Legal Issues in Impeachment Investigations, Part I: Authorization

Legal Issues in Impeachment Investigations, Part I: Authorization

Legal Sidebari

Legal Issues in Impeachment Investigations,
Part I: Authorization
September 29, 2023
Speaker of the House Kevin McCarthy announced on September 12, 2023, that he was directing various
House committees to “open a formal impeachment inquiry” into President Joe Biden. The Speaker’s
statement did not address precisely how the House will proceed, but it appears that the inquiry will be
“led” by the Committee on Oversight and Accountability “in coordination with” the Judiciary Committee
and the Committee on Ways and Means. Although there is no clear definition of what constitutes an
impeachment investigation, it may be characterized as an inquiry carried out to aid the House in
determining whether sufficient grounds exist to charge an impeachable official (“[t]he President, Vice
President and all civil Officers of the United States”) with an impeachable offense (“[t]reason, Bribery, or
other high Crimes and Misdemeanors”). The first hearing in this impeachment inquiry was held on
September 28, 2023.
The initiation of this inquiry marks an early step in a constitutional process that could lead to the nation’s
third presidential impeachment in just the last four years. It also may bolster the committees’ authority to
obtain information, as there is reason to believe that transitioning from a more traditional legislative
investigation—undertaken with a legislative purpose and within a committee’s delegated jurisdiction—to
an impeachment investigation may improve a committee’s legal and constitutional claims to access
certain types of evidence, including grand jury materials, privileged testimony and documents, and
possibly other personal information that a committee may otherwise have difficulty obtaining.
This is the first in a two-part Sidebar series addressing a pair of interrelated issues prompted by the
Speaker’s announcement. This Sidebar considers whether, as a legal matter, House committees can
engage in an impeachment investigation without explicit approval from the House (i.e., without passage
of a resolution expressly delegating the authority to conduct an impeachment investigation to a committee
or committees). As an internal House matter, it appears that a committee may do so, but whether the
executive branch and the courts agree with this view is likely to impact whether a committee can realize
the potential information access benefits associated with the impeachment power. Part II of this Sidebar
series will address the possible benefits of invoking the label of “impeachment inquiry,” including the
extent to which transitioning to an impeachment investigation may improve the House’s ability to obtain
relevant information, either voluntarily or through the courts.
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Initiating a House Impeachment Investigation
The manner by which the House chooses to implement its “sole Power of Impeachment” is largely
entrusted, through both constitutional text and historical practice, to the House’s own discretion. In light
of this discretion, the House’s view of its own authority—and, specifically, whether it views authorization
as a necessary predicate to the initiation of an impeachment inquiry—would appear to carry great weight
in interpreting the scope of that authority. The other branches’ interpretations, however, may also play a
role in any dispute—presumably arising in the context of a subpoena for information—over whether a
committee is properly investigating for purposes of impeachment. The executive branch’s interpretation
will likely govern its compliance with a congressional demand for information: when faced with such a
demand, the executive branch typically makes an initial determination of whether the demand is within
the requesting committee’s authority. If the executive branch (or a private entity) refuses to comply, a
court may be asked to resolve the disagreement, in which case the judicial interpretation might control. If,
for example, the full House does not take further action to ratify the current impeachment inquiry and
litigation over a committee’s authority to access certain information ensues, a judge may be faced with the
threshold question of whether an investigating House committee may invoke the impeachment power
without an explicit authorization from the House.
The House’s View
The House has not established a single, uniform approach to starting impeachment investigations, but the
existing historical practice suggests that the chamber does not view an authorizing resolution as a
necessary precondition to initiating an impeachment investigation.
Although the House has often passed resolutions to authorize impeachment investigations, it has also
conducted impeachment investigations (and approved articles of impeachment recommended by the
Judiciary Committee) without an explicit authorization. For example, the House explicitly directed the
Judiciary Committee to “investigate fully and completely whether sufficient grounds exist for the House”
to impeach President Bill Clinton, but in the 1980s, it provided no authorization for investigations into
allegations of impeachable conduct against three judges who were ultimately impeached.
There are other examples in which the House passed a resolution of authorization after a committee had
engaged in a “preliminary” impeachment investigation. The Judiciary Committee, for example, began the
“preliminary phases of an inquiry into [the] possible impeachment” of President Richard Nixon months
before receiving authorization from the House in 1974. The House took a similar approach in 2019, when,
pursuant to an announcement from Speaker Nancy Pelosi, various committees conducted an “official
impeachment inquiry” into allegations of misconduct by President Donald Trump approximately a month
before the House adopted a resolution authorizing six committees to “continue their ongoing
investigations as part of the existing House of Representatives inquiry into whether sufficient grounds
exist for the House of Representatives to exercise its Constitutional power to impeach” President Trump.
The House took yet another approach in the most recent presidential impeachment: the second
impeachment of President Trump following the events of January 6, 2021. No formalized investigation
preceded that impeachment, though the majority staff of the Judiciary Committee presented the House
with a report containing evidentiary support for the impeachment. These brief historical examples appear
to suggest that the House views a specific authorization as unnecessary for committees to initiate an
impeachment investigation, though the House has eventually authorized most presidential impeachment
investigations.
The somewhat inconsistent House practice on the use of authorizing resolutions may be due to any
number of practical, procedural, political, or historical factors. For example, at least until the second half
of the 20th century, an authorizing resolution from the House was often a practical necessity for an

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effective impeachment investigation. This is because, in the era before standing committees existed, the
House needed to create and authorize an investigating committee. Even after the establishment of
standing committees, the House typically still needed to provide a committee with both investigative
jurisdiction and compulsory investigative tools, such as the power to issue a subpoena to force the
disclosure of information. Indeed, although the House often adopted resolutions providing individual
committees with limited subpoena powers following the Legislative Reorganization Act of 1946, it was
not until 1975 that the House granted its committees permanent investigative and subpoena powers under
House Rules. Thus, for a good portion of the House’s history, authorizing resolutions were generally
needed to provide a committee the tools necessary to carry out an effective and expeditious investigation.
As the House standing committees’ investigative tools and authorities have grown over time, the practical
need to delegate additional powers for impeachment investigations has diminished. House committees
today have significant existing investigative powers, including the authority to issue subpoenas for
documents, testimony, and staff depositions, generally at the discretion of the committee chair.
Committees can use these tools to investigate executive branch misconduct without relying on the
impeachment power.
The Supreme Court has made clear that traditional legislative investigations—that is, investigations
undertaken with a legislative purpose and within a committee’s delegated jurisdiction—can include
“probes into departments of the Federal Government to expose corruption, inefficiency or waste.” These
traditional investigations may “inquire into and publicize corruption, maladministration or inefficiency in
agencies of the Government” so long as the inquiry serves a “valid legislative purpose” and “concerns a
subject on which legislation ‘could be had.’” Thus, the line between an impeachment investigation and a
legislative investigation into official misconduct may be significantly blurred and, in some instances, may
be unnecessary to draw given the substantial tools and authority available to committees to conduct
legislative investigations into executive branch misconduct. The House Judiciary Committee’s largely
successful attempts to obtain testimony from former White House Counsel Don McGahn following the
release of Special Counsel Robert Mueller’s report highlighted this point: the Committee made clear that
it was acting pursuant to a combination of legislative, oversight, and impeachment purposes.
Although committees wield substantial authority in legislative investigations, an impeachment
authorizing resolution may provide still more investigative tools to an investigating committee. The
resolutions authorizing the investigations into Presidents Clinton and Trump, for example, granted
committees the power to obtain information through interrogatories. Authorizing resolutions can also
provide the subject of the investigation greater procedural protections; clarify that a committee is acting
with the full support of the House and pursuant to its full panoply of constitutional powers; provide a
means for the House to direct the scope of an impeachment inquiry; structure and consolidate an
otherwise sprawling investigation; and consolidate ongoing inquiries under the auspices of a single
committee.
The Executive Branch View
In contrast to the House’s view, the executive branch has argued that the House must vote to authorize and
explicitly delegate the impeachment power to a committee before any committee can engage in an
impeachment investigation. In 2019, after then-Speaker Pelosi announced an impeachment inquiry into
President Trump without the adoption of an authorizing resolution (an approach reflected in Speaker
McCarthy’s recent announcement), the White House Counsel took the position that the Speaker had no
authority, absent approval from the full House, to launch such an investigation. A few months later, the
Department of Justice Office of Legal Counsel issued an opinion reasoning that, because the Constitution
grants the “sole Power of Impeachment” to the House, “the House itself must authorize an impeachment
inquiry.” Although committees may freely investigate “matters within their legislative jurisdiction,” the
opinion continued, “no committee may undertake the momentous move from legislative oversight to

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impeachment without a delegation by the full house of such authority.” The Biden Administration has
neither affirmed nor withdrawn the 2019 opinion and has not otherwise taken a position on the
authorization question.
The executive branch’s position on House authorization is important not because it binds Congress or the
courts but because it reflects how the executive branch will likely treat requests it receives from House
committees investigating for purposes of impeachment. For example, after taking the position that an
impeachment investigation is valid only when authorized by the House, White House Counsel Pat
Cipollone in 2019 asserted that neither President Trump nor members of his Administration would
cooperate in what the executive branch viewed as the House’s “unconstitutional inquiry.”
In this sense, whether a committee has received authorization from the House for an impeachment
investigation may have a significant impact on the executive branch’s initial willingness to disclose
information to that committee, thereby possibly impeding congressional access to information. However,
if a dispute over the validity of an impeachment investigation were to make it into court, the executive
branch’s position may not prevail, particularly given the judiciary’s historical reluctance to scrutinize the
House’s implementation of its own internal powers.
The Judicial View
The judicial branch has generally been reluctant to interfere with how the House or Senate choose to
exercise their impeachment powers. Whether a committee is engaged in an impeachment investigation
arguably represents the unique convergence of various areas in which courts generally will not second-
guess the position of the House and its committees, including (1) the House’s implementation of its “sole
Power of Impeachment”; (2) the House’s exclusive authority to set and interpret its own rules; and (3) a
committee’s role in articulating the purpose of an investigation.
This judicial restraint was apparent in what is perhaps the only judicial decision to directly consider the
role authorization plays in a House impeachment investigation. In the case In re Application of the
Committee on the Judiciary—an opinion issued after Speaker Pelosi announced the initiation of an
official impeachment inquiry into President Trump but before the House formally authorized that
investigation—a federal district court considered whether the House Judiciary Committee could, as part
of its impeachment inquiry, obtain grand jury materials associated with Special Counsel Robert Mueller’s
investigation of President Trump. In holding that a committee investigating for purposes of impeachment
was entitled to access under the Federal Rules of Criminal Procedure, the court explicitly rejected the
argument that the Judiciary Committee could not be engaged in an impeachment investigation because it
had not received authorization from the House. “Even in cases of presidential impeachment,” the court
reasoned, “a House resolution has never, in fact, been required to begin an impeachment inquiry.”
Imposing an authorization requirement on the House, the court concluded, “would be an impermissible
intrusion on the House's constitutional authority both to” determine its own rules “and to exercise ‘the
sole power of Impeachment’ under the Impeachment Clause.” In its opinion, the district court also
referenced the fact that the House, though not at that point explicitly authorizing the impeachment
inquiry, had delegated the Judiciary Committee “any and all necessary authority under Article I of the
Constitution.” Whether the court would have come to the same conclusion absent this vague but broad
delegation is not clear.
The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) affirmed the district court opinion, though
the House had at that point passed its authorizing resolution. Still, the D.C. Circuit reiterated the general
principle that “[t]he courts cannot tell the House how to conduct its impeachment investigation.”
The value of these decisions was significantly diminished, however, when the Supreme Court vacated the
opinions after the case became moot while pending before the Court.

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Conclusion
The three branches of government differ in their interpretations of the role authorization plays in an
impeachment investigation. House practice suggests that committees may begin an impeachment
investigation without a specific authorization, though in most presidential impeachment investigations, it
has eventually provided some form of authorization. The executive branch, in contrast, has taken the
position that explicit House authorization is necessary for any committee to engage in an impeachment
investigation. The courts have not considered the question in any sustained manner, but the few decisions
that have touched on the issue suggest a degree of deference to the House in determining how it chooses
to implement its impeachment powers. As such, while the executive branch may disagree with the House
view, if a conflict over authorization arises and the issue is litigated, a reviewing court may be reluctant to
second-guess a House committee’s own view that it is investigating for purposes of impeachment. The
possible benefits of investigating under the mantle of impeachment, rather than or in conjunction with a
committee’s legislative powers, will be discussed in Part II of this series.

Author Information

Todd Garvey

Legislative Attorney

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