Law professor slams Trump team's 'distortions of facts' as they try to shoot down congressional subpoenas
President Donald Trump welcomed a court decision that allows military funds to be used to build the US-Mexico border wall (AFP Photo/CHIP SOMODEVILLA)

Writing for The Atlantic, University of Missouri Law professor Frank Bowman excoriated the White House legal team for their rationale against honoring congressional subpoenas in the impeachment inquiry.


"On Saturday, Trump’s lawyer Pat Philbin tried to extinguish any flickers of enlightened self-interest among Republicans by arguing that Trump was entitled to stonewall the House because the House hadn’t properly authorized its own subpoenas," wrote Bowman. "Like so many contentions of the president’s defenders, this is malarkey thinly draped with plausible-sounding distortions of facts, rules, court opinions, and the Constitution itself."

First, as Bowman pointed out, all executive agencies under Article II — which the Trump team claims gives them absolute authority — only exist because Congress used its Article I powers to authorize and fund them. "Therefore, under the Constitution, 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. The Supreme Court has repeatedly recognized this 'oversight power' and held it to be 'coextensive with the power to legislate.'"

"In addition to the oversight power implied by its legislative authority, Congress possesses enhanced constitutional authority under the impeachment clauses to inquire into the conduct of the president and other impeachable 'civil officers,'" continued Bowman. "The 'sole power of impeachment' granted to the House of Representatives by Article II, Section 3, would be meaningless if the House could not compel production of the evidence necessary to determine whether impeachable conduct had occurred." Moreover, he wrote, oversight and impeachment powers are not mutually exclusive — contrary to the White House argument, the president's conduct is not exempt from standard oversight functions just because an impeachment inquiry is underway.

"The House subpoenaed more than 70 categories of documents from executive-branch agencies, including the Departments of State, Defense, and Energy, and the Office of Management and Budget, and received exactly zero documents in return," wrote Bowman. "This categorical refusal is without precedent or legal justification."

The president is also arguing that any subpoenas issued before the vote to begin an impeachment inquiry are invalid.

"If the Senate, or its Republican members, accept the devious justification for defiance of Congress offered by Trump’s lawyers, they will validate a strategy of complete obstruction of congressional inquiries by this and future presidents," warned Bowman. "The result is not only to neuter the impeachment power, but more profoundly, to cripple the fundamental check on executive mismanagement, abuse, corruption, and overreach embodied in their own power of oversight."

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