Several days ago we anticipated a potentially important point we hoped would start the impeachment defense for President Donald Trump. Today, attorney Patrick Philbin delivered. The issue is a critical constitutional component that needed emphasis, and it is good to see pundits finally starting to realize the significance.
White House Counsel Patrick Philbin explains why House subpoenas were illegitimate: the subpoena power was never authorized; the initiating subpoena power was never voted on.
Additionally, and specifically by design, absent a penalty for non-compliance, which factually makes a subpoena a ‘subpoena’, the Executive Branch had no constitutional pathway or process to engage an appellate review by federal courts. Make no mistake, this was a pre-planned purposeful trick within the Pelosi, Schiff and Lawfare road-map.
The House motive here, the forethought within their design, is very important now because it explains why they are vociferously demanding witnesses in the Senate. The House plan was to work around the ability of the executive branch to go to court. The managers are now attempting to execute that plan, along with a manufactured political talking point, in the Senate trial.
The House intended for this to unfold exactly as it is happening.
The House was not issuing subpoenas, it was issuing letters requesting voluntary witness participation and document production. Recently the DOJ Office of Legal Counsel explained this issue in a lengthy legal finding that leads to the same conclusion.
BACKSTORY – Last year House Democrat leadership took a climate assessment of democrat House members and Speaker Pelosi announced they would not hold a House impeachment authorization vote. As a direct and specific consequence all committee subpoenas did not carry a penalty for non-compliance.
“Lawful subpoenas”, literally require an enforcement mechanism; that’s the “poena” part of the word. The enforcement mechanism is a judicial penalty, and that penalty can only be created if the full House voted to authorize an impeachment inquiry, and charged the House Judiciary Committee with the authority therein.
Absent the vote to authorize, the Legislative Branch never established compulsion authority (aka judicial enforcement authority), as they attempted to work through their quasi-constitutional “impeachment inquiry” process.
Instead of subpoenas, Adam Schiff (House Permanent Select Committee on Intelligence); and Chairman Eliot L. Engel (House Committee on Foreign Affairs) were only sending out request letters. The compliance was discretionary based on the outlook of the recipient.
Speaker Pelosi, Adam Schiff, Jerry Nadler and their Lawfare staff’s impeachment scheme could only succeed with a compliant media protecting it. The media was entirely compliant in not explaining the fraudulent basis for the construct.
If the media would have ever asked questions the fraud would have collapsed.
Adam Schiff had to hide his hearings because the foundation of the impeachment fraud was to create a public impression. There was no structural impeachment process or guideline being followed. The committee leadership used the closed door hearings to leak information to the media to create a needed narrative.
A legislative “letter” or demand request needed to carry judicial enforcement authority –A PENALTY– in order to be a “subpoena”.
There was no penalty that can be associated with the House demands because the Legislative Branch did not established compulsion authority (aka judicial enforcement authority), as they worked through their non-constitutional “impeachment inquiry” process.
It has long been established by SCOTUS that Congress has lawful (judicial authority) subpoena powers pursuant to its implied responsibility of legislative oversight. However, that only applies to the powers enumerated in A1§8. Neither foreign policy (Ukraine) nor impeachment have any nexus to A1§8. The customary Legislative Branch subpoena power is limited to their legislative purpose.
There is an elevated level of subpoena, a power made possible by SCOTUS precedent, that carries inherent penalties for non-compliance, and is specifically allowed for impeachment investigations. However, that level of elevated House authority required a full House authorization vote, and only applies to the House Judiciary Committee as empowered.
In 2019 the Legislative Branch was NOT expressing their “impeachment authority” as part of the Legislative Branch purpose. So that raised the issue of an entirely different type of subpoena:… A demand from congress that penetrates the constitutional separation of powers; and further penetrates the legal authority of Executive Branch executive privilege.
It was separately established by SCOTUS during the Nixon impeachment investigation that *IF* the full House votes to have the Judiciary Committee commence an impeachment investigation, then the Judiciary Committee has subpoena power that can overcome executive privilege claims.
There was NO VOTE to create that level of subpoena power.
As a consequence, the House did not create a process to penetrate the constitutionally inherent separation of powers, and/or, the legally recognized firewall known as ‘executive privilege’.
The House needed to vote to authorize the committee impeachment investigation, and through that process the committee would have gained judicial enforcement authority. That would have created a penalty for non-compliance with an impeachment subpoena.
Absent a penalty for non-compliance, which factually makes a subpoena a ‘subpoena’, the Executive Branch had no process to engage an appellate review by federal courts. This was the purposeful trick within the Pelosi/Lawfare road-map.
Pelosi and Lawfare’s plan was designed for public consumption; she/they were creating the illusion of something that did not exist. The purpose of all their fraudulent impeachment activity was to create support for an actual impeachment process.
Because the Lawfare/Pelosi roadmap intended to work around judicial enforcement authority, the impeachment process was destined by design to end up running head-first into a constitutional problem; specifically separation of power and executive privilege.
The Lawfare impeachment road-map was designed to conflict with the constitution. It was a necessary -and unavoidable- feature of their sketchy impeachment plan, not a flaw.
Speaker Nancy Pelosi and her Lawfare allies changed House rules (SEE HERE). Pelosi and Lawfare changed House impeachment rules (SEE HERE). Pelosi/Lawfare changed committee rules (SEE HERE); and in doing so they removed House republicans from the entire process… Which They Did. However, what Lawfare and Pelosi could not change was The U.S. Constitution, which they were destined to collide with.
Speaker Pelosi’s ‘Lawfare House rules‘ and/or ‘Lawfare impeachment rules‘ could not supersede the constitutional separation of powers. She was well aware of this. Nancy Pelosi could not decree an “official impeachment inquiry”, and as a consequence nullify a constitutional firewall between the Legislative Branch and Executive Branch.
Pelosi’s impeachment scheme required a compliant media to support her construct…
They did exactly that.
Mary McCord joined the House effort to impeach President Trump; as noted in this article from Politico:
“I think people do see that this is a critical time in our history,” said Mary McCord, a former DOJ official who helped oversee the FBI’s probe into Russian interference in the 2016 presidential election and now is listed as a top outside counsel for the House in key legal fights tied to impeachment. “We see the breakdown of the whole rule of law. We see the breakdown in adherence to the Constitution and also constitutional values.”
“That’s why you’re seeing lawyers come out and being very willing to put in extraordinary amounts of time and effort to litigate these cases,” she added. (link)
Former DOJ-NSD Head Mary McCord is currently working for the House Committee (Adam Schiff) who created the impeachment scheme.
National Security Council resistance member Alexander Vindman starts a rumor about the Trump-Zelenskyy phone call, which he shares with CIA operative Eric Ciaramella (a John Brennan resistance associate). Ciaramella then makes contact with resistance ally Mary McCord in her role within the House. McCord then helps Ciaramella create a fraudulent whistle-blower complaint via her former colleague, now ICIG, Michael Atkinson….
…And that’s how this entire Impeachment operation gets started.