Jonathan Shaub

@jshaub.bsky.social

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law prof, contributing ed @lawfaremedia.org, olc & whco alum... #twindad + 3 extras, expert youth soccer fan, #anchordown interested in presidential power, privilege, accountability, transparency profile here https://law.uky.edu/people/jonathan-shaub

(First page of a book). First line: "The hardest thing in the world is to live only once."
CONGRESS’S POWER OF INQUIRY IN IMPEACHMENT Jonathan David Shaub The nature and scope of Congress’s constitutional power of inquiry in impeachment has rarely been discussed and never been satisfactorily analyzed. Impeachment is both increasingly salient and singularly important, particularly after Trump v. United States. Indeed, impeachment may now be the sole remaining mechanism for investigating presidential misconduct, but recent executive branch doctrines—established during the first Trump administration and largely affirmed during the Biden administration—severely limit congressional authority to investigative for purposes of impeachment. This paper proposes a constitutional framework that balances the exceptional power the two Houses of Congress wield in the exercise of their respective impeachment authorities with the need to retain the solemnity of impeachment investigation and protect its role in holding presidents and other executive branch officials accountable. This framework recognizes that the invocation of impeachment authority is a distinct, nondelegable authority that functions as a judicial power separate from legislative. Once this power has been invoked, generalized executive privilege doctrines used in oversight, and related prophylactic protections for that privilege, are inapplicable. Instead, distinct, specific objections to disclosure should be adjudicated by the two Houses respectively pursuant to established procedures, with the presumption that the congressional bodies need access to all pertinent information, even if the information needs to be protected from public disclosure. Moreover, each House should establish procedural protections unique to impeachment, including due process protections for accused officials and witnesses. Finally, a comprehensive framework that empowers the House and Senate to exercise fully their respective authorities to investigate for purposes of impeachment inquiries and trials necessitates a mechanis…
Vanderbilt crushes Tennessee in football and Tennessee is crying
Attempting to hold the president and White House officials accountable necessarily presents a fundamental conundrum—how to balance essential characteristics such as independence and neutrality with electoral accountability and investigative enforcement authority. Since Watergate, our country has relied on two primary methods for White House investigation—either a criminal prosecutor with some independence or congressional investigation. These mechanisms, as well as past approaches, have largely proven inadequate and lately been the subject of extensive criticism. And these problems largely arise out of two overarching characteristics of all past accountability systems: (1) the power to investigate has always been combined with a power to sanction and (2) sufficient power to compel the production of relevant information has been provided only to a criminal prosecutor. This Article challenges the wisdom of these two characteristics and proposes a new paradigm for addressing accountability holistically. Crucially, this proposal would sever the pure investigatory function—what I call inspection—from any power to sanction and it would empower—for the first time—an independent entity that is not a criminal prosecutor with the authority to compel the production of information and protect its confidentiality. The proposal fits comfortably within the constitutional framework, even under a robust unitary executive view of Article II. And numerous past and existing accountability models, such as independent commissions, judicial misconduct panels, and inspectors general, further support the wisdom and constitutionality of such a proposal.
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