Is the House impeachment inquiry illegitimate? Three questions.

The Explainer

When is an inquiry into impeachment an official impeachment inquiry?

That question is not as absurd as it sounds. The House of Representatives still has not voted on any resolution authorizing an impeachment inquiry into President Donald Trump, as lawmakers did before the start of proceedings against Richard Nixon in 1973 and Bill Clinton in 1998.

Speaker Nancy Pelosi has shown little inclination to take such a step. “If we want to do it, we’ll do it. If we don’t, we don’t,” Speaker Pelosi told the editorial board of the Atlanta Journal-Constitution last week.

But many Republicans say that without such a vote, the current impeachment process is just a typical House oversight action, and does not require extra White House deference in regards to provision of documents, witness testimony, and other information.

On Tuesday, the White House sent a letter to House Democratic leaders saying it would refuse to participate in the inquiry, charging that it lacks “any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.”

Earlier on Tuesday, the White House blocked the U.S. ambassador to the European Union, Gordon D. Sondland, from speaking with investigators from three House committees. President Trump tweeted that he would “love” to have Mr. Sondland testify, but that the process was a “totally compromised kangaroo court.”

“Republican’s [sic] rights have been taken away,” he tweeted.

Who’s right? Here are three questions about this crucial procedural matter.

1. How does impeachment begin? 

The Constitution vests impeachment powers in the House of Representatives. Beyond that, the House votes on its own procedural rules. That leaves lots of room for interpretation and leeway for alternate beginnings.

“The Constitution is very clear about impeachment, but it is also not specific,” says Matt Glassman, an expert on legislative procedure at the Government Affairs Institute at Georgetown University, in a recent podcast.

In the two presidential impeachments of the modern era, the House did have an official kickoff vote on a resolution authorizing the way ahead. That’s important precedent, and could make voters and Republican officials view the process as more serious.

But House rules don’t appear to require such a step. And it typically has not been used in impeachments of other officials, notably federal judges, which begin in the Judiciary Committee and go to the full House after the panel has completed its investigation.

“The impeachment process may be initiated as the result of various actions and events, including the receipt and referral of information from an outside source, investigations by congressional committees under their general authority, or the introduction of articles of impeachment in the form of a House resolution,” says a Congressional Research Service overview of current House impeachment rules.

2. Why hasn’t Speaker Pelosi put it to a vote? 

There are both political and procedural reasons why Speaker Pelosi might not want to hold an impeachment-opening vote, or see it as necessary.

Drawing up such a resolution would be both difficult and politically risky. Democrats might find themselves divided over what to include. Should impeachment focus only on President Trump’s actions in regards to Ukraine, or should it refer back to special counsel Robert Mueller’s investigation or other controversial aspects of his presidency? 

While moderate Democrats may feel the party has been driven to impeachment by presidential actions, that does not mean they want to take any more votes on it than they have to.

In addition, House rules have changed. During the Nixon and Clinton eras, House committee chairmen did not have subpoena authority, and needed an inquiry-beginning vote to grant that power. Today the House majority has unilateral subpoena power, removing a big incentive for such a vote.

Speaker Pelosi may also be holding an impeachment-inquiry vote in reserve, in case she needs it to convince the courts to force the White House to turn over documents or testimony.

3. Why are Republicans pressing the matter? 

The White House has its own procedural and political reasons for demanding a vote – which mirror those of House Democrats.

Republicans may want an impeachment vote to provide subpoena power to the House minority. That would allow them to carry out a parallel investigation of the actions of former Vice President Joe Biden and his son Hunter Biden in Ukraine, or to call witnesses they feel could debunk charges made against President Trump.

In the Nixon and Clinton cases, the kickoff vote did provide such authority to minority members. In practice, however, its impact could be limited, as the actual issuance of subpoenas would likely still be subject to full committee votes in which Democrats would triumph.

The GOP may also believe it can use this issue to raise doubts about the process in the eyes of voters. Last week, House Minority Leader Kevin McCarthy of California sent Speaker Pelosi a letter calling for impeachment to be put on hold “until transparent and equitable rules and procedures are established.” 

Speaker Pelosi declined.

“This is almost entirely about framing the narrative,” William Howell, a professor of American politics at the University of Chicago, told the Los Angeles Times.

Note: This post has been updated to include the latest developments.