Chairman Adam Schiff, House Permanent Select Committee on Intelligence; Chairman Elijah E. Cummings, Committee on White House Oversight; Chairman Eliot L. Engel, House Committee on Foreign Affairs, continue sending carefully worded letters under the guise of ‘subpoenas’ today. [Main Link Here]
However, you’ll notice in these latest versions they are modifying: (#1) now they actually include attachments that would be “subpoenas”; yet they shift language to ‘subpoena schedules’. Why? Because (#2) the letters and subpoenas omit any penalty for non-compliance. They cannot assign a penalty because the letters do not carry judicial authority.
Obviously Lawfare, instructing Pelosi’s group, realizes the larger American electorate has caught on to the impeachment word games. The “official impeachment inquiry” is all a one-party partisan ruse. Here’s the issue they cannot overcome.
Yes, congress can issue subpoenas; however a congressional committee must meet three requirements for their investigative subpoenas to be “legally sufficient” or have “judicial authority”; meaning a subpoena that carries a legal penalty for non-compliance.
- First: “the committee’s investigation of the broad subject area must be authorized by its chamber;
- Second: “the investigation must pursue “a valid legislative purpose” but does not need to involve legislation and does not need to specify the ultimate intent of Congress;
- Third: the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation.
These “subpoenas” from the committees do not meet the first hurdle. The “impeachment inquiry” was not authorized by its chamber. The chamber for each committee is the full house of representatives. [Again, there are constitutional processes within impeachment.]
KEY POINT – Remember, the Legislative committee intent is to pierce the constitutional firewall that creates a distinct separation of powers; and the Legislative branch is trying to force documents from the Executive branch, overriding executive privilege. This is a constitutional issue.
This level of committee intent is why judicial authority (the full house authorization to grant weight to legal subpoena power) becomes much more important.
The House must vote to authorize the committee investigation, and through that process the committee gains judicial authority. A demand letter only becomes a subpoena, technically meaning: ‘a request for the production of documents with a penalty for non-compliance’, when the committee has judicial authority.
Absent judicial authority, all of these “subpoenas” are simply “letters”. That is why this latest round of letters (they are calling subpoenas) do not carry a penalty for non-compliance. The demands cannot carry a penalty because the demands do not contain judicial authority…. because the investigation was not authorized by the chamber.
Notice the letters are from Oversight, Intel and Foreign Affairs. Those three committees are outside the jurisdiction of the committee that holds power to write articles of impeachment, the House Judiciary Committee (Chairman Jerry Nadler). As lawyer Ristvan noted:
It is well established that the House has subpoena powers concerning legislative oversight. But that power is limited to matters concerning A1§8. Neither foreign policy (Ukraine call) nor impeachment have any nexus to A1§8. Such subpoenas do not abrogate executive privilege.
It is established (SCOTUS concerning Nixon impeachment investigation) that IF the House votes to have the Judiciary committee formally conduct an impeachment investigation, then that committee (only) has subpoena power, and that power CAN pierce thru executive privilege. No such vote has been taken.
In essence, Schiff, Cummings and Engel are on a non-constitutional, non-authorized (by chamber) partisan fishing expedition – given the label “official impeachment inquiry” via a non-constitutional unilateral decree by Speaker Nancy Pelosi.
Pelosi (Speaker), Schiff (Intel), Cummings (Oversight), and Engel (Foreign Affairs) are attempting to use non-jurisdictional committees (no authority within the impeachment process) to gain evidence to relay to the committee that would have impeachment authority, the House Judiciary Committee.
Presumably once their assembled information arrives at the Judiciary, Jerry Nadler’s Lawfare staff will write articles of impeachment. This is the process they are following; however, this partisan approach completely cuts-out the rights of the minority (republicans) and the impeachment due process rights of the executive. It really is quite a scheme.
Pelosi appears to be waiting until all of the assembled evidence arrives at the Judiciary Committee before she will call for a full house vote to authorize the impeachment investigation. Again, manipulating the process.
In the interim, none of these demand letters carry any penalty for non-compliance because Pelosi’s crew doesn’t want to engage the court system. In these latest letters they have retracted the ¹prior threats (example below) to use non-compliance as “evidence of obstruction” because it’s likely any “obstruction articles” would be easily challenged in court on the basis the underlying subpoena lacked judicial authority.
[¹In my opinion Lawfare messed up when they previously included that threat, and now they’ve recognized what could happen with judicial branch backlash.]
Following the 2018 mid-term election I wrote THIS:
When it comes to political weaponization and political power constructs the Marxists have exceptional work ethics; they will outwork anyone on the other side who opposes them. They are far, far, better at political strategy and scheme than conservative politicians. Part of the reason for their success is that crooks, cons and swindlers are far more cunning than honorable, virtuous and moral people. It is unfortunate, but true; and the same truth applies beyond politics.
[…] We are the normal people who don’t spend every moment of our day scheming, conniving, and developing plans to dismantle the lives of your freedom loving community and rebuild it as a collective society. For these Marxists who are about to take power that’s all they do. Every moment of their existence they spend thinking about how to gain power and dominate, 24/7/365 that’s all they do…. (link)