Washington Is About to Confuse Oversight With Impeachment. Both Parties Will Pay for It.

Commentary

Republicans got a clear message from voters last week. Within hours, Rep. Robert Garcia (D-Calif.), who will chair the House Oversight Committee in January, answered with a two-word statement: “Lawyer up.” The question is what he means.

Oversight is Congress’s constitutional power to ask questions, demand documents, and hold hearings. Impeachment is something else entirely. In the House, it works like an indictment: A simple majority decides, and the accused has no right to be heard before the vote.

Rep. Jamie Raskin (D-Md.), who will chair the House Judiciary Committee, in which impeachment begins, has already said he won’t rule out another impeachment of the president. Washington is about to blur the line between the two.

The first test is already here. On Nov. 9, Rep. Thomas Massie (R-Ky.) reintroduced his eight articles of impeachment against Secretary of War Pete Hegseth, forcing a House vote as soon as this week. In a 218–214 House, he needs only a few Republicans to join Democrats.

Once the new majority is seated in January, Democrats will not need a single Republican vote. The fact that some Republicans are now joining the push makes the standard more important, not less.

History is a useful guide. Before 2024, the House had impeached exactly one Cabinet secretary: Secretary of War William Belknap in 1876, over kickbacks from a military trading post. In 1922, the House Judiciary Committee investigated Attorney General Harry Daugherty and declined to send articles to the floor. In 1932, Treasury Secretary Andrew Mellon resigned to become ambassador to the UK, and the inquiry into him was dropped.

Each of those cases turned on allegations of personal corruption. Resolutions over policy—against former Attorney General Eric Holder, former Attorney General Merrick Garland, and former Secretary of War Lloyd Austin—went nowhere.

That changed in 2024, when House Republicans impeached Homeland Security Secretary Alejandro Mayorkas over the administration’s border policy. Democrats argued that a disagreement over how a Cabinet secretary implements presidential policy is not, by itself, an impeachable offense. That was a sound constitutional argument in 2024, and it remains one today. The Senate dismissed the charges without a trial.

Democrats now have a choice. They can hold to the standard they defended two years ago, or they can adopt the precedent they condemned. If they adopt it, they won’t own it for long. The next Republican House will use it against the next Democratic Cabinet, and it will cite this Congress when it does.

Massie’s theory deserves a close look. By his own account, six of his eight articles charge the secretary with carrying out orders from the president that Massie considers illegal. Hegseth, he says, was “under obligation not to follow them.”

That is the logic of Nuremberg: Following orders is no defense. It is a principle developed to hold accountable those who carried out atrocities. Applying it to a dispute over the war powers resolution stretches it past recognition.

Presidents of both parties have contested that law since it passed in 1973. In 2011, the Obama administration argued that its operation in Libya did not even amount to “hostilities.”

The Constitution reserves impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.” A war powers dispute between Congress and the commander in chief is none of those things.

The remaining articles raise questions that are, at best, worthy of inquiry. Inquiry is what oversight is for. It is not a reason to skip straight to a vote on removal.

The cost of getting this wrong will not stay inside the Capitol. I have spent more than three decades handling high-stakes disputes, and much of my practice today involves advising companies and individuals dealing with Washington.

When oversight turns into a campaign to remove officials, the subpoenas multiply, and they don’t stop at the people named in the articles. Defense contractors, companies that do business with the government, and career civil servants can find themselves drawn into investigations they never expected to face.

On one point, Garcia is right. Anyone likely to be pulled into these investigations should be ready. What I am telling clients this week is simple: Assume that the letters are coming. Get your documents in order now, not after a subpoena arrives. Know which communications may be protected and which are not.

No court will review whether Congress gets this right. The Supreme Court held in 1993 that impeachment belongs to Congress alone. The only restraint is the one Congress places on itself.

Impeachment remains available when the facts and constitutional standards warrant it. But it should be a considered judgment, not the opening move of a post-election Congress.

Democrats understood the danger of lowering that standard when Republicans went after Mayorkas. They should remember it now.

Because once impeachment becomes an ordinary weapon of congressional opposition, neither party gets to decide when it stops being used against it.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.