(Slip Opinion)

1

House Committees’ Authority to 

Investigate for Impeachment

The House of Representatives must expressly authorize a committee to conduct an 

impeachment investigation and to use compulsory process in that investigation before 

the committee may compel the production of documents or testimony in support of the 

House’s power of impeachment.

The House had not authorized an impeachment investigation in connection with 

impeachment-related subpoenas issued by House committees before October 31, 2019, 

and the subpoenas therefore had no compulsory effect.

The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal 

status of those subpoenas, because the resolution did not ratify or otherwise address 

their terms.

January 19, 2020

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

On September 24, 2019, Speaker of the House Nancy Pelosi “announc[ed]” at a press conference that “the House of Representatives is 

moving forward with an official impeachment inquiry” into the President’s actions and that she was “directing . . . six Committees to proceed 

with” several previously pending “investigations under that umbrella of 

impeachment inquiry.”1 Shortly thereafter, the House Committee on 

Foreign Affairs issued a subpoena directing the Secretary of State to 

produce a series of documents related to the recent conduct of diplomacy 

between the United States and Ukraine. See Subpoena of the Committee 

on Foreign Affairs (Sept. 27, 2019). In an accompanying letter, three 

committee chairmen stated that their committees jointly sought these 

documents, not in connection with legislative oversight, but “[p]ursuant to 

the House of Representatives’ impeachment inquiry.”2 In the following 

days, the committees issued subpoenas to the Acting White House Chief 

 1 Nancy Pelosi, Speaker of the House, Press Release: Pelosi Remarks Announcing 

Impeachment Inquiry (Sept. 24, 2019), www.speaker.gov/newsroom/92419-0 (“Pelosi 

Press Release”).

2 Letter for Michael R. Pompeo, Secretary of State, from Eliot L. Engel, Chairman, 

Committee on Foreign Affairs, U.S. House of Representatives, Adam Schiff, Chairman, 

Permanent Select Committee on Intelligence, U.S. House of Representatives, and Elijah 

E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Sept. 27, 2019) (“Three Chairmen’s Letter”).
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2

of Staff, the Secretary of Defense, the Secretary of Energy, and several 

others within the Executive Branch.

Upon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in 

furtherance of an asserted impeachment inquiry. We advised that the 

committees lacked such authority because, at the time the subpoenas were 

issued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry. The Constitution vests the “sole 

Power of Impeachment” in the House of Representatives. U.S. Const. 

art. I, § 2, cl. 5. For precisely that reason, the House itself must authorize 

an impeachment inquiry, as it has done in virtually every prior impeachment investigation in our Nation’s history, including every one involving 

a President. A congressional committee’s “right to exact testimony and to 

call for the production of documents” is limited by the “controlling charter” the committee has received from the House. United States v. Rumely, 

345 U.S. 41, 44 (1953). Yet the House, by its rules, has authorized its 

committees to issue subpoenas only for matters within their legislative

jurisdiction. Accordingly, no committee may undertake the momentous 

move from legislative oversight to impeachment without a delegation by 

the full House of such authority.

We are not the first to reach this conclusion. This was the position of 

the House in the impeachments of Presidents Nixon and Clinton. In the 

case of President Nixon, following a preliminary inquiry, the House 

adopted a formal resolution as a “necessary step” to confer the “investigative powers” of the House “to their full extent” upon the Judiciary Committee. 120 Cong. Rec. 2350–51 (1974) (statement of Rep. Rodino); see 

H.R. Res. 803, 93d Cong. (1974). As the House Parliamentarian explained, it had been “considered necessary for the House to specifically 

vest the Committee on the Judiciary with the investigatory and subpena 

power to conduct the impeachment investigation.” 3 Lewis Deschler, 

Deschler’s Precedents of the United States House of Representatives ch. 

14, § 15.2, at 2172 (1994) (Parliamentarian’s Note).

3 The House followed 

the same course in the impeachment of President Clinton. After reviewing 

the Independent Counsel’s referral, the Judiciary Committee “decided that 

it must receive authorization from the full House before proceeding on 

 3 Although volume 3 of Deschler’s Precedents was published in 1979, our citations of 

Deschler’s Precedents use the continuously paginated version that is available at www.

govinfo.gov/collection/precedents-of-the-house.
House Committees’ Authority to Investigate for Impeachment

3

any further course of action.” H.R. Rep. No. 105-795, at 24 (1998). The 

House again adopted a resolution authorizing the committee to issue 

compulsory process in support of an impeachment investigation. See H.R.

Res. 581, 105th Cong. (1998). As Representative John Conyers summarized in 2016: “According to parliamentarians of the House past and 

present, the impeachment process does not begin until the House actually 

votes to authorize [a] Committee to investigate the charges.”4

In marked contrast with these historical precedents, in the weeks after 

the Speaker’s announcement, House committees issued subpoenas without 

any House vote authorizing them to exercise the House’s authority under 

the Impeachment Clause. The three committees justified the subpoenas 

based upon the Rules of the House, which authorize subpoenas for matters 

within a committee’s jurisdiction. But the Rules assign only “legislative 

jurisdiction[]” and “oversight responsibilities” to the committees. H.R. 

Rules, 116th Cong., Rule X, cl. 1 (Jan. 11, 2019) (“Committees and their 

legislative jurisdictions”), cl. 2 (“General oversight responsibilities”); see 

also H.R. Rule X, cls. 3(m), 11. The House’s legislative power is distinct 

from its impeachment power. Compare U.S. Const. art. I, § 1, with id. art. 

I, § 2, cl. 5. Although committees had that same delegation during the 

Clinton impeachment and a materially similar one during the Nixon 

impeachment, the House determined on both occasions that the Judiciary 

Committee required a resolution to investigate. Speaker Pelosi purported 

to direct the committees to conduct an “official impeachment inquiry,” 

but the House Rules do not give the Speaker any authority to delegate 

investigative power. The committees thus had no delegation authorizing 

them to issue subpoenas pursuant to the House’s impeachment power.

In the face of objections to the validity of the committee subpoenas that 

were expressed by the Administration, by ranking minority members in 

the House, and by many Senators, among others, on October 31, 2019, the 

House adopted Resolution 660, which “directed” six committees “to 

continue their ongoing investigations” as part of the “existing House of 

Representatives inquiry into whether sufficient grounds exist” to impeach 

President Trump. H.R. Res. 660, 116th Cong. § 1 (2019). Resolution 

660’s direction, however, was entirely prospective. The resolution did not 

purport to ratify any previously issued subpoenas or even make any men-

 4 Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H. 

Comm. on the Judiciary, 114th Cong. 3 (2016).
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4

tion of them. Accordingly, the pre-October 31 subpoenas, which had not 

been authorized by the House, continued to lack compulsory force.5

I.

Since the start of the 116th Congress, some members of Congress have 

proposed that the House investigate and impeach President Trump. On 

January 3, 2019, the first day of the new Congress, Representative Brad 

Sherman introduced a resolution to impeach “Donald John Trump, President of the United States, for high crimes and misdemeanors.” H.R. Res.

13, 116th Cong. (2019). The Sherman resolution called for impeachment 

based upon the President’s firing of the Director of the Federal Bureau of 

Investigation, James Comey. See id. Consistent with settled practice, the 

resolution was referred to the Judiciary Committee. See H.R. Doc. No.

115-177, Jefferson’s Manual § 605, at 324 (2019).

The Judiciary Committee did not act on the Sherman resolution, but it 

soon began an oversight investigation into related subjects that were also 

the focus of a Department of Justice investigation by Special Counsel 

Robert S. Mueller, III. On March 4, 2019, the committee served document 

requests on the White House and 80 other agencies, entities, and individuals, “unveil[ing] an investigation . . . into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his 

associates, and members of his Administration.”6 Those document requests did not mention impeachment.

After the Special Counsel finished his investigation, the Judiciary 

Committee demanded his investigative files, describing its request as an 

 5 This opinion memorializes the advice we gave about subpoenas issued before October 31. We separately addressed some subpoenas issued after that date. See, e.g., Letter 

for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney 

General, Office of Legal Counsel (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for 

Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney 

General, Office of Legal Counsel (Nov. 3, 2019) (subpoena to John Eisenberg); Exclusion 

of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. 

O.L.C. __ (Nov. 1, 2019).

6 U.S. House of Representatives Committee on the Judiciary, Press Release: House 

Judiciary Committee Unveils Investigation into Threats Against the Rule of Law (Mar. 4, 

2019), judiciary.house.gov/news/press-releases/house-judiciary-committee-unveilsinvestigation-threats-against-rule-law; see also Letter for the White House, c/o Pat 

Cipollone, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of 

Representatives (Mar. 4, 2019).
House Committees’ Authority to Investigate for Impeachment

5

exercise of legislative oversight authority. See Letter for William P. Barr, 

Attorney General, from Jerrold Nadler, Chairman, Committee on the 

Judiciary, U.S. House of Representatives at 3 (May 3, 2019) (asserting 

that “[t]he Committee has ample jurisdiction under House Rule X(l) to 

conduct oversight of the Department [of Justice], undertake necessary 

investigations, and consider legislation regarding the federal obstruction 

of justice statutes, campaign-related crimes, and special counsel investigations, among other things”). The committee’s subsequent letters and 

public statements likewise described its inquiry as serving a “legislative 

purpose.” E.g., Letter for Pat Cipollone, White House Counsel, from 

Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of 

Representatives at 3–6 (May 16, 2019) (describing the “legislative purpose of the Committee’s investigation” (capitalization altered)).

Over time, the Judiciary Committee expanded the description of its investigation to claim that it was considering impeachment. The committee 

first mentioned impeachment in a May 8, 2019 report recommending that 

the Attorney General be held in contempt of Congress. In a section entitled “Authority and Legislative Purpose,” the committee stated that one 

purpose of the inquiry was to determine “whether to approve articles of 

impeachment with respect to the President or any other Administration 

official.” H.R. Rep. No. 116-105, at 12, 13 (2019).7

The committee formally claimed to be investigating impeachment when 

it petitioned the U.S. District Court for the District of Columbia to release 

grand-jury information related to the Special Counsel’s investigation. See

Application at 1–2, In re Application of the Comm. on the Judiciary, U.S. 

 7 On June 11, 2019, the full House adopted Resolution 430. Its first two clauses authorized the Judiciary Committee to file a lawsuit to enforce subpoenas against Attorney 

General William Barr and former White House Counsel Donald McGahn and purported to 

authorize the Bipartisan Legal Advisory Group to approve future litigation. See H.R. Res. 

430, 116th Cong. (2019). The next clause of the resolution then stated that, “in connection 

with any judicial proceeding brought under the first or second resolving clauses, the chair 

of any standing or permanent select committee exercising authority thereunder has any 

and all necessary authority under Article I of the Constitution.” Id. The resolution did not 

mention “impeachment” and, by its terms, authorized actions only in connection with the 

litigation authorized “under the first or second resolving clauses.” On the same day that 

the House adopted Resolution 430, Speaker Pelosi stated that the House’s Democratic 

caucus was “not even close” to an impeachment inquiry. Rep. Nancy Pelosi (D-CA) 

Continues Resisting Impeachment Inquiry, CNN (June 11, 2019), transcripts.cnn.com/

TRANSCRIPTS/1906/11/cnr.04.html.
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House of Reps., No. 19-gj-48 (D.D.C. July 26, 2019); see also Memorandum for Members of the Committee on the Judiciary from Jerrold Nadler, 

Chairman, Re: Lessons from the Mueller Report, Part III: “Constitutional 

Processes for Addressing Presidential Misconduct” at 3 (July 11, 2019) 

(advising that the Committee would seek documents and testimony “to 

determine whether the Committee should recommend articles of impeachment against the President or any other Article I remedies, and if so, 

in what form”).8 The committee advanced the same contention when 

asking the district court to compel testimony before the committee by 

former White House Counsel Donald McGahn. See Compl. for Declaratory and Injunctive Relief ¶1, Comm. on the Judiciary, U.S. House of Reps. 

v. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019) (contending that the 

Judiciary Committee was “now determining whether to recommend 

articles of impeachment against the President based on the obstructive 

conduct described by the Special Counsel”).

In connection with this litigation, Chairman Nadler described the committee as conducting “formal impeachment proceedings.” David Priess & 

Margaret Taylor, What if the House Held Impeachment Proceedings and 

Nobody Noticed?, Lawfare (Aug. 12, 2019), www.lawfareblog.com/whatif-house-held-impeachment-proceedings-and-nobody-noticed (chronicling 

the evolution in Chairman Nadler’s descriptions of the investigation).

Those assertions coincided with media reports that Chairman Nadler had 

privately asked Speaker Pelosi to support the opening of an impeachment 

inquiry. See, e.g., Andrew Desiderio, Nadler: ‘This is Formal Impeachment Proceedings,’ Politico (Aug. 8, 2019), www.politico.com/story/

2019/08/08/nadler-this-is-formal-impeachment-proceedings-1454360

(noting that Nadler “has privately pushed Speaker Nancy Pelosi to support 

a formal inquiry of whether to remove the president from office”). On 

September 12, the Judiciary Committee approved a resolution describing 

its investigation as an impeachment inquiry and adopting certain procedures for the investigation. See Resolution for Investigative Procedures

Offered by Chairman Jerrold Nadler, H. Comm. on the Judiciary, 116th 

 8 While the House has delegated to the Bipartisan Legal Advisory Group the ability to 

“articulate[] the institutional position of ” the House, it has done so only for purposes of 

“litigation matters.” H.R. Rule II, cl. 8(b). Therefore, neither the group, nor the House 

counsel implementing that group’s directions, could assert the House’s authority in 

connection with an impeachment investigation, which is not a litigation matter.
House Committees’ Authority to Investigate for Impeachment

7

Cong. (Sept. 12, 2019), docs.house.gov/meetings/JU/JU00/20190912/

109921/BILLS-116pih-ResolutionforInvestigativeProcedures.pdf.

Speaker Pelosi did not endorse the Judiciary Committee’s characterization of its investigation during the summer of 2019. But she later purported to announce a formal impeachment inquiry in connection with a separate matter arising out of a complaint filed with the Inspector General of 

the Intelligence Community. The complaint, cast in the form of an unsigned letter to the congressional intelligence committees, alleged that, in 

a July 25, 2019 telephone call, the President sought to pressure Ukrainian 

President Volodymyr Zelenskyy to investigate the prior activities of one 

of the President’s potential political rivals. See Letter for Richard Burr, 

Chairman, Select Committee on Intelligence, U.S. Senate, and Adam 

Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. 

House of Representatives at 2–3 (Aug. 12, 2019). After the Inspector 

General reported the existence of the complaint to the intelligence committees, the President declassified the official record of the July 25 telephone call and the complaint, and they were publicly released on September 25 and 26, respectively.

On September 24, the day before the release of the call record, Speaker 

Pelosi “announc[ed]” that “the House of Representatives is moving forward with an official impeachment inquiry” and that she was “direct[ing] 

. . . six [c]ommittees to proceed with their investigations under that umbrella of impeachment inquiry.” Pelosi Press Release, supra note 1. In an 

October 8, 2019 court hearing, the House’s General Counsel invoked the 

Speaker’s announcement as purportedly conclusive proof that the House 

had opened an impeachment inquiry. Tr. of Mot. Hrg. at 23, In re Application of the Comm. on the Judiciary (“We are in an impeachment inquiry, an impeachment investigation, a formal impeachment investigation 

because the House says it is. The speaker of the House has specifically 

said that it is.”).

On September 27, Chairman Engel of the Foreign Affairs Committee 

issued a subpoena to Secretary of State Pompeo “[p]ursuant to the House 

of Representatives’ impeachment inquiry.” Three Chairmen’s Letter,

supra note 2, at 1. That subpoena was the first to rely on the newly proclaimed “impeachment inquiry.” A number of subpoenas followed, each 

of which was accompanied by a letter signed by the chairmen of three 

committees (Foreign Affairs, Oversight and Reform, and the Permanent 

Select Committee on Intelligence (“HPSCI”)). Although the September 27 

letter mentioned only the “impeachment inquiry” as a basis for the ac-
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8

companying subpoena, subsequent letters claimed that other subpoenas 

were issued both “[p]ursuant to the House of Representatives’ impeachment inquiry” and “in exercise of ” the committees’ “oversight and legislative jurisdiction.”9

Following service of these subpoenas, you and other officials within the 

Executive Branch requested our advice with respect to the obligations of 

the subpoenas’ recipients. We advised that the subpoenas were invalid 

because, among other reasons, the committees lacked the authority to 

conduct the purported inquiry and, with respect to several testimonial 

subpoenas, the committees impermissibly sought to exclude agency 

counsel from scheduled depositions. In reliance upon that advice, you and 

other responsible officials directed employees within their respective 

departments and agencies not to provide the documents and testimony 

requested under those subpoenas.

On October 8, 2019, you sent a letter to Speaker Pelosi and the three 

chairmen advising them that their purported impeachment inquiry was 

“constitutionally invalid” because the House had not authorized it.10 The 

House Minority Leader, Kevin McCarthy, and the Ranking Member of the 

Judiciary Committee, Doug Collins, had already made the same objec-

 9 E.g., Letter for John Michael Mulvaney, Acting Chief of Staff to the President, from

Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of 

Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence,

U.S. House of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign 

Affairs, U.S. House of Representatives at 1 (Oct. 4, 2019); Letter for Mark T. Esper, 

Secretary of Defense, from Adam B. Schiff, Chairman, Permanent Select Committee on 

Intelligence, U.S. House of Representatives, Eliot L. Engel, Chairman, Committee on 

Foreign Affairs, U.S. House of Representatives, and Elijah E. Cummings, Chairman, 

Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 7, 2019); 

Letter for Gordon Sondland, U.S. Ambassador to the European Union, from Adam B. 

Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House 

of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. 

House of Representatives at 1 (Oct. 8, 2019); Letter for James Richard “Rick” Perry, 

Secretary of Energy, from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. 

House of Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on 

Intelligence, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 10, 2019).

10 Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, et al., from Pat A. 

Cipollone, Counsel to the President at 2–3 (Oct. 8, 2019).
House Committees’ Authority to Investigate for Impeachment

9

tion.11 Senator Lindsey Graham introduced a resolution in the Senate, cosponsored by 49 other Senators, which objected to the House’s impeachment process because it had not been authorized by the full House and did 

not provide the President with the procedural protections enjoyed in past 

impeachment inquiries. S. Res. 378, 116th Cong. (2019).

On October 25, 2019, the U.S. District Court for the District of Columbia granted the Judiciary Committee’s request for grand-jury information 

from the Special Counsel’s investigation, holding that the committee 

was conducting an impeachment inquiry that was “preliminar[y] to . . . a 

judicial proceeding,” for purposes of the exception to grand-jury secrecy 

in Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure. See In re 

Application of the Comm. on the Judiciary, U.S. House of Reps., No. 19-

gj-48, 2019 WL 5485221 (D.D.C. Oct. 25, 2019), stay granted, No. 19-

5288 (D.C. Cir. Oct. 29, 2019), argued (D.C. Cir. Jan. 3, 2020). In so 

holding, the court concluded that the House need not adopt a resolution 

before a committee may begin an impeachment inquiry. Id. at *26–28. As 

we discuss below, the district court’s analysis of this point relied on a 

misreading of the historical record.

Faced with continuing objections from the Administration and members of Congress to the validity of the impeachment-related subpoenas, 

the House decided to take a formal vote to authorize the impeachment 

inquiry. See Letter for Democratic Members of the House from Nancy 

Pelosi, Speaker of the House (Oct. 28, 2019). On October 31, the House 

adopted a resolution “direct[ing]” several 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 Donald John Trump, 

President of the United States of America.” Resolution 660, § 1. The 

resolution also adopted special procedures for impeachment proceedings 

before HPSCI and the Judiciary Committee.

 11 See Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, from Kevin 

McCarthy, Republican Leader, U.S. House of Representatives at 1 & n.1 (Oct. 3, 2019); 

Mem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial at 5–21, In 

re Application of the Comm. on the Judiciary (D.D.C. Oct. 3, 2019).
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10

II.

The Constitution vests in the House of Representatives a share of Congress’s legislative power and, separately, “the sole Power of Impeachment.” U.S. Const. art. I, § 1; id. art. I, § 2, cl. 5. Both the legislative 

power and the impeachment power include an implied authority to investigate, including by means of compulsory process. But those investigative 

powers are not interchangeable. The House has broadly delegated to 

committees its power to investigate for legislative purposes, but it has 

held impeachment authority more closely, granting authority to conduct 

particular impeachment investigations only as the need has arisen. The 

House has followed that approach from the very first impeachment inquiry through dozens more that have followed over the past 200 years, 

including every inquiry involving a President.

In so doing, the House has recognized the fundamental difference between a legislative oversight investigation and an impeachment investigation. The House does more than simply pick a label when it “debate[s] 

and decide[s] when it wishes to shift from legislating to impeaching” and 

to authorize a committee to take responsibility for “the grave and weighty 

process of impeachment.” Trump v. Mazars USA, LLP, 940 F.3d 710, 737, 

738 (D.C. Cir. 2019), cert. granted, No. 19-715 (Dec. 13, 2019); see also 

id. at 757 (Rao, J., dissenting) (recognizing that “the Constitution forces 

the House to take accountability for its actions when investigating the 

President’s misconduct”). Because a legislative investigation seeks “information respecting the conditions which the legislation is intended to 

affect or change,” McGrain v. Daugherty, 273 U.S. 135, 175 (1927), 

“legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, 

than on precise reconstruction of past events,” Senate Select Comm. on 

Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 

1974) (en banc). By contrast, an impeachment inquiry must evaluate 

whether a civil officer did, or did not, commit treason, bribery, or another 

high crime or misdemeanor, U.S. Const. art. II, § 4, and it is more likely 

than a legislative oversight investigation to call for the reconstruction of 

past events.

Thus, the House has traditionally marked the shift to an impeachment 

inquiry by adopting a resolution that authorizes a committee to investigate 

through court-like procedures differing significantly from those used in 

routine oversight. See, e.g., Jefferson’s Manual § 606, at 324 (recognizing 
House Committees’ Authority to Investigate for Impeachment

11

that, in modern practice, “the sentiment of committees has been in favor 

of permitting the accused to explain, present witnesses, cross-examine, 

and be represented by counsel” (citations omitted)); see also Cong. Research Serv., R45983, Congressional Access to Information in an Impeachment Investigation 15 (Oct. 25, 2019) (“[D]uring both the Nixon 

and Clinton impeachment investigations, the House Judiciary Committee 

adopted resolutions affording the President and his counsel the right to 

respond to evidence gathered by the committee, raise objections to testimony, and cross-examine witnesses[.]”).

12 A House resolution authorizing 

the opening of an impeachment inquiry plays a highly significant role in 

directing the scope and nature of the constitutional inquest that follows.

Such a resolution does not just reflect traditional practice. It is a constitutionally required step before a committee may exercise compulsory 

process in aid of the House’s “sole Power of Impeachment.” U.S. Const. 

art. I, § 2, cl. 5. In this Part, we explain the basis for this conclusion. First, 

we address the constitutional distinction between the House’s power to 

investigate for legislative purposes and for impeachment purposes. We 

next explain why an impeachment inquiry must be authorized by the 

House itself. Finally, we review the historical record, which confirms, 

across dozens of examples, that the House must specifically authorize

 12 The House Judiciary Committee permitted President Nixon’s counsel to submit and 

respond to evidence, to request to call witnesses, to attend hearings and examinations, to 

object to the examination of witnesses and the admissibility of testimony, and to question 

witnesses. See H.R. Rep. No. 93-1305, at 8–9 (1974); 3 Deschler’s Precedents ch. 14, 

§ 6.5, at 2045–47. Later, President Clinton and his counsel were similarly “invited to 

attend all executive session and open committee hearings,” at which they were permitted 

to “cross examine witnesses,” “make objections regarding the pertinency of evidence,” 

“suggest that the Committee receive additional evidence,” and “respond to the evidence 

adduced by the Committee.” H.R. Rep. No. 105-795, at 25–26; see also 18 Deschler’s 

Precedents app. at 549 (2013) (noting that, during the Clinton impeachment investigation, 

the House made a “deliberate attempt to mirror [the] documented precedents and proceedings” of the Nixon investigation). In a departure from the Nixon and Clinton precedents, 

the House committees did not provide President Trump with any right to attend, participate in, or cross-examine witnesses in connection with the impeachment-related depositions conducted by the three committees before October 31. Resolution 660 similarly did 

not provide any such rights with respect to any of the public hearings conducted by 

HPSCI, limiting the President’s opportunity to participate to the Judiciary Committee, 

which did not itself participate in developing the investigative record upon which the 

articles of impeachment were premised. See H.R. Res. 660, 116th Cong. § 4(a); 165 Cong. 

Rec. E1357 (daily ed. Oct. 29, 2019) (“Impeachment Inquiry Procedures in the Committee on the Judiciary”).
Opinions of the Office of Legal Counsel in Volume 44

12

committees to conduct impeachment investigations and to issue compulsory process.

A.

The Constitution vests several different powers in the House of Representatives. As one half of Congress, the House shares with the Senate 

the “legislative Powers” granted in the Constitution (U.S. Const. art. I, 

§ 1), which include the ability to pass bills (id. art. I, § 7, cl. 2) and to 

override presidential vetoes (id. art. I, § 7, cl. 3) in the process of enacting 

laws pursuant to Congress’s enumerated legislative powers (e.g., id. art. I, 

§ 8), including the power to appropriate federal funds (id. art. I, § 9, cl. 7).

But the House has other, non-legislative powers. It is, for instance, “the 

Judge of the Elections, Returns and Qualifications of its own Members.”

Id. art. I, § 5, cl. 1. And it has “the sole Power of Impeachment.” Id. art. I, 

§ 2, cl. 5.

The House and Senate do not act in a legislative role in connection with 

impeachment. The Constitution vests the House with the authority to 

accuse civil officers of “Treason, Bribery, or other high Crimes and 

Misdemeanors” that warrant removal and disqualification from office. 

U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 7; id. art. II, § 4. As Alexander Hamilton explained, the members of the House act as “the inquisitors 

for the nation.” The Federalist No. 65, at 440 (Jacob E. Cooke ed., 1961).

And Senators, in turn, act “in their judicial character as a court for the 

trial of impeachments.” Id. at 439; see also The Federalist No. 66, at 445–

46 (defending the “partial intermixture” in the impeachment context of 

usually separated powers as “not only proper, but necessary to the mutual 

defense of the several members of the government, against each other”; 

noting that dividing “the right of accusing” from “the right of judging” 

between “the two branches of the legislature . . . avoids the inconvenience 

of making the same persons both accusers and judges”). The House’s 

impeachment authority differs fundamentally in character from its legislative power.

With respect to both its legislative and its impeachment powers, the 

House has corresponding powers of investigation, which enable it to 

collect the information necessary for the exercise of those powers. The 

Supreme Court has explained that “[t]he power of inquiry—with process 

to enforce it—is an essential and appropriate auxiliary to the legislative 

function.” McGrain, 273 U.S. at 174. Thus, in the legislative context, 
House Committees’ Authority to Investigate for Impeachment

13

the House’s investigative power “encompasses inquiries concerning the 

administration of existing laws as well as proposed or possibly needed 

statutes.” Watkins v. United States, 354 U.S. 178, 187 (1957); see also

Scope of Congressional Oversight and Investigative Power with Respect 

to the Executive Branch, 9 Op. O.L.C. 60, 60 (1985) (“Congress may 

conduct investigations in order to obtain facts pertinent to possible legislation and in order to evaluate the effectiveness of current laws.”). The 

Court has further recognized that the House also has implied powers to 

investigate in support of its other powers, including its power of impeachment. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 190 (1880); 

see also In re Request for Access to Grand Jury Materials, 833 F.2d 1438, 

1445 (11th Cir. 1987) (the House “holds investigative powers that are 

ancillary to its impeachment power”); Mazars USA, 940 F.3d at 749 (Rao, 

J., dissenting) (“The House . . . has a separate power to investigate pursuant to impeachment[.]”).

Because the House has different investigative powers, establishing 

which authority has been delegated has often been necessary in the course 

of determining the scope of a committee’s authority to compel witnesses 

and testimony. In addressing the scope of the House’s investigative powers, all three branches of the federal government have recognized the 

constitutional distinction between a legislative investigation and an impeachment inquiry.

1.

We begin with the federal courts. In Kilbourn, the Supreme Court held 

that a House committee could not investigate a bankrupt company indebted to the United States because its request exceeded the scope of the 

legislative power. According to the Court, the committee had employed

investigative power to promote the United States’ interests as a creditor,

rather than for any valid legislative purpose. See 103 U.S. at 192–95. At 

the same time, the Court conceded that “the whole aspect of the case 

would have been changed” if “any purpose had been avowed to impeach 

the [S]ecretary” of the Navy for mishandling the debts of the United 

States. Id. at 193. But, after reviewing the resolution authorizing the 

actions of the committee, the Court confirmed that the House had not 

authorized any impeachment inquiry. Id.

In a similar vein, the D.C. Circuit distinguished the needs of the House 

Judiciary Committee, which was conducting an impeachment inquiry into 
Opinions of the Office of Legal Counsel in Volume 44

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the actions of President Nixon, from those of the Senate Select Committee 

on Presidential Campaign Activities, whose investigation was premised 

upon legislative oversight. See Senate Select Comm., 498 F.2d at 732. The 

court recognized that the impeachment investigation was rooted in “an 

express constitutional source” and that the House committee’s investigative needs differed in kind from the Senate committee’s oversight needs.

Id. In finding that the Senate committee had not demonstrated that President Nixon’s audiotapes were “critical to the performance of its legislative functions,” the court recognized “a clear difference between Congress’s legislative tasks and the responsibility of a grand jury, or any 

institution engaged in like functions,” such as the House Judiciary Committee, which had “begun an inquiry into presidential impeachment.” Id.

(emphases added).

More recently, the D.C. Circuit acknowledged this same distinction in

Mazars USA. As the majority opinion explained, “the Constitution has left 

to Congress the judgment whether to commence the impeachment process” and to decide whether the conduct in question is “better addressed 

through oversight and legislation than impeachment.” 940 F.3d at 739. 

Judge Rao’s dissent also recognized the distinction between a legislative 

oversight investigation and an impeachment inquiry. See id. at 757 (“The 

Framers established a mechanism for Congress to hold even the highest 

officials accountable, but also required the House to take responsibility 

for invoking this power.”). Judge Rao disagreed with the majority insofar 

as she understood Congress’s impeachment power to be the sole means 

for investigating past misconduct by impeachable officers. But both the 

majority and the dissent agreed with the fundamental proposition that the 

Constitution distinguishes between investigations pursuant to the House’s 

impeachment authority and those that serve its legislative authority (including oversight).

2.

The Executive Branch similarly has long distinguished between investigations for legislative and for impeachment purposes. In 1796, the 

House “[r]esolved” that President Washington “be requested to lay before 

th[e] House a copy of the instructions” given to John Jay in preparation 

for his negotiation of a peace settlement with Great Britain. 5 Annals of 

Cong. 759–62 (1796). Washington refused to comply because the Constitution contemplates that only the Senate, not the House, must consent to 
House Committees’ Authority to Investigate for Impeachment

15

a treaty. See id. at 760–61. “It d[id] not occur” to Washington “that the 

inspection of the papers asked for, c[ould] be relative to any purpose 

under the cognizance of the House of Representatives, except that of an 

impeachment.” Id. at 760 (emphasis added). Because the House’s “resolution ha[d] not expressed” any purpose of pursuing impeachment, Washington concluded that “a just regard to the constitution . . . forb[ade] a 

compliance with [the House’s] request” for documents. Id. at 760, 762.

In 1832, President Jackson drew the same line. A select committee of 

the House had requested that the Secretary of War “furnish[]” it “with 

a copy” of an unratified 1830 treaty with the Chickasaw Tribe and “the 

journal of the commissioners” who negotiated it. H.R. Rep. No. 22-488, 

at 1 (1832). The Secretary conferred with Jackson, who refused to comply 

with the committee’s request on the same ground cited by President 

Washington: he “d[id] not perceive that a copy of any part of the incomplete and unratified treaty of 1830, c[ould] be ‘relative to any purpose 

under the cognizance of the House of Representatives, except that of an 

impeachment, which the resolution has not expressed.’” Id. at 14 (reprinting Letter for Charles A. Wickliffe, Chairman, Committee on Public

Lands, U.S. House of Representatives, from Lewis Cass, Secretary of War 

(Mar. 2, 1832)).

In 1846, another House select committee requested that President Polk 

account for diplomatic expenditures made in previous administrations by 

Secretary of State Daniel Webster. Polk refused to disclose information 

but “cheerfully admitted” that the House may have been entitled to such 

information if it had “institute[d] an [impeachment] inquiry into the 

matter.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846).13 Notably, he 

 13 In denying the congressional request before him, President Polk suggested, in the 

equivalent of dictum, that, during an impeachment inquiry, “all the archives and papers of 

the Executive departments, public or private, would be subject to the inspection and 

control of a committee of their body.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846). 

That statement, however, dramatically understates the degree to which executive privilege 

remains available during an impeachment investigation to protect confidentiality interests 

necessary to preserve the essential functions of the Executive Branch. See Exclusion of 

Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. 

O.L.C. __, at *3 & n.1 (Nov. 1, 2019). In a prior opinion, this Office viewed Polk as 

acknowledging the continued availability of executive privilege, because we read Polk’s 

preceding sentence as “indicat[ing]” that, even in the impeachment context, “the Executive branch ‘would adopt all wise precautions to prevent the exposure of all such matters 

the publication of which might injuriously affect the public interest, except so far as 
Opinions of the Office of Legal Counsel in Volume 44

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took this position even though some members of Congress had suggested 

that evidence about the expenditures could support an impeachment of 

Webster.14 In these and other instances, the Executive Branch has consistently drawn a distinction between the power of legislative oversight and 

the power of impeachment. See Mazars USA, 940 F.3d at 761–64 (Rao, J., 

dissenting) (discussing examples from the Buchanan, Grant, Cleveland, 

Theodore Roosevelt, and Coolidge Administrations).

3.

House members, too, have consistently recognized the difference between a legislative oversight investigation and an impeachment investigation. See Alissa M. Dolan et al., Cong. Research Serv., RL30240, Congressional Oversight Manual 25 (Dec. 19, 2014) (“A committee’s inquiry 

must have a legislative purpose or be conducted pursuant to some other 

constitutional power of Congress, such as the authority . . . to . . . conduct 

impeachment proceedings.” (emphases added)); Cong. Research Serv.,

Congressional Access to Information in an Impeachment Investigation

at 1 (distinguishing between “legislative investigation[s]” and “[m]uch 

more rare[]” “impeachment investigation[s]”).

For instance, in 1793, when debating the House’s jurisdiction to investigate Secretary of the Treasury Alexander Hamilton, some members 

argued that the House could not adopt a resolution of investigation into 

Hamilton’s conduct without adopting the “solemnities and guards” of an 

impeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) (statement 

of Rep. Smith); id. at 947–48 (statement of Rep. Boudinot) (distinguishing between the House’s “Legislative capacity” and its role as “the grand 

inquest of the Nation”); see also Mazars USA, 940 F.3d at 758 (Rao, J., 

dissenting) (discussing the episode). In 1796, when the House debated 

 

this might be necessary to accomplish the great ends of public justice.’” Memorandum 

for Elliot Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant Attorney 

General, Office of Legal Counsel, Re: Presidential Immunity from Coercive Congressional Demands for Information at 22–23 (July 24, 1973) (quoting Polk’s letter).

14 See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 (1846) (statement of Rep. Ingersoll) (“Whether . . . [Webster’s] offences will be deemed impeachable misdemeanors in 

office, conviction for which might remove him from the Senate, and disqualify him to 

hold any office of honor, trust, or profit, under the United States, will remain to be 

considered.”); Todd Garvey, The Webster and Ingersoll Investigations, in Morton Rosenberg, The Constitution Project, When Congress Comes Calling 289 (2017).
House Committees’ Authority to Investigate for Impeachment

17

whether to request the President’s instructions for negotiating the Jay 

Treaty, Representative Murray concluded that the House could not meddle in treatymaking, but acknowledged that “the subject would be presented under an aspect very different” if the resolution’s supporters had 

“stated the object for which they called for the papers to be an impeachment.” 5 Annals of Cong. 429–30 (1796).

Similarly, in 1846, a House select committee agreed with President 

Polk’s decision not to turn over requested information regarding State 

Department expenditures where the House did not act “with a view to an 

impeachment.” H.R. Rep. No. 29-684, at 4 (1846) (noting that four of the 

committee’s five members “entirely concur with the President of the 

United States” in deciding not to “communicate or make [the requested 

documents] public, except with a view to an impeachment” and that “[n]o 

dissent from the views of that message was expressed by the House”); see

also Mazars USA, 940 F.3d at 761 (Rao, J., dissenting). To take another 

example, in 1879, the House Judiciary Committee distinguished “[i]nvestigations looking to the impeachment of public officers” from “an 

ordinary investigation for legislative purposes.” H.R. Rep. No. 45-141, 

at 2 (1879).

Most significantly, during the impeachments of Presidents Nixon and 

Clinton, the House Judiciary Committee determined that the House must 

provide express authorization before any committee may exercise compulsory powers in an impeachment investigation. See infra Part II.C.1. 

Thus, members of the House, like the other branches of government, have

squarely recognized the distinction between congressional investigations 

for impeachment purposes and those for legislative purposes.

B.

Although the House of Representatives has “the sole Power of Impeachment,” U.S. Const. art. I, § 2, cl. 5 (emphasis added), the associated 

power to conduct an investigation for impeachment purposes may, like the 

House’s other investigative powers, be delegated. The full House may 

make such a delegation by adopting a resolution in exercise of its authority to determine the rules for its proceedings, see id. art. I, § 5, cl. 2, and 

each House has broad discretion in determining the conduct of its own 

proceedings. See, e.g., NLRB v. Noel Canning, 573 U.S. 513, 551–52 

(2014); United States v. Ballin, 144 U.S. 1, 5 (1892); see also 1 Deschler’s Precedents ch. 5, § 4, at 305−06. But the House must actually exer-
Opinions of the Office of Legal Counsel in Volume 44

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cise its discretion by making that judgment in the first instance, and its 

resolution sets the terms of a committee’s authority. See United States v. 

Rumely, 345 U.S. 41, 44 (1953). No committee may exercise the House’s 

investigative powers in the absence of such a delegation.

As the Supreme Court has explained in the context of legislative oversight, “[t]he theory of a committee inquiry is that the committee members 

are serving as the representatives of the parent assembly in collecting 

information for a legislative purpose” and, in such circumstances, committees “are endowed with the full power of the Congress to compel 

testimony.” Watkins, 354 U.S. at 200–01. The same is true for impeachment investigations.15 Thus, Hamilton recognized, the impeachment 

power involves a trust of such “delicacy and magnitude” that it “deeply 

concerns the political reputation and existence of every man engaged in 

the administration of public affairs.” The Federalist No. 65, at 440. The 

Founders foresaw that an impeachment effort would “[i]n many cases . . . 

connect itself with the pre-existing factions” and “inlist all their animosities, partialities, influence and interest on one side, or on the other.” Id. at 

439. As a result, they placed the solemn authority to initiate an impeachment in “the representatives of the nation themselves.” Id. at 440. In order 

to entrust one of its committees to investigate for purposes of impeachment, the full House must “spell out that group’s jurisdiction and purpose.” Watkins, 354 U.S. at 201. Otherwise, a House committee con-

 15 When the House first considered impeachment in 1796, Attorney General Charles 

Lee advised that, “before an impeachment is sent to the Senate, witnesses must be examined, in solemn form, respecting the charges, before a committee of the House of Representatives, to be appointed for that purpose.” Letter for the House of Representatives from 

Charles Lee, Attorney General, Re: Inquiry into the Official Conduct of a Judge of the 

Supreme Court of the Northwestern Territory (May 9, 1796), reprinted in 1 Am. State 

Papers: Misc. 151 (Walter Lowrie & Walter S. Franklin eds., 1834). Because the charges 

of misconduct concerned the actions of George Turner, a territorial judge, and the witnesses were located in far-away St. Clair County (modern-day Illinois), Lee suggested 

that the “most solemn” mode of prosecution, an impeachment trial before the Senate, 

would be “very inconvenient, if not entirely impracticable.” Id. Lee informed the House 

that President Washington had directed the territorial governor to arrange for a criminal 

prosecution before the territorial court. See id. The House committee considering the 

petition about Turner agreed with Lee’s suggestion and recommended that the House take 

no further action. See Inquiry into the Official Conduct of a Judge of the Supreme Court 

of the Northwestern Territory (Feb. 27, 1797), reprinted in 1 Am. State Papers: Misc. at 

157.
House Committees’ Authority to Investigate for Impeachment

19

trolled by such a faction could launch open-ended and untethered investigations without the sanction of a majority of the House.

Because a committee may exercise the House’s investigative powers 

only when authorized, the committee’s actions must be within the scope 

of a resolution delegating authority from the House to the committee. As 

the D.C. Circuit recently explained, “it matters not whether the Constitution would give Congress authority to issue a subpoena if Congress has 

given the issuing committee no such authority.” Mazars USA, 940 F.3d at 

722; see Dolan, Congressional Oversight Manual at 24 (“Committees of 

Congress only have the power to inquire into matters within the scope of 

the authority delegated to them by their parent body.”). In evaluating a 

committee’s authority, the House’s resolution “is the controlling charter 

of the committee’s powers,” and, therefore, the committee’s “right to 

exact testimony and to call for the production of documents must be found 

in this language.” Rumely, 345 U.S. at 44; see also Watkins, 354 U.S. at 

201 (“Those instructions are embodied in the authorizing resolution. That 

document is the committee’s charter.”); id. at 206 (“Plainly [the House’s] 

committees are restricted to the missions delegated to them . . . . No 

witness can be compelled to make disclosures on matters outside that 

area.”); Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (“To 

issue a valid subpoena, . . . a committee or subcommittee must conform 

strictly to the resolution establishing its investigatory powers[.]”); United 

States v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (“No 

committee of either the House or Senate, and no Senator and no Representative, is free on its or his own to conduct investigations unless authorized. Thus it must appear that Congress empowered the Committee to act, 

and further that at the time the witness allegedly defied its authority the 

Committee was acting within the power granted to it.”). While a committee may study some matters without exercising the investigative powers of 

the House, a committee’s authority to compel the production of documents and testimony depends entirely upon the jurisdiction provided by 

the terms of the House’s delegation.

In Watkins, the Supreme Court relied upon those principles to set aside 

a conviction for contempt of Congress because of the authorizing resolution’s vagueness. The uncertain scope of the House’s delegation impermissibly created “a wide gulf between the responsibility for the use of 

investigative power and the actual exercise of that power.” 354 U.S. at 

205. If the House wished to authorize the exercise of its investigative

power, then it needed to take responsibility for the use of that power, 
Opinions of the Office of Legal Counsel in Volume 44

20

because a congressional subpoena, issued with the threat of a criminal 

contempt citation, necessarily placed “constitutional liberties” in “danger.” Id.

The concerns expressed by the Court in Watkins apply with equal, if 

not greater, force when considering the authority of a House committee to 

compel the production of documents in connection with investigating 

impeachment. As John Labovitz, a House impeachment attorney during 

the Nixon investigation, explained: “[I]mpeachment investigations, because they involve extraordinary power and (at least where the president 

is being investigated) may have extraordinary consequences, are not to be 

undertaken in the same manner as run-of-the-mill legislative investigations. The initiation of a presidential impeachment inquiry should itself 

require a deliberate decision by the House.” John R. Labovitz, Presidential Impeachment 184 (1978). Because a committee possesses only the 

authorities that have been delegated to it, a committee may not use compulsory process to investigate impeachment without the formal authorization of the House.

C.

Historical practice confirms that the House must authorize an impeachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091

(2015) (recognizing that “[i]n separation-of-powers cases,” the Court has 

placed “significant weight” on “accepted understandings and practice”); 

Noel Canning, 573 U.S. at 514 (same). The House has expressly authorized every impeachment investigation of a President, including by identifying the investigative committee and authorizing the use of compulsory 

process. The same thing has been true for nearly all impeachment investigations of other executive officials and judges. While committees have 

sometimes studied a proposed impeachment resolution or reviewed available information without conducting a formal investigation, in nearly 

every case in which the committee resorted to compulsory process, the 

House expressly authorized the impeachment investigation. That practice 

was foreseen as early as 1796. When Washington asked his Cabinet for 

opinions about how to respond to the House’s request for the papers 

associated with the Jay Treaty, the Secretary of the Treasury, Oliver 

Wolcott Jr., explained that “the House of Representatives has no right to 

demand papers” outside its legislative function “[e]xcept when an Impeachment is proposed & a formal enquiry instituted.” Letter for George 
House Committees’ Authority to Investigate for Impeachment

21

Washington from Oliver Wolcott Jr. (Mar. 26, 1796), reprinted in 19 The 

Papers of George Washington: Presidential Series 611–12 (David R. 

Hoth ed., 2016) (emphasis added).

From the very first impeachment, the House has recognized that a 

committee would require a delegation to conduct an impeachment inquiry. 

In 1797, when House members considered whether a letter contained 

evidence of criminal misconduct by Senator William Blount, they sought 

to confirm Blount’s handwriting but concluded that the Committee of the 

Whole did not have the power of taking evidence. See 7 Annals of Cong. 

456–58 (1797); 3 Asher C. Hinds, Hinds’ Precedents of the House of 

Representatives of the United States § 2294, at 644–45 (1907). Thus, the 

committee “rose,” and the House itself took testimony. 3 Hinds’ Precedents § 2294, at 646. Two days later, the House appointed a select committee to “prepare and report articles of impeachment” and vested in that 

committee the “power to send for persons, papers, and records.” 7 Annals 

of Cong. at 463–64, 466; 3 Hinds’ Precedents § 2297, at 648.16 As we 

discuss in this section, we have identified dozens of other instances where 

the House, in addition to referring proposed articles of impeachment,

authorized formal impeachment investigations.

Against this weighty historical record, which involves nearly 100 authorized impeachment investigations, the outliers are few and far between.

17 In 1879, it appears that a House committee, which was expressly 

authorized to conduct an oversight investigation into the administration of 

the U.S. consulate in Shanghai, ultimately investigated and recommended 

that the former consul-general and former vice consul-general be impeached. In addition, between 1986 and 1989, the Judiciary Committee 

considered the impeachment of three federal judges who had been criminally prosecuted (two of whom had been convicted). The Judiciary Committee pursued impeachment before there had been any House vote, and 

issued subpoenas in two of those inquiries. Since then, however, the 

Judiciary Committee reaffirmed during the impeachment of President 

 16 After the House impeached Senator Blount, the Senate voted to dismiss the charges 

on the ground that a Senator is not a civil officer subject to impeachment. See 3 Hinds’ 

Precedents § 2318, at 678–80.

17 A 2007 overview concluded that “[t]here have been approximately 94 identifiable 

impeachment-related inquiries conducted by Congress[.]” H.R. Doc. No. 109-153, at 115 

(2007). Since 2007, two more judges have been impeached following authorized investigations.
Opinions of the Office of Legal Counsel in Volume 44

22

Clinton that, in order to conduct an impeachment investigation, it needed

an express delegation of investigative authority from the House. And in 

all subsequent cases the House has hewed to the well-established practice 

of authorizing each impeachment investigation.

The U.S. District Court for the District of Columbia recently reviewed 

a handful of historical examples and concluded that House committees 

may conduct impeachment investigations without a vote of the full House.

See In re Application of the Comm. on the Judiciary, 2019 WL 5485221, 

at *26–28. Yet, as the discussion below confirms, the district court misread the lessons of history.18 The district court treated the House Judiciary 

Committee’s preliminary inquiries in the Clinton and Nixon impeachments as investigations, without recognizing that, in both cases, the committee determined that a full House vote was necessary before it could 

issue subpoenas. The district court also treated the 1980s judicial inquiries 

as if they represented a rule of practice, rather than a marked deviation 

from the dozens of occasions where the House recognized the need to 

adopt a formal resolution to delegate its investigative authority. As our 

survey below confirms, the historical practice with respect to Presidents, 

other executive officers, and judges is consistent with the structure of our 

Constitution, which requires the House, as the “sole” holder of impeachment power, to authorize any impeachment investigation that a committee 

may conduct on its behalf.

 18 The district court’s erroneous conclusions rested upon the arguments offered by the 

House Judiciary Committee, which relied principally upon the judicial outliers from the 

1980s, a misunderstanding of the Nixon impeachment inquiry, and a misreading of the 

committee’s subpoena power under the House Rules. See Application at 33−34, In re 

Application of the Comm. on the Judiciary (D.D.C. July 26, 2019); Reply of the Committee on the Judiciary, U.S. House of Representatives, in Support of Its Application for an 

Order Authorizing the Release of Certain Grand Jury Materials, at 16 n.19, In re Application of the Comm. on the Judiciary (D.D.C. Sept. 30, 2019). HPSCI and the Judiciary 

Committee later reiterated these arguments in their reports, each contending that executive branch officials had “obstructed” the House’s impeachment inquiry by declining to 

comply with the pre-October 31 impeachment-related subpoenas. H.R. Rep. No. 116-335, 

at 168–72, 175–77 (2019); H.R. Rep. No. 116-346, at 10, 13–16 (2019). But those reports 

asserted that the pre-October 31 subpoenas were authorized because the committees 

misunderstood the historical practice concerning the House’s impeachment inquiries (as 

we discuss in Part II.C) and they misread the committees’ subpoena authority under the 

House Rules (as we discuss in Part III.A).
House Committees’ Authority to Investigate for Impeachment

23

1.

While many Presidents have been the subject of less-formal demands 

for impeachment, at least eleven have faced resolutions introduced in the 

House for the purpose of initiating impeachment proceedings.19 In some 

cases, the House formally voted to reject opening a presidential impeachment investigation. In 1843, the House rejected a resolution calling for an 

investigation into the impeachment of President Tyler. See Cong. Globe, 

27th Cong., 3d Sess. 144−46 (1843). In 1932, the House voted by a wide 

margin to table a similar resolution introduced against President Hoover.

See 76 Cong. Rec. 399–402 (1932). In many other cases, the House simply referred impeachment resolutions to the Judiciary Committee, which 

took no further action before the end of the Congress. But, in three instances before President Trump, the House moved forward with investigating the impeachment of a President.

20 Each of those presidential impeachments advanced to the investigative stage only after the House 

 19 See, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 (1843) (John Tyler); Cong. 

Globe, 39th Cong., 2d Sess. 320 (1867) (Andrew Johnson); 28 Cong. Rec. 5627, 5650 

(1896) (Grover Cleveland); 76 Cong. Rec. 399–402 (1932) (Herbert Hoover); H.R. Res. 

607, 82d Cong. (1952) (Harry Truman); H.R. Res. 625, 93d Cong. (1973) (Richard 

Nixon); H.R. Res. 370, 98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong. 

(1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) (Bill Clinton); H.R. Res. 

1258, 110th Cong. (2008) (George W. Bush); H.R. Res. 13, 106th Cong. (2019) (Donald 

Trump).

20 In 1860, the House authorized an investigation into the actions of President Buchanan, but that investigation was not styled as an impeachment investigation. See Cong. 

Globe, 36th Cong., 1st Sess. 997–98 (1860) (resolution establishing a committee of five 

members to “investigat[e] whether the President of the United States, or any other officer 

of the government, ha[d], by money, patronage, or other improper means, sought to 

influence the action of Congress” or “by combination or otherwise, . . . attempted to 

prevent or defeat, the execution of any law”). It appears to have been understood by the 

committee as an oversight investigation. See H.R. Rep. No. 36-648, at 1–28 (1860).

Buchanan in fact objected to the House’s use of its legislative jurisdiction to circumvent 

the protections traditionally provided in connection with impeachment. See Message 

for the U.S. House of Representatives from James Buchanan (June 22, 1860),reprinted in 

5 A Compilation of the Messages and Papers of the Presidents 625 (James D. Richardson 

ed., 1897) (objecting that if the House suspects presidential misconduct, it should “transfer the question from [its] legislative to [its] accusatory jurisdiction, and take care that in 

all the preliminary judicial proceedings preparatory to the vote of articles of impeachment 

the accused should enjoy the benefit of cross-examining the witnesses and all the other 

safeguards with which the Constitution surrounds every American citizen”); see also 

Mazars USA, 940 F.3d at 762 (Rao, J., dissenting) (discussing the episode).
Opinions of the Office of Legal Counsel in Volume 44

24

adopted a resolution expressly authorizing a committee to conduct the 

investigation. In no case did the committee use compulsory process until 

the House had expressly authorized the impeachment investigation.

The impeachment investigation of President Andrew Johnson. On 

January 7, 1867, the House adopted a resolution authorizing the “Committee on the Judiciary” to “inquire into the official conduct of Andrew 

Johnson . . . and to report to this House whether, in their opinion,” the 

President “has been guilty of any act, or has conspired with others to do 

acts, which, in contemplation of the Constitution, are high crimes or 

misdemeanors.” Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867); see 

also 3 Hinds’ Precedents § 2400, at 824. The resolution conferred upon 

the committee the “power to send for persons and papers and to administer the customary oath to witnesses.” Cong. Globe, 39th Cong., 2d Sess. 

320 (1867). The House referred a second resolution to the Judiciary 

Committee on February 4, 1867. Id. at 991; 3 Hinds’ Precedents § 2400, 

at 824.21 Shortly before that Congress expired, the committee reported 

that it had seen “sufficient testimony . . . to justify and demand a further 

prosecution of the investigation.” H.R. Rep. No. 39-31, at 2 (1867). On 

March 7, 1867, the House in the new Congress adopted a resolution that 

authorized the committee “to continue the investigation authorized” in the 

January 7 resolution and to “send for persons and papers” and administer 

oaths. Cong. Globe, 40th Cong., 1st Sess. 18, 25 (1867); 3 Hinds’ Precedents § 2401, at 825–26. The committee recommended articles of impeachment, but the House rejected those articles on December 7, 1867.

See Cong. Globe, 40th Cong., 2d Sess. 67–68 (1867). In early 1868, 

however, the House adopted resolutions authorizing another investigation, 

with compulsory powers, by the Committee on Reconstruction and transferred to that committee the evidence from the Judiciary Committee’s 

 21 The district court’s recent decision in In re Application of the Committee on the Judiciary misreads Hinds’ Precedents to suggest that the House Judiciary Committee (which 

the court called “HJC”) began investigating President Johnson’s impeachment without 

any authorizing resolution. According to the district court, “a resolution ‘authoriz[ing]’ 

HJC ‘to inquire into the official conduct of Andrew Johnson’ was passed after HJC ‘was 

already considering the subject.’” 2019 WL 5485221, at *27 (quoting 3 Hinds’ Precedents § 2400, at 824). In fact, the committee was “already considering the subject” at the 

time of the February 4 resolution described in the quoted sentence because, as explained 

in the text above, the House had previously adopted a separate resolution authorizing 

an impeachment investigation. See Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867); 

3 Hinds’ Precedents § 2400, at 824.
House Committees’ Authority to Investigate for Impeachment

25

earlier investigation. See Cong. Globe, 40th Cong., 2d Sess. 784–85, 1087 

(1868); 3 Hinds’ Precedents § 2408, at 845.

On February 21, 1868, the impeachment effort received new impetus 

when Johnson removed the Secretary of War without the Senate’s approval, contrary to the terms of the Tenure of Office Act, which Johnson 

(correctly) held to be an unconstitutional limit on his authority. See

Cong. Globe, 40th Cong., 2d Sess. 1326–27 (1868); 3 Hinds’ Precedents

§ 2408–09, at 845–47; see also Myers v. United States, 272 U.S. 52, 176 

(1926) (finding that provision of the Tenure of Office Act “was invalid”).

That day, the Committee on Reconstruction reported an impeachment 

resolution to the House, which was debated on February 22 and passed on 

February 24. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); 3 Hinds’

Precedents §§ 2409–12, at 846–51.

The impeachment investigation of President Nixon. Although many 

resolutions were introduced in support of President Nixon’s impeachment 

earlier in 1973, the House’s formal impeachment inquiry arose in the 

months following the “Saturday Night Massacre,” during which President 

Nixon caused the termination of Special Prosecutor Archibald Cox at the 

cost of the resignations of his Attorney General and Deputy Attorney 

General. See Letter Directing the Acting Attorney General to Discharge 

the Director of the Office of Watergate Special Prosecution Force (Oct.

20, 1973), Pub. Papers of Pres. Richard Nixon 891 (1973). Immediately 

thereafter, House members introduced resolutions calling either for the 

President’s impeachment or for the opening of an investigation.

22 The 

Speaker of the House referred the resolutions calling for an investigation 

to the Rules Committee and those calling for impeachment to the Judiciary Committee. See Office of Legal Counsel, U.S. Dep’t of Justice, Legal 

Aspects of Impeachment: An Overview at 40 (Feb. 1974) (“Legal Aspects 

of Impeachment ”); 3 Deschler’s Precedents ch. 14, § 5, at 2020.

Following the referrals, the Judiciary Committee “beg[a]n an inquiry 

into whether President Nixon ha[d] committed any offenses that could 

lead to impeachment,” an exercise that the committee considered “preliminary.” Richard L. Madden, Democrats Agree on House Inquiry into Nixon’s

Acts, N.Y. Times, Oct. 23, 1973, at 1. The committee started collecting 

publicly available materials, and Chairman Peter Rodino Jr. stated that he 

 22 See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. (1973) (impeachment); H.R.

Res. 626, 627, 628, 636, and 637, 93d Cong. (1973) (Judiciary Committee or subcommittee investigation).
Opinions of the Office of Legal Counsel in Volume 44

26

would “set up a separate committee staff to ‘collate’ investigative files 

from Senate and House committees that have examined a variety of 

charges against the Nixon Administration.” James M. Naughton, Rodino 

Vows Fair Impeachment Inquiry, N.Y. Times, Oct. 30, 1973, at 32.

Although the committee “adopted a resolution permitting Mr. Rodino 

to issue subpoenas without the consent of the full committee,” James M. 

Naughton, House Panel Starts Inquiry on Impeachment Question, N.Y. 

Times, Oct. 31, 1973, at 1, no subpoenas were ever issued under that 

purported authority. Instead, the committee “delayed acting” on the impeachment resolutions. James M. Naughton, House Unit Looks to Impeachment, N.Y. Times, Dec. 2, 1973, at 54. By late December, the committee had hired a specialized impeachment staff. A Hard-Working Legal 

Adviser: John Michael Doar, N.Y. Times, Dec. 21, 1973, at 20. The staff 

continued “‘wading through the mass of material already made public,’” 

and the committee’s members began considering “the areas in which the 

inquiry should go.” Bill Kovach, Vote on Subpoena Could Test House 

on Impeachment, N.Y. Times, Jan. 8, 1974, at 14; see also Staff of the 

H. Comm. on the Judiciary, 93d Cong., Rep. on Work of the Impeachment 

Inquiry Staff as of February 5, 1974, at 2–3 (1974) (noting that the staff 

was “first collecting and sifting the evidence available in the public domain,” then “marshaling and digesting the evidence available through 

various governmental investigations”). By January 1974, the committee’s 

actions had consisted of digesting publicly available documents and prior 

impeachment precedents. That was consistent with the committee’s “only 

mandate,” which was to “study more than a dozen impeachment resolutions submitted” in 1973. James M. Naughton, Impeachment Panel Seeks 

House Mandate for Inquiry, N.Y. Times, Jan. 25, 1974, at 1.

In January, the committee determined that a formal investigation was 

necessary, and it requested “an official House mandate to conduct the 

inquiry,” relying upon the “precedent in each of the earlier [impeachment] 

inquiries.” Id. at 17. On January 7, Chairman Rodino “announced that the 

Committee’s subpoena power does not extend to impeachment and that 

. . . the Committee would seek express authorization to subpoena persons 

and documents with regard to the impeachment inquiry.” Legal Aspects of 

Impeachment at 43; see also Richard L. Lyons, GOP Picks Jenner as 

Counsel, Wash. Post, Jan. 8, 1974, at A1, A6 (“Rodino said the committee 

will ask the House when it reconvenes Jan. 21 to give it power to subpoena persons and documents for the inquiry. The committee’s subpoena 

power does not now extend to impeachment proceedings, he said.”). As 
House Committees’ Authority to Investigate for Impeachment

27

the House Parliamentarian later explained, the Judiciary Committee’s 

general authority to conduct investigations and issue subpoenas “did not 

specifically include impeachments within the jurisdiction of the Committee on the Judiciary,” and it was therefore “considered necessary for the 

House to specifically vest the Committee on the Judiciary with the investigatory and subpena power to conduct the impeachment investigation.” 

3 Deschler’s Precedents ch. 14, § 15.2, at 2172 (Parliamentarian’s Note).

On February 6, 1974, the House approved Resolution 803, which “authorized and directed” the Judiciary Committee “to investigate fully and 

completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon, 

President of the United States of America.” H.R. Res. 803, 93d Cong. § 1.

The resolution specifically authorized the committee “to require . . . by 

subpena or otherwise . . . the attendance and testimony of any person” and 

“the production of such things” as the committee “deem[ed] necessary” to 

its investigation. Id. § 2(a).

Speaking on the House floor, Chairman Rodino described the resolution as a “necessary step” to confer the House’s investigative powers on 

the Judiciary Committee: 

We have reached the point when it is important that the House explicitly confirm our responsibility under the Constitution.

We are asking the House of Representatives, by this resolution, to 

authorize and direct the Committee on the Judiciary to investigate 

the conduct of the President of the United States . . . .

As part of that resolution, we are asking the House to give the Judiciary Committee the power of subpena in its investigations.

Such a resolution has always been passed by the House. . . . It is a 

necessary step if we are to meet our obligations.

. . . .

. . . The sole power of impeachment carries with it the power to 

conduct a full and complete investigation of whether sufficient 

grounds for impeachment exist or do not exist, and by this resolution 

these investigative powers are conferred to their full extent upon the 

Committee on the Judiciary.

120 Cong. Rec. 2350–51 (1974) (emphases added). During the debate, 

others recognized that the resolution would delegate the House’s investigative powers to the Judiciary Committee. See, e.g., id. at 2361 (statement 
Opinions of the Office of Legal Counsel in Volume 44

28

of Rep. Rostenkowski) (“By delegating to the Judiciary Committee the 

powers contained in this resolution, we will be providing that committee 

with the resources it needs to inform the whole House of the facts of this 

case.”); id. at 2362 (statement of Rep. Boland) (“House Resolution 803 is 

intended to delegate to the Committee on the Judiciary the full extent of 

the powers of this House in an impeachment proceeding[]—both as to the 

persons and types of things that may be subpenaed and the methods for 

doing so.”). Only after the Judiciary Committee had received authorization from the House did it request and subpoena tape recordings and 

documents from President Nixon. See H.R. Rep. No. 93-1305, at 187 

(1974).23

The impeachment investigation of President Clinton. On September 9, 

1998, Independent Counsel Kenneth W. Starr, acting under 28 U.S.C. 

§ 595(c), advised the House of Representatives that he had uncovered 

substantial and credible information that he believed could constitute 

grounds for the impeachment of President Clinton. 18 Deschler’s Precedents app. at 548–49 (2013). Two days later, the House adopted a resolution that referred the matter, along with Starr’s report and 36 boxes of 

evidence, to the Judiciary Committee. H.R. Res. 525, 105th Cong. (1998).

The House directed that committee to review the report and “determine 

whether sufficient grounds exist to recommend to the House that an 

impeachment inquiry be commenced.” Id. § 1. The Rules Committee’s 

Chairman emphasized that the House would need to adopt a subsequent 

resolution if it decided to authorize an impeachment inquiry: “[T]his 

resolution does not authorize or direct an impeachment inquiry. . . . It 

merely provides the appropriate parameters for the Committee on the 

Judiciary . . . to . . . make a recommendation to the House as to whether 

we should commence an impeachment inquiry.” 144 Cong. Rec. 20021 

(1998) (statement of Rep. Solomon).

 23 A New York Times article the following day characterized House Resolution 803 as 

“formally ratif[ying] the impeachment inquiry begun by the committee [the prior] October.” James M. Naughton, House, 410-4, Gives Subpoena Power in Nixon Inquiry, N.Y. 

Times, Feb. 7, 1974, at 1. But the resolution did not grant after-the-fact authorization for 

any prior action. To the contrary, the resolution “authorized and directed” a future investigation, including by providing subpoena power. In the report recommending adoption of 

the resolution, the committee likewise described its plans in the future tense: “It is the 

intention of the committee that its investigation will be conducted in all respects on a fair, 

impartial and bipartisan basis.” H.R. Rep. No. 93-774, at 3 (1974).
House Committees’ Authority to Investigate for Impeachment

29

On October 7, 1998, the Judiciary Committee did recommend that there 

be an investigation for purposes of impeachment. As explained in the 

accompanying report: “[T]he Committee decided that it must receive 

authorization from the full House before proceeding on any further course 

of action. Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representativesshould 

be involved in critical decision making regarding various stages of impeachment.” H.R. Rep. No. 105-795, at 24 (emphasis added). The committee also observed that “a resolution authorizing an impeachment inquiry into the conduct of a president is consistent with past practice,” 

citing the resolutions for Presidents Johnson and Nixon and observing that 

“numerous other inquiries were authorized by the House directly, or by 

providing investigative authorities, such as deposition authority, to the 

Committee on the Judiciary.” Id.

The next day, the House voted to authorize the Judiciary Committee to 

“investigate fully and completely whether sufficient grounds exist for the 

House of Representatives to exercise its constitutional power to impeach

William Jefferson Clinton, President of the United States of America.” 

H.R. Res. 581, 105th Cong. § 1 (1998). The resolution authorized the 

committee “to require . . . by subpoena or otherwise . . . the attendance 

and testimony of any person” and “the production of . . . things,” and to 

require the furnishing of information “by interrogatory.” Id. § 2(a). “On 

November 5, 1998,” as part of its investigation, “the Committee presented 

President Clinton with 81 requests for admission,” which the Committee 

explained that it “would have . . . compelled by subpoena” had President 

Clinton not complied. H.R. Rep. No. 105-830, at 77, 122 (1998). And the 

Committee then “approved the issuance of subpoenas for depositions and 

materials” from several witnesses. 144 Cong. Rec. D1210–11 (daily ed. 

Dec. 17, 1998).

In discussing the Clinton precedent, the district court in In re Application of the Committee on the Judiciary treated the D.C. Circuit’s approval 

of the disclosure of Starr’s report and associated grand-jury information 

as evidence that the Judiciary Committee may “commence an impeachment investigation” without a House vote. 2019 WL 5485221, at *27 & 

n.36. But the D.C. Circuit did not authorize that disclosure because of any 

pending House investigation. It did so because a statutory provision 

required an independent counsel to “advise the House of Representatives 

of any substantial and credible information which such independent 

counsel receives . . . that may constitute grounds for an impeachment.”
Opinions of the Office of Legal Counsel in Volume 44

30

28 U.S.C. § 595(c) (emphasis added). And the D.C. Circuit viewed the 

report as reflecting “information of the type described in 28 U.S.C. 

§ 595(c).” In re Madison Guar. Sav. & Loan Ass’n, Div. No. 94-1 (D.C. 

Cir. Spec. Div. July 7, 1998), reprinted in H.R. Doc. No. 105-331, pt. 1, 

at 10 (1998). The order authorizing the transmission of that information to 

the House did not imply that any committee was conducting an impeachment investigation. To the contrary, after the House received the information, “no person had access to” it until after the House adopted a resolution referring the matter to the Judiciary Committee. H.R. Rep. No. 105-

795, at 5. And the House then adopted a second resolution (Resolution

581) to authorize a formal investigation. In other words, the House voted 

to authorize the Judiciary Committee both to review the Starr evidence 

and to conduct an impeachment investigation. Neither the D.C. Circuit 

nor the Judiciary Committee suggested that any committee could have 

taken such action on its own.

2.

The House has historically followed these same procedures in considering impeachment resolutions against executive branch officers other than 

the President. In many cases, an initial resolution laying out charges of 

impeachment or authorizing an investigation was referred to a select or 

standing committee.24 Following such a referral, the designated committee 

 24 As with Presidents, many of these resolutions remained with the committees until 

they expired at the end of the Congress. Several merely articulated allegations of impeachment. See, e.g., H.R. Res. 1028, 115th Cong. (2018) (Deputy Attorney General Rod 

Rosenstein); H.R. Res. 417, 114th Cong. (2015) (Administrator of the Environmental 

Protection Agency Regina McCarthy); H.R. Res. 411, 113th Cong. (2013) (Attorney 

General Eric Holder); H.R. Res. 333, 110th Cong. (2007) (Vice President Richard Cheney); H.R. Res. 629, 108th Cong. (2004) (Secretary of Defense Donald Rumsfeld); H.R. 

Res. 805, 95th Cong. (1977) (United Nations Ambassador Andrew Young); H.R. Res. 

274, 95th Cong. (1977) (Commissioner of the Federal Trade Commission Paul Dixon); 

H.R. Res. 881, 94th Cong. (1975) (U.S. Attorney Jonathan Goldstein and Principal 

Assistant U.S. Attorney Bruce Goldstein); H.R. Res. 647, 94th Cong. (1975) (Ambassador 

to Iran Richard Helms); H.R. Res. 547, 94th Cong. (1975) (Special Crime Strike Force 

Prosecutor Liam Coonan). Others called for an investigation. See, e.g., H.R. Res. 589, 

110th Cong. (2007) (Attorney General Alberto Gonzales); H.R. Res. 582, 105th Cong. 

(1998) (Independent Counsel Kenneth Starr); H.R. Res. 102, 99th Cong. (1985) (Chairman of the Board of Governors of the Federal Reserve System Paul Volcker); H.R. Res. 

101, 99th Cong. (1985) (same and others); H.R. Res. 1025, 95th Cong. (1978) (Attorney 

General Griffin Bell); H.R. Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d 
House Committees’ Authority to Investigate for Impeachment

31

reviewed the matter and considered whether to pursue a formal impeachment inquiry—it did not treat the referral as stand-alone authorization to 

conduct an investigation. When a committee concluded that the charges 

warranted investigation, it reported to the full House, which then considered whether to adopt a resolution to authorize a formal investigation.

For example, in March 1867, the House approved a resolution directing 

the Committee on Public Expenditures “to inquire into the conduct of 

Henry A. Smythe, collector of the port of New York.” Cong. Globe, 40th 

Cong., 1st Sess. 132 (1867); see also id. (noting that the resolution had 

been modified following debate “so as to leave out that part about bringing articles of impeachment”). Weeks later, the House voted to authorize 

an impeachment investigation. Id. at 290 (authorizing the investigating 

committee to “send for persons and papers”). The House followed this 

same procedure in 1916 for U.S. Attorney H. Snowden Marshall. H.R.

Res. 90, 64th Cong. (1916) (initial resolution referred to the Judiciary 

Committee); H.R. Res. 110, 64th Cong. (1916) (resolution approving the 

investigation contemplated in the initial resolution). And the process 

repeated in 1922 for Attorney General Harry Daugherty. H.R. Res. 425, 

67th Cong. (1922) (referring the initial resolution to the committee); H.R.

Res. 461, 67th Cong. (1922) (resolution approving the investigation 

contemplated in the initial resolution).

In a few instances, the House asked committees to draft articles of impeachment without calling for any additional impeachment investigation.

For example, in 1876, after uncovering “unquestioned evidence of the 

malfeasance in office by General William W. Belknap” (who was then 

Secretary of War) in the course of another investigation, the House approved a resolution charging the Committee on the Judiciary with the 

responsibility to “prepare and report without unnecessary delay suitable 

articles of impeachment.” 4 Cong. Rec. 1426, 1433 (1876). When a key 

witness left the country, however, the committee determined that additional investigation was warranted, and it asked to be authorized “to take 

 

Cong. (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. (1939) (Secretary 

of Labor Frances Perkins and others); 28 Cong. Rec. 114, 126 (1895) (Ambassador to 

Great Britain Thomas Bayard); 16 Cong. Rec. 17−19 (1884) (U.S. Marshal Lot Wright);

Cong. Globe, 40th Cong., 1st Sess. 778−79 (1867) (Minister to Great Britain Charles 

Francis Adams). On occasion, the House voted to table these resolutions instead of 

referring them to a committee. See, e.g., H.R. Res. 545, 105th Cong. (1998) (resolution of 

impeachment for Independent Counsel Kenneth Starr); H.R. Res. 1267, 95th Cong. (1978) 

(resolution of impeachment for Ambassador to the United Nations Andrew Young).
Opinions of the Office of Legal Counsel in Volume 44

32

further proof ” and “to send for persons and papers” in its search for 

alternative evidence. Id. at 1564, 1566; see also 3 Hinds’ Precedents

§§ 2444–45, at 902–04.

In some cases, the House declined to authorize a committee to investigate impeachment with the aid of compulsory process. In 1873, the House 

authorized the Judiciary Committee “to inquire whether anything” in 

testimony presented to a different committee implicating Vice President 

Schuyler Colfax “warrants articles of impeachment of any officer of the 

United States not a member of this House, or makes it proper that further 

investigation should be ordered in his case.” Cong. Globe, 42d Cong., 

3d Sess. 1545 (1873); see 3 Hinds’ Precedents § 2510, at 1016–17. 

No further investigation was authorized. A similar sequence occurred in 

1917 in the case of an impeachment resolution offered against members of 

the Federal Reserve Board. See 54 Cong. Rec. 3126−30 (1917) (impeachment resolution); H.R. Rep. No. 64-1628, at 1 (1917) (noting that 

following the referral of the impeachment resolution, the Committee had 

reviewed available information and determined that no further proceedings were warranted). In 1932, the House referred to the Judiciary Committee a resolution calling for the investigation of the possible impeachment of Secretary of the Treasury Andrew Mellon. H.R. Res. 92, 72d 

Cong. (1932); see also 3 Deschler’s Precedents ch. 14, § 14.1, at 2134–

39. The following month, the House approved a resolution discontinuing 

any investigation of the charges. 75 Cong. Rec. 3850 (1932); see also

3 Deschler’s Precedents ch. 14, § 14.2, at 2139–40.

Most recently, in the 114th Congress, the House referred to the Judiciary Committee resolutions concerning the impeachment of the Commissioner of the Internal Revenue Service, John Koskinen. See H.R. Res. 

494, 114th Cong. (2015); H.R. Res. 828, 114th Cong. (2016). Shortly 

after an attempt to force a floor vote on one of the resolutions, Koskinen 

voluntarily appeared before the committee at a hearing. See Impeachment 

Articles Referred on John Koskinen (Part III): Hearing Before the H. 

Comm. on the Judiciary, 114th Cong. 2 (2016). The ranking minority 

member, Representative John Conyers, observed that, despite the title, 

“this is not an impeachment hearing” because, “[a]ccording to parliamentarians of the House past and present, the impeachment process does 

not begin until the House actually votes to authorize this Committee to 

investigate the charges.” Id. at 3; see also id. at 30 (similar statement by 

Rep. Johnson). During the hearing, Commissioner Koskinen offered to 

provide a list of supporting witnesses who could be cross-examined “if 
House Committees’ Authority to Investigate for Impeachment

33

the Committee decided it wanted to go to a full-scale impeachment process, which I understand this is not.” Id. at 45. Two months later, one of 

the impeachment resolutions was briefly addressed on the floor of the 

House, and again referred to the Judiciary Committee, but without providing any investigative authority. See 162 Cong. Rec. H7251–54 (daily ed. 

Dec. 6, 2016). The committee never sought to compel the appearance of 

Koskinen or any other witness, and the committee does not appear to have 

taken any further action before the Congress expired.

In his 1978 book on presidential impeachment, former House impeachment attorney John Labovitz observed that there were a “few exceptions,” “mostly in the 1860s and 1870s,” to the general rule that “past 

impeachment investigations ha[ve] been authorized by a specific resolution conferring subpoena power.” Labovitz, Presidential Impeachment at 

182 & n.18. In our review of the history, we have identified one case from

that era where a House committee commenced a legislative oversight 

investigation and subsequently moved, without separate authorization, to 

consider impeachment.25 But the overwhelming historical practice to the 

contrary confirms the Judiciary Committee’s well-considered conclusions 

in 1974 and 1998 that a committee requires specific authorization from 

the House before it may use compulsory process to investigate for impeachment purposes.

 25 In 1878, the Committee on Expenditures in the State Department, which was 

charged with investigative authority for “the exposing of frauds or abuses of any kind,” 

7 Cong. Rec. 287, 290 (1878), was referred an investigation into maladministration at the 

consulate in Shanghai during the terms of Consul-General George Seward and Vice 

Consul-General O.B. Bradford, id. at 504, 769. Eventually, the committee began to 

consider Seward’s impeachment, serving him with a subpoena for testimony and documents, in response to which he asserted his privilege against self-incrimination. See

3 Hinds’ Precedents § 2514, at 1023–24; H.R. Rep. No. 45-141, at 1–3 (1879). The 

committee recommended articles of impeachment, but the House declined to act before 

the end of the Congress. See 8 Cong. Rec. 2350–55 (1879); 3 Hinds’ Precedents § 2514, 

at 1025. During this same period, the Committee on Expenditures reported proposed 

articles of impeachment against Bradford but recommended “that the whole subject be 

referred to the Committee on the Judiciary” for further consideration. H.R. Rep. No. 45-

818, at 7 (1878). The House agreed to the referral, but no further action was taken.

7 Cong. Rec. at 3667.
Opinions of the Office of Legal Counsel in Volume 44

34

3.

The House has followed the same practice in connection with nearly all 

impeachment investigations involving federal judges. Committees sometimes studied initial referrals, but they waited for authorization from the 

full House before conducting any formal impeachment investigation. 

Three cases from the late 1980s departed from that pattern, but the House 

has returned during the past three decades to the historical baseline, 

repeatedly ensuring that the Judiciary Committee had a proper delegation 

for each impeachment investigation.

The practice of having the House authorize each specific impeachment 

inquiry is reflected in the earliest impeachment investigations involving 

judges. In 1804, the House considered proposals to impeach two judges: 

Samuel Chase, an associate justice of the Supreme Court, and Richard 

Peters, a district judge. See 3 Hinds’ Precedents § 2342, at 711–16. There 

was a “lengthy debate” about whether the evidence was appropriate to 

warrant the institution of an inquiry. Id. at 712. The House then adopted 

a resolution appointing a select committee “to inquire into the official 

conduct” of Chase and Peters “and to report” the committee’s “opinion 

whether” either of the judges had “so acted, in their judicial capacity, as 

to require the interposition of the constitutional power of this House.” 

13 Annals of Cong. 850, 875–76 (1804); 3 Hinds’ Precedents § 2342, at 

715. A few days later, another resolution “authorized” the committee “to 

send for persons, papers, and records.” 13 Annals of Cong. at 877; see 

also 3 Hinds’ Precedents § 2342, at 715. At the conclusion of its investigation, the committee recommended that Chase, but not Peters, be impeached. 3 Hinds’ Precedents § 2343, at 716. The House thereafter agreed 

to a resolution impeaching Chase. Id. at 717. Congress recessed before the 

Senate could act, but, during the next Congress, the House appointed an 

almost identical select committee, which was “given no power of investigation.” Id. §§ 2343–44, at 717–18. The committee recommended revised 

articles of impeachment against Chase, which were again adopted by the 

House. Id. § 2344, at 718–19. In 1808, the House again separately authorized an investigation when it considered whether Peter Bruin, a Mississippi territorial judge, should be impeached for “neglect of duty and 

drunkenness on the bench.” Id. § 2487, at 983–84. A member of the 

House objected “that it would hardly be dignified for the Congress to 

proceed to an impeachment” based on the territorial legislature’s referral 

and proposed the appointment of a committee “to inquire into the proprie-
House Committees’ Authority to Investigate for Impeachment

35

ty of impeaching.” Id. at 984; see 18 Annals of Cong. 2069 (1808). The 

House then passed a resolution forming a committee to conduct an inquiry, which included the “power to send for persons, papers, and records” but, like most inquiries to follow, did not result in impeachment. 18 

Annals of Cong. at 2189; 3 Hinds’ Precedents § 2487, at 984.

Over the course of more than two centuries thereafter, members of the 

House introduced resolutions to impeach, or to investigate for potential 

impeachment, dozens more federal judges, and the House continued, 

virtually without exception, to provide an express authorization before 

any committee proceeded to exercise investigative powers.26 In one 1874 

case, the Judiciary Committee realized only after witnesses had traveled 

from Arkansas that it could not find any resolution granting it compulsory 

powers to investigate previously referred charges against Judge William 

Story. See 2 Cong. Rec. 1825, 3438 (1874); 3 Hinds’ Precedents § 2513, 

at 1023. In order to “cure” that “defect,” the committee reported a privileged resolution to the floor of the House that would grant the committee 

“power to send for persons and papers” as part of the impeachment inves-

 26 See, e.g., 3 Hinds’ Precedents § 2489, at 986 (William Van Ness, Mathias 

Tallmadge, and William Stephens, 1818); id. § 2490, at 987 (Joseph Smith, 1825); id.

§ 2364, at 774 (James Peck, 1830); id. § 2492, at 990 (Alfred Conkling, 1830); id. § 2491, 

at 989 (Buckner Thurston, 1837); id. § 2494, at 993–94 (P.K. Lawrence, 1839); id.

§§ 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 1852–60); id. § 2500, at 1005 

(Thomas Irwin, 1859); id. § 2385, at 805 (West Humphreys, 1862); id. § 2503, at 1008 

(anonymous justice of the Supreme Court, 1868); id. § 2504, at 1008–09 (Mark Delahay, 

1872); id. § 2506, at 1011 (Edward Durell, 1873); id. § 2512, at 1021 (Richard Busteed, 

1873); id. § 2516, at 1027 (Henry Blodgett, 1879); id. §§ 2517–18, at 1028, 1030–31 

(Aleck Boarman, 1890–92); id. § 2519, at 1032 (J.G. Jenkins, 1894); id. § 2520, at 1033 

(Augustus Ricks, 1895); id. § 2469, at 949–50 (Charles Swayne, 1903); 6 Clarence 

Cannon, Cannon’s Precedents of the House of Representatives of the United States § 498, 

at 685 (1936) (Robert Archbald, 1912); id. § 526, at 746–47 (Cornelius H. Hanford, 

1912); id. § 527, at 749 (Emory Speer, 1913); id. § 528, at 753 (Daniel Wright, 1914); id.

§ 529, at 756 (Alston Dayton, 1915); id. § 543, at 777–78 (William Baker, 1924); id.

§ 544, at 778–79 (George English, 1925); id. § 549, at 789–90 (Frank Cooper, 1927); id.

§ 550, at 791–92 (Francis Winslow, 1929); id. § 551, at 793 (Harry Anderson, 1930); id.

§ 552, at 794 (Grover Moscowitz, 1930); id. § 513, at 709–10 (Harold Louderback, 1932); 

3 Deschler’s Precedents ch. 14, § 14.4, at 2143 (James Lowell, 1933); id. § 18.1, at 2205–

06 (Halsted Ritter, 1933); id. § 14.10, at 2148 (Albert Johnson and Albert Watson, 1944); 

H.R. Res. 1066, 94th Cong. (1976) (certain federal judges); H.R. Res. 966, 95th Cong. 

(1978) (Frank Battisti); see also 51 Cong. Rec. 6559–60 (1914) (noting passage of 

authorizing resolution for investigation of Daniel Wright); 68 Cong. Rec. 3532 (1927) 

(same for Frank Cooper).
Opinions of the Office of Legal Counsel in Volume 44

36

tigation. 2 Cong. Rec. at 3438. The House promptly agreed to the resolution, enabling the committee to “examine” the witnesses that day. Id.

In other cases, however, no full investigation ever materialized. In 

1803, John Pickering, a district judge, was impeached, but the House 

voted to impeach him without conducting any investigation at all, relying 

instead upon documents supplied by President Jefferson. See 3 Hinds’ 

Precedents § 2319, at 681–82; see also Lynn W. Turner, The Impeachment of John Pickering, 54 Am. Hist. Rev. 485, 491 (1949). Sometimes, 

the House authorized only a preliminary inquiry to determine whether an 

investigation would be warranted. In 1908, for instance, the House asked 

the Judiciary Committee to consider proposed articles impeaching Judge 

Lebbeus Wilfley of the U.S. Court for China. In the ensuing hearing, the 

Representative who had introduced the resolution acknowledged that the 

committee was not “authorized to subpoena witnesses” and had been 

authorized to conduct only “a preliminary examination,” which was “not 

like an investigation ordinarily held by the House,” but was instead dedicated solely to determining “whether you believe it is a case that ought to 

be investigated at all.”27 In many other cases, it is apparent that—even 

when impeachment resolutions had been referred to them—committees 

conducted no formal investigation.28

 27 Articles for the Impeachment of Lebbeus R. Wilfley, Judge of the U.S. Court for China: Hearings Before a Subcomm. of the H. Comm. on the Judiciary, 60th Cong. 4 (1908) 

(statement of Rep. Waldo); see also id. at 45–46 (statement of Rep. Moon) (“This committee conceives to be its duty solely, under the resolution referring this matter to them, to 

examine the charges preferred in the petition . . . and to report thereon whether in its 

judgement the petitioner has made out a prima facie case; and also whether . . . Congress 

should adopt a resolution instructing the Judiciary Committee to proceed to an investigation of the facts of the case.”); 6 Cannon’s Precedents § 525, at 743–45 (summarizing the 

Wilfley case, in which the Judiciary Committee ultimately reported that no formal 

investigation was warranted). The case of Judge Samuel Alschuler in 1935 similarly 

involved only a preliminary investigation—albeit one with actual investigative powers.

The House first referred to the Judiciary Committee a resolution that, if approved, would 

authorize an investigation of potential impeachment charges. See 79 Cong. Rec. 7086, 

7106 (1935). Six days later, it adopted a resolution that granted the committee investigative powers in support of “the preliminary examinations deemed necessary” for the 

committee to make a recommendation about whether a full investigation should occur. Id.

at 7393–94. The committee ultimately recommended against a full investigation. See H.R. 

Rep. No. 74-1802, at 2 (1935).

28 See, e.g., 18 Annals of Cong. 1885–86, 2197–98 (1808) (Harry Innes, 1808; the 

House passed a resolution authorizing an impeachment investigation, which concluded 
House Committees’ Authority to Investigate for Impeachment

37

In 1970, in a rhetorical departure from well-established practice, a subcommittee of the Judiciary Committee described itself as investigating the 

impeachment of Justice William O. Douglas based solely upon an impeachment resolution referred to the Judiciary Committee. See 116 Cong. Rec. 

11920, 11942 (1970); 3 Deschler’s Precedents ch. 14, §§ 14.14−14.16, at 

2151−64; see also Labovitz, Presidential Impeachment at 182 n.18 (noting that “[t]he Douglas inquiry was the first impeachment investigation in 

twenty-five years, and deviation from the older procedural pattern was not 

surprising”). Yet, the subcommittee did not resort to any compulsory 

process during its inquiry, and it did not recommend impeachment.

3 Deschler’s Precedents ch. 14, §§ 14.15−14.16, at 2158−63. Accordingly, the committee did not actually exercise any of the investigative powers 

of the House. 

In the late 1980s, the House Judiciary Committee considered the impeachment of three district-court judges without any express authorization

from the House: Walter Nixon, Alcee Hastings, and Harry Claiborne. See

In re Application of the Comm. on the Judiciary, 2019 WL 5485221, at 

*26 (discussing these investigations). All three judges had been criminally 

prosecuted, and two had been convicted. See H.R. Rep. No. 101-36, at 

12–13 (1989) (describing Nixon’s prosecution and conviction); H.R. Rep. 

No. 100-810, at 7−8, 29–31, 38–39 (1988) (describing Hastings’s indictment and trial and the subsequent decision to proceed with a judicialmisconduct proceeding in lieu of another prosecution); H.R. Rep. No. 99-

688, at 9, 17–20 (1986) (describing Claiborne’s prosecution and conviction). In the Claiborne inquiry, the committee does not appear to have 

 

that the evidence accompanying the resolution did not support impeachment); 3 Hinds’ 

Precedents § 2486, at 981–83 (George Turner, 1796; no apparent investigation, presumably because of the parallel criminal prosecution recommended by Attorney General Lee, 

as discussed above); id. § 2488, at 985 (Harry Toulmin, 1811; the House “declined to 

order a formal investigation”); 40 Annals of Cong. 463–69, 715–18 (1822–23) (Charles 

Tait, 1823; no apparent investigation beyond examination of documents containing 

charges); 3 Hinds’ Precedents § 2493, at 991–92 (Benjamin Johnson, 1833; no apparent 

investigation); id. § 2511, at 1019–20 (Charles Sherman, 1873; the Judiciary Committee 

received evidence from the Ways and Means Committee, which had been investigating 

corruption in Congress, but the Judiciary Committee conducted no further investigation); 

6 Cannon’s Precedents § 535, at 769 (Kenesaw Mountain Landis, 1921; the Judiciary 

Committee reported that “charges were filed too late in the present session of the Congress” to enable investigation); 3 Deschler’s Precedents ch. 14, § 14.6, at 2144–45 

(Joseph Molyneaux, 1934; the Judiciary Committee took no action on the referral of a 

resolution that would have authorized an investigation).
Opinions of the Office of Legal Counsel in Volume 44

38

issued any subpoenas. See H.R. Rep. No. 99-688, at 4 (noting that the 

committee sent “[i]nvitational letters to all witnesses,” who apparently 

cooperated to the Committee’s satisfaction). The committee did issue 

subpoenas in the Nixon and Hastings investigations, yet no witness appears to have objected on the ground that the committee lacked jurisdiction to issue the subpoenas, and at least one witness appears to have 

requested a subpoena.29 In those two cases, though, the Judiciary Committee effectively compelled production without any express authorization 

from the House.30

In the years after these outliers, the Judiciary Committee returned to the 

practice of seeking specific authorization from the House before conducting impeachment investigations. Most notably, as discussed above, the 

Judiciary Committee “decided that it must receive authorization from the 

full House before proceeding” with an impeachment investigation of 

President Clinton. H.R. Rep. No. 105-795, at 24 (emphasis added). And 

the House has used the same practice with respect to federal judges.31

Thus, in 2008, the House adopted a resolution authorizing the Judiciary 

Committee to investigate the impeachment of Judge G. Thomas Porteous, 

Jr., including the grant of subpoena authority. See H.R. Rep. No. 111-427, 

at 7 (2010); H.R. Res. 1448, 110th Cong. (2008); 154 Cong. Rec. 19502 

(2008). After the Congress expired, the House in the next Congress 

 29 See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, in the Hastings investigation,

a committee subpoena had been issued for William Borders, who challenged the subpoena 

on First, Fourth, Fifth, and Eighth Amendment grounds); H.R. Rep. No. 100-1124, at 130 

(1989) (noting the issuance of “subpoenas duces tecum” in the investigation of Judge 

Nixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. Edwards) (explaining the 

subcommittee’s need to depose some witnesses pursuant to subpoena in the Nixon 

investigation); Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearing Before the 

Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 101st 

Cong. 530–606 (1988) (reprinting deposition of Magistrate Judge Roper).

30 The House did pass resolutions authorizing funds for investigations with respect to 

the Hastings impeachment, see H.R. Res. 134, 100th Cong. (1987); H.R. Res. 388, 100th 

Cong. (1988), and resolutions authorizing the committee to permit its counsel to take 

affidavits and depositions in both the Nixon and Hastings impeachments, see H.R. Res. 

562, 100th Cong. (1988) (Nixon); H.R. Res. 320, 100th Cong. (1987) (Hastings).

31 In the post-1989 era, as before, most of the impeachment resolutions against judges 

that were referred to the Judiciary Committee did not result in any further investigation. 

See, e.g., H.R. Res. 916, 109th Cong. (2006) (Manuel Real); H.R. Res. 207, 103d Cong. 

(1993) (Robert Collins); H.R. Res. 177, 103d Cong. (1993) (Robert Aguilar); H.R. Res. 

176, 103d Cong. (1993) (Robert Collins).
House Committees’ Authority to Investigate for Impeachment

39

adopted a new resolution re-authorizing the inquiry, again with subpoena 

authority. See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 571 

(2009). Several months later, another district judge, Samuel Kent, pleaded 

guilty to obstruction of justice and was sentenced to 35 months of incarceration. See H.R. Rep. 111-159, at 9–13 (2009). The House then adopted 

a resolution directing the Judiciary Committee to investigate impeachment, again specifically granting subpoena authority. See id. at 13; H.R. 

Res. 424, 111th Cong. (2009); 155 Cong. Rec. at 12211–13.

Thus, the House’s long-standing and nearly unvarying practice with 

respect to judicial impeachment inquiries is consistent with the conclusion 

that the power to investigate in support of the House’s “sole Power of 

Impeachment,” U.S. Const. art. I, § 2, cl. 5, may not be exercised by a 

committee without an express delegation from the House. In the cases of 

Judges Nixon and Hastings, the Judiciary Committee did exercise compulsory authority despite the absence of any delegation from the House. 

But insofar as no party challenged the committee’s authority at the time, 

and no court addressed the matter, these historical outliers do not undermine the broader constitutional principle. As the Supreme Court observed 

in Noel Canning, “when considered against 200 years of settled practice,” 

a “few scattered examples” are rightly regarded “as anomalies.” 573 U.S. 

at 538. They do not call into question the soundness of the House’s otherwise consistent historical practice, much less the constitutional requirement that a committee exercise the constitutional powers of the House 

only with an express delegation from the House itself.

III.

Having concluded that a House committee may not conduct an impeachment investigation without a delegation of authority, we next consider whether the House provided such a delegation to the Foreign Affairs 

Committee or to the other committees that issued subpoenas pursuant to 

the asserted impeachment inquiry. During the five weeks between the 

Speaker’s announcement on September 24 and the adoption of Resolution 

660 on October 31, the committees issued numerous impeachment-related 

subpoenas. See supra note 9. We therefore provided advice during that 

period about whether any of the committees had authority to issue those 

subpoenas. Because the House had not adopted an impeachment resolution, the answer to that question turned on whether the committees could 

issue those subpoenas based upon any preexisting subpoena authority.
Opinions of the Office of Legal Counsel in Volume 44

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In justifying the subpoenas, the Foreign Affairs Committee and other 

committees pointed to the resolution adopting the Rules of the House of 

Representatives, which establish the committees and authorize investigations for matters within their jurisdiction. The committees claimed that 

Rule XI confers authority to issue subpoenas in connection with an impeachment investigation. Although the House has expanded its committees’ authority in recent decades, the House Rules continue to reflect the 

long-established distinction between legislative and non-legislative investigative powers. Those rules confer legislative oversight jurisdiction on 

committees and authorize the issuance of subpoenas to that end, but they 

do not grant authority to investigate for impeachment purposes. While the 

House committees could have sought some information relating to the 

same subjects in the exercise of their legislative oversight authority, the 

subpoenas they purported to issue “pursuant to the House of Representatives’ impeachment inquiry” were not in support of such oversight. We 

therefore conclude that they were unauthorized.

A.

The standing committees of the House trace their general subpoena 

powers back to the House Rules, which the 116th Congress adopted by 

formal resolution. See H.R. Res. 6, 116th Cong. (2019). The House Rules 

are more than 60,000 words long, but they do not include the word “impeachment.” The Rules’ silence on that topic is particularly notable when 

contrasted with the Senate, which has adopted specific “Rules of Procedure and Practice” for impeachment trials. S. Res. 479, 99th Cong. 

(1986).32 The most obvious conclusion to draw from that silence is that

the current House, like its predecessors, retained impeachment authority 

at the level of the full House, subject to potential delegations in resolutions tailored for that purpose.

Rule XI of the Rules of the House affirmatively authorizes committees 

to issue subpoenas, but only for matters within their legislative jurisdiction. The provision has been a part of the House Rules since 1975. See 

H.R. Res. 988, 93d Cong. § 301 (1974). Clause 2(m)(1) of Rule XI vests 

 32 Unlike the House, “the Senate treats its rules as remaining in effect continuously 

from one Congress to the next without having to be re-adopted.” Richard S. Beth, Cong. 

Research Serv., R42929, Procedures for Considering Changes in Senate Rules 9 (Jan. 22, 

2013). Of course, like the House, the Senate may change its rules by simple resolution.
House Committees’ Authority to Investigate for Impeachment

41

each committee with the authority to issue subpoenas “[f]or the purpose 

of carrying out any of its functions and duties under this rule and rule X 

(including any matters referred to it under clause 2 of rule XII).” Rule XI, 

cl. 2(m)(1); see also Rule X, cl. 11(d)(1) (making clause 2 of Rule XI 

applicable to HPSCI). The committees therefore have subpoena power to 

carry out their authorities under three rules: Rule X, Rule XI, and clause 2 

of Rule XII.

Rule X does not provide any committee with jurisdiction over impeachment. Rule X establishes the “standing committees” of the House 

and vests them with “their legislative jurisdictions.” Rule X, cl. 1. The 

jurisdiction of each committee varies in subject matter and scope. While 

the Committee on Ethics, for example, has jurisdiction over only “[t]he 

Code of Official Conduct” (Rule X, cl. 1(g)), the jurisdiction of the Foreign Affairs Committee spans seventeen subjects, including “[r]elations of 

the United States with foreign nations generally,” “[i]ntervention abroad 

and declarations of war,” and “[t]he American National Red Cross” (Rule 

X, cl. 1(i)(1), (9), (15)). The rule likewise spells out the jurisdiction of the 

Committee on Oversight and Reform (Rule X, cl. 1(n), cl. 3(i)), and the 

jurisdiction of the Judiciary Committee (Rule X, cl. 1(l )). Clause 11 of 

Rule X establishes HPSCI and vests it with jurisdiction over “[t]he Central Intelligence Agency, the Director of National Intelligence, and the 

National Intelligence Program” and over “[i]ntelligence and intelligencerelated activities of all other departments and agencies.” Rule X, cl.

11(a)(1), (b)(1)(A)–(B).

The text of Rule X confirms that it addresses the legislative jurisdiction 

of the standing committees. After defining each standing committee’s 

subject-matter jurisdiction, the Rule provides that “[t]he various standing 

committees shall have general oversight responsibilities” to assist the 

House in its analysis of “the application, administration, execution, and 

effectiveness of Federal laws” and of the “conditions and circumstances 

that may indicate the necessity or desirability of enacting new or additional legislation,” as well as to assist the House in its “formulation, consideration, and enactment of changes in Federal laws, and of such additional 

legislation as may be necessary or appropriate.” Rule X, cl. 2(a)(1)–(2).

The committees are to conduct oversight “on a continuing basis” “to 

determine whether laws and programs addressing subjects within the 

jurisdiction of a committee” are implemented as Congress intends “and 

whether they should be continued, curtailed, or eliminated.” Rule X, cl.

2(b)(1). Those are all functions traditionally associated with legislative 
Opinions of the Office of Legal Counsel in Volume 44

42

oversight, not the separate power of impeachment. See supra Part II.A. 

Clause 3 of Rule X further articulates “[s]pecial oversight functions” with 

respect to particular subjects for certain committees; for example, the 

Committee on Foreign Affairs “shall review and study on a continuing 

basis laws, programs, and Government activities relating to . . . intelligence activities relating to foreign policy,” Rule X, cl. 3(f). And clause 4 

addresses “[a]dditional functions of committees,” including functions 

related to the review of appropriations and the special authorities of the 

Committee on Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But none 

of the “[s]pecial oversight” or “[a]dditional” functions specified in clauses 

3 and 4 includes any reference to the House’s impeachment power.

The powers of HPSCI are addressed in clause 11 of Rule X. Unlike the 

standing committees, HPSCI is not given “[g]eneral oversight responsibilities” in clause 2. But clause 3 gives it the “[s]pecial oversight functions” 

of “review[ing] and study[ing] on a continuing basis laws, programs, and 

activities of the intelligence community” and of “review[ing] and 

study[ing] . . . the sources and methods of ” specified entities that engage 

in intelligence activities. Rule X, cl. 3(m). And clause 11 further provides 

that proposed legislation about intelligence activities will be referred to 

HPSCI and that HPSCI shall report to the House “on the nature and extent 

of the intelligence and intelligence-related activities of the various departments and agencies of the United States.” Rule X, cl. 11(b)(1), (c)(1); 

see also H.R. Res. 658, 95th Cong. § 1 (1977) (resolution establishing 

HPSCI, explaining its purpose as “provid[ing] vigilant legislative oversight over the intelligence and intelligence-related activities of the United 

States” (emphasis added)). Again, those powers sound in legislative 

oversight, and nothing in the Rules suggests that HPSCI has any generic 

delegation of the separate power of impeachment.

Consistent with the foregoing textual analysis, Rule X has been seen as 

conferring legislative oversight authority on the House’s committees, 

without any suggestion that impeachment authorities are somehow included therein. The Congressional Research Service describes Rule X as 

“contain[ing] the legislative and oversight jurisdiction of each standing 

committee, several clauses on committee procedures and operations, and a 

clause specifically addressing the jurisdiction and operation of the Permanent Select Committee on Intelligence.” Michael L. Koempel & Judy 

Schneider, Cong. Research Serv., R41605, House Standing Committees’ 

Rules on Legislative Activities: Analysis of Rules in Effect in the 114th 

Congress 2 (Oct. 11, 2016); see also Dolan, Congressional Oversight 
House Committees’ Authority to Investigate for Impeachment

43

Manual at 25 (distinguishing a committee inquiry with “a legislative 

purpose” from inquiries conducted under “some other constitutional 

power of Congress, such as the authority” to “conduct impeachment 

proceedings”). In the chapter of Deschler’s Precedents devoted to explaining the “[i]nvestigations and [i]nquiries” by the House and its committees, the Parliamentarian repeatedly notes that impeachment investigations and other non-legislative powers are discussed elsewhere. See

4 Deschler’s Precedents ch. 15, § 1, at 2283; id. § 14, at 2385 n.12; id.

§ 16, at 2403 & n.4.

Rule X concerns only legislative oversight, and Rule XI does not expand the committees’ subpoena authority any further. That rule rests upon 

the jurisdiction granted in Rule X. See Rule XI, cl. 1(b)(1) (“Each committee may conduct at any time such investigations and studies as it 

considers necessary or appropriate in the exercise of its responsibilities 

under rule X.”). Nor does Rule XII confer any additional jurisdiction. 

Clause 2(a) states that “[t]he Speaker shall refer each bill, resolution, or 

other matter that relates to a subject listed under a standing committee 

named in clause 1 of rule X[.]” Rule XII, cl. 2(a). The Speaker’s referral 

authority under Rule XII is thus limited to matters within a committee’s 

Rule X legislative jurisdiction. See 18 Deschler’s Precedents app. at 578 

(“All committees were empowered by actual language of the Speaker’s 

referral to consider only ‘such provisions of the measure as fall within 

their respective jurisdictions under Rule X.’”). Accordingly, the Speaker 

may not expand the jurisdiction of a committee by referring a bill or 

resolution falling outside the committee’s Rule X authority.33

In reporting Resolution 660 to the House, the Rules Committee expressed the view that clause 2(m) of Rule XI gave standing committees 

the authority to issue subpoenas in support of impeachment inquiries. See 

H.R. Rep. No. 116-266, at 18 (2019). But the committee did not explain 

which terms of the rule provide such authority. To the contrary, the committee simply asserted that the rule granted such authority and that the 

text of Resolution 660 departed from its predecessors on account of 

amendments to clause 2(m) that were adopted after the “Clinton and 

 33 Nor do the Rules otherwise give the Speaker the authority to order an investigation 

or issue a subpoena in connection with impeachment. Rule I sets out the powers of the 

Speaker. She “shall sign . . . all writs, warrants, and subpoenas of, or issued by order of, 

the House.” Rule I, cl. 4. But that provision applies only when the House itself issues an 

order. See Jefferson’s Manual § 626, at 348.
Opinions of the Office of Legal Counsel in Volume 44

44

Nixon impeachment inquiry resolutions.” Id. Yet clause 2(m) of Rule XI 

was adopted two decades before the Clinton inquiry.34 Even with that 

authority in place, the Judiciary Committee recognized in 1998 that it 

“must receive authorization from the full House before proceeding” to 

investigate President Clinton for impeachment purposes. H.R. Rep. No. 

105-795, at 24 (emphasis added). And, even before Rule XI was adopted, 

the House had conferred on the Judiciary Committee a materially similar 

form of investigative authority (including subpoena power) in 1973.35 The 

Judiciary Committee nevertheless recognized that those subpoena powers 

did not authorize it to conduct an impeachment inquiry about President 

Nixon. In other words, the Rules Committee’s recent interpretation of 

clause 2(m) (which it did not explain in its report) cannot be reconciled 

with the Judiciary Committee’s well-reasoned conclusion, in both 1974 

and 1998, that Rule XI (and its materially similar predecessor) do not 

confer any standing authority to conduct an impeachment investigation.

In modern practice, the Speaker has referred proposed resolutions calling for the impeachment of a civil officer to the Judiciary Committee.

See Jefferson’s Manual § 605, at 324. Consistent with this practice, the 

Speaker referred the Sherman resolution (H.R. Res. 13, 116th Cong.) to 

the Judiciary Committee, because it called for the impeachment of President Trump. Yet the referral itself did not grant authority to conduct an 

impeachment investigation. House committees have regularly received 

referrals and conducted preliminary inquiries, without compulsory pro-

 34 Clause 2(m) of Rule XI was initially adopted on October 8, 1974, and took effect on 

January 3, 1975. See H.R. Res. 988, 93d Cong. The rule appears to have remained materially unchanged from 1975 to the present (including during the time of the Clinton investigation). See H.R. Rule XI, cl. 2(m), 105th Cong. (Jan. 1, 1998) (version in effect during 

the Clinton investigation); Jefferson’s Manual § 805, at 586–89 (reprinting current 

version and describing the provision’s evolution).

35 At the start of the 93rd Congress in 1973, the Judiciary Committee was “authorized

to conduct full and complete studies and investigations and make inquiries within its 

jurisdiction as set forth in [the relevant provision] of the Rules of the House of Representatives” and was empowered “to hold such hearings and require, by subpena or otherwise, 

the attendance and testimony of such witnesses and the production of such books, records, 

correspondence, memorandums, papers, and documents, as it deems necessary.” H.R. Res. 

74, 93d Cong. §§ 1, 2(a) (1973); see also Cong. Research Serv., R45769, The Impeachment Process in the House of Representatives 4 (updated Nov. 14, 2019) (noting that, 

before Rule XI vested subpoena power in standing committees, the Judiciary Committee 

and other committees had often been given subpoena authority “through resolutions 

providing blanket investigatory authorities that were agreed to at the start of a Congress”).
House Committees’ Authority to Investigate for Impeachment

45

cess, for the purpose of determining whether to recommend that the 

House open a formal impeachment investigation. See supra Part II.C.

Should a committee determine that a formal inquiry is warranted, then the 

committee recommends that the House adopt a resolution that authorizes 

such an investigation, confers subpoena power, and provides special 

process to the target of the investigation. The Judiciary Committee followed precisely that procedure in connection with the impeachment 

investigations of Presidents Nixon and Clinton, among many others. By 

referring an impeachment resolution to the House Judiciary Committee, 

the Speaker did not expand that committee’s subpoena authority to cover 

a formal impeachment investigation. In any event, no impeachment resolution was ever referred to the Foreign Affairs Committee, HPSCI, or the 

Committee on Oversight and Reform. Rule XII thus could not provide any 

authority to those committees in support of the impeachment-related 

subpoenas issued before October 31.

Accordingly, when those subpoenas were issued, the House Rules did 

not provide authority to any of those committees to issue subpoenas in 

connection with potential impeachment. In reaching this conclusion, we 

do not question the broad authority of the House of Representatives to 

determine how and when to conduct its business. See U.S. Const. art. I, 

§ 5, cl. 2. As the Supreme Court has recognized, “‘all matters of method 

are open to the determination’” of the House, “as long as there is ‘a reasonable relation between the mode or method of proceeding established 

by the rule and the result which is sought to be attained,’ and the rule does 

not ‘ignore constitutional restraints or violate fundamental rights.’” Noel 

Canning, 573 U.S. at 551 (quoting United States v. Ballin, 144 U.S. 1, 5 

(1892)). The question, however, is not “what rules Congress may establish for its own governance,” but “rather what rules the House has established and whether they have been followed.” Christoffel v. United States, 

338 U.S. 84, 88–89 (1949); see also Yellin v. United States, 374 U.S. 109, 

121 (1963) (stating that a litigant “is at least entitled to have the Committee follow its rules and give him consideration according to the standards 

it has adopted in” the relevant rule); United States v. Smith, 286 U.S. 6, 33 

(1932) (“As the construction to be given to the rules affects persons other 

than members of the Senate, the question presented is of necessity a 

judicial one.”). Statements by the Speaker or by committee chairmen are 

not statements of the House itself. Cf. Noel Canning, 573 U.S. at 552–53 

(relying on statements and actions of the Senate itself, as reflected in the 

Journal of the Senate and the Congressional Record, to determine when 
Opinions of the Office of Legal Counsel in Volume 44

46

the Senate was “in session”). Our conclusion here turned upon nothing 

more, and nothing less, than the rules and resolutions that had been adopted by a majority vote of the full House.36

The text of those provisions determined whether the House had delegated the necessary authority. See id. at 552 (“[O]ur deference to the 

Senate cannot be absolute. When the Senate is without the capacity to act, 

under its own rules, it is not in session even if it so declares.”). Thus, the 

Supreme Court has repeatedly made clear that a target of the House’s 

compulsory process may question whether a House resolution has actually 

conferred the necessary powers upon a committee, because the committee’s “right to exact testimony and to call for the production of documents 

must be found in [the resolution’s] language.” Rumely, 345 U.S. at 44; see 

also Watkins, 354 U.S. at 201. In Rumely, the Court expressly rejected the 

argument that the House had confirmed the committee’s jurisdiction by 

adopting a resolution that merely held the witness in contempt after the 

fact. As the Court explained, what was said “after the controversy had 

arisen regarding the scope of the resolution . . . had the usual infirmity of 

post litem motam, self-serving declarations.” 345 U.S. at 48. In other 

words, even a vote of the full House could not “enlarge[]” a committee’s

authority after the fact for purposes of finding that a witness had failed to 

comply with the obligations imposed by the subpoena. Id.

Here, the House committees claiming to investigate impeachment issued subpoenas before they had received any actual delegation of impeachment-related authority from the House. Before October 31, the 

committees relied solely upon statements of the Speaker, the committee 

chairmen, and the Judiciary Committee, all of which merely asserted that 

one or more House committees had already been conducting a formal 

impeachment inquiry. There was, however, no House resolution actually 

delegating such authority to any committee, let alone one that did so with 

 36 The Judiciary Committee has also invoked House Resolution 430 as an independent

source of authority for an impeachment inquiry. See Tr. of Mot. Hrg. at 91–92, In re 

Application of the Comm. on the Judiciary; see also Majority Staff of H. Comm. on the 

Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 39 (Dec. 

2019). As discussed above, however, that resolution did not confer any investigative 

authority. Rather, it granted “any and all necessary authority under Article I” only “in 

connection with” certain “judicial proceeding[s]” in federal court. H.R. Res. 430, 116th 

Cong. (2019); see supra note 7. The resolution therefore had no bearing on any committee’s authority to compel the production of documents or testimony in an impeachment 

investigation.
House Committees’ Authority to Investigate for Impeachment

47

“sufficient particularity” to compel witnesses to respond. Watkins, 354 

U.S. at 201; cf. Gojack v. United States, 384 U.S. 702, 716–17 (1966). At 

the opening of this Congress, the House had not chosen to confer investigative authority over impeachment upon any committee, and therefore, no 

House committee had authority to compel the production of documents or 

testimony in furtherance of an impeachment inquiry that it was not authorized to conduct.

B.

Lacking a delegation from the House, the committees could not compel 

the production of documents or the testimony of witnesses for purposes of 

an impeachment inquiry. Because the first impeachment-related subpoena

—the September 27 subpoena from the Foreign Affairs Committee—

rested entirely upon the purported impeachment inquiry, see Three 

Chairmen’s Letter, supra note 2, at 1, it was not enforceable. See, e.g., 

Rumely, 345 U.S. at 44. Perhaps recognizing this infirmity, the committee 

chairmen invoked not merely the impeachment inquiry in connection with 

subsequent impeachment-related subpoenas but also the committees’ 

“oversight and legislative jurisdiction.” See supra note 9 and accompanying text. That assertion of dual authorities presented the question whether

the committees could leverage their oversight jurisdiction to require the 

production of documents and testimony that the committees avowedly

intended to use for an unauthorized impeachment inquiry. We advised 

that, under the circumstances of these subpoenas, the committees could 

not do so.

Any congressional inquiry “must be related to, and in furtherance of, a 

legitimate task of the Congress.” Watkins, 354 U.S. at 187. The Executive 

Branch need not presume that such a purpose exists or accept a “makeweight” assertion of legislative jurisdiction. Mazars USA, 940 F.3d at 

725–26, 727; see also Shelton v. United States, 404 F.2d 1292, 1297 (D.C. 

Cir. 1968) (“In deciding whether the purpose is within the legislative 

function, the mere assertion of a need to consider ‘remedial legislation’ 

may not alone justify an investigation accompanied with compulsory 

process[.]”). Indeed, “an assertion from a committee chairman may not 

prevent the Executive from confirming the legitimacy of an investigative 

request.” Congressional Committee’s Request for the President’s Tax 

Returns Under 26 U.S.C. § 6103(f ), 43 Op. O.L.C. __, at *20 (June 13, 

2019). To the contrary, “a threshold inquiry that should be made upon 
Opinions of the Office of Legal Counsel in Volume 44

48

receipt of any congressional request for information is whether the request 

is supported by any legitimate legislative purpose.” Response to Congressional Requests for Information Regarding Decisions Made Under the 

Independent Counsel Act, 10 Op. O.L.C. 68, 74 (1986); see also Congressional Requests for Confidential Executive Branch Information, 13 Op. 

O.L.C. 153, 159 (1989) (recognizing that the constitutionally mandated 

accommodation process “requires that each branch explain to the other 

why it believes its needs to be legitimate”).

Here, the committee chairmen made clear upon issuing the subpoenas 

that the committees were interested in the requested materials to support 

an investigation into the potential impeachment of the President, not to 

uncover information necessary for potential legislation within their respective areas of legislative jurisdiction. In marked contrast with routine 

oversight, each of the subpoenas was accompanied by a letter signed by 

the chairs of three different committees, who transmitted a subpoena 

“[p]ursuant to the House of Representatives’ impeachment inquiry” and 

recited that the documents would “be collected as part of the House’s 

impeachment inquiry,” and that they would be “shared among the Committees, as well as with the Committee on the Judiciary as appropriate.”

See supra note 9 and accompanying text. Apart from their token invocations of “oversight and legislative jurisdiction,” the letters offered no hint 

of any legislative purpose. The committee chairmen were therefore seeking to do precisely what they said—compel the production of information 

to further an impeachment inquiry.

In reaching this conclusion, we do not foreclose the possibility that the 

Foreign Affairs Committee or the other committees could have issued 

similar subpoenas in the bona fide exercise of their legislative oversight 

jurisdiction, in which event the requests would have been evaluated 

consistent with the long-standing confidentiality interests of the Executive 

Branch. See Watkins, 354 U.S. at 187 (recognizing that Congress’s general investigative authority “comprehends probes into departments of the 

Federal Government to expose corruption, inefficiency or waste”);

McGrain, 273 U.S. at 179–80 (observing that it is not “a valid objection 

to the investigation that it might possibly disclose crime or wrongdoing on 

[the Attorney General’s] part”). Should the Foreign Affairs Committee, or 

another committee, articulate a legitimate oversight purpose for a future 

information request, the Executive Branch would assess that request as 

part of the constitutionally required accommodation process. But the 

Executive Branch was not confronted with that situation. The committee 
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chairmen unequivocally attempted to conduct an impeachment inquiry 

into the President’s actions, without the House, which has the “sole Power 

of Impeachment,” having authorized such an investigation. Absent such 

an authorization, the committee chairs’ passing mention of “oversight and 

legislative jurisdiction” did not cure that fundamental defect.

C.

We next address whether the House ratified any of the previous committee subpoenas when it adopted Resolution 660 on October 31, 2019—

after weeks of objections from the Executive Branch and many members 

of Congress to the committees’ efforts to conduct an unauthorized impeachment inquiry. Resolution 660 provides that six committees of the 

House “are directed 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 Donald John Trump, President of the United States of America.” Resolution 660, § 1. The resolution further prescribes certain procedures by which HPSCI and the Judiciary Committee may conduct hearings in connection with the investigation defined by that resolution.

Resolution 660 does not speak at all to the committees’ past actions or 

seek to ratify any subpoena previously issued by the House committees. 

See Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. Cir. 2019) 

(Rao, J., dissenting from the denial of rehearing en banc); see also Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *5 (Nov. 1, 2019). The resolution 

“direct[s]” HPSCI and other committees to “continue” their investigations, and the Rules Committee apparently assumed, incorrectly in our 

view, that earlier subpoenas were legally valid. See H.R. Rep. No. 116-

266, at 3 (“All subpoenas to the Executive Branch remain in full force.”). 

But the resolution’s operative language does not address any previously 

issued subpoenas or provide the imprimatur of the House to give those 

subpoenas legal force.

And the House knows how to ratify existing subpoenas when it chooses 

to do so.37 On July 24, 2019, the House adopted a resolution that express-

 37 Even if the House had sought to ratify a previously issued subpoena, it could give 

that subpoena only prospective effect. As discussed above, the Supreme Court has 

recognized that the House may not cite a witness for contempt for failure to comply with 
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ly “ratif[ied] and affirm[ed] all current and future investigations, as well 

as all subpoenas previously issued or to be issued in the future,” related to 

certain enumerated subjects within the jurisdiction of standing or select 

committees of the House “as established by the Constitution of the United 

States and rules X and XI of the Rules of the House of Representatives.”

H.R. Res. 507, 116th Cong. § 1 (2019) (emphasis added). There, as here, 

the House acted in response to questions regarding “the validity of . . . 

[committee] investigations and subpoenas.” Id. pmbl. Despite that recent 

model, Resolution 660 contains no comparable language seeking to ratify 

previously issued subpoenas. The resolution directs certain committees to 

“continue” investigations, and it specifies procedures to govern future 

hearings, but nothing in the resolution looks backward to actions previously taken. Accordingly, Resolution 660 did not ratify or otherwise 

authorize the impeachment-related subpoenas issued before October 31, 

which therefore still had no compulsory effect on their recipients.

IV.

Finally, we address some of the consequences that followed from our 

conclusion that the committees’ pre-October 31 impeachment-related 

subpoenas were unauthorized. First, because the subpoenas exceeded the 

committees’ investigative authority and lacked compulsory effect, the 

committees were mistaken in contending that the recipients’ “failure or 

refusal to comply with the subpoena [would] constitute evidence of obstruction of the House’s impeachment inquiry.” Three Chairmen’s Letter,

supra note 2, at 1.38 As explained at length above, when the subpoenas 

were issued, there was no valid impeachment inquiry. To the extent that 

the committees’ subpoenas sought information in support of an unauthorized impeachment inquiry, the failure to comply with those subpoenas 

was no more punishable than were the failures of the witnesses in Watkins, Rumely, Kilbourn, and Lamont to answer questions that were beyond 

 

a subpoena unsupported by a valid delegation of authority at the time it was issued. See 

Rumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 (“To issue a valid subpoena, . . . 

a committee or subcommittee must conform strictly to the resolution establishing its 

investigatory powers[.]”).

38 The letters accompanying other subpoenas, see supra note 9, contained similar 

threats that the recipients’ “failure or refusal to comply with the subpoena, including at 

the direction or behest of the President,” would constitute “evidence of obstruction of the 

House’s impeachment inquiry.”
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the scope of those committees’ authorized jurisdiction. See Watkins, 354 

U.S. at 206, 215 (holding that conviction for contempt of Congress was 

invalid because, when the witness failed to answer questions, the House 

had not used sufficient “care . . . in authorizing the use of compulsory 

process” and the committee had not shown that the information was 

pertinent to a subject within “the mission[] delegated to” it by the House); 

Rumely, 345 U.S. at 42–43, 48 (affirming reversal of conviction for contempt of Congress because it was not clear at the time of questioning that 

“the committee was authorized to exact the information which the witness 

withheld”); Kilbourn, 103 U.S. at 196 (sustaining action brought by 

witness for false imprisonment because the committee “had no lawful 

authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell”); Lamont, 18 F.R.D. at 37 (dismissing indictment 

for contempt of Congress in part because the indictment did not sufficiently allege, among other things, “that the [Permanent Subcommittee on 

Investigations] . . . was duly empowered by either House of Congress to 

conduct the particular inquiry” or “that the inquiry was within the scope 

of the authority granted to the [sub]committee”). That alone suffices to 

prevent noncompliance with the subpoenas from constituting “obstruction 

of the House’s impeachment inquiry.”

Second, we note that whether or not the impeachment inquiry was authorized, there were other, independent grounds to support directions by 

the Executive Branch that witnesses not appear in response to the committees’ subpoenas. We recently advised you that executive privilege continues to be available during an impeachment investigation. See Exclusion of 

Agency Counsel from Congressional Depositions in the Impeachment 

Context, 43 Op. O.L.C. __, at *2–5. The mere existence of an impeachment investigation does not eliminate the President’s need for confidentiality in connection with the performance of his duties. Just as in the 

context of a criminal trial, a dispute over a request for privileged information in an impeachment investigation must be resolved in a manner that 

“preserves the essential functions of each branch.” United States v. Nixon, 

418 U.S. 683, 707 (1974). Thus, while a committee “may be able to 

establish an interest justifying its requests for information, the Executive 

Branch also has legitimate interests in confidentiality, and the resolution 

of these competing interests requires a careful balancing of each branch’s 

need in the context of the particular information sought.” Exclusion of 

Agency Counsel from Congressional Depositions in the Impeachment 

Context, 43 Op. O.L.C. __, at *4.
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Accordingly, we recognized, in connection with HPSCI’s impeachment 

investigation after October 31, that the committee may not compel an 

executive branch witness to appear for a deposition without the assistance 

of agency counsel, when that counsel is necessary to assist the witness in 

ensuring the appropriate protection of privileged information during the 

deposition. See id. at *4–5. In addition, we have concluded that the testimonial immunity of the President’s senior advisers “applies in an impeachment inquiry just as it applies in a legislative oversight inquiry.”

Letter for Pat A. Cipollone, Counsel to the President, from Steven A. 

Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 

2019).

Thus, even when the House takes the steps necessary to authorize a 

committee to investigate impeachment and compel the production of 

needed information, the Executive Branch continues to have legitimate 

interests to protect. The Constitution does not oblige either branch of 

government to surrender its legitimate prerogatives, but expects that each 

branch will negotiate in good faith with mutual respect for the needs of 

the other branch. See United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 

127 (D.C. Cir. 1977) (“[E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a 

realistic evaluation of the needs of the conflicting branches in the particular fact situation.”); see also Memorandum for the Heads of Executive 

Departments and Agencies from President Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information

(Nov. 4, 1982). The two branches should work to identify arrangements in 

the context of the particular requests of an investigating committee that 

accommodate both the committee’s needs and the Executive Branch’s 

interests.

For these reasons, the House cannot plausibly claim that any executive 

branch official engaged in “obstruction” by failing to comply with committee subpoenas, or directing subordinates not to comply, in order to 

protect the Executive Branch’s legitimate interests in confidentiality and 

the separation of powers. We explained thirty-five years ago that “the 

Constitution does not permit Congress to make it a crime for an official to 

assist the President in asserting a constitutional privilege that is an integral part of the President’s responsibilities under the Constitution.” Prosecution for Contempt of Congress of an Executive Branch Official Who 

Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140 

(1984). Nor may Congress “utilize its inherent ‘civil’ contempt powers to 
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arrest, bring to trial, and punish an executive official who assert[s] a 

Presidential claim of executive privilege.” Id. at 140 n.42. We have reaffirmed those fundamental conclusions in each of the subsequent decades.39

The constitutionally required accommodation process, of course, is a 

two-way street. In connection with this investigation, the House committees took the unprecedented steps of investigating the impeachment of a 

President without any authorization from the full House; without the 

procedural protections provided to Presidents Nixon and Clinton, see 

supra note 12; and with express threats of obstruction charges and unconstitutional demands that officials appear and provide closed-door testimony about privileged matters without the assistance of executive branch 

counsel. Absent any effort by the House committees to accommodate the 

Executive Branch’s legitimate concerns with the unprecedented nature of 

the committees’ actions, it was reasonable for executive branch officials 

to decline to comply with the subpoenas addressed to them.

V.

For the reasons set forth above, we conclude that the House must expressly authorize a committee to conduct an impeachment investigation 

and to use compulsory process in that investigation before the committee 

 39 See, e.g., Attempted Exclusion of Agency Counsel from Congressional Depositions of 

Agency Employees, 43 Op. O.L.C. __, at *14 (May 23, 2019) (“[I]t would be unconstitutional to enforce a subpoena against an agency employee who declined to appear before 

Congress, at the agency’s direction, because the committee would not permit an agency 

representative to accompany him.”); Testimonial Immunity Before Congress of the 

Former Counsel to the President, 43 Op. O.L.C. __, at *20 (May 20, 2019) (“The constitutional separation of powers bars Congress from exercising its inherent contempt power 

in the face of a presidential assertion of executive privilege.”); Whether the Department of 

Justice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C. 

65, 65–69 (2008) (concluding that the Department cannot take “prosecutorial action, with 

respect to current or former White House officials who . . . declined to appear to testify, in 

response to subpoenas from a congressional committee, based on the President’s assertion 

of executive privilege”); Application of 28 U.S.C. § 458 to Presidential Appointments of 

Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (“[T]he criminal contempt of Congress 

statute does not apply to the President or presidential subordinates who assert executive 

privilege.”); see also Authority of Agency Officials to Prohibit Employees from Providing 

Information to Congress, 28 Op. O.L.C. 79, 80–82 (2004) (explaining that the Executive 

Branch has the constitutional authority to supervise its employees’ disclosure of privileged and other information to Congress).
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may compel the production of documents or testimony in support of the 

House’s “sole Power of Impeachment.” U.S. Const. art. I, § 2, cl. 5. The 

House had not authorized such an investigation in connection with the 

impeachment-related subpoenas issued before October 31, 2019, and the 

subpoenas therefore had no compulsory effect. The House’s adoption of 

Resolution 660 did not alter the legal status of those subpoenas, because 

the resolution did not ratify them or otherwise address their terms.

STEVEN A. ENGEL

Assistant Attorney General

Office of Legal Counsel