Written Testimony of
Michael J. Gerhardt,
Burton Craige Distinguished Professor of Jurisprudence,
University of North Carolina at Chapel Hill
Before the House Judiciary Committee on
"Constitutional Processes for Addressing Presidential Misconduct,"
Friday, July 12, 2019
The Constitution nowhere says, much less requires, either chamber of Congress to approve resolutions, of any kind, before the committees of either or both chambers conduct investigations, issue subpoenas, take testimony, and gather evidence. All of these are instrumental to each chamber's performing its constitutional duties.
The constitutional foundation for either chamber, or committees in either chamber, to perform these functions can be traced back to both the British and colonial systems, which were often a model for the framers, and to the enumerated powers of the Congress in Article I, section 5, of the Constitution. This section provides that "Each House may determine the Rules of its Proceedings." We should be grateful when the Constitution provides a clear answer to a question, and it plainly does so here. Each chamber may establish its own rules of internal governance, which include, among other things, establishing committees, empowering the chairs of those committees with powers such as issuing subpoenas, and establishing procedures to follow in law-making and other legislative functions.
It is important not to confuse the demands of the Constitution with actions undertaken by either chamber pursuant to the delegations set forth in the Constitution. While the Supreme Court has said that committees must have "a legitimate purpose" when seeking
evidence, doing investigations, or issuing subpoenas, it is absurd to think that the Court's, or the Constitution's, directives limit the discretion in each chamber on the needs to investigate, issue subpoenas, or hold witnesses in contempt of Congress for failing to comply with their subpoenas. For example, the House did not approve resolutions to authorize impeachment inquiries in any of the first few impeachments considered by the House.
There has been no tradition, rising to the level of a constitutional command, that requires impeachment resolutions to be approved by the House to authorize this Committee to initiate an impeachment inquiry " or to proceed in any particular way. As long as the Committee functions pursuant to the House rules (and its inherent authority), it is functioning properly.