Impeachment makes congressional subpoena harder to challenge in court, but lawmakers need to be willing to litigate them.
The impeachment inquiry launched by House republicans against President Joe Biden gives them broader subpoena power that is helpful to surfacing additional information and breaking through government stonewalling.
House Speaker Kevin McCarthy (R-Calif.) announced the inquiry on Sept. 12, laying out the finding made by several House committees so far: nearly $20 million in alleged payments from foreign sources to the Biden family and associates, communications during the Obama administration between then-Vice President Biden and his son Hunter Biden about his overseas business dealings, and whistleblower allegations that the Department of Justice (DOJ) gave special treatment to the Biden family.
The inquiry is led by the chairs of the three committees already probing the matter: Rep. James Comer (R-Ky.), who chairs the House Oversight committee; Rep. Jim Jordan (R-Ohio), head of the House Judiciary Committee; and Rep. Jason Smith (R-Mo.), head of the House Ways and Means Committee.
The three will now have expansive subpoena authority, explained Newt Gingrich, who was GOP House Speaker during the impeachment of President Bill Clinton.
“When you go to an official impeachment inquiry, your ability to compel the executive branch to provide documents, to testify under oath, and to be available goes up very dramatically,” he told The Epoch Times.
“As long as it’s just a normal congressional committee, well, the ability of the executive branch to block them was much greater. But at this point, they will have a lot more leverage in trying to get to the heart of exactly what happened.”
Regularly, a congressional subpoena must be tied to a “legitimate legislative purpose” of the committee issuing it, explained John Malcolm, senior legal fellow at the conservative Heritage Foundation and a former DOJ official.
“An impeachment inquiry is looking into potential abuse of power, which is broader and does not need to be connected to potential legislation,” he told The Epoch Times.
Mr. Gingrich expects the GOP efforts to quickly escalate.
“I suspect they’ll bring in more investigators, I suspect they will lay out a timeline of things they want to know,” he said.
Republicans are likely to subpoena the National Archives to turn over emails from pseudonym addresses used by President Biden, he opined. He expects credit card companies will get subpoenas for cards used by President Biden and phone carriers will be subpoenaed for records of phones used by President Biden.
“They have a legitimate right to know in an impeachment inquiry, which is harder to establish if you’re just a normal oversight committee,” he said.
Kash Patel, former national security prosecutor, congressional investigator, and chief of staff to the acting defense secretary under President Donald Trump, agreed the impeachment gives House investigators more power, but doubted that the president is the most urgent target.
“At this time, I would have prioritized the impeachment of [FBI Director] Chris Wray, [Attorney General] Merrick Garland,” he told The Epoch Times.
“Those two individuals are responsible for the lack of justice, or the two-tier system of justice,” he said, pointing to what he considers a lenient treatment of matters related to President Biden compared to their aggressive treatment of President Trump.
They key is whether the lawmakers will be willing to use the powers at their disposal, he noted.
“If they’re going down this route, I hope they use that subpoena power extensively, to subpoena Garland and Wray, and the documents that have till today been withheld by Garland and Wray, in violation of prior congressional subpoenas. And if Congress isn’t willing to act to enforce them, it doesn’t matter who you impeach.”
He outlined three ways Congress can enforce a subpoena, regardless of impeachment:
First is to hold in contempt violators and task the Capitol Police to arrest the individual. That’s been virtually unheard of and the House is unlikely to go down that road.
Second is to hold the individual in contempt and make a refer the matter to the DOJ for prosecution. But the chance President Biden’s own DOJ would decide to prosecute it is slim, in his view.
Third, the lawmakers can try to sue over the subpoena in civil court—a process that could take years to play out, though here the impeachment would make the subpoena more difficult to quash.
Mr. Patel suggested an indirect route of tying subpoena compliance with funding.
“When you withhold partial funding, not entire funding, for certain pockets of money, for instance, Chris Wray’s private G-V government-funded jet, you’d be amazed at the documentation that starts showing up the next day,” he said, pointing to the tactics Republicans used when he was aiding then-Rep. Devin Nunez (R-Calif.) investigating the FBI’s handling of the Trump-Russia investigation in 2017.
“It requires the speaker of the House to consent, and Congress is in charge of the money and the Republicans are in charge of the money right now. And the budget deal, as you know, is front and center right now,” he said.
“I’m not saying to defund whole agencies—of course not. But there’s definitely government waste occurring and there’s government boondoggles that we can shut down until these agencies and departments comply with at least producing documents so we can see the evidence,” he said.
Mr. Patel wasn’t particularly optimistic about the GOP’s zeal in pursuing the impeachment, given that the lawmakers haven’t used a single one of the enforcement mechanisms he listed.
“How is this Congress going to do something in an impeachment of Joe Biden and get a different result? You know, we’ll have to wait and see,” he said.
Mr. Gingrich, however, praised Mr. McCarthy for what he called as a steady approach.
“I think he’s really trying to be very methodical, very careful,” he said.
He saw it a sign of the speaker trying to avoid the mistakes of the Clinton impeachment.
“We didn’t go slow enough and weren’t careful enough for the American people to believe it so decisively that they would help bring pressure on the Senate,” he said.
“I think it’s very important, in this case, to be really serious about it. Everything has to come out in public. American people have to have time to digest it. They have to decide that, in fact, it’s unacceptable to have a person who’s done this kind of stuff.”
The inquiry will probably last several months, he predicted.
“The other side’s going to use every legal tool to slow it down,” he said.
Also, new discoveries may open new, unforeseen avenues of inquiry.
“I think we’re going to learn a great deal in next few months,” he said.
He would expect the inquiry to conclude by March next year.
“I would urge them not to rush to judgment. Keep an open mind, be determined to surface the facts and let the facts lead you where they lead you,” he said.
“And if they lead you to clearing Biden, then clear him. If they lead you to conviction, that he did things that are so unacceptable, that he could actually be convicted by the Senate, then impeach him, but don’t do it as a shallow political act.”
Lawrence Wilson contributed to this report.