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Court Ruling on Trump Impeachment May Defuse Constitutional Crisis

Noah Feldman

(Bloomberg Opinion) -- In an important development, a federal district court in Washington, D.C. has pointed the way to a possible resolution of the standoff between President Donald Trump and the House of Representatives over the legitimacy of the impeachment inquiry. The court’s ruling signals that at least part of the judiciary is prepared to help resolve the emerging constitutional crisis — by deciding in favor of Congress and against the president.

The court was not directly addressing Trump’s refusal to cooperate with the House inquiry, but rather the House Judiciary Committee’s request for otherwise-secret grand jury testimony generated as part of Robert Mueller’s investigation. Yet in an unwise attempt to block the Judiciary Committee from getting that testimony, the Department of Justice argued that a House committee can’t conduct an impeachment inquiry without a resolution passed by the whole House. That’s the same argument that Trump’s White House counsel has deployed to insist that the entire impeachment inquiry is unconstitutional — and that as a result, Trump doesn’t have to cooperate.

The district court squarely and convincingly rejected the Department of Justice’s argument. This result strongly indicates that other judges in the D.C. district court would similarly reject that argument if and when Congress asks them to enforce its subpoenas against Trump administration officials.

What’s most important about the court’s decision, then, isn’t the specific content of the grand jury testimony that the court ordered released to Congress, or even the fact of Congress getting that access.

The most significant part of the opinion appears just after the middle of the 75-page opinion, starting at page 49. The court started with the Department of Justice’s assertion that the “impeachments of Presidents [Bill] Clinton and Andrew Johnson were investigated in multiple phases with each phase authorized by the House’s adoption of resolutions.” That statement was not accurate, as the court explained.

First, the court pointed out that the House has investigated judges for impeachment before passing any inquiry resolution — in fact, it even impeached one of them. Then the court explained that the impeachment inquiries for Johnson, Richard Nixon, and Clinton all began in the House before any resolution was passed.

These observations amount to a refutation of the first, factual premise of the Trump administration’s argument: that Congress can’t start an impeachment inquiry without the full House passing a resolution, because that amounts to Congress breaking its own precedent.

That wasn’t all. The court went on to say that even if the House of Representatives had acted against precedent, “the manner in which the House has chosen to conduct impeachment encompasses more than past [precedents].” Put another way, the court said, “no governing law requires” the House to pass a resolution before commencing an impeachment inquiry. The Constitution imposes no such requirement, the court correctly observed. Neither do House rules.

Given the absence of any legal basis for the Trump administration’s assertion, the court concluded, it would be an “impermissible intrusion on the House’s constitutional authority” for the court to require the House to pass a resolution. As the court reminded its readers, the Constitution gives the House of Representatives “the sole power of impeachment.”

This part of the opinion not only rejected the Trump administration’s claim that the House must constitutionally pass a resolution before launching an impeachment inquiry, it also strongly implied that Trump himself lacks the constitutional authority to demand that the House do so. If the court lacks the authority to impinge on how the House decides to conduct impeachment, so does the president.

No lawyer I know is likely to disagree with the content of the court’s holding. After all, no lawyer I know takes seriously the Trump administration’s pseudo-constitutional claim that the House lacks authority to conduct an impeachment inquiry without a resolution.

Nevertheless, the fact that the court expressly rejected the Trump administration’s position is a highly significant move in the complex game now being played between the three branches of government. So far, the House has exercised its constitutional powers to investigate impeachment; the executive branch has insisted that it will not comply. If that standoff were to continue, we would be in a genuine constitutional crisis — a crisis we would be feeling more strongly already if so many witnesses weren’t ignoring Trump’s directive not to appear.

When two branches of government are in a standoff, one constitutional solution is for the third branch to step in. In this case, that would be the judiciary.

The district court’s ruling doesn’t yet resolve the standoff. But it functions as a very clear signal that the lower courts, at least, are prepared to enforce congressional subpoenas despite the Trump administration’s claim that the proceedings are illegitimate. That’s encouraging news for House Democrats. But it’s also good news for the republic, because it suggests a way out of the looming crisis.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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