//  7/26/19  //  Commentary

Drawing on constitutional text and structure, as well as the modern history of impeachment practice, my latest op-ed in the Washington Post explains that that the House has, in fact, formally begun an impeachment investigation:

Has the House of Representatives opened an impeachment inquiry? That question is starkly presented by a petition that the House Judiciary Committee filed in federal court on Friday. It is also answered by that petition. No matter what certain House Democratic leaders might say about the politics of the matter, there can now be no doubt that the committee is engaged an investigation of whether to impeach President Trump.

Through its petition, the committee seeks access to portions of the report by former special counsel Robert S. Mueller III that were redacted to protect grand jury secrecy. The committee also seeks grand jury testimony bearing on Trump’s knowledge of criminal acts, Russian interference in the 2016 presidential election and Russian connections to his campaign. Finally, the committee seeks grand jury testimony about actions taken by former White House counsel Donald McGahn; this last request probably anticipates the committee’s rumored plans to seek an order compelling McGahn to testify.

It is settled law that House committees can obtain grand jury materials as part of impeachment investigations. So the legal dispute will probably center on whether such an inquiry is underway.

The Constitution itself does not use phrases like “impeachment investigation” or “impeachment proceedings.” This has led some to mistakenly assume that the House is disregarding its impeachment power because it has not yet held a floor vote approving articles of impeachment (or expressly instructing the Judiciary Committee to deliberate on such articles).

But to those who specialize in these matters, that all-or-nothing vision of the impeachment power is mistaken. The Constitution’s text and structure — supported by judicial precedent and prior practice — show that impeachment is a process, not a single vote. And that process virtually always begins with an impeachment investigation in the judiciary committee, which is already occurring ...

Read the full analysis here.


Whistleblower Scandal Contains Reminder of Last Scandal: Time for a New One?

9/27/19  //  Commentary

Although Trump isn't deliberately using each new scandal to distract from the last one, the phenomenon is nonetheless maddening. It's like a game of Bizarro World Whack-a-mole in which each time you whack a mole another hammer emerges that somehow enables the same mole to escape.

Michael C. Dorf

Cornell Law School

Versus Trump: Can You Hear The Whistle Blowing?

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

Civil Rights Corps

A Memorandum of Misunderstanding

7/22/19  //  Commentary

Mueller didn't indict Trump because DOJ policy prohibited him from doing so. That same policy points to the need for impeachment.