Subpoenas Not Valid Since There Is No Impeachment Inquiry


The U.S. House can review the already-existing evidence for impeachment, such as in a debate on a vote for impeachment. But they cannot try to unearth grounds for impeachment that they do not already have


Here’s some free legal advice:  Trump Administration officials should reject the recent subpoenas by the House of Representatives Democrats.  They read like political speeches, intended to influence public discussion, not like legal subpoenas.  To answer these “when did you stop violating the law?” letters is to buy into and endorse their false premise.

If a Trump official were my client, I would recommend a short, quick letter in response.  But would my client run the risk of not complying with a subpoena?  Could officials who don’t cooperate be found in contempt or be accused of obstruction of justice?

Purely political smear job.  Republicans should not fall for the scam

No.  Because I would immediately file a lawsuit for a “declaratory judgment” to get a decision on whether my client has to provide documents that House Democrats do not have a right to demand.  I would not wait for a hostile opponent to attack my client. 

But the entire exercise is a purely political smear job.  Republicans should not fall for the scam.  They should meet the scam head-on and expose it for the hoax that it is.

There is confusion because there is no authority in the U.S. Constitution for Congress to act as a law enforcement agency.  The power to investigate is only implied, not stated, by custom and interpretation.  Constitutionally (not what Congress believes) the power of investigation is especially weak compared to an explicitly-stated power.

Congress surely has the implied power to investigate both the activities of the government and topical issues for the purpose of passing legislation or amending legislation.  Our country’s political world has long accepted this.  But there are limits. 

A person receiving a subpoena has every legal right to object when Congress over-steps its limits.  Therefore, recipients of these phony subpoenas should call the Democrats’ bluff, but also protect themselves by rushing as the “first to file” to the courts for a “declaratory judgment” ruling.

Recipients of these phony subpoenas

The Democrats sent an identical letter to a variety of officials and departments, including, the Trump White House, signed jointly by three Committee Chairmen, which included the key paragraphs:

Pursuant to the House of Representatives’ impeachment inquiry, we are hereby transmitting a subpoena that compels you to produce documents set forth in the accompanying schedule by October 18, 2019.

The Committees are investigating the extent to which President Trump jeopardized national security by pressing Ukraine to interfere with our 2020 election and by withholding security assistance provided by congress to help Ukraine counter Russian aggression, as well as any efforts to cover up these matters.

* * *
The Committees are investigating the extent to which President Trump jeopardized national security by pressing Ukraine to interfere with our 2020 election and by withholding security assistance provided by congress to help Ukraine counter Russian aggression, as well as any efforts to cover up these matters.

Congress is not empowered to act as a law enforcement agency

The response I would write as a lawyer for one receiving the subpoena would go like this:

Dear Chairman:

We are not aware of any documents that match the description of your request.  First, no impeachment inquiry exists.  Not only is there no impeachment inquiry provided for under the U.S. Constitution or other law, but certainly there is no impeachment inquiry simply because the Speaker of the House held a press conference. 

The Constitution provides for impeachment where treason, bribery, or other high crimes or misdemeanors have already been clearly established as true.  Congress is not empowered to act as a law enforcement agency.  Thus, the power of impeachment exists only when grounds have already been established, not when Congress hopes to discover grounds.

But any investigative process of an “impeachment inquiry” if the Constitution would at the least require a vote of the full House of Representatives, not a press conference.

Therefore, you write for documents relating to an impeachment inquiry.  We are not aware of any such documents pertinent to an impeachment inquiry.

Collusion of Democrat party elected officials with the then-government of Ukraine

Second, we are not aware of any documents relating to events affecting the 2020 election in the United States.  We are aware of documents relating to foreign interference in the 2016 election, should you suddenly develop an interest in the corruption of the 2016 election during the Administration of former President Barack Obama.

Third we are not aware of any documents relating to the withholding of security assistance to help Ukraine counter Russian aggression, since we are not aware of “security assistance” provided by Congress (that being a military operation) and particularly because, after passing careful review, the first tranche of funding for lethal military aid was actually provided to the Ukraine, as a sharp break from the purely humanitarian relief provided by President Obama.  Thus we are not aware of any assistance to the Ukraine that was withheld, except by the Obama Administration.

Therefore, we do not have any documents that fall within the scope of your document request as you have defined it.  There are documents that expose the collusion of Democrat party elected officials with the then-government of Ukraine to corrupt the 2016 presidential election in the United States in favor of Hillary Clinton.  These have already been released to uninterested journalists and to the general public.  If you would like to send an intern to pick up a set of such publicly-available documents, please let me know.

“How can the Congress impeach a President without investigating first?”

“But!” some respond, “How can the Congress impeach a President without investigating first?”  Translation:  “We don’t have any grounds for impeachment.  But we want to rummage around trying to find a reason!”  (This is reminiscent of the old Saturday Night Live parody advertisement:  “I want to sue someone, but don’t I need a reason?”  Parody lawyer:  “False.  We sue people without a reason and harass them to until they settle out of court.”)

People are misreading the Constitution.  Congress can remove a president or other officials for treason, bribery, or other high crimes or misdemeanors.  That does not mean that Congress can go searching for reasons yet unknown.  The architecture of the Constitution making the Executive Branch the law enforcement side suggests that grounds for impeachment must already be known and established before Congress acts.  Congress is not authorized to go hunting for a reason to impeach a president. 

The U.S. House can review the already-existing evidence for impeachment, such as in a debate on a vote for impeachment.  But they cannot try to unearth grounds for impeachment that they do not already have.  Because the House has not voted, they certainly have no power more than the usual.


Jonathon Moseley -- Bio and Archives

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Jonathon Moseley is a Virginia business and criminal defense attorney. Moseley is also a co-host with the “Conservative Commandos” radio show, and an active member of the Northern Virginia Tea Party.  He studied Physics at Hampshire College, Finance at the University of Florida and law at George Mason University in Virginia. Moseley promoted Reagan?s policies at High Frontier and the Center for Peace in Freedom. He worked at the U.S. Department of Education, including at the Center for Choice in Education.



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