b'(Slip Opinion)\n\nHouse Committees\xe2\x80\x99 Authority to\nInvestigate for Impeachment\nThe House of Representatives must expressly authorize a committee to conduct an\nimpeachment investigation and to use compulsory process in that investigation before\nthe committee may compel the production of documents or testimony in support of the\nHouse\xe2\x80\x99s power of impeachment.\nThe House had not authorized an impeachment investigation in connection with\nimpeachment-related subpoenas issued by House committees before October 31, 2019,\nand the subpoenas therefore had no compulsory effect.\nThe House\xe2\x80\x99s adoption of Resolution 660 on October 31, 2019, did not alter the legal\nstatus of those subpoenas, because the resolution did not ratify or otherwise address\ntheir terms.\nJanuary 19, 2020\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nOn September 24, 2019, Speaker of the House Nancy Pelosi \xe2\x80\x9cannounc[ed]\xe2\x80\x9d at a press conference that \xe2\x80\x9cthe House of Representatives is\nmoving forward with an official impeachment inquiry\xe2\x80\x9d into the President\xe2\x80\x99s actions and that she was \xe2\x80\x9cdirecting . . . six Committees to proceed\nwith\xe2\x80\x9d several previously pending \xe2\x80\x9cinvestigations under that umbrella of\nimpeachment inquiry.\xe2\x80\x9d 1 Shortly thereafter, the House Committee on\nForeign Affairs issued a subpoena directing the Secretary of State to\nproduce a series of documents related to the recent conduct of diplomacy\nbetween the United States and Ukraine. See Subpoena of the Committee\non Foreign Affairs (Sept. 27, 2019). In an accompanying letter, three\ncommittee chairmen stated that their committees jointly sought these\ndocuments, not in connection with legislative oversight, but \xe2\x80\x9c[p]ursuant to\nthe House of Representatives\xe2\x80\x99 impeachment inquiry.\xe2\x80\x9d 2 In the following\ndays, the committees issued subpoenas to the Acting White House Chief\n1 Nancy Pelosi, Speaker of the House, Press Release: Pelosi Remarks Announcing\nImpeachment Inquiry (Sept. 24, 2019), www.speaker.gov/newsroom/92419-0 (\xe2\x80\x9cPelosi\nPress Release\xe2\x80\x9d).\n2 Letter for Michael R. Pompeo, Secretary of State, from Eliot L. Engel, Chairman,\nCommittee on Foreign Affairs, U.S. House of Representatives, Adam Schiff, Chairman,\nPermanent Select Committee on Intelligence, U.S. House of Representatives, and Elijah\nE. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Sept. 27, 2019) (\xe2\x80\x9cThree Chairmen\xe2\x80\x99s Letter\xe2\x80\x9d).\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nof Staff, the Secretary of Defense, the Secretary of Energy, and several\nothers within the Executive Branch.\nUpon the issuance of these subpoenas, you asked whether these committees could compel the production of documents and testimony in\nfurtherance of an asserted impeachment inquiry. We advised that the\ncommittees lacked such authority because, at the time the subpoenas were\nissued, the House had not adopted any resolution authorizing the committees to conduct an impeachment inquiry. The Constitution vests the \xe2\x80\x9csole\nPower of Impeachment\xe2\x80\x9d in the House of Representatives. U.S. Const.\nart. I, \xc2\xa7 2, cl. 5. For precisely that reason, the House itself must authorize\nan impeachment inquiry, as it has done in virtually every prior impeachment investigation in our Nation\xe2\x80\x99s history, including every one involving\na President. A congressional committee\xe2\x80\x99s \xe2\x80\x9cright to exact testimony and to\ncall for the production of documents\xe2\x80\x9d is limited by the \xe2\x80\x9ccontrolling charter\xe2\x80\x9d the committee has received from the House. United States v. Rumely,\n345 U.S. 41, 44 (1953). Yet the House, by its rules, has authorized its\ncommittees to issue subpoenas only for matters within their legislative\njurisdiction. Accordingly, no committee may undertake the momentous\nmove from legislative oversight to impeachment without a delegation by\nthe full House of such authority.\nWe are not the first to reach this conclusion. This was the position of\nthe House in the impeachments of Presidents Nixon and Clinton. In the\ncase of President Nixon, following a preliminary inquiry, the House\nadopted a formal resolution as a \xe2\x80\x9cnecessary step\xe2\x80\x9d to confer the \xe2\x80\x9cinvestigative powers\xe2\x80\x9d of the House \xe2\x80\x9cto their full extent\xe2\x80\x9d upon the Judiciary Committee. 120 Cong. Rec. 2350\xe2\x80\x9351 (1974) (statement of Rep. Rodino); see\nH.R. Res. 803, 93d Cong. (1974). As the House Parliamentarian explained, it had been \xe2\x80\x9cconsidered necessary for the House to specifically\nvest the Committee on the Judiciary with the investigatory and subpena\npower to conduct the impeachment investigation.\xe2\x80\x9d 3 Lewis Deschler,\nDeschler\xe2\x80\x99s Precedents of the United States House of Representatives ch.\n14, \xc2\xa7 15.2, at 2172 (1994) (Parliamentarian\xe2\x80\x99s Note). 3 The House followed\nthe same course in the impeachment of President Clinton. After reviewing\nthe Independent Counsel\xe2\x80\x99s referral, the Judiciary Committee \xe2\x80\x9cdecided that\nit must receive authorization from the full House before proceeding on\n3 Although volume 3 of Deschler\xe2\x80\x99s Precedents was published in 1979, our citations of\nDeschler\xe2\x80\x99s Precedents use the continuously paginated version that is available at www.\ngovinfo.gov/collection/precedents-of-the-house.\n\n2\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nany further course of action.\xe2\x80\x9d H.R. Rep. No. 105-795, at 24 (1998). The\nHouse again adopted a resolution authorizing the committee to issue\ncompulsory process in support of an impeachment investigation. See H.R.\nRes. 581, 105th Cong. (1998). As Representative John Conyers summarized in 2016: \xe2\x80\x9cAccording to parliamentarians of the House past and\npresent, the impeachment process does not begin until the House actually\nvotes to authorize [a] Committee to investigate the charges.\xe2\x80\x9d 4\nIn marked contrast with these historical precedents, in the weeks after\nthe Speaker\xe2\x80\x99s announcement, House committees issued subpoenas without\nany House vote authorizing them to exercise the House\xe2\x80\x99s authority under\nthe Impeachment Clause. The three committees justified the subpoenas\nbased upon the Rules of the House, which authorize subpoenas for matters\nwithin a committee\xe2\x80\x99s jurisdiction. But the Rules assign only \xe2\x80\x9clegislative\njurisdiction[]\xe2\x80\x9d and \xe2\x80\x9coversight responsibilities\xe2\x80\x9d to the committees. H.R.\nRules, 116th Cong., Rule X, cl. 1 (Jan. 11, 2019) (\xe2\x80\x9cCommittees and their\nlegislative jurisdictions\xe2\x80\x9d), cl. 2 (\xe2\x80\x9cGeneral oversight responsibilities\xe2\x80\x9d); see\nalso H.R. Rule X, cls. 3(m), 11. The House\xe2\x80\x99s legislative power is distinct\nfrom its impeachment power. Compare U.S. Const. art. I, \xc2\xa7 1, with id. art.\nI, \xc2\xa7 2, cl. 5. Although committees had that same delegation during the\nClinton impeachment and a materially similar one during the Nixon\nimpeachment, the House determined on both occasions that the Judiciary\nCommittee required a resolution to investigate. Speaker Pelosi purported\nto direct the committees to conduct an \xe2\x80\x9cofficial impeachment inquiry,\xe2\x80\x9d\nbut the House Rules do not give the Speaker any authority to delegate\ninvestigative power. The committees thus had no delegation authorizing\nthem to issue subpoenas pursuant to the House\xe2\x80\x99s impeachment power.\nIn the face of objections to the validity of the committee subpoenas that\nwere expressed by the Administration, by ranking minority members in\nthe House, and by many Senators, among others, on October 31, 2019, the\nHouse adopted Resolution 660, which \xe2\x80\x9cdirected\xe2\x80\x9d six committees \xe2\x80\x9cto\ncontinue their ongoing investigations\xe2\x80\x9d as part of the \xe2\x80\x9cexisting House of\nRepresentatives inquiry into whether sufficient grounds exist\xe2\x80\x9d to impeach\nPresident Trump. H.R. Res. 660, 116th Cong. \xc2\xa7 1 (2019). Resolution\n660\xe2\x80\x99s direction, however, was entirely prospective. The resolution did not\npurport to ratify any previously issued subpoenas or even make any men-\n\n4 Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H.\nComm. on the Judiciary, 114th Cong. 3 (2016).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ntion of them. Accordingly, the pre-October 31 subpoenas, which had not\nbeen authorized by the House, continued to lack compulsory force. 5\nI.\nSince the start of the 116th Congress, some members of Congress have\nproposed that the House investigate and impeach President Trump. On\nJanuary 3, 2019, the first day of the new Congress, Representative Brad\nSherman introduced a resolution to impeach \xe2\x80\x9cDonald John Trump, President of the United States, for high crimes and misdemeanors.\xe2\x80\x9d H.R. Res.\n13, 116th Cong. (2019). The Sherman resolution called for impeachment\nbased upon the President\xe2\x80\x99s firing of the Director of the Federal Bureau of\nInvestigation, James Comey. See id. Consistent with settled practice, the\nresolution was referred to the Judiciary Committee. See H.R. Doc. No.\n115-177, Jefferson\xe2\x80\x99s Manual \xc2\xa7 605, at 324 (2019).\nThe Judiciary Committee did not act on the Sherman resolution, but it\nsoon began an oversight investigation into related subjects that were also\nthe focus of a Department of Justice investigation by Special Counsel\nRobert S. Mueller, III. On March 4, 2019, the committee served document\nrequests on the White House and 80 other agencies, entities, and individuals, \xe2\x80\x9cunveil[ing] an investigation . . . into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his\nassociates, and members of his Administration.\xe2\x80\x9d 6 Those document requests did not mention impeachment.\nAfter the Special Counsel finished his investigation, the Judiciary\nCommittee demanded his investigative files, describing its request as an\nThis 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\nfor Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney\nGeneral, Office of Legal Counsel (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for\nPat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney\nGeneral, Office of Legal Counsel (Nov. 3, 2019) (subpoena to John Eisenberg); Exclusion\nof Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op.\nO.L.C. __ (Nov. 1, 2019).\n6 U.S. House of Representatives Committee on the Judiciary, Press Release: House\nJudiciary Committee Unveils Investigation into Threats Against the Rule of Law (Mar. 4,\n2019), judiciary.house.gov/news/press-releases/house-judiciary-committee-unveilsinvestigation-threats-against-rule-law; see also Letter for the White House, c/o Pat\nCipollone, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of\nRepresentatives (Mar. 4, 2019).\n5\n\n4\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nexercise of legislative oversight authority. See Letter for William P. Barr,\nAttorney General, from Jerrold Nadler, Chairman, Committee on the\nJudiciary, U.S. House of Representatives at 3 (May 3, 2019) (asserting\nthat \xe2\x80\x9c[t]he Committee has ample jurisdiction under House Rule X(l ) to\nconduct oversight of the Department [of Justice], undertake necessary\ninvestigations, and consider legislation regarding the federal obstruction\nof justice statutes, campaign-related crimes, and special counsel investigations, among other things\xe2\x80\x9d). The committee\xe2\x80\x99s subsequent letters and\npublic statements likewise described its inquiry as serving a \xe2\x80\x9clegislative\npurpose.\xe2\x80\x9d E.g., Letter for Pat Cipollone, White House Counsel, from\nJerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of\nRepresentatives at 3\xe2\x80\x936 (May 16, 2019) (describing the \xe2\x80\x9clegislative purpose of the Committee\xe2\x80\x99s investigation\xe2\x80\x9d (capitalization altered)).\nOver time, the Judiciary Committee expanded the description of its investigation to claim that it was considering impeachment. The committee\nfirst mentioned impeachment in a May 8, 2019 report recommending that\nthe Attorney General be held in contempt of Congress. In a section entitled \xe2\x80\x9cAuthority and Legislative Purpose,\xe2\x80\x9d the committee stated that one\npurpose of the inquiry was to determine \xe2\x80\x9cwhether to approve articles of\nimpeachment with respect to the President or any other Administration\nofficial.\xe2\x80\x9d H.R. Rep. No. 116-105, at 12, 13 (2019). 7\nThe committee formally claimed to be investigating impeachment when\nit petitioned the U.S. District Court for the District of Columbia to release\ngrand-jury information related to the Special Counsel\xe2\x80\x99s investigation. See\nApplication at 1\xe2\x80\x932, In re Application of the Comm. on the Judiciary, U.S.\n\n7 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\nGeneral William Barr and former White House Counsel Donald McGahn and purported to\nauthorize the Bipartisan Legal Advisory Group to approve future litigation. See H.R. Res.\n430, 116th Cong. (2019). The next clause of the resolution then stated that, \xe2\x80\x9cin connection\nwith any judicial proceeding brought under the first or second resolving clauses, the chair\nof any standing or permanent select committee exercising authority thereunder has any\nand all necessary authority under Article I of the Constitution.\xe2\x80\x9d Id. The resolution did not\nmention \xe2\x80\x9cimpeachment\xe2\x80\x9d and, by its terms, authorized actions only in connection with the\nlitigation authorized \xe2\x80\x9cunder the first or second resolving clauses.\xe2\x80\x9d On the same day that\nthe House adopted Resolution 430, Speaker Pelosi stated that the House\xe2\x80\x99s Democratic\ncaucus was \xe2\x80\x9cnot even close\xe2\x80\x9d to an impeachment inquiry. Rep. Nancy Pelosi (D-CA)\nContinues Resisting Impeachment Inquiry, CNN (June 11, 2019), transcripts.cnn.com/\nTRANSCRIPTS/1906/11/cnr.04.html.\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nHouse 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,\nChairman, Re: Lessons from the Mueller Report, Part III: \xe2\x80\x9cConstitutional\nProcesses for Addressing Presidential Misconduct\xe2\x80\x9d at 3 (July 11, 2019)\n(advising that the Committee would seek documents and testimony \xe2\x80\x9cto\ndetermine whether the Committee should recommend articles of impeachment against the President or any other Article I remedies, and if so,\nin what form\xe2\x80\x9d). 8 The committee advanced the same contention when\nasking the district court to compel testimony before the committee by\nformer White House Counsel Donald McGahn. See Compl. for Declaratory and Injunctive Relief \xc2\xb6 1, Comm. on the Judiciary, U.S. House of Reps.\nv. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019) (contending that the\nJudiciary Committee was \xe2\x80\x9cnow determining whether to recommend\narticles of impeachment against the President based on the obstructive\nconduct described by the Special Counsel\xe2\x80\x9d).\nIn connection with this litigation, Chairman Nadler described the committee as conducting \xe2\x80\x9cformal impeachment proceedings.\xe2\x80\x9d David Priess &\nMargaret Taylor, What if the House Held Impeachment Proceedings and\nNobody Noticed?, Lawfare (Aug. 12, 2019), www.lawfareblog.com/whatif-house-held-impeachment-proceedings-and-nobody-noticed (chronicling\nthe evolution in Chairman Nadler\xe2\x80\x99s descriptions of the investigation).\nThose assertions coincided with media reports that Chairman Nadler had\nprivately asked Speaker Pelosi to support the opening of an impeachment\ninquiry. See, e.g., Andrew Desiderio, Nadler: \xe2\x80\x98This is Formal Impeachment Proceedings,\xe2\x80\x99 Politico (Aug. 8, 2019), www.politico.com/story/\n2019/08/08/nadler-this-is-formal-impeachment-proceedings-1454360\n(noting that Nadler \xe2\x80\x9chas privately pushed Speaker Nancy Pelosi to support\na formal inquiry of whether to remove the president from office\xe2\x80\x9d). On\nSeptember 12, the Judiciary Committee approved a resolution describing\nits investigation as an impeachment inquiry and adopting certain procedures for the investigation. See Resolution for Investigative Procedures\nOffered by Chairman Jerrold Nadler, H. Comm. on the Judiciary, 116th\n\nWhile the House has delegated to the Bipartisan Legal Advisory Group the ability to\n\xe2\x80\x9carticulate[] the institutional position of \xe2\x80\x9d the House, it has done so only for purposes of\n\xe2\x80\x9clitigation matters.\xe2\x80\x9d H.R. Rule II, cl. 8(b). Therefore, neither the group, nor the House\ncounsel implementing that group\xe2\x80\x99s directions, could assert the House\xe2\x80\x99s authority in\nconnection with an impeachment investigation, which is not a litigation matter.\n8\n\n6\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nCong. (Sept. 12, 2019), docs.house.gov/meetings/JU/JU00/20190912/\n109921/BILLS-116pih-ResolutionforInvestigativeProcedures.pdf.\nSpeaker Pelosi did not endorse the Judiciary Committee\xe2\x80\x99s 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\nthe Intelligence Community. The complaint, cast in the form of an unsigned letter to the congressional intelligence committees, alleged that, in\na July 25, 2019 telephone call, the President sought to pressure Ukrainian\nPresident Volodymyr Zelenskyy to investigate the prior activities of one\nof the President\xe2\x80\x99s potential political rivals. See Letter for Richard Burr,\nChairman, Select Committee on Intelligence, U.S. Senate, and Adam\nSchiff, Chairman, Permanent Select Committee on Intelligence, U.S.\nHouse of Representatives at 2\xe2\x80\x933 (Aug. 12, 2019). After the Inspector\nGeneral 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.\nOn September 24, the day before the release of the call record, Speaker\nPelosi \xe2\x80\x9cannounc[ed]\xe2\x80\x9d that \xe2\x80\x9cthe House of Representatives is moving forward with an official impeachment inquiry\xe2\x80\x9d and that she was \xe2\x80\x9cdirect[ing]\n. . . six [c]ommittees to proceed with their investigations under that umbrella of impeachment inquiry.\xe2\x80\x9d Pelosi Press Release, supra note 1. In an\nOctober 8, 2019 court hearing, the House\xe2\x80\x99s General Counsel invoked the\nSpeaker\xe2\x80\x99s announcement as purportedly conclusive proof that the House\nhad opened an impeachment inquiry. Tr. of Mot. Hrg. at 23, In re Application of the Comm. on the Judiciary (\xe2\x80\x9cWe are in an impeachment inquiry, an impeachment investigation, a formal impeachment investigation\nbecause the House says it is. The speaker of the House has specifically\nsaid that it is.\xe2\x80\x9d).\nOn September 27, Chairman Engel of the Foreign Affairs Committee\nissued a subpoena to Secretary of State Pompeo \xe2\x80\x9c[p]ursuant to the House\nof Representatives\xe2\x80\x99 impeachment inquiry.\xe2\x80\x9d Three Chairmen\xe2\x80\x99s Letter,\nsupra note 2, at 1. That subpoena was the first to rely on the newly proclaimed \xe2\x80\x9cimpeachment inquiry.\xe2\x80\x9d A number of subpoenas followed, each\nof which was accompanied by a letter signed by the chairmen of three\ncommittees (Foreign Affairs, Oversight and Reform, and the Permanent\nSelect Committee on Intelligence (\xe2\x80\x9cHPSCI\xe2\x80\x9d)). Although the September 27\nletter mentioned only the \xe2\x80\x9cimpeachment inquiry\xe2\x80\x9d as a basis for the ac7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ncompanying subpoena, subsequent letters claimed that other subpoenas\nwere issued both \xe2\x80\x9c[p]ursuant to the House of Representatives\xe2\x80\x99 impeachment inquiry\xe2\x80\x9d and \xe2\x80\x9cin exercise of \xe2\x80\x9d the committees\xe2\x80\x99 \xe2\x80\x9coversight and legislative jurisdiction.\xe2\x80\x9d 9\nFollowing service of these subpoenas, you and other officials within the\nExecutive Branch requested our advice with respect to the obligations of\nthe subpoenas\xe2\x80\x99 recipients. We advised that the subpoenas were invalid\nbecause, among other reasons, the committees lacked the authority to\nconduct the purported inquiry and, with respect to several testimonial\nsubpoenas, the committees impermissibly sought to exclude agency\ncounsel from scheduled depositions. In reliance upon that advice, you and\nother responsible officials directed employees within their respective\ndepartments and agencies not to provide the documents and testimony\nrequested under those subpoenas.\nOn October 8, 2019, you sent a letter to Speaker Pelosi and the three\nchairmen advising them that their purported impeachment inquiry was\n\xe2\x80\x9cconstitutionally invalid\xe2\x80\x9d because the House had not authorized it. 10 The\nHouse Minority Leader, Kevin McCarthy, and the Ranking Member of the\nJudiciary Committee, Doug Collins, had already made the same objec-\n\n9 E.g., Letter for John Michael Mulvaney, Acting Chief of Staff to the President, from\nElijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of\nRepresentatives, Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence,\nU.S. House of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign\nAffairs, U.S. House of Representatives at 1 (Oct. 4, 2019); Letter for Mark T. Esper,\nSecretary of Defense, from Adam B. Schiff, Chairman, Permanent Select Committee on\nIntelligence, U.S. House of Representatives, Eliot L. Engel, Chairman, Committee on\nForeign Affairs, U.S. House of Representatives, and Elijah E. Cummings, Chairman,\nCommittee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 7, 2019);\nLetter for Gordon Sondland, U.S. Ambassador to the European Union, from Adam B.\nSchiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House\nof Representatives, and Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S.\nHouse of Representatives at 1 (Oct. 8, 2019); Letter for James Richard \xe2\x80\x9cRick\xe2\x80\x9d Perry,\nSecretary of Energy, from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S.\nHouse of Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on\nIntelligence, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 10, 2019).\n10 Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, et al., from Pat A.\nCipollone, Counsel to the President at 2\xe2\x80\x933 (Oct. 8, 2019).\n\n8\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\ntion. 11 Senator Lindsey Graham introduced a resolution in the Senate, cosponsored by 49 other Senators, which objected to the House\xe2\x80\x99s impeachment process because it had not been authorized by the full House and did\nnot provide the President with the procedural protections enjoyed in past\nimpeachment inquiries. S. Res. 378, 116th Cong. (2019).\nOn October 25, 2019, the U.S. District Court for the District of Columbia granted the Judiciary Committee\xe2\x80\x99s request for grand-jury information\nfrom the Special Counsel\xe2\x80\x99s investigation, holding that the committee\nwas conducting an impeachment inquiry that was \xe2\x80\x9cpreliminar[y] to . . . a\njudicial proceeding,\xe2\x80\x9d for purposes of the exception to grand-jury secrecy\nin Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure. See In re\nApplication of the Comm. on the Judiciary, U.S. House of Reps., No. 19gj-48, 2019 WL 5485221 (D.D.C. Oct. 25, 2019), stay granted, No. 195288 (D.C. Cir. Oct. 29, 2019), argued (D.C. Cir. Jan. 3, 2020). In so\nholding, the court concluded that the House need not adopt a resolution\nbefore a committee may begin an impeachment inquiry. Id. at *26\xe2\x80\x9328. As\nwe discuss below, the district court\xe2\x80\x99s analysis of this point relied on a\nmisreading of the historical record.\nFaced with continuing objections from the Administration and members of Congress to the validity of the impeachment-related subpoenas,\nthe House decided to take a formal vote to authorize the impeachment\ninquiry. See Letter for Democratic Members of the House from Nancy\nPelosi, Speaker of the House (Oct. 28, 2019). On October 31, the House\nadopted a resolution \xe2\x80\x9cdirect[ing]\xe2\x80\x9d several committees \xe2\x80\x9cto continue their\nongoing investigations as part of the existing House of Representatives\ninquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump,\nPresident of the United States of America.\xe2\x80\x9d Resolution 660, \xc2\xa7 1. The\nresolution also adopted special procedures for impeachment proceedings\nbefore HPSCI and the Judiciary Committee.\n\nSee Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, from Kevin\nMcCarthy, Republican Leader, U.S. House of Representatives at 1 & n.1 (Oct. 3, 2019);\nMem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial at 5\xe2\x80\x9321, In\nre Application of the Comm. on the Judiciary (D.D.C. Oct. 3, 2019).\n11\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nII.\nThe Constitution vests in the House of Representatives a share of Congress\xe2\x80\x99s legislative power and, separately, \xe2\x80\x9cthe sole Power of Impeachment.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 1; id. art. I, \xc2\xa7 2, cl. 5. Both the legislative\npower and the impeachment power include an implied authority to investigate, including by means of compulsory process. But those investigative\npowers are not interchangeable. The House has broadly delegated to\ncommittees its power to investigate for legislative purposes, but it has\nheld impeachment authority more closely, granting authority to conduct\nparticular impeachment investigations only as the need has arisen. The\nHouse has followed that approach from the very first impeachment inquiry through dozens more that have followed over the past 200 years,\nincluding every inquiry involving a President.\nIn 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 \xe2\x80\x9cdebate[s]\nand decide[s] when it wishes to shift from legislating to impeaching\xe2\x80\x9d and\nto authorize a committee to take responsibility for \xe2\x80\x9cthe grave and weighty\nprocess of impeachment.\xe2\x80\x9d Trump v. Mazars USA, LLP, 940 F.3d 710, 737,\n738 (D.C. Cir. 2019), cert. granted, No. 19-715 (Dec. 13, 2019); see also\nid. at 757 (Rao, J., dissenting) (recognizing that \xe2\x80\x9cthe Constitution forces\nthe House to take accountability for its actions when investigating the\nPresident\xe2\x80\x99s misconduct\xe2\x80\x9d). Because a legislative investigation seeks \xe2\x80\x9cinformation respecting the conditions which the legislation is intended to\naffect or change,\xe2\x80\x9d McGrain v. Daugherty, 273 U.S. 135, 175 (1927),\n\xe2\x80\x9clegislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability,\nthan on precise reconstruction of past events,\xe2\x80\x9d Senate Select Comm. on\nPresidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir.\n1974) (en banc). By contrast, an impeachment inquiry must evaluate\nwhether a civil officer did, or did not, commit treason, bribery, or another\nhigh crime or misdemeanor, U.S. Const. art. II, \xc2\xa7 4, and it is more likely\nthan a legislative oversight investigation to call for the reconstruction of\npast events.\nThus, the House has traditionally marked the shift to an impeachment\ninquiry by adopting a resolution that authorizes a committee to investigate\nthrough court-like procedures differing significantly from those used in\nroutine oversight. See, e.g., Jefferson\xe2\x80\x99s Manual \xc2\xa7 606, at 324 (recognizing\n10\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nthat, in modern practice, \xe2\x80\x9cthe sentiment of committees has been in favor\nof permitting the accused to explain, present witnesses, cross-examine,\nand be represented by counsel\xe2\x80\x9d (citations omitted)); see also Cong. Research Serv., R45983, Congressional Access to Information in an Impeachment Investigation 15 (Oct. 25, 2019) (\xe2\x80\x9c[D]uring both the Nixon\nand Clinton impeachment investigations, the House Judiciary Committee\nadopted resolutions affording the President and his counsel the right to\nrespond to evidence gathered by the committee, raise objections to testimony, and cross-examine witnesses[.]\xe2\x80\x9d).12 A House resolution authorizing\nthe opening of an impeachment inquiry plays a highly significant role in\ndirecting the scope and nature of the constitutional inquest that follows.\nSuch a resolution does not just reflect traditional practice. It is a constitutionally required step before a committee may exercise compulsory\nprocess in aid of the House\xe2\x80\x99s \xe2\x80\x9csole Power of Impeachment.\xe2\x80\x9d U.S. Const.\nart. I, \xc2\xa7 2, cl. 5. In this Part, we explain the basis for this conclusion. First,\nwe address the constitutional distinction between the House\xe2\x80\x99s power to\ninvestigate for legislative purposes and for impeachment purposes. We\nnext explain why an impeachment inquiry must be authorized by the\nHouse itself. Finally, we review the historical record, which confirms,\nacross dozens of examples, that the House must specifically authorize\nThe House Judiciary Committee permitted President Nixon\xe2\x80\x99s counsel to submit and\nrespond to evidence, to request to call witnesses, to attend hearings and examinations, to\nobject to the examination of witnesses and the admissibility of testimony, and to question\nwitnesses. See H.R. Rep. No. 93-1305, at 8\xe2\x80\x939 (1974); 3 Deschler\xe2\x80\x99s Precedents ch. 14,\n\xc2\xa7 6.5, at 2045\xe2\x80\x9347. Later, President Clinton and his counsel were similarly \xe2\x80\x9cinvited to\nattend all executive session and open committee hearings,\xe2\x80\x9d at which they were permitted\nto \xe2\x80\x9ccross examine witnesses,\xe2\x80\x9d \xe2\x80\x9cmake objections regarding the pertinency of evidence,\xe2\x80\x9d\n\xe2\x80\x9csuggest that the Committee receive additional evidence,\xe2\x80\x9d and \xe2\x80\x9crespond to the evidence\nadduced by the Committee.\xe2\x80\x9d H.R. Rep. No. 105-795, at 25\xe2\x80\x9326; see also 18 Deschler\xe2\x80\x99s\nPrecedents app. at 549 (2013) (noting that, during the Clinton impeachment investigation,\nthe House made a \xe2\x80\x9cdeliberate attempt to mirror [the] documented precedents and proceedings\xe2\x80\x9d of the Nixon investigation). In a departure from the Nixon and Clinton precedents,\nthe 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\nnot provide any such rights with respect to any of the public hearings conducted by\nHPSCI, limiting the President\xe2\x80\x99s opportunity to participate to the Judiciary Committee,\nwhich did not itself participate in developing the investigative record upon which the\narticles of impeachment were premised. See H.R. Res. 660, 116th Cong. \xc2\xa7 4(a); 165 Cong.\nRec. E1357 (daily ed. Oct. 29, 2019) (\xe2\x80\x9cImpeachment Inquiry Procedures in the Committee on the Judiciary\xe2\x80\x9d).\n12\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ncommittees to conduct impeachment investigations and to issue compulsory process.\nA.\nThe Constitution vests several different powers in the House of Representatives. As one half of Congress, the House shares with the Senate\nthe \xe2\x80\x9clegislative Powers\xe2\x80\x9d granted in the Constitution (U.S. Const. art. I,\n\xc2\xa7 1), which include the ability to pass bills (id. art. I, \xc2\xa7 7, cl. 2) and to\noverride presidential vetoes (id. art. I, \xc2\xa7 7, cl. 3) in the process of enacting\nlaws pursuant to Congress\xe2\x80\x99s enumerated legislative powers (e.g., id. art. I,\n\xc2\xa7 8), including the power to appropriate federal funds (id. art. I, \xc2\xa7 9, cl. 7).\nBut the House has other, non-legislative powers. It is, for instance, \xe2\x80\x9cthe\nJudge of the Elections, Returns and Qualifications of its own Members.\xe2\x80\x9d\nId. art. I, \xc2\xa7 5, cl. 1. And it has \xe2\x80\x9cthe sole Power of Impeachment.\xe2\x80\x9d Id. art. I,\n\xc2\xa7 2, cl. 5.\nThe House and Senate do not act in a legislative role in connection with\nimpeachment. The Constitution vests the House with the authority to\naccuse civil officers of \xe2\x80\x9cTreason, Bribery, or other high Crimes and\nMisdemeanors\xe2\x80\x9d that warrant removal and disqualification from office.\nU.S. Const. art. I, \xc2\xa7 2, cl. 5; id. art. I, \xc2\xa7 3, cl. 7; id. art. II, \xc2\xa7 4. As Alexander Hamilton explained, the members of the House act as \xe2\x80\x9cthe inquisitors\nfor the nation.\xe2\x80\x9d The Federalist No. 65, at 440 (Jacob E. Cooke ed., 1961).\nAnd Senators, in turn, act \xe2\x80\x9cin their judicial character as a court for the\ntrial of impeachments.\xe2\x80\x9d Id. at 439; see also The Federalist No. 66, at 445\xe2\x80\x93\n46 (defending the \xe2\x80\x9cpartial intermixture\xe2\x80\x9d in the impeachment context of\nusually separated powers as \xe2\x80\x9cnot only proper, but necessary to the mutual\ndefense of the several members of the government, against each other\xe2\x80\x9d;\nnoting that dividing \xe2\x80\x9cthe right of accusing\xe2\x80\x9d from \xe2\x80\x9cthe right of judging\xe2\x80\x9d\nbetween \xe2\x80\x9cthe two branches of the legislature . . . avoids the inconvenience\nof making the same persons both accusers and judges\xe2\x80\x9d). The House\xe2\x80\x99s\nimpeachment authority differs fundamentally in character from its legislative power.\nWith respect to both its legislative and its impeachment powers, the\nHouse has corresponding powers of investigation, which enable it to\ncollect the information necessary for the exercise of those powers. The\nSupreme Court has explained that \xe2\x80\x9c[t]he power of inquiry\xe2\x80\x94with process\nto enforce it\xe2\x80\x94is an essential and appropriate auxiliary to the legislative\nfunction.\xe2\x80\x9d McGrain, 273 U.S. at 174. Thus, in the legislative context,\n12\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nthe House\xe2\x80\x99s investigative power \xe2\x80\x9cencompasses inquiries concerning the\nadministration of existing laws as well as proposed or possibly needed\nstatutes.\xe2\x80\x9d Watkins v. United States, 354 U.S. 178, 187 (1957); see also\nScope of Congressional Oversight and Investigative Power with Respect\nto the Executive Branch, 9 Op. O.L.C. 60, 60 (1985) (\xe2\x80\x9cCongress may\nconduct investigations in order to obtain facts pertinent to possible legislation and in order to evaluate the effectiveness of current laws.\xe2\x80\x9d). The\nCourt has further recognized that the House also has implied powers to\ninvestigate in support of its other powers, including its power of impeachment. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 190 (1880);\nsee also In re Request for Access to Grand Jury Materials, 833 F.2d 1438,\n1445 (11th Cir. 1987) (the House \xe2\x80\x9cholds investigative powers that are\nancillary to its impeachment power\xe2\x80\x9d); Mazars USA, 940 F.3d at 749 (Rao,\nJ., dissenting) (\xe2\x80\x9cThe House . . . has a separate power to investigate pursuant to impeachment[.]\xe2\x80\x9d).\nBecause the House has different investigative powers, establishing\nwhich authority has been delegated has often been necessary in the course\nof determining the scope of a committee\xe2\x80\x99s authority to compel witnesses\nand testimony. In addressing the scope of the House\xe2\x80\x99s investigative powers, all three branches of the federal government have recognized the\nconstitutional distinction between a legislative investigation and an impeachment inquiry.\n1.\nWe begin with the federal courts. In Kilbourn, the Supreme Court held\nthat a House committee could not investigate a bankrupt company indebted to the United States because its request exceeded the scope of the\nlegislative power. According to the Court, the committee had employed\ninvestigative power to promote the United States\xe2\x80\x99 interests as a creditor,\nrather than for any valid legislative purpose. See 103 U.S. at 192\xe2\x80\x9395. At\nthe same time, the Court conceded that \xe2\x80\x9cthe whole aspect of the case\nwould have been changed\xe2\x80\x9d if \xe2\x80\x9cany purpose had been avowed to impeach\nthe [S]ecretary\xe2\x80\x9d of the Navy for mishandling the debts of the United\nStates. Id. at 193. But, after reviewing the resolution authorizing the\nactions of the committee, the Court confirmed that the House had not\nauthorized any impeachment inquiry. Id.\nIn a similar vein, the D.C. Circuit distinguished the needs of the House\nJudiciary Committee, which was conducting an impeachment inquiry into\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nthe actions of President Nixon, from those of the Senate Select Committee\non Presidential Campaign Activities, whose investigation was premised\nupon legislative oversight. See Senate Select Comm., 498 F.2d at 732. The\ncourt recognized that the impeachment investigation was rooted in \xe2\x80\x9can\nexpress constitutional source\xe2\x80\x9d and that the House committee\xe2\x80\x99s investigative needs differed in kind from the Senate committee\xe2\x80\x99s oversight needs.\nId. In finding that the Senate committee had not demonstrated that President Nixon\xe2\x80\x99s audiotapes were \xe2\x80\x9ccritical to the performance of its legislative functions,\xe2\x80\x9d the court recognized \xe2\x80\x9ca clear difference between Congress\xe2\x80\x99s legislative tasks and the responsibility of a grand jury, or any\ninstitution engaged in like functions,\xe2\x80\x9d such as the House Judiciary Committee, which had \xe2\x80\x9cbegun an inquiry into presidential impeachment.\xe2\x80\x9d Id.\n(emphases added).\nMore recently, the D.C. Circuit acknowledged this same distinction in\nMazars USA. As the majority opinion explained, \xe2\x80\x9cthe Constitution has left\nto Congress the judgment whether to commence the impeachment process\xe2\x80\x9d and to decide whether the conduct in question is \xe2\x80\x9cbetter addressed\nthrough oversight and legislation than impeachment.\xe2\x80\x9d 940 F.3d at 739.\nJudge Rao\xe2\x80\x99s dissent also recognized the distinction between a legislative\noversight investigation and an impeachment inquiry. See id. at 757 (\xe2\x80\x9cThe\nFramers established a mechanism for Congress to hold even the highest\nofficials accountable, but also required the House to take responsibility\nfor invoking this power.\xe2\x80\x9d). Judge Rao disagreed with the majority insofar\nas she understood Congress\xe2\x80\x99s impeachment power to be the sole means\nfor investigating past misconduct by impeachable officers. But both the\nmajority and the dissent agreed with the fundamental proposition that the\nConstitution distinguishes between investigations pursuant to the House\xe2\x80\x99s\nimpeachment authority and those that serve its legislative authority (including oversight).\n2.\nThe Executive Branch similarly has long distinguished between investigations for legislative and for impeachment purposes. In 1796, the\nHouse \xe2\x80\x9c[r]esolved\xe2\x80\x9d that President Washington \xe2\x80\x9cbe requested to lay before\nth[e] House a copy of the instructions\xe2\x80\x9d given to John Jay in preparation\nfor his negotiation of a peace settlement with Great Britain. 5 Annals of\nCong. 759\xe2\x80\x9362 (1796). Washington refused to comply because the Constitution contemplates that only the Senate, not the House, must consent to\n14\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\na treaty. See id. at 760\xe2\x80\x9361. \xe2\x80\x9cIt d[id] not occur\xe2\x80\x9d to Washington \xe2\x80\x9cthat the\ninspection of the papers asked for, c[ould] be relative to any purpose\nunder the cognizance of the House of Representatives, except that of an\nimpeachment.\xe2\x80\x9d Id. at 760 (emphasis added). Because the House\xe2\x80\x99s \xe2\x80\x9cresolution ha[d] not expressed\xe2\x80\x9d any purpose of pursuing impeachment, Washington concluded that \xe2\x80\x9ca just regard to the constitution . . . forb[ade] a\ncompliance with [the House\xe2\x80\x99s] request\xe2\x80\x9d for documents. Id. at 760, 762.\nIn 1832, President Jackson drew the same line. A select committee of\nthe House had requested that the Secretary of War \xe2\x80\x9cfurnish[]\xe2\x80\x9d it \xe2\x80\x9cwith\na copy\xe2\x80\x9d of an unratified 1830 treaty with the Chickasaw Tribe and \xe2\x80\x9cthe\njournal of the commissioners\xe2\x80\x9d who negotiated it. H.R. Rep. No. 22-488,\nat 1 (1832). The Secretary conferred with Jackson, who refused to comply\nwith the committee\xe2\x80\x99s request on the same ground cited by President\nWashington: he \xe2\x80\x9cd[id] not perceive that a copy of any part of the incomplete and unratified treaty of 1830, c[ould] be \xe2\x80\x98relative to any purpose\nunder the cognizance of the House of Representatives, except that of an\nimpeachment, which the resolution has not expressed.\xe2\x80\x99\xe2\x80\x9d Id. at 14 (reprinting Letter for Charles A. Wickliffe, Chairman, Committee on Public\nLands, U.S. House of Representatives, from Lewis Cass, Secretary of War\n(Mar. 2, 1832)).\nIn 1846, another House select committee requested that President Polk\naccount for diplomatic expenditures made in previous administrations by\nSecretary of State Daniel Webster. Polk refused to disclose information\nbut \xe2\x80\x9ccheerfully admitted\xe2\x80\x9d that the House may have been entitled to such\ninformation if it had \xe2\x80\x9cinstitute[d] an [impeachment] inquiry into the\nmatter.\xe2\x80\x9d Cong. Globe, 29th Cong., 1st Sess. 698 (1846). 13 Notably, he\nIn denying the congressional request before him, President Polk suggested, in the\nequivalent of dictum, that, during an impeachment inquiry, \xe2\x80\x9call the archives and papers of\nthe Executive departments, public or private, would be subject to the inspection and\ncontrol of a committee of their body.\xe2\x80\x9d Cong. Globe, 29th Cong., 1st Sess. 698 (1846).\nThat statement, however, dramatically understates the degree to which executive privilege\nremains available during an impeachment investigation to protect confidentiality interests\nnecessary to preserve the essential functions of the Executive Branch. See Exclusion of\nAgency Counsel from Congressional Depositions in the Impeachment Context, 43 Op.\nO.L.C. __, at *3 & n.1 (Nov. 1, 2019). In a prior opinion, this Office viewed Polk as\nacknowledging the continued availability of executive privilege, because we read Polk\xe2\x80\x99s\npreceding sentence as \xe2\x80\x9cindicat[ing]\xe2\x80\x9d that, even in the impeachment context, \xe2\x80\x9cthe Executive branch \xe2\x80\x98would adopt all wise precautions to prevent the exposure of all such matters\nthe publication of which might injuriously affect the public interest, except so far as\n13\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ntook this position even though some members of Congress had suggested\nthat evidence about the expenditures could support an impeachment of\nWebster. 14 In these and other instances, the Executive Branch has consistently drawn a distinction between the power of legislative oversight and\nthe power of impeachment. See Mazars USA, 940 F.3d at 761\xe2\x80\x9364 (Rao, J.,\ndissenting) (discussing examples from the Buchanan, Grant, Cleveland,\nTheodore Roosevelt, and Coolidge Administrations).\n3.\nHouse 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) (\xe2\x80\x9cA committee\xe2\x80\x99s inquiry\nmust have a legislative purpose or be conducted pursuant to some other\nconstitutional power of Congress, such as the authority . . . to . . . conduct\nimpeachment proceedings.\xe2\x80\x9d (emphases added)); Cong. Research Serv.,\nCongressional Access to Information in an Impeachment Investigation\nat 1 (distinguishing between \xe2\x80\x9clegislative investigation[s]\xe2\x80\x9d and \xe2\x80\x9c[m]uch\nmore rare[]\xe2\x80\x9d \xe2\x80\x9cimpeachment investigation[s]\xe2\x80\x9d).\nFor instance, in 1793, when debating the House\xe2\x80\x99s jurisdiction to investigate Secretary of the Treasury Alexander Hamilton, some members\nargued that the House could not adopt a resolution of investigation into\nHamilton\xe2\x80\x99s conduct without adopting the \xe2\x80\x9csolemnities and guards\xe2\x80\x9d of an\nimpeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) (statement\nof Rep. Smith); id. at 947\xe2\x80\x9348 (statement of Rep. Boudinot) (distinguishing between the House\xe2\x80\x99s \xe2\x80\x9cLegislative capacity\xe2\x80\x9d and its role as \xe2\x80\x9cthe grand\ninquest of the Nation\xe2\x80\x9d); see also Mazars USA, 940 F.3d at 758 (Rao, J.,\ndissenting) (discussing the episode). In 1796, when the House debated\nthis might be necessary to accomplish the great ends of public justice.\xe2\x80\x99\xe2\x80\x9d Memorandum\nfor Elliot Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Presidential Immunity from Coercive Congressional Demands for Information at 22\xe2\x80\x9323 (July 24, 1973) (quoting Polk\xe2\x80\x99s letter).\n14 See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 (1846) (statement of Rep. Ingersoll) (\xe2\x80\x9cWhether . . . [Webster\xe2\x80\x99s] offences will be deemed impeachable misdemeanors in\noffice, conviction for which might remove him from the Senate, and disqualify him to\nhold any office of honor, trust, or profit, under the United States, will remain to be\nconsidered.\xe2\x80\x9d); Todd Garvey, The Webster and Ingersoll Investigations, in Morton Rosenberg, The Constitution Project, When Congress Comes Calling 289 (2017).\n\n16\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nwhether to request the President\xe2\x80\x99s instructions for negotiating the Jay\nTreaty, Representative Murray concluded that the House could not meddle in treatymaking, but acknowledged that \xe2\x80\x9cthe subject would be presented under an aspect very different\xe2\x80\x9d if the resolution\xe2\x80\x99s supporters had\n\xe2\x80\x9cstated the object for which they called for the papers to be an impeachment.\xe2\x80\x9d 5 Annals of Cong. 429\xe2\x80\x9330 (1796).\nSimilarly, in 1846, a House select committee agreed with President\nPolk\xe2\x80\x99s decision not to turn over requested information regarding State\nDepartment expenditures where the House did not act \xe2\x80\x9cwith a view to an\nimpeachment.\xe2\x80\x9d H.R. Rep. No. 29-684, at 4 (1846) (noting that four of the\ncommittee\xe2\x80\x99s five members \xe2\x80\x9centirely concur with the President of the\nUnited States\xe2\x80\x9d in deciding not to \xe2\x80\x9ccommunicate or make [the requested\ndocuments] public, except with a view to an impeachment\xe2\x80\x9d and that \xe2\x80\x9c[n]o\ndissent from the views of that message was expressed by the House\xe2\x80\x9d); see\nalso Mazars USA, 940 F.3d at 761 (Rao, J., dissenting). To take another\nexample, in 1879, the House Judiciary Committee distinguished \xe2\x80\x9c[i]nvestigations looking to the impeachment of public officers\xe2\x80\x9d from \xe2\x80\x9can\nordinary investigation for legislative purposes.\xe2\x80\x9d H.R. Rep. No. 45-141,\nat 2 (1879).\nMost significantly, during the impeachments of Presidents Nixon and\nClinton, the House Judiciary Committee determined that the House must\nprovide express authorization before any committee may exercise compulsory powers in an impeachment investigation. See infra Part II.C.1.\nThus, members of the House, like the other branches of government, have\nsquarely recognized the distinction between congressional investigations\nfor impeachment purposes and those for legislative purposes.\nB.\nAlthough the House of Representatives has \xe2\x80\x9cthe sole Power of Impeachment,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 5 (emphasis added), the associated\npower to conduct an investigation for impeachment purposes may, like the\nHouse\xe2\x80\x99s other investigative powers, be delegated. The full House may\nmake such a delegation by adopting a resolution in exercise of its authority to determine the rules for its proceedings, see id. art. I, \xc2\xa7 5, cl. 2, and\neach House has broad discretion in determining the conduct of its own\nproceedings. See, e.g., NLRB v. Noel Canning, 573 U.S. 513, 551\xe2\x80\x9352\n(2014); United States v. Ballin, 144 U.S. 1, 5 (1892); see also 1 Deschler\xe2\x80\x99s Precedents ch. 5, \xc2\xa7 4, at 305\xe2\x88\x9206. But the House must actually exer17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ncise its discretion by making that judgment in the first instance, and its\nresolution sets the terms of a committee\xe2\x80\x99s authority. See United States v.\nRumely, 345 U.S. 41, 44 (1953). No committee may exercise the House\xe2\x80\x99s\ninvestigative powers in the absence of such a delegation.\nAs the Supreme Court has explained in the context of legislative oversight, \xe2\x80\x9c[t]he theory of a committee inquiry is that the committee members\nare serving as the representatives of the parent assembly in collecting\ninformation for a legislative purpose\xe2\x80\x9d and, in such circumstances, committees \xe2\x80\x9care endowed with the full power of the Congress to compel\ntestimony.\xe2\x80\x9d Watkins, 354 U.S. at 200\xe2\x80\x9301. The same is true for impeachment investigations. 15 Thus, Hamilton recognized, the impeachment\npower involves a trust of such \xe2\x80\x9cdelicacy and magnitude\xe2\x80\x9d that it \xe2\x80\x9cdeeply\nconcerns the political reputation and existence of every man engaged in\nthe administration of public affairs.\xe2\x80\x9d The Federalist No. 65, at 440. The\nFounders foresaw that an impeachment effort would \xe2\x80\x9c[i]n many cases . . .\nconnect itself with the pre-existing factions\xe2\x80\x9d and \xe2\x80\x9cinlist all their animosities, partialities, influence and interest on one side, or on the other.\xe2\x80\x9d Id. at\n439. As a result, they placed the solemn authority to initiate an impeachment in \xe2\x80\x9cthe representatives of the nation themselves.\xe2\x80\x9d Id. at 440. In order\nto entrust one of its committees to investigate for purposes of impeachment, the full House must \xe2\x80\x9cspell out that group\xe2\x80\x99s jurisdiction and purpose.\xe2\x80\x9d Watkins, 354 U.S. at 201. Otherwise, a House committee con-\n\nWhen the House first considered impeachment in 1796, Attorney General Charles\nLee advised that, \xe2\x80\x9cbefore 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.\xe2\x80\x9d Letter for the House of Representatives from\nCharles Lee, Attorney General, Re: Inquiry into the Official Conduct of a Judge of the\nSupreme Court of the Northwestern Territory (May 9, 1796), reprinted in 1 Am. State\nPapers: Misc. 151 (Walter Lowrie & Walter S. Franklin eds., 1834). Because the charges\nof 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\nthat the \xe2\x80\x9cmost solemn\xe2\x80\x9d mode of prosecution, an impeachment trial before the Senate,\nwould be \xe2\x80\x9cvery inconvenient, if not entirely impracticable.\xe2\x80\x9d Id. Lee informed the House\nthat President Washington had directed the territorial governor to arrange for a criminal\nprosecution before the territorial court. See id. The House committee considering the\npetition about Turner agreed with Lee\xe2\x80\x99s suggestion and recommended that the House take\nno further action. See Inquiry into the Official Conduct of a Judge of the Supreme Court\nof the Northwestern Territory (Feb. 27, 1797), reprinted in 1 Am. State Papers: Misc. at\n157.\n15\n\n18\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\ntrolled by such a faction could launch open-ended and untethered investigations without the sanction of a majority of the House.\nBecause a committee may exercise the House\xe2\x80\x99s investigative powers\nonly when authorized, the committee\xe2\x80\x99s actions must be within the scope\nof a resolution delegating authority from the House to the committee. As\nthe D.C. Circuit recently explained, \xe2\x80\x9cit matters not whether the Constitution would give Congress authority to issue a subpoena if Congress has\ngiven the issuing committee no such authority.\xe2\x80\x9d Mazars USA, 940 F.3d at\n722; see Dolan, Congressional Oversight Manual at 24 (\xe2\x80\x9cCommittees of\nCongress only have the power to inquire into matters within the scope of\nthe authority delegated to them by their parent body.\xe2\x80\x9d). In evaluating a\ncommittee\xe2\x80\x99s authority, the House\xe2\x80\x99s resolution \xe2\x80\x9cis the controlling charter\nof the committee\xe2\x80\x99s powers,\xe2\x80\x9d and, therefore, the committee\xe2\x80\x99s \xe2\x80\x9cright to\nexact testimony and to call for the production of documents must be found\nin this language.\xe2\x80\x9d Rumely, 345 U.S. at 44; see also Watkins, 354 U.S. at\n201 (\xe2\x80\x9cThose instructions are embodied in the authorizing resolution. That\ndocument is the committee\xe2\x80\x99s charter.\xe2\x80\x9d); id. at 206 (\xe2\x80\x9cPlainly [the House\xe2\x80\x99s]\ncommittees are restricted to the missions delegated to them . . . . No\nwitness can be compelled to make disclosures on matters outside that\narea.\xe2\x80\x9d); Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (\xe2\x80\x9cTo\nissue a valid subpoena, . . . a committee or subcommittee must conform\nstrictly to the resolution establishing its investigatory powers[.]\xe2\x80\x9d); United\nStates v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (\xe2\x80\x9cNo\ncommittee 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,\nand further that at the time the witness allegedly defied its authority the\nCommittee was acting within the power granted to it.\xe2\x80\x9d). While a committee may study some matters without exercising the investigative powers of\nthe House, a committee\xe2\x80\x99s authority to compel the production of documents and testimony depends entirely upon the jurisdiction provided by\nthe terms of the House\xe2\x80\x99s delegation.\nIn Watkins, the Supreme Court relied upon those principles to set aside\na conviction for contempt of Congress because of the authorizing resolution\xe2\x80\x99s vagueness. The uncertain scope of the House\xe2\x80\x99s delegation impermissibly created \xe2\x80\x9ca wide gulf between the responsibility for the use of\ninvestigative power and the actual exercise of that power.\xe2\x80\x9d 354 U.S. at\n205. If the House wished to authorize the exercise of its investigative\npower, then it needed to take responsibility for the use of that power,\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nbecause a congressional subpoena, issued with the threat of a criminal\ncontempt citation, necessarily placed \xe2\x80\x9cconstitutional liberties\xe2\x80\x9d in \xe2\x80\x9cdanger.\xe2\x80\x9d Id.\nThe concerns expressed by the Court in Watkins apply with equal, if\nnot greater, force when considering the authority of a House committee to\ncompel the production of documents in connection with investigating\nimpeachment. As John Labovitz, a House impeachment attorney during\nthe Nixon investigation, explained: \xe2\x80\x9c[I]mpeachment investigations, because they involve extraordinary power and (at least where the president\nis being investigated) may have extraordinary consequences, are not to be\nundertaken in the same manner as run-of-the-mill legislative investigations. The initiation of a presidential impeachment inquiry should itself\nrequire a deliberate decision by the House.\xe2\x80\x9d John R. Labovitz, Presidential Impeachment 184 (1978). Because a committee possesses only the\nauthorities that have been delegated to it, a committee may not use compulsory process to investigate impeachment without the formal authorization of the House.\nC.\nHistorical practice confirms that the House must authorize an impeachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091\n(2015) (recognizing that \xe2\x80\x9c[i]n separation-of-powers cases,\xe2\x80\x9d the Court has\nplaced \xe2\x80\x9csignificant weight\xe2\x80\x9d on \xe2\x80\x9caccepted understandings and practice\xe2\x80\x9d);\nNoel 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\nprocess. The same thing has been true for nearly all impeachment investigations of other executive officials and judges. While committees have\nsometimes studied a proposed impeachment resolution or reviewed available information without conducting a formal investigation, in nearly\nevery case in which the committee resorted to compulsory process, the\nHouse expressly authorized the impeachment investigation. That practice\nwas foreseen as early as 1796. When Washington asked his Cabinet for\nopinions about how to respond to the House\xe2\x80\x99s request for the papers\nassociated with the Jay Treaty, the Secretary of the Treasury, Oliver\nWolcott Jr., explained that \xe2\x80\x9cthe House of Representatives has no right to\ndemand papers\xe2\x80\x9d outside its legislative function \xe2\x80\x9c[e]xcept when an Impeachment is proposed & a formal enquiry instituted.\xe2\x80\x9d Letter for George\n20\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nWashington from Oliver Wolcott Jr. (Mar. 26, 1796), reprinted in 19 The\nPapers of George Washington: Presidential Series 611\xe2\x80\x9312 (David R.\nHoth ed., 2016) (emphasis added).\nFrom the very first impeachment, the House has recognized that a\ncommittee would require a delegation to conduct an impeachment inquiry.\nIn 1797, when House members considered whether a letter contained\nevidence of criminal misconduct by Senator William Blount, they sought\nto confirm Blount\xe2\x80\x99s handwriting but concluded that the Committee of the\nWhole did not have the power of taking evidence. See 7 Annals of Cong.\n456\xe2\x80\x9358 (1797); 3 Asher C. Hinds, Hinds\xe2\x80\x99 Precedents of the House of\nRepresentatives of the United States \xc2\xa7 2294, at 644\xe2\x80\x9345 (1907). Thus, the\ncommittee \xe2\x80\x9crose,\xe2\x80\x9d and the House itself took testimony. 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2294, at 646. Two days later, the House appointed a select committee to \xe2\x80\x9cprepare and report articles of impeachment\xe2\x80\x9d and vested in that\ncommittee the \xe2\x80\x9cpower to send for persons, papers, and records.\xe2\x80\x9d 7 Annals\nof Cong. at 463\xe2\x80\x9364, 466; 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2297, at 648. 16 As we\ndiscuss in this section, we have identified dozens of other instances where\nthe House, in addition to referring proposed articles of impeachment,\nauthorized formal impeachment investigations.\nAgainst 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\nauthorized to conduct an oversight investigation into the administration of\nthe U.S. consulate in Shanghai, ultimately investigated and recommended\nthat the former consul-general and former vice consul-general be impeached. In addition, between 1986 and 1989, the Judiciary Committee\nconsidered 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\nissued subpoenas in two of those inquiries. Since then, however, the\nJudiciary Committee reaffirmed during the impeachment of President\nAfter the House impeached Senator Blount, the Senate voted to dismiss the charges\non the ground that a Senator is not a civil officer subject to impeachment. See 3 Hinds\xe2\x80\x99\nPrecedents \xc2\xa7 2318, at 678\xe2\x80\x9380.\n17 A 2007 overview concluded that \xe2\x80\x9c[t]here have been approximately 94 identifiable\nimpeachment-related inquiries conducted by Congress[.]\xe2\x80\x9d H.R. Doc. No. 109-153, at 115\n(2007). Since 2007, two more judges have been impeached following authorized investigations.\n16\n\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nClinton that, in order to conduct an impeachment investigation, it needed\nan express delegation of investigative authority from the House. And in\nall subsequent cases the House has hewed to the well-established practice\nof authorizing each impeachment investigation.\nThe U.S. District Court for the District of Columbia recently reviewed\na handful of historical examples and concluded that House committees\nmay conduct impeachment investigations without a vote of the full House.\nSee In re Application of the Comm. on the Judiciary, 2019 WL 5485221,\nat *26\xe2\x80\x9328. Yet, as the discussion below confirms, the district court misread the lessons of history. 18 The district court treated the House Judiciary\nCommittee\xe2\x80\x99s 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\nissue subpoenas. The district court also treated the 1980s judicial inquiries\nas if they represented a rule of practice, rather than a marked deviation\nfrom the dozens of occasions where the House recognized the need to\nadopt a formal resolution to delegate its investigative authority. As our\nsurvey below confirms, the historical practice with respect to Presidents,\nother executive officers, and judges is consistent with the structure of our\nConstitution, which requires the House, as the \xe2\x80\x9csole\xe2\x80\x9d holder of impeachment power, to authorize any impeachment investigation that a committee\nmay conduct on its behalf.\n\nThe district court\xe2\x80\x99s erroneous conclusions rested upon the arguments offered by the\nHouse Judiciary Committee, which relied principally upon the judicial outliers from the\n1980s, a misunderstanding of the Nixon impeachment inquiry, and a misreading of the\ncommittee\xe2\x80\x99s subpoena power under the House Rules. See Application at 33\xe2\x88\x9234, In re\nApplication 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\nOrder 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\nCommittee later reiterated these arguments in their reports, each contending that executive branch officials had \xe2\x80\x9cobstructed\xe2\x80\x9d the House\xe2\x80\x99s impeachment inquiry by declining to\ncomply with the pre-October 31 impeachment-related subpoenas. H.R. Rep. No. 116-335,\nat 168\xe2\x80\x9372, 175\xe2\x80\x9377 (2019); H.R. Rep. No. 116-346, at 10, 13\xe2\x80\x9316 (2019). But those reports\nasserted that the pre-October 31 subpoenas were authorized because the committees\nmisunderstood the historical practice concerning the House\xe2\x80\x99s impeachment inquiries (as\nwe discuss in Part II.C) and they misread the committees\xe2\x80\x99 subpoena authority under the\nHouse Rules (as we discuss in Part III.A).\n18\n\n22\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\n1.\nWhile many Presidents have been the subject of less-formal demands\nfor impeachment, at least eleven have faced resolutions introduced in the\nHouse for the purpose of initiating impeachment proceedings. 19 In some\ncases, the House formally voted to reject opening a presidential impeachment investigation. In 1843, the House rejected a resolution calling for an\ninvestigation into the impeachment of President Tyler. See Cong. Globe,\n27th Cong., 3d Sess. 144\xe2\x88\x9246 (1843). In 1932, the House voted by a wide\nmargin to table a similar resolution introduced against President Hoover.\nSee 76 Cong. Rec. 399\xe2\x80\x93402 (1932). In many other cases, the House simply referred impeachment resolutions to the Judiciary Committee, which\ntook 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\nSee, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 (1843) (John Tyler); Cong.\nGlobe, 39th Cong., 2d Sess. 320 (1867) (Andrew Johnson); 28 Cong. Rec. 5627, 5650\n(1896) (Grover Cleveland); 76 Cong. Rec. 399\xe2\x80\x93402 (1932) (Herbert Hoover); H.R. Res.\n607, 82d Cong. (1952) (Harry Truman); H.R. Res. 625, 93d Cong. (1973) (Richard\nNixon); H.R. Res. 370, 98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong.\n(1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) (Bill Clinton); H.R. Res.\n1258, 110th Cong. (2008) (George W. Bush); H.R. Res. 13, 106th Cong. (2019) (Donald\nTrump).\n20 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.\nGlobe, 36th Cong., 1st Sess. 997\xe2\x80\x9398 (1860) (resolution establishing a committee of five\nmembers to \xe2\x80\x9cinvestigat[e] whether the President of the United States, or any other officer\nof the government, ha[d], by money, patronage, or other improper means, sought to\ninfluence the action of Congress\xe2\x80\x9d or \xe2\x80\x9cby combination or otherwise, . . . attempted to\nprevent or defeat, the execution of any law\xe2\x80\x9d). It appears to have been understood by the\ncommittee as an oversight investigation. See H.R. Rep. No. 36-648, at 1\xe2\x80\x9328 (1860).\nBuchanan in fact objected to the House\xe2\x80\x99s use of its legislative jurisdiction to circumvent\nthe protections traditionally provided in connection with impeachment. See Message\nfor the U.S. House of Representatives from James Buchanan (June 22, 1860), reprinted in\n5 A Compilation of the Messages and Papers of the Presidents 625 (James D. Richardson\ned., 1897) (objecting that if the House suspects presidential misconduct, it should \xe2\x80\x9ctransfer the question from [its] legislative to [its] accusatory jurisdiction, and take care that in\nall the preliminary judicial proceedings preparatory to the vote of articles of impeachment\nthe accused should enjoy the benefit of cross-examining the witnesses and all the other\nsafeguards with which the Constitution surrounds every American citizen\xe2\x80\x9d); see also\nMazars USA, 940 F.3d at 762 (Rao, J., dissenting) (discussing the episode).\n19\n\n23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nadopted a resolution expressly authorizing a committee to conduct the\ninvestigation. In no case did the committee use compulsory process until\nthe House had expressly authorized the impeachment investigation.\nThe impeachment investigation of President Andrew Johnson. On\nJanuary 7, 1867, the House adopted a resolution authorizing the \xe2\x80\x9cCommittee on the Judiciary\xe2\x80\x9d to \xe2\x80\x9cinquire into the official conduct of Andrew\nJohnson . . . and to report to this House whether, in their opinion,\xe2\x80\x9d the\nPresident \xe2\x80\x9chas been guilty of any act, or has conspired with others to do\nacts, which, in contemplation of the Constitution, are high crimes or\nmisdemeanors.\xe2\x80\x9d Cong. Globe, 39th Cong., 2d Sess. 320\xe2\x80\x9321 (1867); see\nalso 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2400, at 824. The resolution conferred upon\nthe committee the \xe2\x80\x9cpower to send for persons and papers and to administer the customary oath to witnesses.\xe2\x80\x9d Cong. Globe, 39th Cong., 2d Sess.\n320 (1867). The House referred a second resolution to the Judiciary\nCommittee on February 4, 1867. Id. at 991; 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2400,\nat 824. 21 Shortly before that Congress expired, the committee reported\nthat it had seen \xe2\x80\x9csufficient testimony . . . to justify and demand a further\nprosecution of the investigation.\xe2\x80\x9d H.R. Rep. No. 39-31, at 2 (1867). On\nMarch 7, 1867, the House in the new Congress adopted a resolution that\nauthorized the committee \xe2\x80\x9cto continue the investigation authorized\xe2\x80\x9d in the\nJanuary 7 resolution and to \xe2\x80\x9csend for persons and papers\xe2\x80\x9d and administer\noaths. Cong. Globe, 40th Cong., 1st Sess. 18, 25 (1867); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2401, at 825\xe2\x80\x9326. The committee recommended articles of impeachment, but the House rejected those articles on December 7, 1867.\nSee Cong. Globe, 40th Cong., 2d Sess. 67\xe2\x80\x9368 (1867). In early 1868,\nhowever, the House adopted resolutions authorizing another investigation,\nwith compulsory powers, by the Committee on Reconstruction and transferred to that committee the evidence from the Judiciary Committee\xe2\x80\x99s\n21 The district court\xe2\x80\x99s recent decision in In re Application of the Committee on the Judiciary misreads Hinds\xe2\x80\x99 Precedents to suggest that the House Judiciary Committee (which\nthe court called \xe2\x80\x9cHJC\xe2\x80\x9d) began investigating President Johnson\xe2\x80\x99s impeachment without\nany authorizing resolution. According to the district court, \xe2\x80\x9ca resolution \xe2\x80\x98authoriz[ing]\xe2\x80\x99\nHJC \xe2\x80\x98to inquire into the official conduct of Andrew Johnson\xe2\x80\x99 was passed after HJC \xe2\x80\x98was\nalready considering the subject.\xe2\x80\x99\xe2\x80\x9d 2019 WL 5485221, at *27 (quoting 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2400, at 824). In fact, the committee was \xe2\x80\x9calready considering the subject\xe2\x80\x9d at the\ntime of the February 4 resolution described in the quoted sentence because, as explained\nin the text above, the House had previously adopted a separate resolution authorizing\nan impeachment investigation. See Cong. Globe, 39th Cong., 2d Sess. 320\xe2\x80\x9321 (1867);\n3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2400, at 824.\n\n24\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nearlier investigation. See Cong. Globe, 40th Cong., 2d Sess. 784\xe2\x80\x9385, 1087\n(1868); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2408, at 845.\nOn February 21, 1868, the impeachment effort received new impetus\nwhen Johnson removed the Secretary of War without the Senate\xe2\x80\x99s approval, contrary to the terms of the Tenure of Office Act, which Johnson\n(correctly) held to be an unconstitutional limit on his authority. See\nCong. Globe, 40th Cong., 2d Sess. 1326\xe2\x80\x9327 (1868); 3 Hinds\xe2\x80\x99 Precedents\n\xc2\xa7 2408\xe2\x80\x9309, at 845\xe2\x80\x9347; see also Myers v. United States, 272 U.S. 52, 176\n(1926) (finding that provision of the Tenure of Office Act \xe2\x80\x9cwas invalid\xe2\x80\x9d).\nThat day, the Committee on Reconstruction reported an impeachment\nresolution to the House, which was debated on February 22 and passed on\nFebruary 24. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); 3 Hinds\xe2\x80\x99\nPrecedents \xc2\xa7\xc2\xa7 2409\xe2\x80\x9312, at 846\xe2\x80\x9351.\nThe impeachment investigation of President Nixon. Although many\nresolutions were introduced in support of President Nixon\xe2\x80\x99s impeachment\nearlier in 1973, the House\xe2\x80\x99s formal impeachment inquiry arose in the\nmonths following the \xe2\x80\x9cSaturday Night Massacre,\xe2\x80\x9d during which President\nNixon caused the termination of Special Prosecutor Archibald Cox at the\ncost of the resignations of his Attorney General and Deputy Attorney\nGeneral. See Letter Directing the Acting Attorney General to Discharge\nthe Director of the Office of Watergate Special Prosecution Force (Oct.\n20, 1973), Pub. Papers of Pres. Richard Nixon 891 (1973). Immediately\nthereafter, House members introduced resolutions calling either for the\nPresident\xe2\x80\x99s impeachment or for the opening of an investigation. 22 The\nSpeaker of the House referred the resolutions calling for an investigation\nto the Rules Committee and those calling for impeachment to the Judiciary Committee. See Office of Legal Counsel, U.S. Dep\xe2\x80\x99t of Justice, Legal\nAspects of Impeachment: An Overview at 40 (Feb. 1974) (\xe2\x80\x9cLegal Aspects\nof Impeachment \xe2\x80\x9d); 3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 5, at 2020.\nFollowing the referrals, the Judiciary Committee \xe2\x80\x9cbeg[a]n an inquiry\ninto whether President Nixon ha[d] committed any offenses that could\nlead to impeachment,\xe2\x80\x9d an exercise that the committee considered \xe2\x80\x9cpreliminary.\xe2\x80\x9d Richard L. Madden, Democrats Agree on House Inquiry into Nixon\xe2\x80\x99s\nActs, N.Y. Times, Oct. 23, 1973, at 1. The committee started collecting\npublicly available materials, and Chairman Peter Rodino Jr. stated that he\n22 See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. (1973) (impeachment); H.R.\nRes. 626, 627, 628, 636, and 637, 93d Cong. (1973) (Judiciary Committee or subcommittee investigation).\n\n25\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nwould \xe2\x80\x9cset up a separate committee staff to \xe2\x80\x98collate\xe2\x80\x99 investigative files\nfrom Senate and House committees that have examined a variety of\ncharges against the Nixon Administration.\xe2\x80\x9d James M. Naughton, Rodino\nVows Fair Impeachment Inquiry, N.Y. Times, Oct. 30, 1973, at 32.\nAlthough the committee \xe2\x80\x9cadopted a resolution permitting Mr. Rodino\nto issue subpoenas without the consent of the full committee,\xe2\x80\x9d James M.\nNaughton, House Panel Starts Inquiry on Impeachment Question, N.Y.\nTimes, Oct. 31, 1973, at 1, no subpoenas were ever issued under that\npurported authority. Instead, the committee \xe2\x80\x9cdelayed acting\xe2\x80\x9d 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\nAdviser: John Michael Doar, N.Y. Times, Dec. 21, 1973, at 20. The staff\ncontinued \xe2\x80\x9c\xe2\x80\x98wading through the mass of material already made public,\xe2\x80\x99\xe2\x80\x9d\nand the committee\xe2\x80\x99s members began considering \xe2\x80\x9cthe areas in which the\ninquiry should go.\xe2\x80\x9d Bill Kovach, Vote on Subpoena Could Test House\non Impeachment, N.Y. Times, Jan. 8, 1974, at 14; see also Staff of the\nH. Comm. on the Judiciary, 93d Cong., Rep. on Work of the Impeachment\nInquiry Staff as of February 5, 1974, at 2\xe2\x80\x933 (1974) (noting that the staff\nwas \xe2\x80\x9cfirst collecting and sifting the evidence available in the public domain,\xe2\x80\x9d then \xe2\x80\x9cmarshaling and digesting the evidence available through\nvarious governmental investigations\xe2\x80\x9d). By January 1974, the committee\xe2\x80\x99s\nactions had consisted of digesting publicly available documents and prior\nimpeachment precedents. That was consistent with the committee\xe2\x80\x99s \xe2\x80\x9conly\nmandate,\xe2\x80\x9d which was to \xe2\x80\x9cstudy more than a dozen impeachment resolutions submitted\xe2\x80\x9d in 1973. James M. Naughton, Impeachment Panel Seeks\nHouse Mandate for Inquiry, N.Y. Times, Jan. 25, 1974, at 1.\nIn January, the committee determined that a formal investigation was\nnecessary, and it requested \xe2\x80\x9can official House mandate to conduct the\ninquiry,\xe2\x80\x9d relying upon the \xe2\x80\x9cprecedent in each of the earlier [impeachment]\ninquiries.\xe2\x80\x9d Id. at 17. On January 7, Chairman Rodino \xe2\x80\x9cannounced that the\nCommittee\xe2\x80\x99s subpoena power does not extend to impeachment and that\n. . . the Committee would seek express authorization to subpoena persons\nand documents with regard to the impeachment inquiry.\xe2\x80\x9d Legal Aspects of\nImpeachment at 43; see also Richard L. Lyons, GOP Picks Jenner as\nCounsel, Wash. Post, Jan. 8, 1974, at A1, A6 (\xe2\x80\x9cRodino said the committee\nwill ask the House when it reconvenes Jan. 21 to give it power to subpoena persons and documents for the inquiry. The committee\xe2\x80\x99s subpoena\npower does not now extend to impeachment proceedings, he said.\xe2\x80\x9d). As\n26\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nthe House Parliamentarian later explained, the Judiciary Committee\xe2\x80\x99s\ngeneral authority to conduct investigations and issue subpoenas \xe2\x80\x9cdid not\nspecifically include impeachments within the jurisdiction of the Committee on the Judiciary,\xe2\x80\x9d and it was therefore \xe2\x80\x9cconsidered necessary for the\nHouse to specifically vest the Committee on the Judiciary with the investigatory and subpena power to conduct the impeachment investigation.\xe2\x80\x9d\n3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 15.2, at 2172 (Parliamentarian\xe2\x80\x99s Note).\nOn February 6, 1974, the House approved Resolution 803, which \xe2\x80\x9cauthorized and directed\xe2\x80\x9d the Judiciary Committee \xe2\x80\x9cto investigate fully and\ncompletely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon,\nPresident of the United States of America.\xe2\x80\x9d H.R. Res. 803, 93d Cong. \xc2\xa7 1.\nThe resolution specifically authorized the committee \xe2\x80\x9cto require . . . by\nsubpena or otherwise . . . the attendance and testimony of any person\xe2\x80\x9d and\n\xe2\x80\x9cthe production of such things\xe2\x80\x9d as the committee \xe2\x80\x9cdeem[ed] necessary\xe2\x80\x9d to\nits investigation. Id. \xc2\xa7 2(a).\nSpeaking on the House floor, Chairman Rodino described the resolution as a \xe2\x80\x9cnecessary step\xe2\x80\x9d to confer the House\xe2\x80\x99s investigative powers on\nthe Judiciary Committee:\nWe have reached the point when it is important that the House explicitly confirm our responsibility under the Constitution.\nWe are asking the House of Representatives, by this resolution, to\nauthorize and direct the Committee on the Judiciary to investigate\nthe conduct of the President of the United States . . . .\nAs part of that resolution, we are asking the House to give the Judiciary Committee the power of subpena in its investigations.\nSuch a resolution has always been passed by the House. . . . It is a\nnecessary step if we are to meet our obligations.\n....\n. . . The sole power of impeachment carries with it the power to\nconduct a full and complete investigation of whether sufficient\ngrounds for impeachment exist or do not exist, and by this resolution\nthese investigative powers are conferred to their full extent upon the\nCommittee on the Judiciary.\n120 Cong. Rec. 2350\xe2\x80\x9351 (1974) (emphases added). During the debate,\nothers recognized that the resolution would delegate the House\xe2\x80\x99s investigative powers to the Judiciary Committee. See, e.g., id. at 2361 (statement\n27\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nof Rep. Rostenkowski) (\xe2\x80\x9cBy delegating to the Judiciary Committee the\npowers contained in this resolution, we will be providing that committee\nwith the resources it needs to inform the whole House of the facts of this\ncase.\xe2\x80\x9d); id. at 2362 (statement of Rep. Boland) (\xe2\x80\x9cHouse Resolution 803 is\nintended to delegate to the Committee on the Judiciary the full extent of\nthe powers of this House in an impeachment proceeding[]\xe2\x80\x94both as to the\npersons and types of things that may be subpenaed and the methods for\ndoing so.\xe2\x80\x9d). Only after the Judiciary Committee had received authorization from the House did it request and subpoena tape recordings and\ndocuments from President Nixon. See H.R. Rep. No. 93-1305, at 187\n(1974). 23\nThe impeachment investigation of President Clinton. On September 9,\n1998, Independent Counsel Kenneth W. Starr, acting under 28 U.S.C.\n\xc2\xa7 595(c), advised the House of Representatives that he had uncovered\nsubstantial and credible information that he believed could constitute\ngrounds for the impeachment of President Clinton. 18 Deschler\xe2\x80\x99s Precedents app. at 548\xe2\x80\x9349 (2013). Two days later, the House adopted a resolution that referred the matter, along with Starr\xe2\x80\x99s report and 36 boxes of\nevidence, to the Judiciary Committee. H.R. Res. 525, 105th Cong. (1998).\nThe House directed that committee to review the report and \xe2\x80\x9cdetermine\nwhether sufficient grounds exist to recommend to the House that an\nimpeachment inquiry be commenced.\xe2\x80\x9d Id. \xc2\xa7 1. The Rules Committee\xe2\x80\x99s\nChairman emphasized that the House would need to adopt a subsequent\nresolution if it decided to authorize an impeachment inquiry: \xe2\x80\x9c[T]his\nresolution does not authorize or direct an impeachment inquiry. . . . It\nmerely provides the appropriate parameters for the Committee on the\nJudiciary . . . to . . . make a recommendation to the House as to whether\nwe should commence an impeachment inquiry.\xe2\x80\x9d 144 Cong. Rec. 20021\n(1998) (statement of Rep. Solomon).\n\nA New York Times article the following day characterized House Resolution 803 as\n\xe2\x80\x9cformally ratif [ying] the impeachment inquiry begun by the committee [the prior] October.\xe2\x80\x9d James M. Naughton, House, 410-4, Gives Subpoena Power in Nixon Inquiry, N.Y.\nTimes, Feb. 7, 1974, at 1. But the resolution did not grant after-the-fact authorization for\nany prior action. To the contrary, the resolution \xe2\x80\x9cauthorized and directed\xe2\x80\x9d a future investigation, including by providing subpoena power. In the report recommending adoption of\nthe resolution, the committee likewise described its plans in the future tense: \xe2\x80\x9cIt is the\nintention of the committee that its investigation will be conducted in all respects on a fair,\nimpartial and bipartisan basis.\xe2\x80\x9d H.R. Rep. No. 93-774, at 3 (1974).\n23\n\n28\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nOn October 7, 1998, the Judiciary Committee did recommend that there\nbe an investigation for purposes of impeachment. As explained in the\naccompanying report: \xe2\x80\x9c[T]he Committee decided that it must receive\nauthorization from the full House before proceeding on any further course\nof action. Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representatives should\nbe involved in critical decision making regarding various stages of impeachment.\xe2\x80\x9d H.R. Rep. No. 105-795, at 24 (emphasis added). The committee also observed that \xe2\x80\x9ca resolution authorizing an impeachment inquiry into the conduct of a president is consistent with past practice,\xe2\x80\x9d\nciting the resolutions for Presidents Johnson and Nixon and observing that\n\xe2\x80\x9cnumerous other inquiries were authorized by the House directly, or by\nproviding investigative authorities, such as deposition authority, to the\nCommittee on the Judiciary.\xe2\x80\x9d Id.\nThe next day, the House voted to authorize the Judiciary Committee to\n\xe2\x80\x9cinvestigate fully and completely whether sufficient grounds exist for the\nHouse of Representatives to exercise its constitutional power to impeach\nWilliam Jefferson Clinton, President of the United States of America.\xe2\x80\x9d\nH.R. Res. 581, 105th Cong. \xc2\xa7 1 (1998). The resolution authorized the\ncommittee \xe2\x80\x9cto require . . . by subpoena or otherwise . . . the attendance\nand testimony of any person\xe2\x80\x9d and \xe2\x80\x9cthe production of . . . things,\xe2\x80\x9d and to\nrequire the furnishing of information \xe2\x80\x9cby interrogatory.\xe2\x80\x9d Id. \xc2\xa7 2(a). \xe2\x80\x9cOn\nNovember 5, 1998,\xe2\x80\x9d as part of its investigation, \xe2\x80\x9cthe Committee presented\nPresident Clinton with 81 requests for admission,\xe2\x80\x9d which the Committee\nexplained that it \xe2\x80\x9cwould have . . . compelled by subpoena\xe2\x80\x9d had President\nClinton not complied. H.R. Rep. No. 105-830, at 77, 122 (1998). And the\nCommittee then \xe2\x80\x9capproved the issuance of subpoenas for depositions and\nmaterials\xe2\x80\x9d from several witnesses. 144 Cong. Rec. D1210\xe2\x80\x9311 (daily ed.\nDec. 17, 1998).\nIn discussing the Clinton precedent, the district court in In re Application of the Committee on the Judiciary treated the D.C. Circuit\xe2\x80\x99s approval\nof the disclosure of Starr\xe2\x80\x99s report and associated grand-jury information\nas evidence that the Judiciary Committee may \xe2\x80\x9ccommence an impeachment investigation\xe2\x80\x9d without a House vote. 2019 WL 5485221, at *27 &\nn.36. But the D.C. Circuit did not authorize that disclosure because of any\npending House investigation. It did so because a statutory provision\nrequired an independent counsel to \xe2\x80\x9cadvise the House of Representatives\nof any substantial and credible information which such independent\ncounsel receives . . . that may constitute grounds for an impeachment.\xe2\x80\x9d\n29\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\n28 U.S.C. \xc2\xa7 595(c) (emphasis added). And the D.C. Circuit viewed the\nreport as reflecting \xe2\x80\x9cinformation of the type described in 28 U.S.C.\n\xc2\xa7 595(c).\xe2\x80\x9d In re Madison Guar. Sav. & Loan Ass\xe2\x80\x99n, Div. No. 94-1 (D.C.\nCir. Spec. Div. July 7, 1998), reprinted in H.R. Doc. No. 105-331, pt. 1,\nat 10 (1998). The order authorizing the transmission of that information to\nthe House did not imply that any committee was conducting an impeachment investigation. To the contrary, after the House received the information, \xe2\x80\x9cno person had access to\xe2\x80\x9d it until after the House adopted a resolution referring the matter to the Judiciary Committee. H.R. Rep. No. 105795, at 5. And the House then adopted a second resolution (Resolution\n581) to authorize a formal investigation. In other words, the House voted\nto authorize the Judiciary Committee both to review the Starr evidence\nand to conduct an impeachment investigation. Neither the D.C. Circuit\nnor the Judiciary Committee suggested that any committee could have\ntaken such action on its own.\n2.\nThe House has historically followed these same procedures in considering impeachment resolutions against executive branch officers other than\nthe President. In many cases, an initial resolution laying out charges of\nimpeachment or authorizing an investigation was referred to a select or\nstanding committee. 24 Following such a referral, the designated committee\n24 As with Presidents, many of these resolutions remained with the committees until\nthey 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\nRosenstein); H.R. Res. 417, 114th Cong. (2015) (Administrator of the Environmental\nProtection Agency Regina McCarthy); H.R. Res. 411, 113th Cong. (2013) (Attorney\nGeneral 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.\nRes. 805, 95th Cong. (1977) (United Nations Ambassador Andrew Young); H.R. Res.\n274, 95th Cong. (1977) (Commissioner of the Federal Trade Commission Paul Dixon);\nH.R. Res. 881, 94th Cong. (1975) (U.S. Attorney Jonathan Goldstein and Principal\nAssistant U.S. Attorney Bruce Goldstein); H.R. Res. 647, 94th Cong. (1975) (Ambassador\nto Iran Richard Helms); H.R. Res. 547, 94th Cong. (1975) (Special Crime Strike Force\nProsecutor Liam Coonan). Others called for an investigation. See, e.g., H.R. Res. 589,\n110th Cong. (2007) (Attorney General Alberto Gonzales); H.R. Res. 582, 105th Cong.\n(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.\n101, 99th Cong. (1985) (same and others); H.R. Res. 1025, 95th Cong. (1978) (Attorney\nGeneral Griffin Bell); H.R. Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d\n\n30\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nreviewed the matter and considered whether to pursue a formal impeachment inquiry\xe2\x80\x94it did not treat the referral as stand-alone authorization to\nconduct an investigation. When a committee concluded that the charges\nwarranted investigation, it reported to the full House, which then considered whether to adopt a resolution to authorize a formal investigation.\nFor example, in March 1867, the House approved a resolution directing\nthe Committee on Public Expenditures \xe2\x80\x9cto inquire into the conduct of\nHenry A. Smythe, collector of the port of New York.\xe2\x80\x9d Cong. Globe, 40th\nCong., 1st Sess. 132 (1867); see also id. (noting that the resolution had\nbeen modified following debate \xe2\x80\x9cso as to leave out that part about bringing articles of impeachment\xe2\x80\x9d). Weeks later, the House voted to authorize\nan impeachment investigation. Id. at 290 (authorizing the investigating\ncommittee to \xe2\x80\x9csend for persons and papers\xe2\x80\x9d). The House followed this\nsame procedure in 1916 for U.S. Attorney H. Snowden Marshall. H.R.\nRes. 90, 64th Cong. (1916) (initial resolution referred to the Judiciary\nCommittee); H.R. Res. 110, 64th Cong. (1916) (resolution approving the\ninvestigation contemplated in the initial resolution). And the process\nrepeated in 1922 for Attorney General Harry Daugherty. H.R. Res. 425,\n67th Cong. (1922) (referring the initial resolution to the committee); H.R.\nRes. 461, 67th Cong. (1922) (resolution approving the investigation\ncontemplated in the initial resolution).\nIn a few instances, the House asked committees to draft articles of impeachment without calling for any additional impeachment investigation.\nFor example, in 1876, after uncovering \xe2\x80\x9cunquestioned evidence of the\nmalfeasance in office by General William W. Belknap\xe2\x80\x9d (who was then\nSecretary of War) in the course of another investigation, the House approved a resolution charging the Committee on the Judiciary with the\nresponsibility to \xe2\x80\x9cprepare and report without unnecessary delay suitable\narticles of impeachment.\xe2\x80\x9d 4 Cong. Rec. 1426, 1433 (1876). When a key\nwitness left the country, however, the committee determined that additional investigation was warranted, and it asked to be authorized \xe2\x80\x9cto take\nCong. (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. (1939) (Secretary\nof Labor Frances Perkins and others); 28 Cong. Rec. 114, 126 (1895) (Ambassador to\nGreat Britain Thomas Bayard); 16 Cong. Rec. 17\xe2\x88\x9219 (1884) (U.S. Marshal Lot Wright);\nCong. Globe, 40th Cong., 1st Sess. 778\xe2\x88\x9279 (1867) (Minister to Great Britain Charles\nFrancis Adams). On occasion, the House voted to table these resolutions instead of\nreferring them to a committee. See, e.g., H.R. Res. 545, 105th Cong. (1998) (resolution of\nimpeachment for Independent Counsel Kenneth Starr); H.R. Res. 1267, 95th Cong. (1978)\n(resolution of impeachment for Ambassador to the United Nations Andrew Young).\n\n31\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nfurther proof \xe2\x80\x9d and \xe2\x80\x9cto send for persons and papers\xe2\x80\x9d in its search for\nalternative evidence. Id. at 1564, 1566; see also 3 Hinds\xe2\x80\x99 Precedents\n\xc2\xa7\xc2\xa7 2444\xe2\x80\x9345, at 902\xe2\x80\x9304.\nIn some cases, the House declined to authorize a committee to investigate impeachment with the aid of compulsory process. In 1873, the House\nauthorized the Judiciary Committee \xe2\x80\x9cto inquire whether anything\xe2\x80\x9d in\ntestimony presented to a different committee implicating Vice President\nSchuyler Colfax \xe2\x80\x9cwarrants articles of impeachment of any officer of the\nUnited States not a member of this House, or makes it proper that further\ninvestigation should be ordered in his case.\xe2\x80\x9d Cong. Globe, 42d Cong.,\n3d Sess. 1545 (1873); see 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2510, at 1016\xe2\x80\x9317.\nNo further investigation was authorized. A similar sequence occurred in\n1917 in the case of an impeachment resolution offered against members of\nthe Federal Reserve Board. See 54 Cong. Rec. 3126\xe2\x88\x9230 (1917) (impeachment resolution); H.R. Rep. No. 64-1628, at 1 (1917) (noting that\nfollowing the referral of the impeachment resolution, the Committee had\nreviewed 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\nCong. (1932); see also 3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 14.1, at 2134\xe2\x80\x93\n39. The following month, the House approved a resolution discontinuing\nany investigation of the charges. 75 Cong. Rec. 3850 (1932); see also\n3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 14.2, at 2139\xe2\x80\x9340.\nMost 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.\n494, 114th Cong. (2015); H.R. Res. 828, 114th Cong. (2016). Shortly\nafter an attempt to force a floor vote on one of the resolutions, Koskinen\nvoluntarily appeared before the committee at a hearing. See Impeachment\nArticles Referred on John Koskinen (Part III): Hearing Before the H.\nComm. on the Judiciary, 114th Cong. 2 (2016). The ranking minority\nmember, Representative John Conyers, observed that, despite the title,\n\xe2\x80\x9cthis is not an impeachment hearing\xe2\x80\x9d because, \xe2\x80\x9c[a]ccording to parliamentarians of the House past and present, the impeachment process does\nnot begin until the House actually votes to authorize this Committee to\ninvestigate the charges.\xe2\x80\x9d Id. at 3; see also id. at 30 (similar statement by\nRep. Johnson). During the hearing, Commissioner Koskinen offered to\nprovide a list of supporting witnesses who could be cross-examined \xe2\x80\x9cif\n32\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nthe Committee decided it wanted to go to a full-scale impeachment process, which I understand this is not.\xe2\x80\x9d Id. at 45. Two months later, one of\nthe impeachment resolutions was briefly addressed on the floor of the\nHouse, and again referred to the Judiciary Committee, but without providing any investigative authority. See 162 Cong. Rec. H7251\xe2\x80\x9354 (daily ed.\nDec. 6, 2016). The committee never sought to compel the appearance of\nKoskinen or any other witness, and the committee does not appear to have\ntaken any further action before the Congress expired.\nIn his 1978 book on presidential impeachment, former House impeachment attorney John Labovitz observed that there were a \xe2\x80\x9cfew exceptions,\xe2\x80\x9d \xe2\x80\x9cmostly in the 1860s and 1870s,\xe2\x80\x9d to the general rule that \xe2\x80\x9cpast\nimpeachment investigations ha[ve] been authorized by a specific resolution conferring subpoena power.\xe2\x80\x9d Labovitz, Presidential Impeachment at\n182 & n.18. In our review of the history, we have identified one case from\nthat era where a House committee commenced a legislative oversight\ninvestigation and subsequently moved, without separate authorization, to\nconsider impeachment. 25 But the overwhelming historical practice to the\ncontrary confirms the Judiciary Committee\xe2\x80\x99s well-considered conclusions\nin 1974 and 1998 that a committee requires specific authorization from\nthe House before it may use compulsory process to investigate for impeachment purposes.\n\n25 In 1878, the Committee on Expenditures in the State Department, which was\ncharged with investigative authority for \xe2\x80\x9cthe exposing of frauds or abuses of any kind,\xe2\x80\x9d\n7 Cong. Rec. 287, 290 (1878), was referred an investigation into maladministration at the\nconsulate in Shanghai during the terms of Consul-General George Seward and Vice\nConsul-General O.B. Bradford, id. at 504, 769. Eventually, the committee began to\nconsider Seward\xe2\x80\x99s impeachment, serving him with a subpoena for testimony and documents, in response to which he asserted his privilege against self-incrimination. See\n3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2514, at 1023\xe2\x80\x9324; H.R. Rep. No. 45-141, at 1\xe2\x80\x933 (1879). The\ncommittee recommended articles of impeachment, but the House declined to act before\nthe end of the Congress. See 8 Cong. Rec. 2350\xe2\x80\x9355 (1879); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2514,\nat 1025. During this same period, the Committee on Expenditures reported proposed\narticles of impeachment against Bradford but recommended \xe2\x80\x9cthat the whole subject be\nreferred to the Committee on the Judiciary\xe2\x80\x9d for further consideration. H.R. Rep. No. 45818, at 7 (1878). The House agreed to the referral, but no further action was taken.\n7 Cong. Rec. at 3667.\n\n33\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\n3.\nThe House has followed the same practice in connection with nearly all\nimpeachment investigations involving federal judges. Committees sometimes studied initial referrals, but they waited for authorization from the\nfull House before conducting any formal impeachment investigation.\nThree cases from the late 1980s departed from that pattern, but the House\nhas returned during the past three decades to the historical baseline,\nrepeatedly ensuring that the Judiciary Committee had a proper delegation\nfor each impeachment investigation.\nThe practice of having the House authorize each specific impeachment\ninquiry is reflected in the earliest impeachment investigations involving\njudges. In 1804, the House considered proposals to impeach two judges:\nSamuel Chase, an associate justice of the Supreme Court, and Richard\nPeters, a district judge. See 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2342, at 711\xe2\x80\x9316. There\nwas a \xe2\x80\x9clengthy debate\xe2\x80\x9d about whether the evidence was appropriate to\nwarrant the institution of an inquiry. Id. at 712. The House then adopted\na resolution appointing a select committee \xe2\x80\x9cto inquire into the official\nconduct\xe2\x80\x9d of Chase and Peters \xe2\x80\x9cand to report\xe2\x80\x9d the committee\xe2\x80\x99s \xe2\x80\x9copinion\nwhether\xe2\x80\x9d either of the judges had \xe2\x80\x9cso acted, in their judicial capacity, as\nto require the interposition of the constitutional power of this House.\xe2\x80\x9d\n13 Annals of Cong. 850, 875\xe2\x80\x9376 (1804); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2342, at\n715. A few days later, another resolution \xe2\x80\x9cauthorized\xe2\x80\x9d the committee \xe2\x80\x9cto\nsend for persons, papers, and records.\xe2\x80\x9d 13 Annals of Cong. at 877; see\nalso 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2342, at 715. At the conclusion of its investigation, the committee recommended that Chase, but not Peters, be impeached. 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2343, at 716. The House thereafter agreed\nto a resolution impeaching Chase. Id. at 717. Congress recessed before the\nSenate could act, but, during the next Congress, the House appointed an\nalmost identical select committee, which was \xe2\x80\x9cgiven no power of investigation.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 2343\xe2\x80\x9344, at 717\xe2\x80\x9318. The committee recommended revised\narticles of impeachment against Chase, which were again adopted by the\nHouse. Id. \xc2\xa7 2344, at 718\xe2\x80\x9319. In 1808, the House again separately authorized an investigation when it considered whether Peter Bruin, a Mississippi territorial judge, should be impeached for \xe2\x80\x9cneglect of duty and\ndrunkenness on the bench.\xe2\x80\x9d Id. \xc2\xa7 2487, at 983\xe2\x80\x9384. A member of the\nHouse objected \xe2\x80\x9cthat it would hardly be dignified for the Congress to\nproceed to an impeachment\xe2\x80\x9d based on the territorial legislature\xe2\x80\x99s referral\nand proposed the appointment of a committee \xe2\x80\x9cto inquire into the proprie34\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nty of impeaching.\xe2\x80\x9d Id. at 984; see 18 Annals of Cong. 2069 (1808). The\nHouse then passed a resolution forming a committee to conduct an inquiry, which included the \xe2\x80\x9cpower to send for persons, papers, and records\xe2\x80\x9d but, like most inquiries to follow, did not result in impeachment. 18\nAnnals of Cong. at 2189; 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2487, at 984.\nOver the course of more than two centuries thereafter, members of the\nHouse introduced resolutions to impeach, or to investigate for potential\nimpeachment, dozens more federal judges, and the House continued,\nvirtually without exception, to provide an express authorization before\nany committee proceeded to exercise investigative powers. 26 In one 1874\ncase, the Judiciary Committee realized only after witnesses had traveled\nfrom Arkansas that it could not find any resolution granting it compulsory\npowers to investigate previously referred charges against Judge William\nStory. See 2 Cong. Rec. 1825, 3438 (1874); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2513,\nat 1023. In order to \xe2\x80\x9ccure\xe2\x80\x9d that \xe2\x80\x9cdefect,\xe2\x80\x9d the committee reported a privileged resolution to the floor of the House that would grant the committee\n\xe2\x80\x9cpower to send for persons and papers\xe2\x80\x9d as part of the impeachment invesSee, e.g., 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2489, at 986 (William Van Ness, Mathias\nTallmadge, and William Stephens, 1818); id. \xc2\xa7 2490, at 987 (Joseph Smith, 1825); id.\n\xc2\xa7 2364, at 774 (James Peck, 1830); id. \xc2\xa7 2492, at 990 (Alfred Conkling, 1830); id. \xc2\xa7 2491,\nat 989 (Buckner Thurston, 1837); id. \xc2\xa7 2494, at 993\xe2\x80\x9394 (P.K. Lawrence, 1839); id.\n\xc2\xa7\xc2\xa7 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 1852\xe2\x80\x9360); id. \xc2\xa7 2500, at 1005\n(Thomas Irwin, 1859); id. \xc2\xa7 2385, at 805 (West Humphreys, 1862); id. \xc2\xa7 2503, at 1008\n(anonymous justice of the Supreme Court, 1868); id. \xc2\xa7 2504, at 1008\xe2\x80\x9309 (Mark Delahay,\n1872); id. \xc2\xa7 2506, at 1011 (Edward Durell, 1873); id. \xc2\xa7 2512, at 1021 (Richard Busteed,\n1873); id. \xc2\xa7 2516, at 1027 (Henry Blodgett, 1879); id. \xc2\xa7\xc2\xa7 2517\xe2\x80\x9318, at 1028, 1030\xe2\x80\x9331\n(Aleck Boarman, 1890\xe2\x80\x9392); id. \xc2\xa7 2519, at 1032 (J.G. Jenkins, 1894); id. \xc2\xa7 2520, at 1033\n(Augustus Ricks, 1895); id. \xc2\xa7 2469, at 949\xe2\x80\x9350 (Charles Swayne, 1903); 6 Clarence\nCannon, Cannon\xe2\x80\x99s Precedents of the House of Representatives of the United States \xc2\xa7 498,\nat 685 (1936) (Robert Archbald, 1912); id. \xc2\xa7 526, at 746\xe2\x80\x9347 (Cornelius H. Hanford,\n1912); id. \xc2\xa7 527, at 749 (Emory Speer, 1913); id. \xc2\xa7 528, at 753 (Daniel Wright, 1914); id.\n\xc2\xa7 529, at 756 (Alston Dayton, 1915); id. \xc2\xa7 543, at 777\xe2\x80\x9378 (William Baker, 1924); id.\n\xc2\xa7 544, at 778\xe2\x80\x9379 (George English, 1925); id. \xc2\xa7 549, at 789\xe2\x80\x9390 (Frank Cooper, 1927); id.\n\xc2\xa7 550, at 791\xe2\x80\x9392 (Francis Winslow, 1929); id. \xc2\xa7 551, at 793 (Harry Anderson, 1930); id.\n\xc2\xa7 552, at 794 (Grover Moscowitz, 1930); id. \xc2\xa7 513, at 709\xe2\x80\x9310 (Harold Louderback, 1932);\n3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 14.4, at 2143 (James Lowell, 1933); id. \xc2\xa7 18.1, at 2205\xe2\x80\x93\n06 (Halsted Ritter, 1933); id. \xc2\xa7 14.10, at 2148 (Albert Johnson and Albert Watson, 1944);\nH.R. Res. 1066, 94th Cong. (1976) (certain federal judges); H.R. Res. 966, 95th Cong.\n(1978) (Frank Battisti); see also 51 Cong. Rec. 6559\xe2\x80\x9360 (1914) (noting passage of\nauthorizing resolution for investigation of Daniel Wright); 68 Cong. Rec. 3532 (1927)\n(same for Frank Cooper).\n26\n\n35\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\ntigation. 2 Cong. Rec. at 3438. The House promptly agreed to the resolution, enabling the committee to \xe2\x80\x9cexamine\xe2\x80\x9d the witnesses that day. Id.\nIn other cases, however, no full investigation ever materialized. In\n1803, John Pickering, a district judge, was impeached, but the House\nvoted to impeach him without conducting any investigation at all, relying\ninstead upon documents supplied by President Jefferson. See 3 Hinds\xe2\x80\x99\nPrecedents \xc2\xa7 2319, at 681\xe2\x80\x9382; see also Lynn W. Turner, The Impeachment of John Pickering, 54 Am. Hist. Rev. 485, 491 (1949). Sometimes,\nthe House authorized only a preliminary inquiry to determine whether an\ninvestigation would be warranted. In 1908, for instance, the House asked\nthe Judiciary Committee to consider proposed articles impeaching Judge\nLebbeus Wilfley of the U.S. Court for China. In the ensuing hearing, the\nRepresentative who had introduced the resolution acknowledged that the\ncommittee was not \xe2\x80\x9cauthorized to subpoena witnesses\xe2\x80\x9d and had been\nauthorized to conduct only \xe2\x80\x9ca preliminary examination,\xe2\x80\x9d which was \xe2\x80\x9cnot\nlike an investigation ordinarily held by the House,\xe2\x80\x9d but was instead dedicated solely to determining \xe2\x80\x9cwhether you believe it is a case that ought to\nbe investigated at all.\xe2\x80\x9d 27 In many other cases, it is apparent that\xe2\x80\x94even\nwhen impeachment resolutions had been referred to them\xe2\x80\x94committees\nconducted no formal investigation. 28\n\n27 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)\n(statement of Rep. Waldo); see also id. at 45\xe2\x80\x9346 (statement of Rep. Moon) (\xe2\x80\x9cThis committee conceives to be its duty solely, under the resolution referring this matter to them, to\nexamine the charges preferred in the petition . . . and to report thereon whether in its\njudgement the petitioner has made out a prima facie case; and also whether . . . Congress\nshould adopt a resolution instructing the Judiciary Committee to proceed to an investigation of the facts of the case.\xe2\x80\x9d); 6 Cannon\xe2\x80\x99s Precedents \xc2\xa7 525, at 743\xe2\x80\x9345 (summarizing the\nWilfley case, in which the Judiciary Committee ultimately reported that no formal\ninvestigation was warranted). The case of Judge Samuel Alschuler in 1935 similarly\ninvolved only a preliminary investigation\xe2\x80\x94albeit one with actual investigative powers.\nThe House first referred to the Judiciary Committee a resolution that, if approved, would\nauthorize an investigation of potential impeachment charges. See 79 Cong. Rec. 7086,\n7106 (1935). Six days later, it adopted a resolution that granted the committee investigative powers in support of \xe2\x80\x9cthe preliminary examinations deemed necessary\xe2\x80\x9d for the\ncommittee to make a recommendation about whether a full investigation should occur. Id.\nat 7393\xe2\x80\x9394. The committee ultimately recommended against a full investigation. See H.R.\nRep. No. 74-1802, at 2 (1935).\n28 See, e.g., 18 Annals of Cong. 1885\xe2\x80\x9386, 2197\xe2\x80\x9398 (1808) (Harry Innes, 1808; the\nHouse passed a resolution authorizing an impeachment investigation, which concluded\n\n36\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nIn 1970, in a rhetorical departure from well-established practice, a subcommittee of the Judiciary Committee described itself as investigating the\nimpeachment of Justice William O. Douglas based solely upon an impeachment resolution referred to the Judiciary Committee. See 116 Cong. Rec.\n11920, 11942 (1970); 3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7\xc2\xa7 14.14\xe2\x88\x9214.16, at\n2151\xe2\x88\x9264; see also Labovitz, Presidential Impeachment at 182 n.18 (noting that \xe2\x80\x9c[t]he Douglas inquiry was the first impeachment investigation in\ntwenty-five years, and deviation from the older procedural pattern was not\nsurprising\xe2\x80\x9d). Yet, the subcommittee did not resort to any compulsory\nprocess during its inquiry, and it did not recommend impeachment.\n3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7\xc2\xa7 14.15\xe2\x88\x9214.16, at 2158\xe2\x88\x9263. Accordingly, the committee did not actually exercise any of the investigative powers\nof the House.\nIn the late 1980s, the House Judiciary Committee considered the impeachment of three district-court judges without any express authorization\nfrom the House: Walter Nixon, Alcee Hastings, and Harry Claiborne. See\nIn re Application of the Comm. on the Judiciary, 2019 WL 5485221, at\n*26 (discussing these investigations). All three judges had been criminally\nprosecuted, and two had been convicted. See H.R. Rep. No. 101-36, at\n12\xe2\x80\x9313 (1989) (describing Nixon\xe2\x80\x99s prosecution and conviction); H.R. Rep.\nNo. 100-810, at 7\xe2\x88\x928, 29\xe2\x80\x9331, 38\xe2\x80\x9339 (1988) (describing Hastings\xe2\x80\x99s indictment and trial and the subsequent decision to proceed with a judicialmisconduct proceeding in lieu of another prosecution); H.R. Rep. No. 99688, at 9, 17\xe2\x80\x9320 (1986) (describing Claiborne\xe2\x80\x99s prosecution and conviction). In the Claiborne inquiry, the committee does not appear to have\nthat the evidence accompanying the resolution did not support impeachment); 3 Hinds\xe2\x80\x99\nPrecedents \xc2\xa7 2486, at 981\xe2\x80\x9383 (George Turner, 1796; no apparent investigation, presumably because of the parallel criminal prosecution recommended by Attorney General Lee,\nas discussed above); id. \xc2\xa7 2488, at 985 (Harry Toulmin, 1811; the House \xe2\x80\x9cdeclined to\norder a formal investigation\xe2\x80\x9d); 40 Annals of Cong. 463\xe2\x80\x9369, 715\xe2\x80\x9318 (1822\xe2\x80\x9323) (Charles\nTait, 1823; no apparent investigation beyond examination of documents containing\ncharges); 3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 2493, at 991\xe2\x80\x9392 (Benjamin Johnson, 1833; no apparent\ninvestigation); id. \xc2\xa7 2511, at 1019\xe2\x80\x9320 (Charles Sherman, 1873; the Judiciary Committee\nreceived evidence from the Ways and Means Committee, which had been investigating\ncorruption in Congress, but the Judiciary Committee conducted no further investigation);\n6 Cannon\xe2\x80\x99s Precedents \xc2\xa7 535, at 769 (Kenesaw Mountain Landis, 1921; the Judiciary\nCommittee reported that \xe2\x80\x9ccharges were filed too late in the present session of the Congress\xe2\x80\x9d to enable investigation); 3 Deschler\xe2\x80\x99s Precedents ch. 14, \xc2\xa7 14.6, at 2144\xe2\x80\x9345\n(Joseph Molyneaux, 1934; the Judiciary Committee took no action on the referral of a\nresolution that would have authorized an investigation).\n\n37\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nissued any subpoenas. See H.R. Rep. No. 99-688, at 4 (noting that the\ncommittee sent \xe2\x80\x9c[i]nvitational letters to all witnesses,\xe2\x80\x9d who apparently\ncooperated to the Committee\xe2\x80\x99s satisfaction). The committee did issue\nsubpoenas 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\nrequested a subpoena. 29 In those two cases, though, the Judiciary Committee effectively compelled production without any express authorization\nfrom the House. 30\nIn the years after these outliers, the Judiciary Committee returned to the\npractice of seeking specific authorization from the House before conducting impeachment investigations. Most notably, as discussed above, the\nJudiciary Committee \xe2\x80\x9cdecided that it must receive authorization from the\nfull House before proceeding\xe2\x80\x9d with an impeachment investigation of\nPresident Clinton. H.R. Rep. No. 105-795, at 24 (emphasis added). And\nthe House has used the same practice with respect to federal judges. 31\nThus, in 2008, the House adopted a resolution authorizing the Judiciary\nCommittee to investigate the impeachment of Judge G. Thomas Porteous,\nJr., including the grant of subpoena authority. See H.R. Rep. No. 111-427,\nat 7 (2010); H.R. Res. 1448, 110th Cong. (2008); 154 Cong. Rec. 19502\n(2008). After the Congress expired, the House in the next Congress\n29 See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, in the Hastings investigation,\na committee subpoena had been issued for William Borders, who challenged the subpoena\non First, Fourth, Fifth, and Eighth Amendment grounds); H.R. Rep. No. 100-1124, at 130\n(1989) (noting the issuance of \xe2\x80\x9csubpoenas duces tecum\xe2\x80\x9d in the investigation of Judge\nNixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. Edwards) (explaining the\nsubcommittee\xe2\x80\x99s need to depose some witnesses pursuant to subpoena in the Nixon\ninvestigation); Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearing Before the\nSubcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 101st\nCong. 530\xe2\x80\x93606 (1988) (reprinting deposition of Magistrate Judge Roper).\n30 The House did pass resolutions authorizing funds for investigations with respect to\nthe Hastings impeachment, see H.R. Res. 134, 100th Cong. (1987); H.R. Res. 388, 100th\nCong. (1988), and resolutions authorizing the committee to permit its counsel to take\naffidavits and depositions in both the Nixon and Hastings impeachments, see H.R. Res.\n562, 100th Cong. (1988) (Nixon); H.R. Res. 320, 100th Cong. (1987) (Hastings).\n31 In the post-1989 era, as before, most of the impeachment resolutions against judges\nthat were referred to the Judiciary Committee did not result in any further investigation.\nSee, e.g., H.R. Res. 916, 109th Cong. (2006) (Manuel Real); H.R. Res. 207, 103d Cong.\n(1993) (Robert Collins); H.R. Res. 177, 103d Cong. (1993) (Robert Aguilar); H.R. Res.\n176, 103d Cong. (1993) (Robert Collins).\n\n38\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nadopted a new resolution re-authorizing the inquiry, again with subpoena\nauthority. See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 571\n(2009). Several months later, another district judge, Samuel Kent, pleaded\nguilty to obstruction of justice and was sentenced to 35 months of incarceration. See H.R. Rep. 111-159, at 9\xe2\x80\x9313 (2009). The House then adopted\na resolution directing the Judiciary Committee to investigate impeachment, again specifically granting subpoena authority. See id. at 13; H.R.\nRes. 424, 111th Cong. (2009); 155 Cong. Rec. at 12211\xe2\x80\x9313.\nThus, the House\xe2\x80\x99s long-standing and nearly unvarying practice with\nrespect to judicial impeachment inquiries is consistent with the conclusion\nthat the power to investigate in support of the House\xe2\x80\x99s \xe2\x80\x9csole Power of\nImpeachment,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 5, may not be exercised by a\ncommittee without an express delegation from the House. In the cases of\nJudges Nixon and Hastings, the Judiciary Committee did exercise compulsory authority despite the absence of any delegation from the House.\nBut insofar as no party challenged the committee\xe2\x80\x99s authority at the time,\nand no court addressed the matter, these historical outliers do not undermine the broader constitutional principle. As the Supreme Court observed\nin Noel Canning, \xe2\x80\x9cwhen considered against 200 years of settled practice,\xe2\x80\x9d\na \xe2\x80\x9cfew scattered examples\xe2\x80\x9d are rightly regarded \xe2\x80\x9cas anomalies.\xe2\x80\x9d 573 U.S.\nat 538. They do not call into question the soundness of the House\xe2\x80\x99s otherwise consistent historical practice, much less the constitutional requirement that a committee exercise the constitutional powers of the House\nonly with an express delegation from the House itself.\nIII.\nHaving 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\nCommittee or to the other committees that issued subpoenas pursuant to\nthe asserted impeachment inquiry. During the five weeks between the\nSpeaker\xe2\x80\x99s announcement on September 24 and the adoption of Resolution\n660 on October 31, the committees issued numerous impeachment-related\nsubpoenas. See supra note 9. We therefore provided advice during that\nperiod about whether any of the committees had authority to issue those\nsubpoenas. Because the House had not adopted an impeachment resolution, the answer to that question turned on whether the committees could\nissue those subpoenas based upon any preexisting subpoena authority.\n39\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nIn justifying the subpoenas, the Foreign Affairs Committee and other\ncommittees pointed to the resolution adopting the Rules of the House of\nRepresentatives, which establish the committees and authorize investigations for matters within their jurisdiction. The committees claimed that\nRule XI confers authority to issue subpoenas in connection with an impeachment investigation. Although the House has expanded its committees\xe2\x80\x99 authority in recent decades, the House Rules continue to reflect the\nlong-established distinction between legislative and non-legislative investigative powers. Those rules confer legislative oversight jurisdiction on\ncommittees and authorize the issuance of subpoenas to that end, but they\ndo not grant authority to investigate for impeachment purposes. While the\nHouse committees could have sought some information relating to the\nsame subjects in the exercise of their legislative oversight authority, the\nsubpoenas they purported to issue \xe2\x80\x9cpursuant to the House of Representatives\xe2\x80\x99 impeachment inquiry\xe2\x80\x9d were not in support of such oversight. We\ntherefore conclude that they were unauthorized.\nA.\nThe standing committees of the House trace their general subpoena\npowers back to the House Rules, which the 116th Congress adopted by\nformal resolution. See H.R. Res. 6, 116th Cong. (2019). The House Rules\nare more than 60,000 words long, but they do not include the word \xe2\x80\x9cimpeachment.\xe2\x80\x9d The Rules\xe2\x80\x99 silence on that topic is particularly notable when\ncontrasted with the Senate, which has adopted specific \xe2\x80\x9cRules of Procedure and Practice\xe2\x80\x9d for impeachment trials. S. Res. 479, 99th Cong.\n(1986). 32 The most obvious conclusion to draw from that silence is that\nthe current House, like its predecessors, retained impeachment authority\nat the level of the full House, subject to potential delegations in resolutions tailored for that purpose.\nRule XI of the Rules of the House affirmatively authorizes committees\nto issue subpoenas, but only for matters within their legislative jurisdiction. The provision has been a part of the House Rules since 1975. See\nH.R. Res. 988, 93d Cong. \xc2\xa7 301 (1974). Clause 2(m)(1) of Rule XI vests\n\nUnlike the House, \xe2\x80\x9cthe Senate treats its rules as remaining in effect continuously\nfrom one Congress to the next without having to be re-adopted.\xe2\x80\x9d Richard S. Beth, Cong.\nResearch Serv., R42929, Procedures for Considering Changes in Senate Rules 9 (Jan. 22,\n2013). Of course, like the House, the Senate may change its rules by simple resolution.\n32\n\n40\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\neach committee with the authority to issue subpoenas \xe2\x80\x9c[f ]or the purpose\nof carrying out any of its functions and duties under this rule and rule X\n(including any matters referred to it under clause 2 of rule XII).\xe2\x80\x9d Rule XI,\ncl. 2(m)(1); see also Rule X, cl. 11(d)(1) (making clause 2 of Rule XI\napplicable to HPSCI). The committees therefore have subpoena power to\ncarry out their authorities under three rules: Rule X, Rule XI, and clause 2\nof Rule XII.\nRule X does not provide any committee with jurisdiction over impeachment. Rule X establishes the \xe2\x80\x9cstanding committees\xe2\x80\x9d of the House\nand vests them with \xe2\x80\x9ctheir legislative jurisdictions.\xe2\x80\x9d Rule X, cl. 1. The\njurisdiction of each committee varies in subject matter and scope. While\nthe Committee on Ethics, for example, has jurisdiction over only \xe2\x80\x9c[t]he\nCode of Official Conduct\xe2\x80\x9d (Rule X, cl. 1(g)), the jurisdiction of the Foreign Affairs Committee spans seventeen subjects, including \xe2\x80\x9c[r]elations of\nthe United States with foreign nations generally,\xe2\x80\x9d \xe2\x80\x9c[i]ntervention abroad\nand declarations of war,\xe2\x80\x9d and \xe2\x80\x9c[t]he American National Red Cross\xe2\x80\x9d (Rule\nX, cl. 1(i)(1), (9), (15)). The rule likewise spells out the jurisdiction of the\nCommittee on Oversight and Reform (Rule X, cl. 1(n), cl. 3(i)), and the\njurisdiction of the Judiciary Committee (Rule X, cl. 1(l )). Clause 11 of\nRule X establishes HPSCI and vests it with jurisdiction over \xe2\x80\x9c[t]he Central Intelligence Agency, the Director of National Intelligence, and the\nNational Intelligence Program\xe2\x80\x9d and over \xe2\x80\x9c[i]ntelligence and intelligencerelated activities of all other departments and agencies.\xe2\x80\x9d Rule X, cl.\n11(a)(1), (b)(1)(A)\xe2\x80\x93(B).\nThe text of Rule X confirms that it addresses the legislative jurisdiction\nof the standing committees. After defining each standing committee\xe2\x80\x99s\nsubject-matter jurisdiction, the Rule provides that \xe2\x80\x9c[t]he various standing\ncommittees shall have general oversight responsibilities\xe2\x80\x9d to assist the\nHouse in its analysis of \xe2\x80\x9cthe application, administration, execution, and\neffectiveness of Federal laws\xe2\x80\x9d and of the \xe2\x80\x9cconditions and circumstances\nthat may indicate the necessity or desirability of enacting new or additional legislation,\xe2\x80\x9d as well as to assist the House in its \xe2\x80\x9cformulation, consideration, and enactment of changes in Federal laws, and of such additional\nlegislation as may be necessary or appropriate.\xe2\x80\x9d Rule X, cl. 2(a)(1)\xe2\x80\x93(2).\nThe committees are to conduct oversight \xe2\x80\x9con a continuing basis\xe2\x80\x9d \xe2\x80\x9cto\ndetermine whether laws and programs addressing subjects within the\njurisdiction of a committee\xe2\x80\x9d are implemented as Congress intends \xe2\x80\x9cand\nwhether they should be continued, curtailed, or eliminated.\xe2\x80\x9d Rule X, cl.\n2(b)(1). Those are all functions traditionally associated with legislative\n41\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\noversight, not the separate power of impeachment. See supra Part II.A.\nClause 3 of Rule X further articulates \xe2\x80\x9c[s]pecial oversight functions\xe2\x80\x9d with\nrespect to particular subjects for certain committees; for example, the\nCommittee on Foreign Affairs \xe2\x80\x9cshall review and study on a continuing\nbasis laws, programs, and Government activities relating to . . . intelligence activities relating to foreign policy,\xe2\x80\x9d Rule X, cl. 3(f ). And clause 4\naddresses \xe2\x80\x9c[a]dditional functions of committees,\xe2\x80\x9d including functions\nrelated to the review of appropriations and the special authorities of the\nCommittee on Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But none\nof the \xe2\x80\x9c[s]pecial oversight\xe2\x80\x9d or \xe2\x80\x9c[a]dditional\xe2\x80\x9d functions specified in clauses\n3 and 4 includes any reference to the House\xe2\x80\x99s impeachment power.\nThe powers of HPSCI are addressed in clause 11 of Rule X. Unlike the\nstanding committees, HPSCI is not given \xe2\x80\x9c[g]eneral oversight responsibilities\xe2\x80\x9d in clause 2. But clause 3 gives it the \xe2\x80\x9c[s]pecial oversight functions\xe2\x80\x9d\nof \xe2\x80\x9creview[ing] and study[ing] on a continuing basis laws, programs, and\nactivities of the intelligence community\xe2\x80\x9d and of \xe2\x80\x9creview[ing] and\nstudy[ing] . . . the sources and methods of \xe2\x80\x9d specified entities that engage\nin intelligence activities. Rule X, cl. 3(m). And clause 11 further provides\nthat proposed legislation about intelligence activities will be referred to\nHPSCI and that HPSCI shall report to the House \xe2\x80\x9con the nature and extent\nof the intelligence and intelligence-related activities of the various departments and agencies of the United States.\xe2\x80\x9d Rule X, cl. 11(b)(1), (c)(1);\nsee also H.R. Res. 658, 95th Cong. \xc2\xa7 1 (1977) (resolution establishing\nHPSCI, explaining its purpose as \xe2\x80\x9cprovid[ing] vigilant legislative oversight over the intelligence and intelligence-related activities of the United\nStates\xe2\x80\x9d (emphasis added)). Again, those powers sound in legislative\noversight, and nothing in the Rules suggests that HPSCI has any generic\ndelegation of the separate power of impeachment.\nConsistent with the foregoing textual analysis, Rule X has been seen as\nconferring legislative oversight authority on the House\xe2\x80\x99s committees,\nwithout any suggestion that impeachment authorities are somehow included therein. The Congressional Research Service describes Rule X as\n\xe2\x80\x9ccontain[ing] the legislative and oversight jurisdiction of each standing\ncommittee, several clauses on committee procedures and operations, and a\nclause specifically addressing the jurisdiction and operation of the Permanent Select Committee on Intelligence.\xe2\x80\x9d Michael L. Koempel & Judy\nSchneider, Cong. Research Serv., R41605, House Standing Committees\xe2\x80\x99\nRules on Legislative Activities: Analysis of Rules in Effect in the 114th\nCongress 2 (Oct. 11, 2016); see also Dolan, Congressional Oversight\n42\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nManual at 25 (distinguishing a committee inquiry with \xe2\x80\x9ca legislative\npurpose\xe2\x80\x9d from inquiries conducted under \xe2\x80\x9csome other constitutional\npower of Congress, such as the authority\xe2\x80\x9d to \xe2\x80\x9cconduct impeachment\nproceedings\xe2\x80\x9d). In the chapter of Deschler\xe2\x80\x99s Precedents devoted to explaining the \xe2\x80\x9c[i]nvestigations and [i]nquiries\xe2\x80\x9d by the House and its committees, the Parliamentarian repeatedly notes that impeachment investigations and other non-legislative powers are discussed elsewhere. See\n4 Deschler\xe2\x80\x99s Precedents ch. 15, \xc2\xa7 1, at 2283; id. \xc2\xa7 14, at 2385 n.12; id.\n\xc2\xa7 16, at 2403 & n.4.\nRule X concerns only legislative oversight, and Rule XI does not expand the committees\xe2\x80\x99 subpoena authority any further. That rule rests upon\nthe jurisdiction granted in Rule X. See Rule XI, cl. 1(b)(1) (\xe2\x80\x9cEach committee may conduct at any time such investigations and studies as it\nconsiders necessary or appropriate in the exercise of its responsibilities\nunder rule X.\xe2\x80\x9d). Nor does Rule XII confer any additional jurisdiction.\nClause 2(a) states that \xe2\x80\x9c[t]he Speaker shall refer each bill, resolution, or\nother matter that relates to a subject listed under a standing committee\nnamed in clause 1 of rule X[.]\xe2\x80\x9d Rule XII, cl. 2(a). The Speaker\xe2\x80\x99s referral\nauthority under Rule XII is thus limited to matters within a committee\xe2\x80\x99s\nRule X legislative jurisdiction. See 18 Deschler\xe2\x80\x99s Precedents app. at 578\n(\xe2\x80\x9cAll committees were empowered by actual language of the Speaker\xe2\x80\x99s\nreferral to consider only \xe2\x80\x98such provisions of the measure as fall within\ntheir respective jurisdictions under Rule X.\xe2\x80\x99\xe2\x80\x9d). Accordingly, the Speaker\nmay not expand the jurisdiction of a committee by referring a bill or\nresolution falling outside the committee\xe2\x80\x99s Rule X authority. 33\nIn reporting Resolution 660 to the House, the Rules Committee expressed the view that clause 2(m) of Rule XI gave standing committees\nthe authority to issue subpoenas in support of impeachment inquiries. See\nH.R. Rep. No. 116-266, at 18 (2019). But the committee did not explain\nwhich terms of the rule provide such authority. To the contrary, the committee simply asserted that the rule granted such authority and that the\ntext of Resolution 660 departed from its predecessors on account of\namendments to clause 2(m) that were adopted after the \xe2\x80\x9cClinton and\nNor do the Rules otherwise give the Speaker the authority to order an investigation\nor issue a subpoena in connection with impeachment. Rule I sets out the powers of the\nSpeaker. She \xe2\x80\x9cshall sign . . . all writs, warrants, and subpoenas of, or issued by order of,\nthe House.\xe2\x80\x9d Rule I, cl. 4. But that provision applies only when the House itself issues an\norder. See Jefferson\xe2\x80\x99s Manual \xc2\xa7 626, at 348.\n33\n\n43\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nNixon impeachment inquiry resolutions.\xe2\x80\x9d Id. Yet clause 2(m) of Rule XI\nwas adopted two decades before the Clinton inquiry. 34 Even with that\nauthority in place, the Judiciary Committee recognized in 1998 that it\n\xe2\x80\x9cmust receive authorization from the full House before proceeding\xe2\x80\x9d to\ninvestigate President Clinton for impeachment purposes. H.R. Rep. No.\n105-795, at 24 (emphasis added). And, even before Rule XI was adopted,\nthe House had conferred on the Judiciary Committee a materially similar\nform of investigative authority (including subpoena power) in 1973. 35 The\nJudiciary Committee nevertheless recognized that those subpoena powers\ndid not authorize it to conduct an impeachment inquiry about President\nNixon. In other words, the Rules Committee\xe2\x80\x99s recent interpretation of\nclause 2(m) (which it did not explain in its report) cannot be reconciled\nwith the Judiciary Committee\xe2\x80\x99s well-reasoned conclusion, in both 1974\nand 1998, that Rule XI (and its materially similar predecessor) do not\nconfer any standing authority to conduct an impeachment investigation.\nIn modern practice, the Speaker has referred proposed resolutions calling for the impeachment of a civil officer to the Judiciary Committee.\nSee Jefferson\xe2\x80\x99s Manual \xc2\xa7 605, at 324. Consistent with this practice, the\nSpeaker referred the Sherman resolution (H.R. Res. 13, 116th Cong.) to\nthe Judiciary Committee, because it called for the impeachment of President Trump. Yet the referral itself did not grant authority to conduct an\nimpeachment investigation. House committees have regularly received\nreferrals and conducted preliminary inquiries, without compulsory pro34 Clause 2(m) of Rule XI was initially adopted on October 8, 1974, and took effect on\nJanuary 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\nthe Clinton investigation); Jefferson\xe2\x80\x99s Manual \xc2\xa7 805, at 586\xe2\x80\x9389 (reprinting current\nversion and describing the provision\xe2\x80\x99s evolution).\n35 At the start of the 93rd Congress in 1973, the Judiciary Committee was \xe2\x80\x9cauthorized\nto conduct full and complete studies and investigations and make inquiries within its\njurisdiction as set forth in [the relevant provision] of the Rules of the House of Representatives\xe2\x80\x9d and was empowered \xe2\x80\x9cto hold such hearings and require, by subpena or otherwise,\nthe attendance and testimony of such witnesses and the production of such books, records,\ncorrespondence, memorandums, papers, and documents, as it deems necessary.\xe2\x80\x9d H.R. Res.\n74, 93d Cong. \xc2\xa7\xc2\xa7 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,\nbefore Rule XI vested subpoena power in standing committees, the Judiciary Committee\nand other committees had often been given subpoena authority \xe2\x80\x9cthrough resolutions\nproviding blanket investigatory authorities that were agreed to at the start of a Congress\xe2\x80\x9d).\n\n44\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\ncess, for the purpose of determining whether to recommend that the\nHouse open a formal impeachment investigation. See supra Part II.C.\nShould a committee determine that a formal inquiry is warranted, then the\ncommittee recommends that the House adopt a resolution that authorizes\nsuch an investigation, confers subpoena power, and provides special\nprocess to the target of the investigation. The Judiciary Committee followed precisely that procedure in connection with the impeachment\ninvestigations of Presidents Nixon and Clinton, among many others. By\nreferring an impeachment resolution to the House Judiciary Committee,\nthe Speaker did not expand that committee\xe2\x80\x99s subpoena authority to cover\na formal impeachment investigation. In any event, no impeachment resolution was ever referred to the Foreign Affairs Committee, HPSCI, or the\nCommittee on Oversight and Reform. Rule XII thus could not provide any\nauthority to those committees in support of the impeachment-related\nsubpoenas issued before October 31.\nAccordingly, when those subpoenas were issued, the House Rules did\nnot provide authority to any of those committees to issue subpoenas in\nconnection with potential impeachment. In reaching this conclusion, we\ndo not question the broad authority of the House of Representatives to\ndetermine how and when to conduct its business. See U.S. Const. art. I,\n\xc2\xa7 5, cl. 2. As the Supreme Court has recognized, \xe2\x80\x9c\xe2\x80\x98all matters of method\nare open to the determination\xe2\x80\x99\xe2\x80\x9d of the House, \xe2\x80\x9cas long as there is \xe2\x80\x98a reasonable relation between the mode or method of proceeding established\nby the rule and the result which is sought to be attained,\xe2\x80\x99 and the rule does\nnot \xe2\x80\x98ignore constitutional restraints or violate fundamental rights.\xe2\x80\x99\xe2\x80\x9d Noel\nCanning, 573 U.S. at 551 (quoting United States v. Ballin, 144 U.S. 1, 5\n(1892)). The question, however, is not \xe2\x80\x9cwhat rules Congress may establish for its own governance,\xe2\x80\x9d but \xe2\x80\x9crather what rules the House has established and whether they have been followed.\xe2\x80\x9d Christoffel v. United States,\n338 U.S. 84, 88\xe2\x80\x9389 (1949); see also Yellin v. United States, 374 U.S. 109,\n121 (1963) (stating that a litigant \xe2\x80\x9cis at least entitled to have the Committee follow its rules and give him consideration according to the standards\nit has adopted in\xe2\x80\x9d the relevant rule); United States v. Smith, 286 U.S. 6, 33\n(1932) (\xe2\x80\x9cAs the construction to be given to the rules affects persons other\nthan members of the Senate, the question presented is of necessity a\njudicial one.\xe2\x80\x9d). Statements by the Speaker or by committee chairmen are\nnot statements of the House itself. Cf. Noel Canning, 573 U.S. at 552\xe2\x80\x9353\n(relying on statements and actions of the Senate itself, as reflected in the\nJournal of the Senate and the Congressional Record, to determine when\n45\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nthe Senate was \xe2\x80\x9cin session\xe2\x80\x9d). Our conclusion here turned upon nothing\nmore, and nothing less, than the rules and resolutions that had been adopted by a majority vote of the full House. 36\nThe text of those provisions determined whether the House had delegated the necessary authority. See id. at 552 (\xe2\x80\x9c[O]ur deference to the\nSenate cannot be absolute. When the Senate is without the capacity to act,\nunder its own rules, it is not in session even if it so declares.\xe2\x80\x9d). Thus, the\nSupreme Court has repeatedly made clear that a target of the House\xe2\x80\x99s\ncompulsory process may question whether a House resolution has actually\nconferred the necessary powers upon a committee, because the committee\xe2\x80\x99s \xe2\x80\x9cright to exact testimony and to call for the production of documents\nmust be found in [the resolution\xe2\x80\x99s] language.\xe2\x80\x9d Rumely, 345 U.S. at 44; see\nalso Watkins, 354 U.S. at 201. In Rumely, the Court expressly rejected the\nargument that the House had confirmed the committee\xe2\x80\x99s jurisdiction by\nadopting a resolution that merely held the witness in contempt after the\nfact. As the Court explained, what was said \xe2\x80\x9cafter the controversy had\narisen regarding the scope of the resolution . . . had the usual infirmity of\npost litem motam, self-serving declarations.\xe2\x80\x9d 345 U.S. at 48. In other\nwords, even a vote of the full House could not \xe2\x80\x9cenlarge[]\xe2\x80\x9d a committee\xe2\x80\x99s\nauthority after the fact for purposes of finding that a witness had failed to\ncomply with the obligations imposed by the subpoena. Id.\nHere, 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\ncommittees relied solely upon statements of the Speaker, the committee\nchairmen, and the Judiciary Committee, all of which merely asserted that\none or more House committees had already been conducting a formal\nimpeachment inquiry. There was, however, no House resolution actually\ndelegating such authority to any committee, let alone one that did so with\n36 The Judiciary Committee has also invoked House Resolution 430 as an independent\nsource of authority for an impeachment inquiry. See Tr. of Mot. Hrg. at 91\xe2\x80\x9392, In re\nApplication of the Comm. on the Judiciary; see also Majority Staff of H. Comm. on the\nJudiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 39 (Dec.\n2019). As discussed above, however, that resolution did not confer any investigative\nauthority. Rather, it granted \xe2\x80\x9cany and all necessary authority under Article I\xe2\x80\x9d only \xe2\x80\x9cin\nconnection with\xe2\x80\x9d certain \xe2\x80\x9cjudicial proceeding[s]\xe2\x80\x9d in federal court. H.R. Res. 430, 116th\nCong. (2019); see supra note 7. The resolution therefore had no bearing on any committee\xe2\x80\x99s authority to compel the production of documents or testimony in an impeachment\ninvestigation.\n\n46\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\n\xe2\x80\x9csufficient particularity\xe2\x80\x9d to compel witnesses to respond. Watkins, 354\nU.S. at 201; cf. Gojack v. United States, 384 U.S. 702, 716\xe2\x80\x9317 (1966). At\nthe opening of this Congress, the House had not chosen to confer investigative authority over impeachment upon any committee, and therefore, no\nHouse committee had authority to compel the production of documents or\ntestimony in furtherance of an impeachment inquiry that it was not authorized to conduct.\nB.\nLacking a delegation from the House, the committees could not compel\nthe production of documents or the testimony of witnesses for purposes of\nan impeachment inquiry. Because the first impeachment-related subpoena\n\xe2\x80\x94the September 27 subpoena from the Foreign Affairs Committee\xe2\x80\x94\nrested entirely upon the purported impeachment inquiry, see Three\nChairmen\xe2\x80\x99s Letter, supra note 2, at 1, it was not enforceable. See, e.g.,\nRumely, 345 U.S. at 44. Perhaps recognizing this infirmity, the committee\nchairmen invoked not merely the impeachment inquiry in connection with\nsubsequent impeachment-related subpoenas but also the committees\xe2\x80\x99\n\xe2\x80\x9coversight and legislative jurisdiction.\xe2\x80\x9d See supra note 9 and accompanying text. That assertion of dual authorities presented the question whether\nthe committees could leverage their oversight jurisdiction to require the\nproduction of documents and testimony that the committees avowedly\nintended to use for an unauthorized impeachment inquiry. We advised\nthat, under the circumstances of these subpoenas, the committees could\nnot do so.\nAny congressional inquiry \xe2\x80\x9cmust be related to, and in furtherance of, a\nlegitimate task of the Congress.\xe2\x80\x9d Watkins, 354 U.S. at 187. The Executive\nBranch need not presume that such a purpose exists or accept a \xe2\x80\x9cmakeweight\xe2\x80\x9d assertion of legislative jurisdiction. Mazars USA, 940 F.3d at\n725\xe2\x80\x9326, 727; see also Shelton v. United States, 404 F.2d 1292, 1297 (D.C.\nCir. 1968) (\xe2\x80\x9cIn deciding whether the purpose is within the legislative\nfunction, the mere assertion of a need to consider \xe2\x80\x98remedial legislation\xe2\x80\x99\nmay not alone justify an investigation accompanied with compulsory\nprocess[.]\xe2\x80\x9d). Indeed, \xe2\x80\x9can assertion from a committee chairman may not\nprevent the Executive from confirming the legitimacy of an investigative\nrequest.\xe2\x80\x9d Congressional Committee\xe2\x80\x99s Request for the President\xe2\x80\x99s Tax\nReturns Under 26 U.S.C. \xc2\xa7 6103( f ), 43 Op. O.L.C. __, at *20 (June 13,\n2019). To the contrary, \xe2\x80\x9ca threshold inquiry that should be made upon\n47\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nreceipt of any congressional request for information is whether the request\nis supported by any legitimate legislative purpose.\xe2\x80\x9d Response to Congressional Requests for Information Regarding Decisions Made Under the\nIndependent Counsel Act, 10 Op. O.L.C. 68, 74 (1986); see also Congressional Requests for Confidential Executive Branch Information, 13 Op.\nO.L.C. 153, 159 (1989) (recognizing that the constitutionally mandated\naccommodation process \xe2\x80\x9crequires that each branch explain to the other\nwhy it believes its needs to be legitimate\xe2\x80\x9d).\nHere, the committee chairmen made clear upon issuing the subpoenas\nthat the committees were interested in the requested materials to support\nan investigation into the potential impeachment of the President, not to\nuncover information necessary for potential legislation within their respective areas of legislative jurisdiction. In marked contrast with routine\noversight, each of the subpoenas was accompanied by a letter signed by\nthe chairs of three different committees, who transmitted a subpoena\n\xe2\x80\x9c[p]ursuant to the House of Representatives\xe2\x80\x99 impeachment inquiry\xe2\x80\x9d and\nrecited that the documents would \xe2\x80\x9cbe collected as part of the House\xe2\x80\x99s\nimpeachment inquiry,\xe2\x80\x9d and that they would be \xe2\x80\x9cshared among the Committees, as well as with the Committee on the Judiciary as appropriate.\xe2\x80\x9d\nSee supra note 9 and accompanying text. Apart from their token invocations of \xe2\x80\x9coversight and legislative jurisdiction,\xe2\x80\x9d the letters offered no hint\nof any legislative purpose. The committee chairmen were therefore seeking to do precisely what they said\xe2\x80\x94compel the production of information\nto further an impeachment inquiry.\nIn reaching this conclusion, we do not foreclose the possibility that the\nForeign Affairs Committee or the other committees could have issued\nsimilar subpoenas in the bona fide exercise of their legislative oversight\njurisdiction, in which event the requests would have been evaluated\nconsistent with the long-standing confidentiality interests of the Executive\nBranch. See Watkins, 354 U.S. at 187 (recognizing that Congress\xe2\x80\x99s general investigative authority \xe2\x80\x9ccomprehends probes into departments of the\nFederal Government to expose corruption, inefficiency or waste\xe2\x80\x9d);\nMcGrain, 273 U.S. at 179\xe2\x80\x9380 (observing that it is not \xe2\x80\x9ca valid objection\nto the investigation that it might possibly disclose crime or wrongdoing on\n[the Attorney General\xe2\x80\x99s] part\xe2\x80\x9d). Should the Foreign Affairs Committee, or\nanother committee, articulate a legitimate oversight purpose for a future\ninformation request, the Executive Branch would assess that request as\npart of the constitutionally required accommodation process. But the\nExecutive Branch was not confronted with that situation. The committee\n48\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nchairmen unequivocally attempted to conduct an impeachment inquiry\ninto the President\xe2\x80\x99s actions, without the House, which has the \xe2\x80\x9csole Power\nof Impeachment,\xe2\x80\x9d having authorized such an investigation. Absent such\nan authorization, the committee chairs\xe2\x80\x99 passing mention of \xe2\x80\x9coversight and\nlegislative jurisdiction\xe2\x80\x9d did not cure that fundamental defect.\nC.\nWe next address whether the House ratified any of the previous committee subpoenas when it adopted Resolution 660 on October 31, 2019\xe2\x80\x94\nafter weeks of objections from the Executive Branch and many members\nof Congress to the committees\xe2\x80\x99 efforts to conduct an unauthorized impeachment inquiry. Resolution 660 provides that six committees of the\nHouse \xe2\x80\x9care directed to continue their ongoing investigations as part of the\nexisting House of Representatives inquiry into whether sufficient grounds\nexist for the House of Representatives to exercise its Constitutional power\nto impeach Donald John Trump, President of the United States of America.\xe2\x80\x9d Resolution 660, \xc2\xa7 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.\nResolution 660 does not speak at all to the committees\xe2\x80\x99 past actions or\nseek to ratify any subpoena previously issued by the House committees.\nSee Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. Cir. 2019)\n(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\n\xe2\x80\x9cdirect[s]\xe2\x80\x9d HPSCI and other committees to \xe2\x80\x9ccontinue\xe2\x80\x9d their investigations, and the Rules Committee apparently assumed, incorrectly in our\nview, that earlier subpoenas were legally valid. See H.R. Rep. No. 116266, at 3 (\xe2\x80\x9cAll subpoenas to the Executive Branch remain in full force.\xe2\x80\x9d).\nBut the resolution\xe2\x80\x99s operative language does not address any previously\nissued subpoenas or provide the imprimatur of the House to give those\nsubpoenas legal force.\nAnd the House knows how to ratify existing subpoenas when it chooses\nto do so. 37 On July 24, 2019, the House adopted a resolution that express37 Even if the House had sought to ratify a previously issued subpoena, it could give\nthat subpoena only prospective effect. As discussed above, the Supreme Court has\nrecognized that the House may not cite a witness for contempt for failure to comply with\n\n49\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nly \xe2\x80\x9cratif [ied] and affirm[ed] all current and future investigations, as well\nas all subpoenas previously issued or to be issued in the future,\xe2\x80\x9d related to\ncertain enumerated subjects within the jurisdiction of standing or select\ncommittees of the House \xe2\x80\x9cas established by the Constitution of the United\nStates and rules X and XI of the Rules of the House of Representatives.\xe2\x80\x9d\nH.R. Res. 507, 116th Cong. \xc2\xa7 1 (2019) (emphasis added). There, as here,\nthe House acted in response to questions regarding \xe2\x80\x9cthe validity of . . .\n[committee] investigations and subpoenas.\xe2\x80\x9d Id. pmbl. Despite that recent\nmodel, Resolution 660 contains no comparable language seeking to ratify\npreviously issued subpoenas. The resolution directs certain committees to\n\xe2\x80\x9ccontinue\xe2\x80\x9d investigations, and it specifies procedures to govern future\nhearings, but nothing in the resolution looks backward to actions previously taken. Accordingly, Resolution 660 did not ratify or otherwise\nauthorize the impeachment-related subpoenas issued before October 31,\nwhich therefore still had no compulsory effect on their recipients.\nIV.\nFinally, we address some of the consequences that followed from our\nconclusion that the committees\xe2\x80\x99 pre-October 31 impeachment-related\nsubpoenas were unauthorized. First, because the subpoenas exceeded the\ncommittees\xe2\x80\x99 investigative authority and lacked compulsory effect, the\ncommittees were mistaken in contending that the recipients\xe2\x80\x99 \xe2\x80\x9cfailure or\nrefusal to comply with the subpoena [would] constitute evidence of obstruction of the House\xe2\x80\x99s impeachment inquiry.\xe2\x80\x9d Three Chairmen\xe2\x80\x99s Letter,\nsupra note 2, at 1. 38 As explained at length above, when the subpoenas\nwere issued, there was no valid impeachment inquiry. To the extent that\nthe committees\xe2\x80\x99 subpoenas sought information in support of an unauthorized impeachment inquiry, the failure to comply with those subpoenas\nwas no more punishable than were the failures of the witnesses in Watkins, Rumely, Kilbourn, and Lamont to answer questions that were beyond\na subpoena unsupported by a valid delegation of authority at the time it was issued. See\nRumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 (\xe2\x80\x9cTo issue a valid subpoena, . . .\na committee or subcommittee must conform strictly to the resolution establishing its\ninvestigatory powers[.]\xe2\x80\x9d).\n38 The letters accompanying other subpoenas, see supra note 9, contained similar\nthreats that the recipients\xe2\x80\x99 \xe2\x80\x9cfailure or refusal to comply with the subpoena, including at\nthe direction or behest of the President,\xe2\x80\x9d would constitute \xe2\x80\x9cevidence of obstruction of the\nHouse\xe2\x80\x99s impeachment inquiry.\xe2\x80\x9d\n\n50\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\nthe scope of those committees\xe2\x80\x99 authorized jurisdiction. See Watkins, 354\nU.S. at 206, 215 (holding that conviction for contempt of Congress was\ninvalid because, when the witness failed to answer questions, the House\nhad not used sufficient \xe2\x80\x9ccare . . . in authorizing the use of compulsory\nprocess\xe2\x80\x9d and the committee had not shown that the information was\npertinent to a subject within \xe2\x80\x9cthe mission[] delegated to\xe2\x80\x9d it by the House);\nRumely, 345 U.S. at 42\xe2\x80\x9343, 48 (affirming reversal of conviction for contempt of Congress because it was not clear at the time of questioning that\n\xe2\x80\x9cthe committee was authorized to exact the information which the witness\nwithheld\xe2\x80\x9d); Kilbourn, 103 U.S. at 196 (sustaining action brought by\nwitness for false imprisonment because the committee \xe2\x80\x9chad no lawful\nauthority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell\xe2\x80\x9d); Lamont, 18 F.R.D. at 37 (dismissing indictment\nfor contempt of Congress in part because the indictment did not sufficiently allege, among other things, \xe2\x80\x9cthat the [Permanent Subcommittee on\nInvestigations] . . . was duly empowered by either House of Congress to\nconduct the particular inquiry\xe2\x80\x9d or \xe2\x80\x9cthat the inquiry was within the scope\nof the authority granted to the [sub]committee\xe2\x80\x9d). That alone suffices to\nprevent noncompliance with the subpoenas from constituting \xe2\x80\x9cobstruction\nof the House\xe2\x80\x99s impeachment inquiry.\xe2\x80\x9d\nSecond, we note that whether or not the impeachment inquiry was authorized, there were other, independent grounds to support directions by\nthe Executive Branch that witnesses not appear in response to the committees\xe2\x80\x99 subpoenas. We recently advised you that executive privilege continues to be available during an impeachment investigation. See Exclusion of\nAgency Counsel from Congressional Depositions in the Impeachment\nContext, 43 Op. O.L.C. __, at *2\xe2\x80\x935. The mere existence of an impeachment investigation does not eliminate the President\xe2\x80\x99s need for confidentiality in connection with the performance of his duties. Just as in the\ncontext of a criminal trial, a dispute over a request for privileged information in an impeachment investigation must be resolved in a manner that\n\xe2\x80\x9cpreserves the essential functions of each branch.\xe2\x80\x9d United States v. Nixon,\n418 U.S. 683, 707 (1974). Thus, while a committee \xe2\x80\x9cmay be able to\nestablish an interest justifying its requests for information, the Executive\nBranch also has legitimate interests in confidentiality, and the resolution\nof these competing interests requires a careful balancing of each branch\xe2\x80\x99s\nneed in the context of the particular information sought.\xe2\x80\x9d Exclusion of\nAgency Counsel from Congressional Depositions in the Impeachment\nContext, 43 Op. O.L.C. __, at *4.\n51\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nAccordingly, we recognized, in connection with HPSCI\xe2\x80\x99s impeachment\ninvestigation after October 31, that the committee may not compel an\nexecutive branch witness to appear for a deposition without the assistance\nof agency counsel, when that counsel is necessary to assist the witness in\nensuring the appropriate protection of privileged information during the\ndeposition. See id. at *4\xe2\x80\x935. In addition, we have concluded that the testimonial immunity of the President\xe2\x80\x99s senior advisers \xe2\x80\x9capplies in an impeachment inquiry just as it applies in a legislative oversight inquiry.\xe2\x80\x9d\nLetter for Pat A. Cipollone, Counsel to the President, from Steven A.\nEngel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3,\n2019).\nThus, even when the House takes the steps necessary to authorize a\ncommittee to investigate impeachment and compel the production of\nneeded information, the Executive Branch continues to have legitimate\ninterests to protect. The Constitution does not oblige either branch of\ngovernment to surrender its legitimate prerogatives, but expects that each\nbranch will negotiate in good faith with mutual respect for the needs of\nthe other branch. See United States v. Am. Tel. & Tel. Co., 567 F.2d 121,\n127 (D.C. Cir. 1977) (\xe2\x80\x9c[E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a\nrealistic evaluation of the needs of the conflicting branches in the particular fact situation.\xe2\x80\x9d); see also Memorandum for the Heads of Executive\nDepartments and Agencies from President Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information\n(Nov. 4, 1982). The two branches should work to identify arrangements in\nthe context of the particular requests of an investigating committee that\naccommodate both the committee\xe2\x80\x99s needs and the Executive Branch\xe2\x80\x99s\ninterests.\nFor these reasons, the House cannot plausibly claim that any executive\nbranch official engaged in \xe2\x80\x9cobstruction\xe2\x80\x9d by failing to comply with committee subpoenas, or directing subordinates not to comply, in order to\nprotect the Executive Branch\xe2\x80\x99s legitimate interests in confidentiality and\nthe separation of powers. We explained thirty-five years ago that \xe2\x80\x9cthe\nConstitution does not permit Congress to make it a crime for an official to\nassist the President in asserting a constitutional privilege that is an integral part of the President\xe2\x80\x99s responsibilities under the Constitution.\xe2\x80\x9d Prosecution for Contempt of Congress of an Executive Branch Official Who\nHas Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140\n(1984). Nor may Congress \xe2\x80\x9cutilize its inherent \xe2\x80\x98civil\xe2\x80\x99 contempt powers to\n52\n\n\x0cHouse Committees\xe2\x80\x99 Authority to Investigate for Impeachment\n\narrest, bring to trial, and punish an executive official who assert[s] a\nPresidential claim of executive privilege.\xe2\x80\x9d Id. at 140 n.42. We have reaffirmed those fundamental conclusions in each of the subsequent decades. 39\nThe constitutionally required accommodation process, of course, is a\ntwo-way street. In connection with this investigation, the House committees took the unprecedented steps of investigating the impeachment of a\nPresident without any authorization from the full House; without the\nprocedural protections provided to Presidents Nixon and Clinton, see\nsupra 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\ncounsel. Absent any effort by the House committees to accommodate the\nExecutive Branch\xe2\x80\x99s legitimate concerns with the unprecedented nature of\nthe committees\xe2\x80\x99 actions, it was reasonable for executive branch officials\nto decline to comply with the subpoenas addressed to them.\nV.\nFor the reasons set forth above, we conclude that the House must expressly authorize a committee to conduct an impeachment investigation\nand to use compulsory process in that investigation before the committee\n39 See, e.g., Attempted Exclusion of Agency Counsel from Congressional Depositions of\nAgency Employees, 43 Op. O.L.C. __, at *14 (May 23, 2019) (\xe2\x80\x9c[I]t would be unconstitutional to enforce a subpoena against an agency employee who declined to appear before\nCongress, at the agency\xe2\x80\x99s direction, because the committee would not permit an agency\nrepresentative to accompany him.\xe2\x80\x9d); Testimonial Immunity Before Congress of the\nFormer Counsel to the President, 43 Op. O.L.C. __, at *20 (May 20, 2019) (\xe2\x80\x9cThe constitutional separation of powers bars Congress from exercising its inherent contempt power\nin the face of a presidential assertion of executive privilege.\xe2\x80\x9d); Whether the Department of\nJustice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C.\n65, 65\xe2\x80\x9369 (2008) (concluding that the Department cannot take \xe2\x80\x9cprosecutorial action, with\nrespect to current or former White House officials who . . . declined to appear to testify, in\nresponse to subpoenas from a congressional committee, based on the President\xe2\x80\x99s assertion\nof executive privilege\xe2\x80\x9d); Application of 28 U.S.C. \xc2\xa7 458 to Presidential Appointments of\nFederal Judges, 19 Op. O.L.C. 350, 356 (1995) (\xe2\x80\x9c[T]he criminal contempt of Congress\nstatute does not apply to the President or presidential subordinates who assert executive\nprivilege.\xe2\x80\x9d); see also Authority of Agency Officials to Prohibit Employees from Providing\nInformation to Congress, 28 Op. O.L.C. 79, 80\xe2\x80\x9382 (2004) (explaining that the Executive\nBranch has the constitutional authority to supervise its employees\xe2\x80\x99 disclosure of privileged and other information to Congress).\n\n53\n\n\x0cOpinions of the Office of Legal Counsel in Volume 44\n\nmay compel the production of documents or testimony in support of the\nHouse\xe2\x80\x99s \xe2\x80\x9csole Power of Impeachment.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 5. The\nHouse had not authorized such an investigation in connection with the\nimpeachment-related subpoenas issued before October 31, 2019, and the\nsubpoenas therefore had no compulsory effect. The House\xe2\x80\x99s adoption of\nResolution 660 did not alter the legal status of those subpoenas, because\nthe resolution did not ratify them or otherwise address their terms.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n54\n\n\x0c'