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Obstruction of Congress, Impeachment and Constitutional Conflict

Jonathan Shaub
Friday, January 10, 2020, 2:56 PM

Any discussion of the obstruction charge against President Trump should take into account the historical constitutional disputes between Congress and the executive branch.

The House Judiciary Committee opens the first day of formal impeachment hearings against President Nixon in 1974. (Library of Congress)

Published by The Lawfare Institute
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Among the most important outstanding issues as impeachment moves to the Senate is whether senators will attempt to obtain the testimony of senior executive branch officials who have, to date, declined to testify. Shortly before the New Year, a New York Times story based on newly reported emails and communications suggested that the officials who know the most about the withheld aid to Ukraine—former National Security Adviser John Bolton; Acting White House Chief of Staff Mick Mulvaney; Office of Management and Budget officials Robert Blair, Michael Duffey and Russell Vought; and White House lawyers—are the same officials who, at President Trump’s direction, have refused to testify in the House impeachment investigation. And a report on unredacted emails involving Duffey and Blair by Kate Brannen at Just Security further illustrates the central role of these men in the events underlying the impeachment charges.


In the wake of those reports, Senate Minority Leader Chuck Schumer, among others, has repeatedly called for these officials to testify in the Senate trial. And Bolton has recently indicated he will testify if called by the Senate, despite the White House’s assertion that he is absolutely immune from such testimony. By coincidence, the U.S. Court of Appeals for the D.C. Circuit held arguments on Jan. 3 about former White House Counsel Don McGahn’s refusal to testify on the basis of the same immunity doctrine relied on by Mulvaney and others. The judges appeared to express some skepticism about the doctrine.


The House impeached Trump, in part, for obstruction based on his directions to these officials and others not to comply with the House’s subpoenas for testimony and documents.


Here, I examine in detail the underlying charges in the impeachment resolution for obstruction of Congress, collecting in one place some of the previous writings on each of the constitutional doctrines that underlies the executive branch’s refusals to comply with the House’s impeachment inquiry. In a follow-up piece, I consider the procedural questions related to the obstruction charge, including whether the House should have first asked the courts to weigh in on the constitutional dispute and whether the House could have taken additional actions to support the obstruction charge.


If we could go behind the philosopher John Rawls’s “veil of ignorance,” without knowledge of the political affiliation of the president or the House leaders, what neutral principles would we adopt about impeachment, executive privilege and obstruction? And how would those principles apply to the actions that form the basis for the obstruction charges? To me, these are very difficult questions—questions that have implications going forward for the Senate trial and future disputes between the executive and legislative branches over access to information.


The witnesses who are the subject of the obstruction charge are the very same witnesses who are now the subject of controversy in the Senate. In a future piece, I hope to examine their defenses and how the Senate should approach their testimony. But the constitutional dispute reflected in the obstruction charge and the lessons from the House’s choices are vital background for that discussion. And that examination is essential to consider whether impeachment should be the next constitutional step in the ever-escalating dispute over information in times of divided government—or whether we should hesitate before advocating for such a step. As one law professor put it, we are not that far removed from information disputes during the Obama years such as Fast & Furious and the Benghazi inquiry, when the parties’ roles were reversed.


In the McGahn oral argument, Judge Thomas Griffith, an appointee of George W. Bush, asked, “Has there ever been an instance of such broad-scale defiance of congressional requests for information in the history of the Republic? Has there ever been anything like it?” The lawyer representing the Department of Justice eventually responded, “Not to my knowledge”—and then noted that he thought “the President would say, never before has Congress engaged in the sort of illegitimate things they’re doing.” The actions of this administration in response to congressional oversight and the House’s impeachment inquiry, particularly taken as a whole, are unprecedented. And, as described below, the legal positions are extreme. But they do reflect, in part, some long-standing, bipartisan constitutional disputes between the executive branch and Congress. At what point do extreme legal positions warrant impeachment? And who is the judge of that extremity in an area of constitutional law in which the Supreme Court has never weighed in?


To Congress, almost all assertions of executive privilege are extreme and unlawful. The precedent set here with respect to impeachment will be applied to future presidents and, potentially, executive branch officials of both parties. And as Congress seeks to more aggressively assert its oversight authority, one of the constitutional authorities it could begin to pursue more commonly—without invoking the extreme option of sending the sergeant at arms to arrest executive branch officials—would be impeachment of the president or other executive branch officials for failure to comply with a subpoena, even outside the context of a preexisting impeachment. No executive branch official has been impeached since 1876. But Republican legislators openly advocated for the impeachment of Internal Revenue Service (IRS) Commissioner John Koskinen in 2016 because of the IRS’s responses to their subpoenas. Any discussion of the obstruction charge against Trump should take into account the historical constitutional disputes between the branches and explain how these charges fit within that precedent as well as what precedent they set for future disputes.


Background on the Obstruction Charge


The impeachment resolution approved by the House charges Trump with obstruction of Congress and summarizes the charge as follows:


Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its “sole Power of Impeachment”. President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution ….


In response [to the House’s impeachment inquiry], President Trump directed Executive Branch agencies, offices, and officials not to comply with [the House’s] subpoenas. President Trump has thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself the functions and judgment necessary to the exercise of the “sole Power of Impeachment” vested by the Constitution in the House of Representatives.


The article then goes on to list three actions as the basis for that charge: (a) directing the White House to defy a subpoena for documents; (b) directing executive branch agencies and offices to defy subpoenas for documents; and (c) directing current and former executive branch officials “not to cooperate with the Committees” and to defy subpoenas for testimony.


As in Article I of the impeachment resolution—which covers presidential abuse of power—the specific allegations in Article II relate only to the formal impeachment investigation into the withholding of aid to Ukraine. They do not expressly cover any earlier disputes over congressional subpoenas, or anything related to the Mueller investigation. The third ground for the article, for example, lists nine officials who refused to cooperate with the impeachment inquiry at the direction of the president—Mulvaney, Blair, National Security Council (NSC) lawyers John Eisenberg and Michael Ellis, NSC official Preston Wells Griffith, Vought, Duffey, Energy Department aide Brian McCormack, and State Department official T. Ulrich Brechbuhl—all of whom were called to testify after the House had formally authorized an impeachment inquiry. The obstruction charge does include a statement that the charged actions were “consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United States elections.” That could make the informational and testimonial disputes related to the Mueller report—including former White House counsel Don McGahn’s refusal to testify—relevant in a Senate trial. But none of those earlier actions are themselves made a basis for impeachment.


The executive branch, principally through the White House counsel’s office and the Office of Legal Counsel (OLC) has provided various constitutional arguments to justify its failure to comply with the House’s subpoenas. Relying on these arguments, the individuals who have refused to testify have done so on two different bases. The most senior White House officials—Mulvaney, Eisenberg and Blair, along with other individuals like Bolton and his deputy, Charles Kupperman—have either spurned a subpoena or declined to appear voluntarily because the White House has claimed they are absolutely immune from compelled congressional testimony. This is the same rationale under which McGahn defied a subpoena for testimony. The other officials—most significantly Ellis, Griffith, Vought, Duffey, McCormack and Brechbuhl—declined to testify in a private deposition because the committee rules would have excluded counsel from their respective agency from attending (what I call the “deposition-counsel requirement”). Those witnesses, unlike others who appeared for private depositions, were not subsequently subpoenaed for public testimony.


Finally, in refusing to comply with the document requests, the administration has argued that the House subpoenas were invalid because they were issued prior to the full House vote on impeachment and thus not authorized under House rules. The House did not reissue those subpoenas after the full chamber voted to authorize the impeachment inquiry.


The Constitutional Disputes Underlying the Obstruction Charge


As described in more detail below, each of the three constitutional rationales the White House and OLC has provided has some grounding in past executive branch practice and OLC precedent. But the assertions here also represent significant expansions of these prior precedents. Most importantly, none of these rationales has ever been applied to an impeachment inquiry in this manner.


OLC issued a relatively short letter opinion on Nov. 1, 2019, concluding that the deposition-counsel requirement applied to impeachment, and an even shorter letter opinion on Nov. 3 concluding that absolute immunity applied to impeachment as well. As I have written previously on Lawfare and elsewhere, I think those conclusions are highly suspect and fail to take into account or even analyze the fundamental difference between congressional oversight and impeachment, a distinction that has been recognized since the founding of the country. But there is no definitive judicial precedent addressing or rejecting the executive branch’s constitutional arguments; nor did the House seek one here.


The Deposition-Counsel Requirement:


A number of the witnesses who refused to testify in the impeachment inquiry did so because they had been subpoenaed to appear for a deposition but, under the rules applicable to that deposition, counsel from their executive branch agency would not be allowed to attend. Under the applicable rules, only their personal counsel would have been able to attend. In May 2019, OLC issued an opinion concluding that a rule prohibiting agency counsel “unconstitutionally inferences with the President’s right to control the disclosure of privileged information” and “interferes with the President’s authority to supervise the Executive Branch’s interactions with Congress.” The premise—that the president has the absolute constitutional authority to control the provision of information to Congress—is contested. But as I wrote at the time, even if one accepts this as true, the memo’s conclusion also rests on another somewhat startling, unexamined proposition: that the president has the absolute constitutional authority to countermand any congressional action that potentially impairs or interferes with his constitutional authority to control information without any need to consider Congress’s interests or constitutional authority.


The deposition-counsel requirement does have some historical support. In a footnote in a January 2016 opinion released at the end of the Obama administration, OLC noted that prohibiting agency counsel could raise constitutional “concerns” and undermine the president’s authority to consider and assert executive privilege where appropriate. That footnote reflects prior informal views that, as the May deposition-requirement opinion describes, the executive branch has long expressed to congressional committees, that is, that agency counsel should be permitted to attend when the deposition of an executive branch official or employee relates to their official duties. In the past, agencies usually negotiated to have the individual sit for a voluntary interview with agency counsel present, or, when that negotiation failed, allowed the employee to attend but would have agency counsel nearby in case of objections. And, as the January 2016 opinion reflects, the agency could also pay for the individual to retain private counsel insofar as the agency’s and the individual’s interests were aligned.


The May opinion thus represented a new, aggressive constitutional position, turning constitutional concerns and prior practical objections into an absolute constitutional prerogative to countermand a congressional subpoena. The executive adopted that position, of course, in response to the committee’s refusal to compromise and allow agency counsel—or settle for a voluntary interview, at which agency counsel could be present since the deposition rules would not apply. The recent history of oversight is replete with this type of constitutional hardball, in which the executive branch and Congress adopt increasingly aggressive positions or procedures to counter the other branch’s assertions of authority and to gain the upper hand in these information disputes.


The deposition-counsel requirement, in my view, is representative of a new type of prophylactic executive privilege that has replaced the historical approach of narrow assertions of executive privilege over specific information. It is prophylactic because its sole constitutional basis is that it is necessary to protect executive privilege; there is no freestanding constitutional requirement, for example, that agency counsel be allowed in the deposition. The problem with this prophylactic rationale, however, is that it omits the inquiry crucial to the underlying privilege it protects—Congress’s interests. As I wrote about the May opinion, it “arms the executive branch with an expansive new constitutional authority—a prophylactic power grounded in executive privilege—with barely a mention, let alone analysis, of the constitutional authority of Congress that is being nullified.” That is particularly striking because everyone acknowledges that executive privilege is a qualified privilege; the Supreme Court made that clear in United States v. Nixon, in which it held that the Watergate tapes were presumptively privileged but that the privilege was overcome in that instance by the grand jury’s need for them. The deposition-counsel requirement, however, is not qualified in any manner by congressional need, at least in OLC’s explanation.


The Nov. 1 OLC letter opinion applying this deposition-counsel requirement to impeachment is all the more striking for that reason. The opinion says that the “same principles” underlying the May deposition-requirement opinion apply in an impeachment inquiry, finding it “sufficient” without further analysis that “a qualified executive privilege” remains available in impeachment. The opinion says so despite recognizing that the House in an impeachment inquiry operates in a manner similar to a grand jury gathering facts about past conduct, the precise type of inquiry that Nixon held overcame the president’s presumptive privilege. Whether executive privilege “remains available” as a theoretical matter in an impeachment inquiry is largely meaningless; the key question is whether it will be overcome. Nixon suggests that it almost always will be in such circumstances. And the historical view of presidents, dating to George Washington, overwhelmingly supports the proposition that executive privilege does not allow the president to withhold information during an impeachment inquiry—whether because executive privilege does not apply at all or because it is overcome by Congress’s need.


The rote application to impeachment of the absolute deposition-counsel requirement, which takes no account of Congress’s interests, is thus highly questionable. To put it most starkly: The executive branch is asserting the unqualified constitutional authority to refuse to comply with a congressional impeachment subpoena because complying with the subpoena could potentially burden its qualified privilege that is almost certainly overcome by congressional interests in an impeachment, at least with respect to some information.


The prophylaxis is thus far more robust than the underlying privilege it seeks to protect. That imbalance would also be somewhat true in the context of general congressional oversight. But in the context of impeachment, it leads to the absurdity that the prophylaxis provides absolute protection for something that almost certainly does not exist.


Testimonial Immunity of Senior Presidential Advisers


I have written at length on the executive branch’s immunity doctrine in the context of the subpoena for, and resulting litigation over, McGahn’s testimony. The immunity doctrine has a more significant history than the deposition-counsel requirement, and it largely originates with memos first written during the Nixon administration, many of which have just been released publicly for the first time. The basic premise of the position, which has evolved over time, is that senior presidential advisers are absolutely immune from compelled testimony before Congress. This position is largely grounded in the Constitution’s separation of powers; the argument is that, as a coequal branch, Congress cannot compel the president to testify and, as a result, it also cannot compel his closest advisers—his “alter egos”—to testify, either. The “alter ego” theory rests largely on the Supreme Court’s decision in Gravel v. United States that aides to members of Congress enjoy the immunity conveyed by the Speech and Debate Clause of the U.S. Constitution because the aides are, in essence, alter egos of the members they serve.


The position has been resoundingly rejected by the U.S. District Court for the District of Columbia twice now: first, during the George W. Bush administration by Judge John Bates (whom Bush himself had appointed), and, recently, by the district court judge in the McGahn litigation, whose decision is now on appeal to the D.C. Circuit. The constitutional reasoning behind the immunity doctrine, particularly the public rationale, was relatively short and conclusory until 2014, when OLC issued a lengthy opinion concluding that David Simas, a senior adviser to President Obama, was immune. In that case, OLC “respectfully disagree[d]” with Judge Bates’s opinion rejecting the immunity doctrine. The Trump administration has relied on immunity much more often than previous administrations, however, asserting immunity for McGahn and White House aides Hope Hicks and Kellyanne Conway before the impeachment inquiry began, as well as relying on immunity to direct numerous impeachment witnesses not to testify.


In doing so, OLC appears to have expanded the doctrine substantially, particularly as to which advisers are “senior” enough to warrant immunity and what type of testimony is covered. In the past, immunity has been asserted only for top-level, senior advisers who advise the president directly—the White House counsel, chief of staff, national security adviser, or close senior advisers such as Karl Rove, for example. Eisenberg, however, is a deputy who reports to the White House counsel, not directly to the president. And the same is true of Blair, who reports to Mulvaney.


The executive branch has long limited the number of individuals who would theoretically be entitled to immunity because it recognized that the doctrine—an absolute immunity that took no account of congressional interest—was extreme, and that pushing it too far would likely lead to challenges and, potentially, to adverse judicial decisions that eliminated or significantly undercut the availability and utility of the doctrine. As former White House counsel Bob Bauer has written, “Administration lawyers could not have reasonably advised the president that he stood any chance of prevailing in court with a constitutional position this uncompromising” or conclude that “it was in the long-term interests of the presidency to push absolute immunity for senior White House aides in the courts and lose decisively.”


Yet the administration has nonetheless continued to push the circle of immunity further and further out from the president. And, in the case of Conway, it has also expanded the immunity to include congressional testimony that has nothing to do with an adviser’s duty to provide confidential advice and counsel to the president, the original justification for the immunity. In Conway’s case, OLC concluded she was immune even from testimony about comments she had made publicly in her television appearances and despite the fact that the Office of Government Ethics had issued a public report concluding those comments had violated the Hatch Act.


Immunity, like the deposition-counsel requirement, has never been asserted in an impeachment inquiry. President Nixon did not prevent any of his aides from testifying. Nor did President Clinton.


And it is, at least as historically understood, largely a prophylactic doctrine as well—designed to protect both executive privilege and the president’s ability to have access to his closest advisers. As head of OLC, William Rehnquist, who would later go on to become chief justice of the United States, is largely credited with creating the doctrine initially as a “tentative and sketchy” “generalization” from a few historical examples. He argued that senior advisers “whose sole responsibility is that of advising the President ... should not be required to appear at all” in response to a congressional subpoena because “all of their official responsibilities would be subject to a claim of privilege.” And recent opinions have argued that the immunity is necessary because compelled testimony creates a risk of “inadvertent or coerced” disclosure of privileged information. Like the deposition-counsel requirement, in this reading immunity is absolute and requires no consideration of Congress’s need for particular testimony, even though the underlying privilege it is designed to protect is a qualified one.


OLC justified the application of immunity to impeachment by noting, as it did in the Nov. 1 deposition-counsel requirement opinion, that executive privilege applies in impeachment and, thus, immunity is necessary to protect it. But it also argued that “the commencement of an impeachment inquiry only heightens the need to safeguard the separation of powers and preserve the ‘independence and autonomy’ of the Presidency—the principal concerns underlying testimonial immunity.” The opinion did recognize that, in an impeachment inquiry, the House may “have a legitimate need for information possessed by the President’s senior advisors,” but it concluded that immunity “would not prevent the House from obtaining information from other available sources.” The “other sources” identified were lower-ranking White House officials, documents, and voluntary testimony by senior advisers when permitted by the president.


As with the deposition-counsel requirement, OLC’s straightforward application of immunity to impeachment without further analysis is hard to square with either the history or the nature of impeachment itself. By the nature of a senior adviser’s role, it seems quite possible that he or she could have information material to an impeachment inquiry that cannot be obtained elsewhere, particularly when the circle of immune senior advisers is expanded to include everyone who works near the president. That is true in the abstract, and it seems particularly true in this specific impeachment. No matter how pertinent that information, however, and despite the fact that the qualified executive privilege would almost certainly be overcome in most instances by the House’s need for the information in performing its grand jury-like function, OLC’s view is that the official is absolutely immune from testifying.


As a matter of pure separation of powers, that position also appears contrary to the nature of impeachment. Impeachment does not “heighten” the executive branch’s defenses against Congress, as the OLC letter opinion suggests. Instead, as the conservative legal historian and scholar Raoul Berger wrote in 1974, the impeachment power “constitutes a deliberate breach in the doctrine of separation of powers.” In his view, that breach meant that “no arguments drawn from that doctrine (such as executive privilege) may apply to the preliminary inquiry by the House or the subsequent trial by the Senate.” In OLC’s view, however, impeachment does not alter the calculus in any manner worthy of analysis, and advisers who meet regularly with the president remain absolutely immune from testifying in the impeachment inquiry, no matter the nature of the information they have or its materiality to the inquiry. To me, that position is highly problematic in that it eliminates any consideration of congressional interests in the context in which those interests are likely at their zenith—that is, impeachment. It is one thing to apply long-standing absolute immunity doctrine even though it rests on a somewhat tenuous foundation that would likely be rejected, at least in part, by the courts. But it is quite another thing to extend that doctrine to apply to impeachment, with no examination of the distinction between impeachment and traditional oversight or recognition of the sweeping power of inquiry impeachment has historically been thought to convey.


Refusal to Provide Documents


There is less information about, and less focus on, the obstruction charges related to the White House’s blanket refusal to provide documents in response to the House’s subpoenas. And the executive branch’s defense is much different in this case. Rather than claiming that existing doctrines apply to impeachment and relying on those doctrines, the White House has claimed that these subpoenas exceeded the committees’ authority because no impeachment inquiry had been authorized when they were issued. Buried in the Nov. 1 deposition-counsel requirement opinion is the statement that OLC “previously advised” the White House, “prior to” the full House vote authorizing the impeachment inquiry, that “the House had not vested any committee in the current Congress with the authority to issue subpoenas in connection with an impeachment inquiry.”


The executive branch’s traditional process for responding to document requests is well established and typically involves a back-and-forth negotiation with congressional committees—known as the accommodation process—about what documents the executive branch will provide. When a dispute cannot be resolved and the committee is ready to hold the executive branch official in contempt, the president can assert executive privilege or, as Trump did with materials involved in the Mueller investigation and the census documents, make a “protective” assertion of executive privilege because he needs more time to evaluate a potential privilege.


That process has not occurred with respect to the subpoenas listed in the impeachment resolution, however. The executive branch did not engage in the accommodation process, and the president has not asserted any form of executive privilege. Instead, the White House adopted an absolute position that the subpoenas were invalid and refused to provide any documents. In his Oct. 8 letter, White House counsel Pat Cipollone contended that the House’s “inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections,” and, as a result, he stated that “the Executive Branch cannot be expected to participate in it.”


Unlike the subpoenas for testimony issued to individual officials, the document subpoenas that are the subject of the obstruction charge were issued prior to the full House formally voting to pursue an impeachment inquiry. Putting the due process objections aside, that timing forms the primary basis for the administration’s legal argument that these subpoenas are not valid. In short, they argue that the authority of the committees to issue subpoenas derives from authority delegated to the committee by the full House—and that the existing delegation, prior to the impeachment vote, delegated authority to issue subpoenas in furtherance of specific duties, all of which were legislative and none of which involved impeachment. The White House claimed the subpoenas were invalid because they were expressly sent in furtherance of an impeachment inquiry and the House had not specifically authorized the committees to issue subpoenas in furtherance of such an inquiry. In his suit seeking a declaratory judgment about his immunity, Kupperman made a similar argument, suggesting the subpoena for his testimony in furtherance of the impeachment inquiry was not binding because it was not authorized under the House rules. Cipollone's letter did note, however, that if the committees “wish to return to the regular order of oversight requests,” that is, request the information pursuant to traditional oversight authority, the White House stood “ready to engage in that process as we have in the past,” that is, the accommodation process. The only reason Cippolone provided for not engaging in that process was the fact that the subpoenas were transmitted solely “pursuant to the House of Representatives’ impeachment inquiry.”


There is little if any precedent for such a blanket refusal in response to congressional subpoenas, as Judge Griffith highlighted at the McGahn oral argument. But, as with the deposition-counsel requirement and immunity, the refusal does draw upon existing doctrine. The Supreme Court, for example, has reversed a conviction for contempt of Congress because the committee at issue exceeded the authority delegated it by the House, explaining that the extent of a committee’s “right to exact testimony and to call for the production of documents must be found in” the House rules or resolution authorizing it to take those actions. And the executive branch has in the past objected to congressional information requests on the grounds that the request exceeded a particular committee’s jurisdiction or that the committee lacked a legitimate legislative purpose at all.


In the Nov. 1 opinion, OLC states that “subpoenas issued before [the full House authorized an impeachment inquiry] purporting to be ‘pursuant to’ an impeachment inquiry were not properly authorized” because the relevant committees had not been vested with authority to issue subpoenas in furtherance of an impeachment inquiry. And because the resolution authorizing the impeachment inquiry only directed the committees to “continue” their ongoing investigations but did not “purport to ratify any previously issued subpoenas,” the opinion concluded that committees “would have to issue new subpoenas to impose any compulsory effect on recipients.”


The executive branch has thus not asserted the authority to withhold the information absolutely from Congress, and it is not clear what the response would have been had the House reissued the subpoenas after the full House had voted to authorize the impeachment inquiry. Presumably, the White House and relevant agencies would have withheld or redacted the relevant information in most documents on the basis of executive privilege, as it did in response to Freedom of Information Act (FOIA) requests for similar documents. But, unlike FOIA responses, any actual assertion of privilege to protect that information would have required balancing congressional need for the information. And that balance decidedly favors Congress in the context of impeachment. The blanket refusal to even begin the accommodation process on the basis of the committees’ lack of authority ensures the executive branch does not have to face that difficult balancing. And, as in the context of the deposition-counsel requirement and immunity, that refusal also ignores the responsibility to take Congress’s interests into account.


***


Disagreeing with or recognizing the extremity of the White House’s and OLC’s positions, however, does not answer the more fundamental question about whether the president’s reliance on those legal positions in refusing to comply with congressional subpoenas warrants impeachment. The primary argument in the Judiciary Committee’s impeachment report that Trump’s actions constitute an impeachable offense is grounded in history: Article II of the Trump impeachment resolution mirrors Article III of the impeachment resolution the House Judiciary Committee passed against Nixon after Watergate. The Nixon impeachment resolution (on which the House never voted because of Nixon’s resignation) charged that the president had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas” and “willfully disobeyed such subpoenas.” It stated that the “subpoenaed papers and things were deemed necessary by the Committee” for impeachment and that Nixon had, “by substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives.” The articles of impeachment against President Clinton initially proposed by the House Judiciary Committee included a related obstruction of Congress charge based, as amended, only on Clinton’s answers to 81 questions sent to him by the committee as part of the impeachment inquiry. But the full House declined to adopt that article, and Clinton was charged only with articles related to perjury and to witness tampering in ongoing judicial proceedings.


The executive branch and Congress have long held widely divergent views about their respective constitutional authorities, views that have transcended party affiliation and have been adopted by both Republican and Democratic presidents. And Congress has often accused those presidents of acting unconstitutionally in withholding information. Identifying precisely when the executive branch’s actions are so legally dubious as to warrant impeachment of the president is thus not an easy task—particularly when the same Congress that is asserting an abridgment of its claimed constitutional authority by the executive branch is the entity responsible for impeachment.


Traditional oversight in today’s world is, in reality, a continuous constitutional dispute with no clear rules or precedents to guide it. Making that dispute the subject of impeachment is fraught with questions about what precedent is being set for future oversight disputes or claims of privilege. Even constitutional scholars who appear to generally favor impeachment on the charges in Article I related to the withholding of aid have argued that “[a] general rule should be that it’s no high crime to oppose or contest congressional subpoenas, even with bad or bad faith arguments.”


The House has—wisely I think—limited its obstruction charge to obstruction of an ongoing impeachment inquiry, which distinguishes the issue from traditional oversight disputes. The House’s assertion that it need not go to the court finds support in the long-standing position of the Justice Department, on which the Trump administration continues to rely, that Congress cannot ask the courts to weigh in. But the doctrines on which the executive branch is relying are also applicable to oversight. I have argued that the best understanding of executive privilege is as an implicit presidential immunity that applies only to Congress’s oversight authority and is inapplicable to impeachment, at least as the privilege has been historically exercised and explained. But, as reflected in OLC’s conclusions that the deposition-counsel requirement and testimonial immunity apply equally during an impeachment inquiry, there is no clear judicial precedent drawing that kind of sharp distinction between oversight and impeachment authority for purposes of executive privilege and its prophylactic protections.


As a result, impeachment of a president based on the executive branch’s reliance on these doctrines could set a dangerous precedent that would be difficult to limit to obstruction of an impeachment inquiry and could be extended to obstruction of legislative oversight more generally. At the same time, faced with such obstruction and the “increasing evisceration” of its oversight role, Congress’s only recourse to preserving its constitutional authority to check the executive branch may be to pursue impeachment. Those two conflicting considerations make the question of whether the obstruction charges constitute an impeachable offense a difficult one.


Further complicating that question is what role the courts should play in this dispute. The uncertainty about the constitutional privileges and immunities on which the White House and OLC have relied has led to the question of whether the House should have first sought judicial resolution of those constitutional claims. I examine that question next.


Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.

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