Jonathan David Shaub (University of Kentucky – J. David Rosenberg College of Law) has posted Congress’s Power Of Inquiry In Impeachment (112 Virginia Law Review (forthcoming 2026)) on SSRN. Here is the abstract:
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 mechanism for expedited, limited judicial review to adjudicate collateral privilege disputes and enforce information demands.
Highly recommended!