Tornado Alley (PROG)

[blackhawks]

Federal Courts take subpoenas resultant from impeachment hearings more seriously. Specifically, they expedite the enforcement of them

That has been the history of such anyway.

https://www.lawfareblog.com/what-powers-does-formal-impeachment-inquiry-give-house

Several experts have argued that the House might have a stronger legal position in disputes with the executive branch over information and witness appearances if it were undertaking impeachment proceedings rather than investigations. Michael Conway, who served as counsel on the House judiciary committee during the Watergate investigation, has advanced a similar argument.

In particular, he points to a staff memo written in April 1974, which argues that “the Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations. From the beginning of the Federal Government, presidents have stated that in an impeachment inquiry the Executive Branch could be required to produce papers that it might with-hold in a legislative investigation.” Others are more skeptical—like Alan Baron, a former attorney for the House judiciary committee on four judicial impeachments, who has cautioned that impeachment proceedings don’t “make all the problems go away.”

Certainly—as was suggested during our conversation on the Lawfare podcast last month—we would expect members to ask different kinds of questions during hearings if the goal is to establish a case for impeachment than if they are doing more general investigative work. But that is a separate issue from whether impeachment proceedings would meaningfully change the process members can use to obtain information in committee, the kind of material the committee could obtain and the speed at which the committee would be likely to obtain it. The answer to all these questions is: It depends.

We think it is entirely possible—probable even—that judges would recognize the primacy of impeachment proceedings against the president of the United States and expedite consideration of such cases. The case of U.S. v. Nixon—in which the Supreme Court ruled that the president had to turn over the infamous Oval Office recordings to the special prosecutor—was decided just over three months after the relevant grand jury subpoena had been issued.

That was a criminal investigation, so the analogy is not entirely apt, but we think it reasonable to assume courts would take a similarly expeditious view in the context of a subpoena issued pursuant to impeachment proceedings.

Of course, it is worth remembering that the Supreme Court has never decided a case concerning a congressional subpoena for information issued to an executive branch official where the president has asserted executive privilege. In theory, the Supreme Court could decide the issue is a political question and leave it to the other two branches to sort out in some other way.