The second article of the House’s impeachment resolution charges President Trump with obstruction of Congress. I previously described the legal and constitutional doctrines that the White House and executive branch have relied on to justify an almost complete stonewalling of the impeachment inquiry. But some observers have argued that the House rushed to judgment on that charge. They argue that Trump has asserted constitutional privileges and that the House should have asked the courts to expedite rulings on those claimed privileges and immunities. Others have responded that there is no constitutional grounding in the claim that Congress must sue over the recalcitrant witnesses and missing documents before impeaching for obstruction; Congress has the sole responsibility for impeachment and can exercise it in the face of obstruction, in their view.

What should the House have done? Here, I consider the contention that impeachment was premature because the House never sought enforcement of its subpoenas in the courts. There are also, in my view, several other actions that the House did not take that could have solidified the obstruction charges. Although the House could have potentially forced the executive branch to confront the distinct nature and substantial weight of the legislators’ need for factual information in an impeachment inquiry, legislators largely allowed the executive branch to take refuge in broad prophylactic doctrines that eliminated any need to consider Congress’s interests.

A common refrain among Republican legislators and others, including some Democrats, has been that the House should have litigated these constitutional disputes in the courts before making their assertion the basis for impeachment. The dissenting views in the House impeachment report, for example, claim that “the President’s assertion of valid constitutional privileges is being used as a weapon against him,” and that the House’s decision to “rush[] straight to impeachment without engaging the courts to resolve this interbranch dispute” represents “a strategic choice … not an appropriate justification for impeachment.” As the dissenting views put it, “For the price of legitimacy, the Majority is only required to pay a small amount of patience and deference to the courts.”

Similarly, legal scholar Jonathan Turley argued in his testimony on impeachment before the House Judiciary Committee that: “A President cannot ‘substitute[] his judgment’ for Congress on what they are entitled to see and likewise Congress cannot substitute its judgment as to what a President can withhold. The balance of those interests is performed by the third branch that is constitutionally invested with the authority to review and resolve such disputes.” Law professor and historian Jed Shugerman, who unlike Turley favored impeachment on the substantive charges in Article I, has agreed, suggesting that Trump should not be impeached for obstruction because impeachment should be a last resort and “[b]y definition, the House impeaching for unlitigated subpoenas is no last resort.”

The House sued to enforce its subpoena to McGahn, for example, and to enforce its subpoenas for the census documents and Trump’s tax returns. But it did not sue over any subpoenas related to impeachment. Instead, it made the executive branch’s role in encouraging refusals a separate ground for impeachment. The House impeachment report defends this decision at length, arguing that the House has the “sole power of impeachment” and thus should not have to rely on the courts—a process that often takes a long time—to obtain information in an impeachment inquiry.

Somewhat ironically, the long-standing, bipartisan position of the Justice Department has been that the courts do not have the authority to resolve such disputes. The Justice Department under Trump has continued to assert that position in the litigation over McGahn’s testimony and in the litigation over Trump’s tax returns, arguing both that the House committees lack the necessary standing to bring suit and that the courts have not been authorized to hear such disputes. Instead, the Justice Department has argued that the resolution of the dispute should be left to the two branches. One component of that argument has been that Congress has other constitutional authorities—including impeachment—by which to check the executive branch and force compliance with its subpoenas. Thus, the courts are not needed and should stay out of the inherently political dispute, in the Justice Department’s view.

The responses to the obstruction charge arguing that the House should have asked the courts to weigh in, rather than impeach Trump, directly contradict that long-standing—and current—position of the Justice Department. But the courts themselves have also repeatedly rejected the Justice Department’s position about the justiciability of such suits. In every dispute that has been litigated in recent years, as well as older cases, the courts have held that they have jurisdiction to rule on the interbranch dispute, and that exercising such jurisdiction is an appropriate function for the judiciary if the other two branches have attempted to resolve their differences but have reached an impasse. The procedural defense of the obstruction charge thus has significant support from judicial precedent, even if it contradicts the current position as expressed by the executive branch.

Turley was mistaken in claiming, however, that the House would be impeaching Trump “for seeking, as other presidents have done, judicial review over the demand for testimony and documents.” Trump has not sought judicial review. Nor have any of the witnesses mentioned in the impeachment resolution. Kupperman did ask the courts to decide the question of his immunity, and Mulvaney sought to intervene in that suit. But Mulvaney’s intervention was rejected, and then the House withdrew the subpoena to Kupperman, rendering that case moot. The reason there has been no judicial review is that no party has asked the courts to resolve the disputes, despite the continuing exchange between the two branches about the Constitution and the legal requirements of the executive branch in responding to congressional subpoenas.

The real argument, which I think raises difficult questions about the nature of impeachment, is that impeachment on the basis of the executive branch’s refusals to comply with congressional subpoenas is inappropriate because the executive branch’s actions—to some degree—reflect long-standing, unresolved constitutional disputes between the two branches. The instructions to executive branch officials not to comply are not Trump acting on his own, but have been supported by formal OLC opinions and followed by numerous officials who have their own private counsel advising them about their legal responsibilities. And, as I described previously, there is some basis to claim that each of the respective arguments the administration has adopted in refusing to comply with the House’s information requests has some historical foundation or precedent. What I think Turley and others are really saying is that it would be inappropriate to impeach a president on the basis of legal opinions shared by his entire administration and that have some basis in past executive branch precedent until the judiciary has declared those legal opinions incorrect.

The House’s best response, I think, is that the wholesale obstruction of an impeachment inquiry rises above traditional oversight disputes and Congress can, and should, exercise its constitutional checks on the executive branch—including impeachment—to counter such extreme assertions of authority. That mirrors the point the Department of Justice made in support of its argument that the courts should not opine on McGahn’s immunity: that Congress has other constitutional means to ensure the executive branch provides necessary information, including impeachment. The administration’s current positions reflect significant expansions of past precedents, and, in combination, they have resulted in an extreme view of the executive branch’s authority vis-a-vis Congress. Moreover, the wholesale application of these doctrines to an impeachment inquiry, coupled with the additional, expansive arguments in White House counsel Pat Cipollone’s Oct. 8 letter and elsewhere, is unprecedented—and, in my view, demonstrably at odds with the historical understanding of Congress’s impeachment authority and executive privilege.

But the Supreme Court has been silent on these issues. Perhaps the most famous line written by the Supreme Court is John Marshall’s statement that it is “emphatically the province and the duty of the judicial department to say what the law is”—and without any guidance from the courts, the executive branch has developed more and more aggressive formulations of its authority. As Archibald Cox, the special prosecutor in the Watergate investigation who was fired during the Saturday Night Massacre, predicted, “[i]f the Executive Branch were left to itself, the practice [of executive privilege] would surely grow.” But as Turley, Shugerman and others have identified, the judiciary has not provided a definitive statement that the growth is unconstitutional. Without such a statement, the question becomes whether the executive branch’s reliance on and expansion of those constitutional doctrines can be so unlawful as to constitute a “high crime or misdemeanor” on the part of the president.

The procedural argument that the House should have tried to enforce its subpoenas is thus, in reality, a substantive one about the nature of impeachment. If a president is to be impeached for obstruction of Congress, the argument goes, the actions must be so clearly unconstitutional as to constitute the kind of abuse of power the Framers thought would warrant removal from office. And if there is no applicable judicial precedent on the issue, it becomes difficult to argue that particular actions rise to that standard. As Shugerman wrote on Twitter, “once the Dems decided not to challenge Trump’s bad arguments for not cooperating, they also abandoned the ‘high crime’ aspect of presidential abuse of power. It’s bad to refuse a lawful subpoena, but the appropriate remedy is to go to court to argue its lawfulness.”

By insisting it need not seek resolution of these constitutional disputes in court, the House could also lend support to the Justice Department’s position that courts should stay out of these disputes because Congress always has other options, such as impeachment. In these interbranch constitutional disputes, in which little judicial precedent guides or constrains the executive branch and Congress, historical precedent is of paramount importance. Accordingly, in making the argument that the executive branch’s refusal to comply with congressional subpoenas constitutes an impeachable offense, the House should be wary of establishing a precedent that could provide support for making impeachment a more common tactic in the ongoing constitutional conflict over information between Congress and the executive branch.

By declining to vigorously pursue litigation over its impeachment subpoenas, the House may also have missed a rare opportunity to establish favorable precedent for Congress going forward. Courts, particularly appellate courts, have typically been hesitant to weigh in on privilege disputes between Congress and the executive branch. And, as the House report notes, that litigation has often taken a long time. But impeachment both puts Congress at the height of its investigatory power and provides a rationale for expedited review. In the dispute over the testimonial immunity of Harriet Miers, former White House counsel to George W. Bush, for example, the D.C. Circuit declined to set an expedited schedule to resolve the appeal because an election was close, noting that, as a result, it would have “the additional benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit.” If the House had developed a record to support the necessity of particular testimony or documents to its impeachment charges and pushed for expedited resolution, the courts would not have been able to take such an approach. And the House would have been ideally situated to assert Congress’s institutional interests in enforcing its subpoenas given the undeniable need for factual information to pursue impeachment. As a result, it seems likely the litigation would have progressed much more like United States v. Nixon, which was fully resolved by the Supreme Court in a matter of months, than the much lengthier litigation arising out of traditional oversight disputes that the House cites in the impeachment report. Thus, even if one does not buy the argument that the House needed to go to the courts before impeaching Trump for obstruction, it may have missed a golden opportunity to establish formidable precedent about its investigative authority by not doing so.

In my view, the House also did not take some relatively straightforward actions that might have undercut some of the executive branch’s constitutional arguments, made its obstruction case stronger, and made any potential litigation more straightforward and consequential. With respect to each constitutional argument, the House had a mechanism for responding to it and forcing the executive branch either to engage in the balancing requirement applicable to executive privilege or to seek expedited judicial review. But the House did not do so—insisting, rightly, that it had no obligation to engage with constitutional arguments it believed to be erroneous. Even if it did not have an obligation, however, taking these actions—most of which would have required very little effort or time—would certainly have strengthened its case for obstruction. And it may have even resulted in additional testimony or information.

Deposition-Counsel Requirement

In the initial stages of the impeachment inquiry, the House committees subpoenaed a number of witnesses for depositions. Some, such as former National Security Council (NSC) official Fiona Hill and current NSC official Alexander Vindman, complied with the subpoena despite the White House’s direction not to cooperate in the impeachment inquiry. Others, as noted, refused to comply based either on immunity or on the deposition-counsel requirement. The Intelligence Committee then held public hearings at which many of the deposed witnesses, such as Hill and Vindman, testified again. But the committee did not subpoena any of the witnesses who had refused to comply with the deposition subpoena to appear at the public hearing.

If the House had issued a subpoena to those individuals for public testimony, rather than a deposition, their constitutional defense would have been eliminated. Presumably, agency counsel would have been allowed to attend a public hearing, as is the typical practice. Individuals such as Michael Ellis, a senior associate White House counsel who worked with NSC Adviser John Eisenberg; Preston Wells Griffith, a special assistant to the president; and Michael Duffey, an Office of Management and Budget official, would likely have had to appear and assert privilege at those public hearings. I am not aware of any existing constitutional doctrine that would have allowed them to decline to appear at all. It is possible, of course, that the White House would have renewed its argument that the impeachment as a whole was invalid and directed them not to appear on that basis. But the only public Office of Legal Counsel (OLC) analysis justifying the blanket refusal to cooperate expressed in Cipollone’s letter would have been eliminated at that time because the House had formally authorized the inquiry.

The House could have also offered to allow agency counsel to attend a deposition or a voluntary interview to see what the officials’ response would have been. Either course would have eliminated the prophylactic defense on which the White House relied. And it would have forced the witnesses either to confront—and address publicly—whether they could assert a qualified executive privilege to block specific parts of the testimony, or to adopt a more extreme position that lacked any support in previous executive branch legal rationales. An obstruction charge would seem easier to sustain—and easier to differentiate from past oversight disputes—if the executive branch were forced to rely on such a position, particularly if it was expressed by the White House alone and not publicly supported by the Justice Department.

The House undoubtedly does not believe it needs to take such actions. And it’s probably correct on that point as a matter of constitutional law. But if the primary goal is to (a) get the relevant information or (b) establish an ironclad case of obstruction, it is not clear why the House would not at least attempt them to eliminate any pretense of a constitutional defense on behalf of the executive branch.

Document Subpoenas

The House could have taken similar actions to undercut the White House’s response to the document subpoenas. Given the argument in the Nov. 1 letter opinion, the House could have—even if it did not think it was necessary—reissued the document subpoenas pursuant to express authority to pursue an impeachment inquiry. The White House might have still raised due process objections, of course, but it is hard to see how those objections would justify refusing to engage in the accommodation process at all with respect to the documents. Doing so would likely have led the White House and the executive branch to claim that the documents were protected by various components of executive privilege. But, again, it would have forced the executive branch to justify asserting the qualified executive privilege in an impeachment inquiry—a tall order in light of Nixon.

The House also did not hold in contempt any of the recalcitrant witnesses or executive branch officials who defied document subpoenas. Congressional expert Michael Stern has argued that the actions that form the basis for the obstruction charge constitute a crime: contempt of Congress under 2 U.S.C. § 192. As Stern notes, however, the plain language of Section 192 does not apply since Trump himself did not refuse to appear or produce documents in response to a subpoena directed to him. Moreover, Section 192 enforces the contempt power of each house and requires, in the procedures set out in 2 U.S.C. § 194, that the contempt be certified by the president of the Senate or speaker of the House before it can be prosecuted. That fits with the ultimate source of authority for Section 192, the legislative bodies’ inherent contempt power. A recalcitrant witness would not be immediately imprisoned for failure to comply with a congressional subpoena; contempt would apply only after the legislative body as a whole had determined that contempt was warranted, a decision over which it has sole prerogative. If the legislative body has not made that determination, there has been no finding of contempt that could warrant criminal prosecution under Section 192 or imprisonment pursuant to inherent contempt authority. House Intelligence Committee Chairman Adam Schiff did lay the groundwork for such a finding by conducting the depositions even when the witnesses did not show up and noting for the record that the “committees may consider [the witness’s] noncompliance with the subpoena as evidence in a future contempt proceeding.” But the committee has not done so yet.

When a congressional committee schedules a contempt vote, it typically sparks action by the executive branch. An individual official subject to contempt needs a defense; for that reason, Trump made protective assertions of executive privilege shortly before House committees voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for failing to provide documents related to the Mueller investigation and the census, respectively. Scheduling a vote to hold the relevant officials in contempt—Secretary of State Mike Pompeo, Vice President Mike Pence, Vought and Cippolone—would have likely required OLC to explain in detail why the president had the constitutional authority to direct them to ignore the relevant subpoenas entirely. It could not have relied on the traditional defense to contempt of executive privilege, because the executive branch had flatly refused to provide any documents and had never asserted privilege or engaged in the accommodation process.

And, if the House had also reissued the subpoenas before pursuing contempt, the administration could not have relied on the argument that the document subpoenas were invalid because they were not authorized by the full House. In either case, the executive branch would be asserting a novel, untested defense to contempt—one that each individual official and his private counsel would have to sign on to as valid. The more tenuous the legal arguments made by the executive become, the less certain it is that the individual will refuse to testify. Scheduling contempt votes may not have changed anything, ultimately, but it would have at least made those individual officials consider their legal responsibilities at the risk of personal liability rather than allowing them to simply take cover in Cipollone’s letter—particularly if that letter’s primary objection about the validity of the subpoenas had been addressed and eliminated.

Immunity

The House did not really have a mechanism for eliminating the immunity defense entirely in the same manner as the other two defenses. But it did have, at one point, at least three witnesses—Kupperman, Bolton and Mulvaney—who appeared uncertain about the application of the immunity doctrine to impeachment and their legal responsibilities and who were willing to go to court to resolve it. Resolving the issue might have taken some time, of course, but the House’s recitation in its report of the lengthy amount of time that past litigation took is misleading. Many of the delays in those past cases were agreed to or were a result of the House’s own actions, and none of those cases involved as a third party a key witness pushing for resolution in an ongoing impeachment investigation. In the current circumstances, it is difficult to believe the courts would not have expedited the case as fast as possible, and the Supreme Court might even have been willing to bypass the court of appeals and step in early, as it did in Nixon, if it had become clear that the dispute was essential to the ongoing impeachment inquiry.

Instead of pursuing that option, however, the House withdrew its subpoena to Kupperman after he filed suit, mooting the case, and did not even issue a subpoena to Bolton after it became clear he would not appear voluntarily. Had the House aggressively pushed for the testimony of these individuals—and had Kupperman and Bolton continued to push for rapid resolution of their legal responsibilities—it seems very possible that there would be a district court ruling on the issue already, particularly if the court simply followed the analysis in the lengthy McGahn opinion addressing the same issue. There might even be a case currently pending at the D.C. Circuit or even the Supreme Court.

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Just as there is no requirement that the House ask for judicial resolution of the disputes over documents and testimony, of course, there is no requirement that the House pursue these other procedural options before moving forward with impeachment. That is particularly true about the substantive allegations outlined in Article I of the impeachment articles, concerning abuse of power. The House decided that it had sufficient evidence from the available documents and the witnesses who did comply with the requests for testimony to move ahead on the abuse of power charge without waiting for courts to resolve whether additional evidence should be forthcoming. But I do think these actions make the question of whether the obstruction charge describes an impeachable offense more difficult: The House did not eliminate, as it could have relatively easily in some instances, the primary arguments of the executive branch that have some precedential support.

The House’s failure to pursue some of the evidence aggressively—including by subpoenaing the recalcitrant deposition witnesses for public testimony, by reissuing document subpoenas after the full House authorized the impeachment inquiry, or by subpoenaing Bolton to appear and forcefully pursuing his and other officials’ testimony—in some ways undercuts the obstruction charges. At the very least, it has allowed the executive branch to continue to claim a basis in historical precedent, at least for each of its actions taken in isolation, despite the fact that its actions went far beyond any such precedent, particularly in reflexively applying those historical positions to impeachment.

Taken as a whole, the executive branch’s actions amount to a near-total stonewalling, or at least attempted stonewalling, of the House’s impeachment inquiry. Neither the White House nor OLC has had to explain, however, why the House’s interest in establishing the facts relevant to its impeachment inquiry does not outweigh the qualified executive privilege. That would be a difficult explanation to provide, given the Supreme Court’s decision in United States v. Nixon that the grand jury’s need for the Watergate tapes outweighed Nixon’s interest in keeping his personal conversations with his advisers confidential. As OLC has admitted, in an impeachment inquiry, the House essentially performs the functions of a grand jury; it would thus likely have the same need for information as the grand jury during Watergate. That need would almost certainly outweigh the general interests in confidentiality that would underlie any potential executive privilege claim.

In adopting the approach it chose, however, the House largely allowed the executive branch to avoid that troubling question. Instead, the House gave the White House and individual executive branch officials the ability to take cover in absolute, prophylactic doctrines that do not require any consideration of Congress’s interests. Although the House could not have forced the president to assert executive privilege, it could have taken actions to make a privilege assertion one of the few options, if not the only option, for continuing to withhold information. And executive privilege, even in the executive branch’s view, requires the consideration of congressional interests. But the president never had to assert executive privilege. Nor did the executive branch have to acknowledge and reckon with Congress’s paramount interest in information during an impeachment inquiry.