President Donald Trump keeps giving the House of Representatives excellent reasons to begin an official impeachment inquiry.
The latest came on Monday when Trump and some members of his family filed a lawsuit to quash subpoenas asking Deutsche Bank and Capitol One to turn over financial records concerning the Trumps and their business. The president argues that House Democrats issued the subpoenas for illegitimate reasons unconnected to any formal business of Congress. This argument is quite weak under Supreme Court precedent, since Congress has broad constitutional authority to conduct investigations. But if Democrats are worried about making the case in court that their subpoenas are tethered to a legitimate congressional function, they have a simple solution at hand: Admit that these subpoenas may serve as a prelude to impeachment.
No one seriously questions Congress’ power to issue subpoenas as part of its oversight duties. But Trump’s lawyers insist that these subpoenas, which have not yet been released to the public, go too far. They were, Monday’s lawsuit alleges, “issued to harass” the president, “to rummage through every aspect of his personal finances” to locate “material that might be used to cause him political damage.” Because “no grounds exist to establish any purpose other than a political one,” the suit claims, the federal courts must prohibit the banks from complying with the subpoenas.
This analysis might be compelling from a partisan perspective. But from a legal standpoint, it is highly dubious. In 1975’s Eastland v. United States Servicemen’s Fund, the Supreme Court ruled that the Constitution’s Speech or Debate Clause generally bars courts from interfering with congressional subpoenas. The court explained that as long as Congress is operating within the “sphere of legitimate legislative activity” or “with respect to other matters which the Constitution places within the jurisdiction of either House,” the judiciary is flatly forbidden from impeding its subpoena power.
Trump’s lawyers insist that Democrats’ subpoenas breach this sphere, writing that “investigations are legitimate only insofar as they promote some legitimate legislative purpose.” And because “there is no possible legislation at the end of this tunnel,” the subpoenas fall outside the House’s constitutional authority and must be quashed. This reading of Eastland is, at best, creative: The Supreme Court did not limit the “legitimate legislative sphere” to the deliberation of legislation alone. Instead, citing an earlier case, it asked whether the subpoenas were part of the “deliberative and communicative processes … with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”
Note that the court did not require Congress to justify its subpoenas by pointing to some proposed legislation that an investigation might further. Rather, the court explained that “the power to investigate is inherent in the power to make laws” and that the “issuance of subpoenas” has “long been held to be a legitimate use by Congress of its power to investigate.” In other words, Congress’ paramount constitutional duty is to “make laws.” To legislate, Congress must investigate; to investigate, Congress must issue subpoenas. And courts may not second-guess a congressional committee’s decision that an otherwise lawful subpoena may aid future legislation.
Under constitutional text and Supreme Court precedent, then, Trump’s lawsuit should fail. The current Supreme Court, however, has not proved especially respectful of precedent. It also seems eager to shield this administration from scrutiny and aggrandize Trump’s powers. So, it certainly wouldn’t hurt if the House had a backup argument—one that relied not only on precedent linking investigations to legislation, but that explained how these subpoenas directly assist the House exercise “matters which the Constitution places within the jurisdiction of either House.”
That’s where impeachment comes into play. There is a possibility—not huge, but not trivial—that conservative judges could interfere with these subpoenas by asserting that they are too detached from actual legislation to constitute “legitimate legislative” actions. But Congress does not only have the power to make laws; it also has the power to impeach the president. It shares that authority with no other body; the decision to impeach the president is the House’s alone. And as ThinkProgress’ Ian Millhiser has noted, the House’s power to investigate the president’s potential “high crimes and misdemeanors” is inherent in its authority to impeach him. Congress members need to inspect the president’s alleged crimes to determine whether impeachment is an appropriate remedy.
If Trump’s lawsuit winds up before a court that appears hostile to the subpoenas, the House should be prepared to explain why its investigation is necessary to promote all of its legitimate congressional interests. Not just hypothetical legislation, but in other core constitutional powers. Congress already knows that Trump may have accepted payments from foreign governments in violation of the Constitution. It also knows that he obstructed justice in an effort to impede special counsel Robert Mueller’s investigation—which, among other things, reportedly inspected Trump’s financial records. Congress thus has an excellent reason to subpoena bank records of Trump, his business, and his family, seeking proof of misconduct grave enough to trigger impeachment proceedings.
Any court that hampered the House’s ability to obtain those materials by exercising its subpoena powers would act in clear contravention of the Constitution. Even in our increasingly Trump-friendly judiciary, it is difficult to imagine judges so blatantly interfering with the congressional process. Democrats should admit what everyone already knows: These subpoenas may undergird eventual articles of impeachment. There is nothing shameful about that, and no reason to keep it a secret. To the contrary, it’s a smart strategy to fend off Trump’s legal challenge and remind courts that the House is operating squarely within its constitutional prerogatives.