Page:Impeachment of Donald J. Trump, President of the United States — Report of the Committee on the Judiciary, House of Representatives.pdf/155

 Executive Branch policy. In the current view of the Department of Justice (DOJ)—the accuracy of which we do not here opine upon—the President cannot be indicted or face criminal prosecution while in office. As support for that view, DOJ has reasoned that a President "who engages in criminal behavior falling into the category of 'high Crimes and Misdemeanors'" is "always subject to removal from office upon impeachment by the House and conviction by the Senate." DOJ adds that "the constitutionally specified impeachment process ensures that the immunity [of a sitting President from prosecution] would not place the President 'above the law.'" Given DOJ's refusal to indict or prosecute a sitting President, impeachment and removal may be one of the few available mechanisms to hold a President immediately accountable for criminal conduct also constituting "high Crimes and Misdemeanors." On that view, the House must have broad access to evidence supporting or refuting allegations of impeachable misconduct, since an unduly narrow view of the House's authority would place the President beyond all legal constraint.

The Judiciary has similarly concluded that the House enjoys broad investigative power in an impeachment setting. In Kilbourn v. Thompson, for example, the Supreme Court invalidated a contempt order by the House, but emphasized that "the whole aspect of the case would have changed" were it an impeachment proceeding, since "[w]here the question of such impeachment is before either [House of Congress] acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases."

More recently, Judge John J. Sirica's influential opinion on the Watergate "road map" likewise emphasized the special and substantial weight assigned to legislative interests in an impeachment context: "[I]t should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information." Sitting en banc, the United States Court of Appeals for the District of Columbia Circuit further recognized that the House has enhanced legal powers to obtain material from the President in an impeachment inquiry because "[t]he investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source."

A spate of decisions from the 1980s further support the House's robust investigative powers during impeachment. In Nixon v. Fitzgerald, the Supreme Court announced a rule of absolute