It’s right there in black-and-white: In article I, section 2, clause 5, our Constitution vests the entirety of the power to call for removal of the president of the United States in a single body — the House. Not in the Speaker of the House. In the House of Representatives. The institution, not one of its members.
To be sure, Speaker Nancy Pelosi is a very powerful government official: second in the line of succession to the presidency; arguably, the most powerful member of Congress. She wields decisive influence on the business of her chamber. She even has the power to induce the House to vote on whether to conduct an impeachment inquiry. But she does not have the power to impeach on her own.
In other words, what Pelosi, Schiff, Cummings, et al, have been calling an official impeachment inquiry isn’t an official impeachment inquiry until the House of Representatives votes, as an institution, the impeachment inquiry isn’t official. Or, to use Mr. McCarthy’s words, “In point of fact, the House has no impeachment inquiry; congressional Democrats have an impeachment political campaign.”
That’s why McCarthy makes this statement:
This exhibition includes strident letters from a cabal of committee chairs, all Democrats, falsely claiming that a refusal by Trump-administration officials to comply with their demands for information and testimony “shall constitute evidence of obstruction of the House’s impeachment inquiry.”
Next, McCarthy explains the definition of obstruction:
Obstruction happens when there is tampering with documents or witnesses.
He also explains what obstruction isn’t:
Presumptively, a person who refuses to comply with a lawful document demand is not tampering with the documents; to the contrary, the subpoena recipient is asserting a legal claim of privilege that excuses compliance. If I am a lawyer, for example, and a congressional committee subpoenas notes from my meeting with a client, my refusal to surrender the notes is not an obstruction of the House’s investigation. It is an assertion that the attorney–client privilege justifies my withholding of confidential communications. If I am right about that, the legal wrong is Congress’s issuance of a subpoena, not my refusal to honor it.
I won’t pretend to be the legal scholar that Mr. McCarthy is. I’ll just point you in his direction, then tell you that listening to him instead of Ms. Pelosi, Chairman Schiff or DFL Party Chair Ken Martin is a wise decision.
I’ll leave you with this parting thought:
The Framers designed impeachment as a political remedy, not a legal one. I argued not that President Obama was a bad person but that he was behaving as the kind of chief executive the Framers feared — i.e., defying, in several ways, the separation-of-powers structure of the Constitution. Nevertheless, because impeachment is political, it is not enough to have acts that arguably qualify as impeachable abuses of power; there must also be a public consensus that gives Congress the political will to remove the president from power.