What’s in the Judiciary Committee Resolution on Impeachment Procedures

On Sept. 9, the House Judiciary Committee released a draft copy of a “Resolution for Investigative Procedures Offered by Chairman Jerrold Nadler,” which outlines procedures that will apply to “the presentation of information in connection with the Committee’s investigation to determine whether to recommend articles of impeachment with respect to President Donald J. Trump.” The committee plans to vote on the resolution on Thursday.

What is in the resolution, and what does it mean?

The text of the five-page resolution is fairly simple. After several pages of “Whereas” clauses—explanatory paragraphs meant to provide background and context for the operative parts of a resolution—the resolution articulates four points that can be summarized as follows:

1. The chairman can designate full committee or subcommittee hearings as being for the purpose of obtaining information in connection with the committee’s impeachment investigation.
2. Committee staff designated by the chairman and ranking member can ask questions of witnesses for a total of one hour, equally divided across the parties (in addition to the normal questions from members).
3. Information obtained through letter requests, subpoenas, depositions, transcribed interviews or interrogatories will be treated as “executive session” material (meaning the information will not be public and cannot be released by members or staff without the consent of the committee).
4. The president’s counsel may respond in writing to information presented in open session, and the chairman, after consultation with the ranking member, may invite the president’s counsel to review and respond in writing to executive session materials.

In February, we wrote about what powers a formal impeachment inquiry has generally provided to House investigators. Historically, the initiation of impeachment proceedings has had implications for the way the Judiciary Committee obtains relevant material by granting the committee more and broader authorities to collect information. But broader changes in congressional rules and procedures in recent years mean that today’s Judiciary Committee may not need the same kind of special powers it was granted as part of previous impeachment inquiries. For example, both the subpoena power and the power to take depositions, which past Judiciary Committees were granted specially to conduct impeachment investigations, are now a regular part of the committee’s powers—which is why this resolution does not address those issues and, perhaps, why the committee did not feel compelled to lay out procedures for its investigation until now.

But there are some additional powers that the committee has not gained in the interim as part of its regular business, and these powers are the subject of the current resolution. The four issues addressed in the resolution were all addressed in similar committee documents laying out impeachment-related procedures in connection with the impeachments of Richard Nixon in 1974 and Bill Clinton in 1998. There are some differences, but the general thrust is the same.

Regarding the first point, the Nixon and Clinton authorizing resolutions referenced that impeachment-related work could be done “by any subcommittee thereof appointed by the chairman for the purposes hereof.” On the second point, the authorization for committee staff to question witnesses is an exercise of Rule XI, clause 2(j)(2)(C) of the House rules, which states that committees may so authorize staff. An earlier, less formal version of this provision was included in the Clinton impeachment proceedings resolution as well.

Third, the confidential treatment of information received in connection with the impeachment investigation is similar to the Clinton and Nixon proceedings. The details on the treatment of grand jury material (which were articulated in an earlier document issued by the committee and submitted to the U.S. District Court for the District of Columbia as part of its petition to obtain grand jury material underlying Robert Mueller’s report) are more restrictive, but the context for dealing with that material also differs from earlier episodes. On the final point, the draft resolution grants somewhat more limited powers to the president than did previous resolutions. In both the Nixon and Clinton proceedings, the president and his counsel were invited to attend all hearings, including any held in executive session, and the president’s counsel could raise objections relating to examination of witnesses and question the witnesses himself. Not so in the current draft resolution.

The major difference between this resolution and prior procedural documents in connection with the last two impeachment proceedings is that this resolution is not connected to a vote by the full House directing the committee to begin a formal impeachment inquiry of the president.

In the case of the Nixon impeachment proceedings, the full House voted on H.Res. 803 on Feb. 6, 1974. That resolution specifically authorized the Judiciary Committee to investigate fully and completely whether sufficient grounds existed for the House to impeach. It also specified ways the committee could receive information for the investigation, and specified that funds made available to the committee could be expended for the purpose of carrying out the investigation. On Feb. 22, 1974, the committee unanimously adopted a set of procedures for handling material gathered in the course of the impeachment inquiry. Three months later, on May 2, 1974, the committee unanimously adopted a set of procedures applicable to the presentation of evidence in its impeachment inquiry.

In the case of the Clinton impeachment proceedings, the Judiciary Committee adopted procedures for the impeachment inquiry by voice vote (with one recorded “no” vote) on Oct. 5, 1998. The same day, the Judiciary Committee reported a resolution authorizing and directing the Judiciary Committee to investigate fully and completely whether sufficient grounds existed for the House to exercise its constitutional power to impeach Clinton, with a vote of 21-16. The full House voted on that resolution, H.Res. 581, on October 8, 1998.

The committee’s current draft resolution concerning Trump is neither directly pursuant to, nor in anticipation of, a vote by the full House authorizing an impeachment inquiry. On one hand, this is unremarkable; the procedures outlined in the resolution pertain to committee activity and operations. Like their predecessor rules from the Nixon and Clinton impeachment episodes, these procedures are the business of the committee. But the lack of a vote by the full House to initiate impeachment proceedings does deviate from the practice of the last two presidential impeachments.

Instead, the resolution references statements and letters by the chairman as well as a House resolution that does not mention the word “impeachment.” Specifically, one of the “whereas” clauses references H.Res. 430, which passed the full House on June 11 with a 229-191 party-line vote. That resolution, among other things, authorized the Judiciary Committee to “initiate or intervene in any judicial proceeding before a federal court” to (1) enforce subpoenas issued to Attorney General William Barr and former White House Counsel Don McGahn; and (2) petition the court for disclosure of grand jury material related to the Mueller report (a topic one of us wrote about with Mikhaila Fogel shortly before the Mueller report was released). The resolution also stated that the chair of any committee exercising authority to sue in federal court, when such action is authorized by the Bipartisan Legal Advisory Group, enjoys any and all authority needed under Article I of the Constitution.

Another clause in this week’s resolution references the committee’s May 8 party-line vote recommending that the House hold Attorney General Barr in contempt of Congress for refusing to comply with a congressional subpoena and quotes the relevant report, which says that the subpoena was issued in connection with the committee’s investigation to determine “whether to approve articles of impeachment with respect to the president or any other Administration official.” The resolution also notes other actions by the Judiciary Committee, including discovery requests issued by the committee on March 4; Mueller’s report and subsequent testimony on July 24; a statement by Nadler in a July 12 hearing that the committee was considering whether to recommend articles of impeachment; the committee’s July 26 application seeking from the U.S. District Court for the District of Columbia certain grand jury materials related to the Mueller report and referencing impeachment; and Nadler’s July 26 issuance of procedures to members of the committee governing access to grand jury information.

In addition, it references Nadler’s Aug. 22 letter to certain other committee chairs to share information about their oversight investigations and noting “the Judiciary Committee’s authority and intent to conduct an investigation to determine whether to recommend articles of impeachment.” This reference is meant to signal that the scope of the impeachment investigation will reach things that were being handled by other committees, but it does not specify exactly which matters will be included.

In a sense, the resolution does not break much new ground. After all, early in August Nadler declared forcefully that his committee’s current program “is formal impeachment proceedings” and that “[w]e’ve made it clear that the committee is holding an investigation . . . . [W]e are considering what to do about it, including the possible voting of articles of impeachment.” But the news did not really make headlines.

It remains to be seen whether the lack of a full vote by the House authorizing and directing the Judiciary Committee to conduct an impeachment inquiry will cause problems for the committee down the road. The precise way in which the House proceeds to impeachment is not dictated by the Constitution. As our colleague David Priess wrote, the House of Representatives voted on Feb. 24, 1868, to impeach President Johnson without an investigation and without even debating specific articles of impeachment. It was only after the impeachment vote that a committee was appointed to draft a set of precise articles and return them to the full House.

On the legal side, courts generally defer to Congress on how it organizes itself and its work. In July, however, one of the judges on the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that heard oral argument in Trump v. Committee on Oversight and Reform—a case involving access to certain Trump Organization financial records—asked pointed questions about the genesis of the House’s investigation that prompted the subpoena in that case. Judge Neomi Rao asked specifically whether there is any precedent for investigating the president, or issuing a subpoena that implicates the president, without a full vote of the House. The court has yet to rule in that case.

On the political side, there is pushback from at least some Republicans about the Democrats’ decision to proceed without a full House vote. In August, Judiciary Committee ranking member Doug Collins published an op-ed criticizing the chairman’s approach, declaring that “House precedent requires the full House approve a resolution authorizing the Judiciary Committee to begin an impeachment inquiry” because otherwise “any Judiciary chairman could charge into an impeachment inquiry with only limited, partisan support.” In what may be a preview of Thursday’s business meeting, Collins expressed his view that “referring presidential articles of impeachment to the House without first being authorized to embark on a formal inquiry is unprecedented and would be one of the most irresponsible acts of the House Judiciary Committee’s 206-year history.”

This resolution adds formality to the investigation, puts in place additional powers for the committee to pursue that investigation and clarifies how information obtained will be treated. But it is not clear that the resolution marks a real inflection point on the question of impeachment. The planned Thursday markup of the resolution may offer more insight.