From the readings and the podcast, what would you identify as the major constitutional questions raised by congressional investigations of the executive branch? What are the Trump administration’s strongest and weakest arguments opposing these investigations?
Week 9: Investigations and Impeachments
Constitutional Law (Powers): Spring 2020 
The congressional investigations into the executive branch possesses some constitutional questions, chiefly the extent of congressional oversight. As Miele mentions in his article that congressional oversight is never explicitly mentioned in the constitution. Rather Congress obtained this implied power over time as an extension of the necessary and proper clause. Congress’s power to issue a subpoena and obtain the financial records of any private citizen without showing a cause was legalized with legislation, that enabled the Ways and Means Committee. However, this power may be considered unconstitutional as it infringes upon the 4th amendment, which protects people from unreasonable searches and seizures. Those in favor of investigating the president claim that Congress has a right to conduct broad investigations due to court decisions like Townsend v. US. These people also claim that congressional oversight is needed so that Congress can meaningfully carry out its impeachment duties. Trump’s weakest argument against the subpoenas is that unless Congress has officially issued an impeachment inquiry then they don’t have the right to issue a subpoena under their oversight powers. This argument is made by Andy Grewal and in doing so he provides Congress a path to subvert his objection. Congress can subpoena Trump’s assets if they were writing a bill to force the president to liquidate his assets from industries that he is regulating as a way to prevent profiteering. Trump’s strongest argument has to be his use of executive privilege to refuse to comply with the subpoena. Especially when referring to the Ukrainian case, the executive branch can claim that the issue is a matter of national security. As such complete confidentiality is needed and the president and his subordinates can refuse to comply with the subpoenas.
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Excellent, Pablo – thanks
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To quote directly from the articles of impeachment against President Trump:
“Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election… [President Trump solicited] the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent [Joe Biden], and influence the 2020 United States Presidential election to his advantage.”
In brief, the proponents of Trump’s impeachment argued that, as per a July 25, 2019 phone call, the President attempted to withhold military aid from Ukraine to coerce the Ukrainian president Volodymyr Zelensky into providing Trump with disparaging information about Joe Biden, the probable 2020 Democratic nominee. The proponents tied this alleged action to violating Section 4, Article II of the U.S. Constitution, which states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The “high crimes and misdemeanors” was interpreted as applying to Trump’s decision to withhold military aid from Ukraine in exchange for advancing his own private agenda for reelection.
In my opinion, which I am confident is well-informed, Trump’s legal defense should not have based his innocence on denying whether or not he did or did not withhold military aid from Ukraine. I believe that a more practical, less suppressing defense would have been something along the lines of that, according to the Article II of the Constitution, the president has full discretion in enacting foreign policy. As such, the argument could have been that Trump was constitutionally permitted in withholding military aid in exchange for Ukraine’s investigation into corruption. From there, Trump’s defense team could have asserted, in no uncertain terms, “You may not like how the President engages in foreign policy; however, his methods are constitutionally protected.” Moreover, an abuse of power claim seems unjustified given that the ability to engage in foreign policy is vested under the executive branch, and such a claim would appear to be ex-post facto in the sense that the limits of such powers were decided on after the alleged phone call on July 25.
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Good stuff, Eric – although this is more the stuff for Wednesday (we’re splitting up investigations and impeachment – you’ll soon see why)
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Besides enumerating each branch with specific powers, the Constitution doesn’t explain when and how one branch can encroach on another independence. Congress’s ability to investigate the President is not specifically mentioned anywhere in the Constitution. Proponents of Congressional oversight mention the “necessary and proper clause” as well as the Supreme Court case Townsend v. United States. The problem with these pieces of evidence is the reference to Congress’s constitutional powers which are literally listed in Article 1. If Congress wanted to launch a kosher investigation they would have to explain how the alleged actions of the investigated party prevented the effectiveness of Congress’s enumerated powers. The Trump administration’s strongest argument is that Congress is investigating without using its impeachment power. Doing it this way gives Congress a clear reason and end for the investigations. Trump’s weakest argument is that these investigations don’t serve any legislative interest. Specifically, The House Committee on Oversight and Reforms made it clear that their investigation was needed in order to change ethical standards. So in this case, they are investigating with the purpose of properly crafting legislation.
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The major constitutional questions raised by congressional investigations of the executive branch is whether Congress was granted the oversight power which is not found in the Constitution. Under the Constitution, the president has a certain level of independence as well as Congress. However, with the subpoenas that Congress issued towards Trump raises questions on what oversight means. Nowhere does the Constitution define or explain what is the oversight power over the executive branch so it cannot be “necessary and proper” as Miele writes. The investigation into Trump’s tax return and private life also raises questions about the right to privacy in the Fourth Amendment and the House Ways and Means Committee does not provide probable cause on why they are trying to confiscate Trump’s tax return. Additionally, Professor Paul Light writes regarding this issue on whether the investigation would solve issues or create headlines as he questions the level of impact that House investigations create. According to statistics, there is minimum impact as he states from the 31 major investigations he reviewed, “34 percent had no significant impact at all, another 31 percent were only somewhat significant, 22 percent were moderately significant, and just 13 percent were very significant.”
The strongest argument that the administration has regarding these investigations is the violation of the Fourth Amendment because this infringes on the privacy of citizens and if Congress proceeds with this, would the right of privacy be bent depending on what type of material Congress seeks to obtain? Additionally, the argument about whether Congress is extending the limits of its own legislative power without conducting a proper impeachment process to obtain materials from Trump is another strong argument because one would wonder what is the scope and limit of Congress to investigate into one’s financial record. Whereas the weakest argument for Trump is the fact that he and his team argued that Trump does not have to comply with the investigation because the congressional committee has not followed proper protocols, however this is not substantially to the legislative power of Congress under Article 1 who has the duty to inquire into agencies and employees that they authorized and funds as Congress has a moral obligation to uphold the Constitution. In addition, the argument regarding how there does not seem to be a legitimate reason into the investigation is flawed because it is widely known that Trump has associated with the Russain government during the 2016 election and the phone call with Ukraine to provide conspiracy theories which are among the many others that constitutes an obstruction of justice. These are strong and valid arguments in support for congressional investigation.
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Lots of good points here, Annie – thank you. I’ll raise some in class
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A constitutional question raised by congressional investigations of the executive branch is does congress have the power to oversight the president under the constitution? Since both branches are distinct in their functions along with the judicial branch. Under the constitution, a system of checks and balances were written to prevent one branch from controlling too much power and rather maintain a balance of powers. Although the presidency is autonomous because of its executive privilege, so is congress, and the judicial branch which have an “implied power” to check one another to assure the laws are being executed rightfully as the president asserted under oath. Congress can exercise its oversight powers which include investigations, impeachment, confirmation of nominees, appropriations, and authorization and budget process, to name a few.
In the late 1700s British House of commons conducted investigations and it was assumed that the framers intended to grant this responsibility to Congress. Originalist would argue with this, stating that the judicial branch theorized on this implied power and that it is not constitutional.
The arguments opposing the investigation by Trump administration is that he did not commit high crimes or misdemeanors. High crimes and misdemeanors includes misconduct of officials that have committed bribery, treason and other high crimes and misdemeanors under the constitution. In Article 3, section 3, Claus 1 mentions treason against the US which consist of giving them aid. This is in fact what Trump was accused of giving aid to Ukraine in a quid pro quo agreement to help in the 2020 reelection by damaging his democratic opponent. The charges against trump is that he abused his presidential powers for a political gain by withholding 390million in military aid that was already granted by congress to Ukraine. Trump claims aid was eventually granted to Ukraine, that the President of Ukraine did not feel any pressure. Under the constitution congress is allowed to subpoena officials for documents or testimonies and many of Trump’s disregarded the courts order of a subpoena. Trumps weakest arguments are that this is just a hoax, a witch hunt against him and he can’t possibly abuse power because he is the absolute authority of the country
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From the very beginning, I was concerned that there will be a lot of politics in class, and I do not usually like to share my personal views on politics, especially within the campus community. Politics are dirty, and we are here to study the law. Certainly, law emerges from sometimes “good” and sometimes “bad” politics, but it is more or less history which does not have to be, even though it, unfortunately, could be, as much opinionated as present actions of public officials. I am also a little bit confused about where we missed almost a century of history jumping to present procedures from the New Deal, but nevertheless, let me answer the question of the blog. [1]
From the readings and a podcast, I would most likely identify the problem in the checks and balances system. There is definitely a question of whether Congress has a power granted by a Constitution to ask the President of the United States to enclose his and his family’s personal data. Sadly, the hearings were scheduled for March 2020, and I would have to guess that they will be canceled due to the pandemic outbreak. I think the biggest question will be decided in Trump v Mazars of whether Congress has the power to subpoena for a personal financial record which will eventually apply not only to the current commander-in-chief but also to all his successors and any impeachable persons of the government of the United States.
The strongest argument of the current administration is that there is nothing in the Constitution that gives the Legislative branch to oversight the Executive. It is also against the 4th Amendment to get personal “stuff” without a person’s willing consent, or a warrant issued by proper authorities.
The weakest argument might be (I am not quite sure if that is the argument of Trump’s legal team) that previous presidents released such information to the public voluntarily, and if there is nothing to keep in secret, why would that even be a problem? A lot of ambiguity is present here. However, that is the beauty of Anglo – Saxxon legal system, one does not have to understand the law; one only has to apply the law.
[1]I did not mean to say anything wrong, just a little bit of confusion =)
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Thanks, Kate – good points here. If there’s one lesson I want you to take from this week on investigations and impeachments it’s that you can’t separate “law” and “politics” neatly. This week might reveal this more than anything else. Also: re the jump-in-time, if you take a look the course description in the syllabus, we’re now in “Part Two” – post mid-term – in which we’re discussing a variety of contemporary issues and debates. The course is (somewhat) split down the middle.
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Major questions are brought up, such as: does Congress have authority to investigate the executive branch as outlined by the Constitution and can they investigate and bring forth evidence from the president’s life as a private citizen? These are questions that require comprehensive, long, and free investigations because they may result in more consequential impacts.
The Trump administration can argue that by the Fourth Amendment, it guarantees the right against unreasonable searches and seizures. He was a private citizen at the time and they do not have probable cause. It is reasonable, however, that he is being investigated because it may be a problem of our state security and the like. It is important that investigations are issued because we have to protect against tyranny and too much power in one branch. Despite numerous challenges by the Trump administration arguing that Congress lacks the power to subpoena his documents, the Courts still agree that Congress has a legislative interest in requesting the subpoenas.
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More broadly speaking, I think of the major constitutional questions raised (not in relation to Trump) is in McGrain v. Daugherty as Vladeck mentioned – does Congress have the power of inquiry? The power to compel testimony from executive branch officers (rationally) seems wildly important, even when considering the current atmosphere. The question surrounding the ability of Congress to issue these subpoenas is broad, yet arguably the *major* constitutional question. The podcast goes into great detail, but for the sake of the blog, I’m referencing the reasoning Vladeck gave at the end of the podcast – what happens when a sitting president “can’t be criminally indicted/if he can’t be investigated except through the initiation of a formal impeachment proceeding?”
The weakest argument, if you can even call them that, is that these cases are harassment. Anyone, even more so the president, should be held accountable for any and all actions he takes while in office, before, and after. Skipping over this is the argument that the Congress doesn’t have oversight powers in the Constitution. I don’t see strength in what is essentially a loophole.
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Thanks, Daniela – this is a particularly clear outline of the big constitutional issues
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From the readings and the podcast, the major constitutional questions raised by congressional investigations of the executive branch would be over Trump’s financial records. They wanted to investigate whether or not Trump’s financial papers and tax return violated New York Law. Trump’s administration’s strongest arguments would be that Congress is in place to ensure the President is fulfilling his duty. Even though Congress has the right to declare war, collect taxes, however, they are violating his fourth amendment. The fourth amendment guarantees him to protect his papers, houses against unreasonable search. However, Trump represents the country. He’s part of the executive branch. The congress functions not only to regulate but to oversite the executive branch. The weakest argument would be that Congress has the broad power to investigate, but they can always rely on the impeachment power to ensure the executive branch is functioning properly. Congress has the power to legislate and the Executive branch is predominately part of it. It needs to ensure that none of the members within the executive branch including the president is over abusing its power for own personal gains.
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From the readings and the podcast, the major constitutional questions raised by congressional investigations of the executive branch would be over Trump’s financial records. They wanted to investigate whether or not Trump’s financial papers and tax return violated New York Law. Trump’s administration’s strongest arguments would be that Congress is in place to ensure the President is fulfilling his duty. Even though Congress has the right to declare war, collect taxes, however, they are violating his fourth amendment. The fourth amendment guarantees him to protect his papers, houses against unreasonable search. However, Trump represents the country. He’s part of the executive branch. The congress functions not only to regulate but to oversite the executive branch. The weakest argument would be that Congress has the broad power to investigate, but they can always rely on the impeachment power to ensure the executive branch is functioning properly. Congress has the power to legislate and the Executive branch is predominately part of it. It needs to ensure that none of the members within the executive branch including the president is over abusing its power for own personal gains.
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One major constitutional question raised by the congressional investigations of the executive branch would be about the implied powers of the presidency and if there was abuse of power and obstruction of congress. Through of our governmental system we have checks and balances, meaning that the presidency and congress each have certain powers but cannot over power each other. Trumps administration weakest arguments opposing the investigations is under what ‘probable clause’ may there be an investigation or warrant about the presidents’ period as a private citizen. A strong argument against the investigations would be that the president has some powers that congress not and that he believed his actions were in protection of his constitutional duties.
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One of the issues raised by congressional investigations of the executive branch is whether Congress has the power to subpoena the President’s private financial records. Does the Congress have the power to subpoena personal documents like this from government officials? Do they have general oversight authority over the president? One could argue that they do as part of the government’s checks and balances system. However, it could also be argued that the Congress did not create the executive branch and therefore they do not have that authority. Though Congress has a broad power to investigate, they would probably need to rely on their impeachment power instead of the power of general oversight.
Another issue is whether the committee on financial services and the intelligence committee of the House have the constitutional and statutory authority to issue a subpoena to Deutsche Bank and demand private financial records of President Trump, his family, and his business. To what extent can Congress use the president as a case study to examine the financial system? Can Congress choose any family in the United States and use them as a case study? Does this respect the rights of private individuals? The fact that the democratic Congress has coincidentally chosen the republican president and his family as the case study for this seems suspicious.
Another issue is whether New York State district attorney Vance can subpoena President Trump’s tax returns and financial papers. Trump’s legal team argument is that he has pre-indictment immunity, so he has immunity for all of his conduct before he became president. This is by far the weakest argument from the Trump administration. There is absolutely no precedent for this and at least three past presidents were subpoenaed about things they did before they were president. Pre-indictment immunity does not seem to exist. President Trump’s lawyers are arguing that the Supremacy Clause and Article II of the Constitution preclude a state court from issuing any coercive process to any entity for records relating to the sitting president. This is the Trump administration’s strongest argument opposing these investigations as there is question about whether the state can subpoena such information from a president.
An additional argument from the Trump administration is that Trump cannot be subpoenaed by Congress for private tax returns or underlying evidence that Special Counsel Mueller obtained in his two year investigation because Trump has “executive privilege” and “presidential independence.” This is also a weak argument because while Trump has different privileges as the president, this does not make him immune to Congress’ subpoenas.
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Some major constitutional questions raised by congressional investigations of the executive branch are mostly directed at the question of how far can the President go in “abusing his powers” or using his power to do what he wants? The whole trials against Trump is directed around this question in the articles of impeachment such as the President obstructing the House of Representatives to investigate “high Crimes and Misdemeanors,”, using his powers to obtain improper and personal benefit with Ukraine and the 2020 elections and disrupting the democratic process. Trump is a threat to national security and the constitution because although the President’s role is to protect and defend the constitution, Trump believes he is above the law which obviously legally he cannot because the constitution mentions the supreme law of the land.
Trump administration’s weakest argument in opposing these investigation is trying to impose that they have a higher power over Congress, especially withholding documents and denying subpoenas that is requested by the House to hold their investigation.
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The major constitutional question raised by congressional investigations of the executive branch is the separation of powers. In the podcast, Steve Vladeck states, ” Congress lacks the power to subpoena these kinds of records period, basically that, um, the House needs some kind of legitimate government interest, um, to subpoena these kinds of personal records, um, and that doing so in this context just doesn’t meet that threshold”. Congress only has the power to subpoena these records in an impeachment inquiry and not in just a regular session which some have claimed to be an unconstitutional overreach but they need to effectively investigate the President’s misdoings. The strongest argument that the Trump administration had against these investigations is that Congress is not allowed and does not have probable cause to issue warrants to seize the banking, business and tax records from Trump because those were from when he was a private citizen. They use the 4th amendment to justify that Congress can not override Constitutional amendments that protect private citizens even if the committee can get warrants for their taxes without causes. The weakest argument that Trump’s administration had against the investigations is that “subpoenas exceed the committees’ powers and do not serve a “legitimate legislative interest”. Congress has every right to do what it has to in order to complete its investigations. Through the elastic clause give Congress the “necessary and proper” right to carry out the powers that they have been granted and is why Congress has the power to provide congressional oversight which undermines the president’s authority during hearings.
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One of the constitutional questions raised by the impeachment investigation is whether or not Congress has the authority to launch such an investigation because the constitution doesn’t;t explicitly mention investigation of the executive branch. The President’s argument would be the executive branch is independent of Congress, just as Congress is independent of the executive branch. Another argument is the Congress has a limited amount of powers, such as borrow money, establish post offices but it says nothing about oversight. The executive branch would say that Congress stretches its power under the elastic and implied powers clauses. The executive branch’s weakest argument would be investigation is for headlines. They. would also make the argument that the Congress is conducting a fishing expedition trying to hurt the President.
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The major constitutional questions raised by congressional investigation are, does Congress have the Constitutional power to over see the the Executive actions by a subpoena? and whether the Constitution allows for Congress to investigate the Executive branch?
The strongest arguments for opposing investigation is the implications it can have for future Presidents. For example, a Democratic president may get this investigation subpoena on the basis that the House and Senate are mostly Republican and want a reason to impeach the Democratic president because he/she are not in accordance to the House/Senate political agenda.
The weakest argument would be that this power is implied in the Constitution. If it is implied and not being used, I agree with author Kamarck about Congress having the power to form a committee of investigation to sort use a loophole.
– Martin B.
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Based on the readings and the podcast that we have for today, one of the ongoing core constitutional questions brought forth by congressional investigations of the executive branch is whether or not Congress has the right to oversee/monitor the President and their administration. In Articles of Impeachment file and Elaine Kamarck’s piece in Brookings, we see that on one of the spectrum, the Congress does have the power to oversee/watch over the behavior of the executive branch and this power is clearly vested in articles of the Constitution. More specifically, according to Kamarck’s article, a Supreme Court decision in 1938 states that “A legislative inquiry may be as broad, as searching and as exhaustive as is necessary to make effective the constitutional powers of Congress…” Additionally, the articles of impeachments for President Trump provided shows that Congress, particularly the House of Representative, has the right to intervene/deem what’s “necessary and proper” when they’ve reached a consensus that the President abused his power and obstructed justice away from the Congress (i.e. President Trump and his administration ignoring the subpoenas from the House of Representative). Overall, Congress, through the perspective of these two articles are watchdogs for the executive branch and check on its power. In contrast, in Frank Miele’s piece, we see weaknesses in this argument presented in Congress’ right to oversight of the executive branch. In this piece, Miele presents them as sort of separate bodies each having their own privileges. More specifically, Miele states that Congress and the executive branch have a certain amount of autonomy away from one another it just so happens that the President’s autonomy is represented in executive privilege. As a result, he makes the argument the not only is the power of Congressional oversight over the Executive not in the Constitution but that the Congress’ impeachment inquiry into the president and their subpoenas are in violation of the president’s privacy and Executive Privilege. In my personal opinion, I side more with the first argument made. How can the executive branch be checked on and prevented from abusing power if the scope of privacy and inquiry are constantly reframed by the president? I believe that Congress is put in place to protect the rights of their constituents and the American people as a whole to prevent abuse of power and corruption from occurring at the top of the food chain.
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The major questions that are raised in regards to the investigations into president Trump and his affiliates financial records, is the fact that the constitution does not make it clear how Art 1, Sec 8 should proceed in the case of the executive office. The power of congressional oversight is an implied power and with that comes many interpretations, the opportunity to use that power to further political ends and not necessarily serve a legislative purpose. This inadequate detailing of responsibility runs into the same problem with executive power. President Trump’s administration is holding on for dear life to any and all documents that could incriminate him or his affiliates in their financial dealings. They argue strongly that the constitution does not in name, grant congress the power to investigate or regulate the executive office. His administration uses the 4th amendment to argue the president has” a right to secure in their persons, houses, papers…”. That he is as entitled to this as any general citizen would be. Congress has subpoenas out under the weak pretense of legislative interests, and this is flimsy as its intended to serve as a case study for remedying current financial ethics legislation, which has just made congress appear to be on a witch hunt. I believe congress is too, and it’s because the the investigative has reason to believe that Donald Trump dealt unethically in the past, and the evidence is in those financial records. Information that would implicate him in criminal wrongdoing and tarnish his image. At this, Trump’s administration raises a weak defense that the president is entitled to retroactive immunity, where there is no historical precedent of this. That’s just silly.
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One major constitutional question posed by the Trump impeachment is, what powers are granted to congress in their oversight authority, and is the president granted executive powers, as well as independence from such oversight? As Miele argues, the president is in fact protected from such oversight under our system of checks and balances, that congress has the power to do this with private citizens, but not with a sitting president.
According to the Lithwick podcast on high crimes and impeachment, the founders were wary of exercising impeachment unless absolutely necessary. In addition, they wanted impeachment to be very difficult, maybe even impossible; impeachment was also meant to be a bipartisan measure which Trump’s impeachment proceedings evidently was not. The founders were worried that impeachment would become a political tool whenever a party was unhappy with a president from an opposing party. The strongest argument against this impeachment was that testimony was based on hearsay, Trump’s intentions into this investigation was not clear, and it is not the job of congress to assume what the president’s intentions were, including the allegations that it was solely for his personal interests. However, a strong argument for Trump’s impeachment is that Trump allegedly sought the Ukraine’s assistance in this matter and not his own government or department of Justice. This could be viewed as a red flag, as Trump may have done this to avoid an investigation against him in the first place.
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