Is the “impeachment inquiry” constitutionally legal? Surprisingly, yes


It’s an interesting question that’s generated a lot of debate lately. Is there really any such thing as a formal “impeachment inquiry” and can it be initiated by way of the Speaker of the House holding a press conference? Keith E. Whittington at Lawfare digs into the matter and comes up with a surprisingly simple answer. As it turns out, the Constitution says almost nothing about it and without any firm guidelines, the House can do pretty much whatever it wants when it comes to impeachment.

Is it constitutionally acceptable for the House speaker to initiate an impeachment “by means of nothing more than a press conference”? In short, yes.

The constitutional text on this issue is spare. The Constitution simply says that the House has the sole power of impeachment. Ultimately, if the House wants to impeach someone, it needs to muster a simple majority in support of articles of impeachment that can be presented to the Senate. How the House gets there is entirely up to the chamber itself to determine. There is no constitutional requirement that the House take two successful votes on impeachment, one to authorize some kind of inquiry and one to ratify whatever emerges from that inquiry. An impeachment inquiry is not “invalid” because there has been no vote to formally launch it, and any eventual impeachment would not be “invalid” because the process that led to it did not feature a floor vote authorizing a specific inquiry.

So the bottom line appears to be that there’s really no formal definition of anything called an “impeachment inquiry” in the Constitution or anywhere in federal law. But the House, having the “sole power of impeachment” regularly holds hearings and inquiries on all manner of subjects, so impeachment could be something they inquire into. In other words, there’s no such thing as an impeachment inquiry unless the House majority decides there is.

That’s not a terribly satisfactory answer, but it’s about as close as we’re going to get. Of course, that doesn’t answer the underlying question as to whether or not there are grounds for an actual impeachment vote, but again, there are no rules to this game. Impeachment is a unique feature in our Constitution and it exists outside of normal judicial proceedings. Congress makes up the rules as they go until it comes to an actual vote.

Just as the old saying informs us that “you can indict a ham sandwich” if you want to, the House can attempt to impeach a president, a Supreme Court justice or any other eligible official for any reason they like. There doesn’t even have to have been evidence of a law being broken, what with the whole High Crimes and Misdemeanors thing. And it’s looking more and more like the Democrats have painted themselves into a corner and will have to move forward with a vote to impeach Donald Trump for the High Crime of taking part in a phone call with another world leader.

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On a related note, the most recent poll from Scott Rasmussen finds that 51% of Democrats now believe that it’s either somewhat likely or very likely that Donald Trump will be removed from office. 27% of independents and 20% of Republicans agree.

Before anyone, including the President, loses too much sleep over this, we should keep one thing in mind. None of this Ukraine insanity appears to have shifted the playing field significantly in terms of Trump’s GOP support in the Senate. They might get a couple of Senators, maybe Collins and Romney for example, to vote against Trump, but that still leaves them miles short of 67 votes. I’m guessing the Democrats want to stretch out this “inquiry” as long as possible to keep the media talking about it nonstop and embed the image into the minds of the public. And so far the cable news networks have been more than happy to comply.

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