When Democrats achieved a majority in the U.S. House of Representatives in November 2018, it wasn’t difficult to predict that there would be a lot of investigations and subpoenas from Democrat-led House committees. But President Donald Trump has consistently responded to subpoenas — both before and during the Ukraine scandal — by demanding that those in his administration defy them. And according to law professor Frank O. Bowman III, who teaches at the University of Missouri, the anti-subpoena arguments Trump and his allies have been making during his impeachment are “without precedent or legal justification.”
Bowman, in a January 28 article for The Atlantic, explains why Trumpian anti-subpoena assertions are so flawed. And Colin Kalmbacher, in Law & Crime, highlights some of Bowman’s best arguments.
Patrick Philbin, one of Trump’s attorneys, has claimed that the subpoenas issued by House committees prior to a House vote authorizing an impeachment inquiry are not valid. But Bowman strongly disagrees with Philbin’s reasoning — or lack thereof.
“The president’s position, incredibly, is that if an ongoing oversight investigation begins to produce evidence that might result in impeachment, the committees conducting that investigation somehow lose their subpoena authority until the whole House declares a formal impeachment inquiry,” Bowman writes. “This is, not to put too fine a point on it, absolutely daft.”
Trump and his defenders, according to Bowman, seriously underestimate the oversight powers that Congress has under the U.S. Constitution. Bowman explains, “Congress has both a responsibility and a right to inquire closely into the operations of the federal agencies, programs and employees it authorizes, regulates and funds. The power of inquiry includes the power to use subpoenas to compel production of testimony and documents.”
Moreover, Bowman writes, the U.S. Supreme Court has upheld Congress’ oversight powers many times. Kalmbacher observes, “In sum, Bowman describes an administration that’s waging war on America’s constitutional underpinnings themselves — in service of a one-time defense of a president credibly accused of violating and bypassing constitutional bounds and norms.”
Democratic Rep. Zoe Lofgren, during a speech at Trump’s impeachment trial on January 24, stressed that by defying subpoenas, Trump is not only disrespecting Democrats — he is disrespecting Congress in general. Discussing Lofgren’s comments with Law & Crime, Bowman said of Senate Republicans, “I think it unlikely that they will take it seriously in the sense of changing their votes.” But Bowman added that he hoped Lofgren’s assertions would “at least avoid giving (Republicans) an easy off-ramp” when they give up “their own legitimate legislative authority.”