Opinion | Pelosi Has History and the Constitution at Her Back

President Trump and Republicans have insisted that House Democrats take a vote to open a formal impeachment inquiry before engaging in thoroughgoing oversight of the administration’s activities related to Ukraine. This is a political calculation — relying on faulty analysis of the Clinton impeachment — that a formal inquiry will backfire on Democrats.

The Constitution makes no such requirement for conducting an impeachment investigation. Furthermore, it assigns to Congress the important duty of oversight.

So Speaker Nancy Pelosi and other House Democrats have decided, as is their constitutional prerogative, against a vote on the impeachment inquiry. A decision to pursue the specific pathway of impeachment is not a precondition for conducting congressional fact-finding. And in fact, previous impeachment investigations were preceded by months of congressional oversight.

The Supreme Court has long held that Congress’s oversight authorities are inherent in its Article I legislative powers. These oversight authorities are “broad” and encompass matters including “the administration of existing laws,” “proposed or possibly needed statutes” and inquiries “to expose corruption, inefficiency and waste.” Indeed, the court has emphasized that oversight is “essential” to the conduct of government.

Congressional investigations often lead to the development of new laws, but Congress may also address oversight findings through other actions. Some investigations have led Congress to conclude that enacting new laws is not the answer to issues identified in an inquiry. Some congressional oversight proceedings have led to executive branch reforms. Some inquiries into alleged administration corruption have resulted in resignations, referrals, House or Senate resolutions memorializing disapproval of presidential or other administration misconduct — or on occasion the start of impeachment proceedings.

Indeed, congressional history is replete with investigations of alleged White House misconduct that have not involved impeachment. Many of these — during both Republican and Democratic administrations — involved congressional deposition or hearing testimony from top White House aides.

For example, the Senate Judiciary Committee investigated business dealings of President Jimmy Carter’s brother and alleged related White House communications, taking testimony from the national security adviser and the president’s press secretary. A joint House and Senate committee reviewed the role of the Reagan White House in the diversion of Iran arms sales funds to Nicaraguan contras and took testimony from, among others, two national security advisers to the president and the national security adviser to the vice president. Committees in both the House and Senate conducted inquiries into whether the Clinton White House engaged in campaign finance improprieties and took testimony from numerous White House officials (including a chief of staff, a deputy chief of staff, two counsels, two deputy counsels, the chief of staff to the first lady and the national security adviser). Further, the House Oversight Committee investigated inappropriate use of nongovernment email for official business by the George W. Bush White House, taking deposition testimony from two White House political directors.

In the Watergate investigation, the House approval of an impeachment resolution actually followed months of direct, rigorous congressional oversight. In February 1973, the Senate established a select committee to investigate allegations of wrongdoing potentially involving the Nixon White House. It wasn’t until February 1974 that the House commenced impeachment proceedings (the Senate select committee continued its inquiry through June 1974).

With Bill Clinton, the independent counsel inquiry that resulted in an impeachment referral to the House of Representatives in September 1998 originated in 1994 as an inquiry into alleged improprieties relating to investments by Mr. Clinton and Hillary Clinton in a real estate company in Arkansas, the Whitewater Development Corporation. Long before the October 1998 House resolution initiating impeachment proceedings, Congress conducted extensive investigations into Whitewater.

Contrary to the Trump administration’s resistance to House committees’ requests for testimony and documents from current and former White House and executive branch staff members, the Senate Special Committee to Investigate the Whitewater Land Development Corporation and Related Matters took testimony from two Clinton White House counsels, Bernard Nussbaum and Lloyd Cutler. There were numerous other senior White House aides who provided testimony for congressional Whitewater inquiries.

The evidence being amassed regarding Ukraine alone is damning and raises serious concerns about the conduct of national security, financial self-dealing and straight-out corruption. The jaw-dropping revelations may indeed push the House to adopt articles of impeachment.

But there is no constitutional requirement and no historical practice that requires it to do so to engage in its true constitutional duty of oversight of an executive run amok.