[Senate Document 116-18]
[From the U.S. Government Publishing Office]







116th Congress   }                                     {    S. Doc.         
                                 SENATE
2d Session       }                                     {    116-18
_______________________________________________________________________

                                     



 
                          PROCEEDINGS OF THE 

                         UNITED STATES SENATE


                                IN THE


                         IMPEACHMENT TRIAL OF 
                          DONALD JOHN TRUMP 


                   VOLUME I: PRELIMINARY PROCEEDINGS









           [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                             VOLUME I OF IV


                January 31, 2020.--Ordered to be printed















             PROCEEDINGS OF THE UNITED STATES SENATE IN THE 

                 IMPEACHMENT TRIAL OF DONALD JOHN TRUMP 

                   VOLUME I: PRELIMINARY PROCEEDINGS 





















116th Congress   }                                     {    S. Doc.         
                                 SENATE
2d Session       }                                     {    116-18
_______________________________________________________________________

                                     




                          PROCEEDINGS OF THE 
                         UNITED STATES SENATE 


                                IN THE 


                         IMPEACHMENT TRIAL OF 
                           DONALD JOHN TRUMP 


                   VOLUME I: PRELIMINARY PROCEEDINGS 











[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                             VOLUME I OF IV










                January 31, 2020.--Ordered to be printed 
                
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
41-125                   WASHINGTON : 2020
                




                
                
                
                
                
                
                
            UNANIMOUS CONSENT AGREEMENTS RELATED TO PRINTING

                   In the Senate of the United States

                            January 31, 2020

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Secretary be authorized to include statements of 
Senators explaining their votes, either given or submitted 
during the legislative sessions of the Senate on Monday, 
February 3; Tuesday, February 4; and Wednesday, February 5; 
along with the full record of the Senate's proceedings and the 
filings by the parties in a Senate document printed under the 
supervision of the Secretary of the Senate that will complete 
the documentation of the Senate's handling of these impeachment 
proceedings.
    The CHIEF JUSTICE. Without objection, it is so ordered.
          [166 Cong. Rec. S769 (daily ed. Jan. 31, 2020)]

                            February 3, 2020

    Mr. McCONNELL. Mr. President, I ask unanimous consent to 
modify the order of January 31 to allow the Senators to have 
until Wednesday, February 26, 2020--that would be the Wednesday 
after we come back--to have printed statements and opinions in 
the Congressional Record, if they choose, explaining their 
votes and include those in the documentation of the impeachment 
proceedings; finally, I ask that the two-page rule be waived.
    The PRESIDING OFFICER. Without objection, it is so ordered.
          [166 Cong. Rec. S805 (daily ed. Feb. 3, 2020)]

                           February 25, 2020

    Mr. McCONNELL. Madam President, I ask unanimous consent to 
modify the order of January 31 to allow Senators to have until 
Thursday, February 27, 2020, to have printed statements and 
opinions in the Congressional Record, if they choose, 
explaining their votes and include those in the documentation 
of the impeachment proceedings; finally, I ask that the two-
page rule be waived.
    The PRESIDING OFFICER. Without objection, it is so ordered.
          [166 Cong. Rec. S1160 (daily ed. Feb. 25, 2020)]

                                FOREWORD

                              ----------                              

    By unanimous consent, the United States Senate has directed 
the creation of this publication, Senate Document 116-18, which 
contains, in four volumes, the official record of the Senate 
proceedings in the impeachment trial of President Donald John 
Trump in the 116th Congress. The purpose of these volumes is to 
preserve for future reference the formal record of the third 
presidential impeachment trial in the nation's history. 
Together with the 18 volumes contained in Senate Document 116-
13, which includes all publicly available material submitted to 
the Senate by the House of Representatives as their evidentiary 
record, these volumes represent the complete official record of 
the impeachment actions against President Trump in the 116th 
Congress.
    The volumes are:
          Volume I: Preliminary Proceedings
          Volume II: Trial Proceedings
          Volume III: Visual Aids From Trial
          Volume IV: Statements of Senators
    More than 20 years after the last presidential impeachment 
trial in the Senate, technology was a major difference in the 
conduct of these proceedings and how the record was presented. 
Audio and video recordings, as well as visual aids (slides) 
were used by both the House managers and counsel for the 
President throughout the course of their arguments. In Volume I 
and Volume II of this Document, the text of what was heard on 
audio and video proceedings is included in the record. However, 
visual aids are not reproduced in the Congressional Record; 
therefore references have been inserted in this record where 
such aids were used by the speaker. Those references indicate a 
slide number and each such slide can be found in Volume III.

                   Volume I: Preliminary Proceedings

    Volume I contains all preliminary impeachment proceedings 
prior to opening presentations by the House managers and 
counsel for the President and commencement of the evidentiary 
portion of the trial.
    On December 18, 2019, the House of Representatives adopted 
two articles of impeachment against President Trump (House 
Resolution 755, 116th Congress). A subsequent resolution, 
adopted on January 15, 2020, appointed managers on the part of 
the House of Representatives (House Resolution 798, 116th 
Congress).
    On January 15, 2020, Majority Leader Mitch McConnell and 
Democratic Leader Charles E. Schumer addressed the Senate on 
the issue of impeachment. Following recognition of Senate 
leaders, the Clerk of the House informed the Senate in open 
session that the House of Representatives had passed House 
Resolution 798, authorizing and appointing managers for the 
impeachment trial of President Trump. Subsequently, the Senate 
unanimously agreed to receive the managers, request the 
attendance of the Chief Justice of the United States, appoint 
an escort committee for the Chief Justice, and provide 
necessary access to the Senate Chamber. The Senate notified the 
House of Representatives that it was ready to receive the 
managers and begin the trial.
    On January 16, 2020, Majority Leader McConnell and 
Democratic Leader Schumer addressed the Senate on the issue of 
impeachment. At 12:00 noon on January 16, the managers on the 
part of the House of Representatives appeared at the bar of the 
Senate to exhibit the articles of impeachment, set forth in 
House Resolution 755. Following exhibition of the articles of 
impeachment, the president pro tempore of the Senate, by 
unanimous consent, was authorized to appoint a committee 
consisting of four senators to escort the Chief Justice of the 
United States to the Senate Chamber. On January 16, the 
president pro tempore of the Senate appointed Senators Roy 
Blunt, Patrick Leahy, Lindsey Graham, and Dianne Feinstein to 
serve as the escort committee.
    At 2:00 p.m. on January 16, the Chief Justice, as presiding 
officer of the presidential impeachment trial, took the 
prescribed oath and then administered the oath to all senators 
present. With the Chief Justice presiding, the Senate 
unanimously agreed that a summons be issued to President Trump, 
that his answer to the articles of impeachment be filed with 
the Secretary of the Senate by 6:00 p.m. on January 18, 2020, 
and that the House of Representatives file its replication to 
the President's answer with the Secretary by 12:00 noon on 
January 20, 2020. The Senate also agreed that trial briefs, if 
desired, should be filed by the House of Representatives with 
the Secretary by 5:00 p.m. on January 18 and by the President 
by 12:00 noon on January 20, and any rebuttal brief may be 
filed by the House by 12:00 noon on January 21, 2020. These 
agreements also authorized the Secretary to print all of these 
preliminary matters as a Senate document to be made available 
to all parties. These documents were published within 24 hours 
of their filing as Senate Document 116-12, and are also 
reprinted in this Document in Volume I, both in their original 
form and as they were published in the Congressional Record on 
January 21, 2020.
    On January 21, Majority Leader McConnell and Democratic 
Leader Schumer again addressed the Senate on the issue of 
impeachment. After one remaining Senator was sworn in to the 
impeachment proceedings and additional preliminary matters were 
addressed, Leader McConnell introduced Senate Resolution 483 
(116th Congress) to set forth procedures for consideration of 
the articles of impeachment against President Trump. Counsel 
for the President and then the House managers were each given 
up to one hour to debate the Resolution, presenting the first 
arguments by each side in these proceedings. After initial 
debate on the Resolution, Democratic Leader Schumer proposed 
Amendment Number 1284 to subpoena certain White House documents 
and records. After up to two more hours divided by the parties, 
the amendment was tabled (roll call vote number 15). Ten 
additional amendments (numbers 1285-1294) were proposed by 
Democratic Leader Schumer (one on behalf of Senator Van Hollen) 
dealing with the subpoenaing of documents and records, the 
calling of witnesses, and the timing of trial proceedings. 
After further debate on each amendment, each was tabled by a 
roll call vote. After all amendments had been disposed of, the 
Senate adopted Resolution 483 by a vote of 53 yeas to 47 nays 
(roll call vote number 26).

                   Volume II: Floor Trial Proceedings

    Volume II reproduces the official record of the Senate 
floor proceedings in the impeachment trial of President Trump, 
beginning with opening arguments by House managers and counsel 
for the President, as ordered under Senate Resolution 483. The 
managers presented their case on behalf of the House of 
Representatives on January 22, 23, and 24, 2020. Counsel for 
the President presented their case on January 25, 27, and 28. 
On January 29 and 30, senators posed questions to House 
managers and to counsel for the President.
    On January 31, 2020, pursuant to Senate Resolution 483, the 
Senate considered whether it would be in order to consider and 
debate under the impeachment rules any motion to subpoena 
witnesses or documents. The House managers' argument was 
presented first, followed by counsel for the President. After 
argument, the Chief Justice put the question to the Senate for 
its decision, and by a vote of 49 yeas to 51 nays (roll call 
vote number 27) the Senate determined it would not permit 
motions to subpoena witnesses or documents. Majority Leader 
McConnell then introduced Senate Resolution 488, proposing 
procedures for the remainder of the impeachment trial. 
Democratic Leader Schumer proposed 4 amendments to the 
Resolution. No argument was heard on the Resolution or the 
amendments. Each amendment was tabled (roll call vote numbers 
28 through 31), and the Resolution was agreed to by the Senate 
by a vote of 53 yeas to 47 nays (roll call vote number 32).
    No depositions were taken during the Senate proceedings, 
and no witnesses appeared at the trial. The House managers and 
counsel for the President presented closing arguments on 
February 3.
    Volume II concludes with the February 5, 2020, vote and 
judgment of the Senate to acquit President Trump on two 
articles of impeachment (roll call vote numbers 33 and 34).

              Volume III: Visual Aids From the Proceedings

    Volume III reproduces the complete set of visual aids used 
by House managers and counsel for the President during the 
preliminary and trial proceedings. A notation indicating the 
use of a visual aid is embedded in the transcript of the 
proceedings (Volumes I and II) with citation information for 
items included in Volume III.

                   Volume IV: Statements of Senators

    On January 31, 2020, the Senate unanimously agreed to 
provide each senator an opportunity to place in the 
Congressional Record a statement explaining his or her vote on 
the articles of impeachment, and to include those statements in 
the official record of the Senate's impeachment proceedings. 
Modified on February 3 and again on February 25, the unanimous 
consent agreement set a deadline of February 27, 2020, for 
submission of statements. Those statements are included in 
Volume IV.
    The publication of these volumes, supplemented with Senate 
Document 116-13, sets forth a complete record of this historic 
impeachment trial and will provide for a fuller understanding 
of the way in which the Senate conducted these proceedings.

                            Acknowledgements

    I want to thank my staff from the Executive Office, 
Legislative Offices, Office of the Parliamentarian, Office of 
Printing and Document Services, Senate Historical Office and 
Senate Library for their work on both the trial and the 
execution of this Document.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         Julie E. Adams,                   
                        Secretary of the Senate.                   







                            C O N T E N T S

                              ----------                              

                                                                   Page

Foreword.........................................................   III

                   VOLUME I: PRELIMINARY PROCEEDINGS

Constitutional provisions on impeachment.........................     1
Rules of procedure and practice in the Senate when sitting on 
  impeachment trials.............................................     3
Senators duly sworn for the impeachment trial of President Donald 
  John Trump.....................................................    14

                            January 15, 2020

Recognition of the Majority Leader regarding impeachment [166 
  Cong. Rec. S201 (daily ed. Jan. 15, 2020)].....................    15
Recognition of the Minority Leader regarding impeachment [166 
  Cong. Rec. S206 (daily ed. Jan. 15, 2020)].....................    17
Message from the House of Representatives announcing appointment 
  and authorizing managers, H. Res. 798, 116th Cong. Rec. (2020) 
  [166 Cong. Rec. S234, (daily ed. Jan. 15, 2020)]...............    19
Unanimous consent agreement on receiving managers [166 Cong. Rec. 
  S234 (daily ed. Jan. 15, 2020)]................................    19
Unanimous consent agreement on requesting attendance of the Chief 
  Justice [166 Cong. Rec. S234 (daily ed. Jan. 15, 2020)]........    20
Unanimous consent agreement on the authorization for appointment 
  of escort committee and House notification [166 Cong. Rec. S235 
  (daily ed. Jan. 15, 2020)].....................................    20
Unanimous consent agreement on Senate access [166 Cong. Rec. S235 
  (daily ed. Jan. 15, 2020)].....................................    20
Resolution by Senator McConnell to authorize taking a photograph 
  in the Senate Chamber, S. Res. 471 [166 Cong. Rec. S235 (daily 
  ed. Jan. 15, 2020)]............................................    22
Message from the House of Representatives announcing impeachment 
  of the President and appointment of managers, H. Res. 755 [166 
  Cong. Rec. S242 (daily ed. Jan. 15, 2020)].....................    23
Notice to the House of Representatives announcing Senate ready to 
  receive managers...............................................    26
Notice requesting attendance of the Chief Justice................    27
Notice to the House of Representatives announcing start of trial.    28
H. Res. 798, 116th Cong. (2020)..................................    29
S. Res. 471, 116th Cong. (2020)..................................    31
Photograph taken pursuant to S. Res. 471, 116th Cong. (2020).....    33
H. Res. 755, 116th Cong. (2020)..................................    34
Sample of Senate impeachment trial gallery tickets...............    43

                            January 16, 2020

Recognition of the Majority Leader regarding impeachment [166 
  Cong. Rec. S255 (daily ed. Jan. 16, 2020)].....................    45
Recognition of the Minority Leader regarding impeachment [166 
  Cong. Rec. S257 (daily ed. Jan. 16, 2020)].....................    46
Exhibition of articles of impeachment against Donald John Trump, 
  President of the United States [166 Cong. Rec. S266 (daily ed. 
  Jan. 16, 2020)]................................................    49
Appointment of escort committee to receive Chief Justice [166 
  Cong. Rec. S267 (daily ed. Jan. 16, 2020)].....................    53
Administration of oath to Chief Justice [166 Cong. Rec. S268 
  (daily ed. Jan. 16, 2020)].....................................    54
Administration of oath to members of Senate [166 Cong. Rec. S268 
  (daily ed. Jan. 16, 2020)].....................................    55
Unanimous consent agreement providing for issuance of summons to 
  Donald John Trump, President of the United States, and the 
  filing and printing of related documents [166 Cong. Rec. S268 
  (daily ed. Jan. 16, 2020)].....................................    56
Unanimous consent agreement on the filing and printing of trial 
  briefs [166 Cong. Rec. S268 (daily ed. Jan. 16, 2020)].........    56
Unanimous consent agreement to authorize installation of 
  appropriate equipment and furniture in Senate Chamber [166 
  Cong. Rec. S269 (daily ed. Jan. 16, 2020)].....................    56
Unanimous consent agreement to conduct Senate business [166 Cong. 
  Rec. S282 (daily ed. Jan. 16 2020)]............................    57
Precept (January 16, 2020).......................................    58
Writ of Summons (January 16, 2020)...............................    59
Return of Service (January 16, 2020).............................    64

                            January 18, 2020

Answer of President Donald J. Trump (January 18, 2020)\i\........    65
Trial memorandum of the United States House of Representatives in 
  the impeachment trial of President Donald J. Trump (January 18, 
  2020)..........................................................    73

                            January 20, 2020

Replication of the United States House of Representatives to the 
  answer of President Donald J. Trump to the articles of 
  impeachment (January 20, 2020).................................   185
Trial memorandum of President Donald J. Trump (January 20, 2020).   195

                            January 21, 2020

Reply memorandum of the United States House of Representatives in 
  the impeachment trial of President Donald J. Trump (January 21, 
  2020)..........................................................   367
Recognition of the Majority Leader regarding impeachment [166 
  Cong. Rec. S287 (daily ed. Jan. 21, 2020)].....................   403
Recognition of the Minority Leader regarding impeachment [166 
  Cong. Rec. S288 (daily ed. Jan. 21, 2020)].....................   406
Administration of oath to a senator [166 Cong. Rec. S289 (daily 
  ed. Jan. 21, 2020)]............................................   409
Unanimous consent agreement on authority to print Senate 
  documents [166 Cong. Rec. S290 (daily ed. Jan. 21, 2020)]......   409
Answer of President Donald J. Trump (January 18, 2020) [166 Cong. 
  Rec. S290 (daily ed. Jan. 21, 2020)]...........................   410
Trial memorandum of the United States House of Representatives in 
  the impeachment trial of President Donald J. Trump, with 
  Appendix (January 18, 2020) [166 Cong. Rec. S291 (daily ed. 
  Jan. 21, 2020)]................................................   412
Trial memorandum of President Donald J. Trump, with Appendix 
  (January 20, 2020) [166 Cong. Rec. S313 (daily ed. Jan. 21, 
  2020)].........................................................   462
Replication of the United States House of Representatives to the 
  answer of President Donald J. Trump to the articles of 
  impeachment (January 20, 2020) [166 Cong. Rec. S369 (daily ed. 
  Jan. 21, 2020)]................................................   587
Reply memorandum of the United States House of Representatives in 
  the impeachment trial of President Donald J. Trump (January 21, 
  2020) [166 Cong. Rec. S371 (daily ed. Jan. 21, 2020)]..........   591
Unanimous consent agreement on floor privileges [166 Cong. Rec. 
  S377 (daily ed. Jan. 21, 2020)]................................   605
Resolution by Senator McConnell and amendments thereto by 
  Senators Schumer and Van Hollen relating to procedures 
  concerning the articles of impeachment against Donald John 
  Trump, President of the United States, S. Res. 483, 116th Cong. 
  (2020) [166 Cong. Rec. S377 (daily ed. Jan. 21, 2020)].........   606
    Rollcall vote No. 15 [166 Cong. Rec. S394 (daily ed. Jan. 21, 
      2020)].....................................................   649
    Rollcall vote No. 16 [166 Cong. Rec. S401 (daily ed. Jan. 21, 
      2020)].....................................................   668
    Rollcall vote No. 17 [166 Cong. Rec. S406 (daily ed. Jan. 21, 
      2020)].....................................................   681
    Rollcall vote No. 18 [166 Cong. Rec. S412 (daily ed. Jan. 21, 
      2020)].....................................................   698
    Rollcall vote No. 19 [166 Cong. Rec. S416 (daily ed. Jan. 21, 
      2020)].....................................................   709
    Rollcall vote No. 20 [166 Cong. Rec. S420 (daily ed. Jan. 21, 
      2020)].....................................................   720
    Rollcall vote No. 21 [166 Cong. Rec. S422 (daily ed. Jan. 21, 
      2020)].....................................................   726
    Rollcall vote No. 22 [166 Cong. Rec. S428 (daily ed. Jan. 21, 
      2020)].....................................................   741
    Rollcall vote No. 23 [166 Cong. Rec. S429 (daily ed. Jan. 21, 
      2020)].....................................................   744
    Rollcall vote No. 24 [166 Cong. Rec. S430 (daily ed. Jan. 21, 
      2020)].....................................................   746
    Rollcall vote No. 25 [166 Cong. Rec. S431 (daily ed. Jan. 21, 
      2020)].....................................................   749
    Rollcall vote No. 26 [166 Cong. Rec. S431 (daily ed. Jan. 21, 
      2020)].....................................................   750
S. Res. 483, 116th Cong. (2020)..................................   752
Sample question card used by senators............................   756

                   VOLUME II: FLOOR TRIAL PROCEEDINGS
                            January 22, 2020

Presentation of case by House managers [166 Cong. Rec. S443-485 
  (daily ed. Jan. 22, 2020)].....................................   758
Receipt of a document from the House of Representatives [166 
  Cong. Rec. S485 (daily ed. Jan. 22, 2020)].....................   867
Recognizing the Pages [166 Cong. Rec. S485 (daily ed. Jan. 22, 
  2020)].........................................................   867
Unanimous consent agreement to conduct Senate business [166 Cong. 
  Rec. S485 (daily ed. Jan. 22, 2020)]...........................   867

                            January 23, 2020

Presentation of case by House managers [166 Cong. Rec. S487-529 
  (daily ed. Jan. 23, 2020)].....................................   869

                            January 24, 2020

Presentation of case by House managers [166 Cong. Rec. S531-566 
  (daily ed. Jan. 24, 2020)].....................................   981

                            January 25, 2020

Presentation of case by counsel for the President [166 Cong. Rec. 
  S567-578 (daily ed. Jan. 25, 2020)]............................  1072

                            January 27, 2020

Presentation of case by counsel for the President [166 Cong. Rec. 
  S579-617 (daily ed. Jan. 27, 2020)]............................  1102

                            January 28, 2020

Presentation of case by counsel for the President [166 Cong. Rec. 
  S619-627 (daily ed. Jan. 28, 2020)]............................  1201
Unanimous consent agreement on question period [166 Cong. Rec. 
  S626 (daily ed. Jan. 28, 2020)]................................  1220

                            January 29, 2020

Questions submitted by senators and answers of House managers and 
  counsel for the President [166 Cong. Rec. S645-691 (daily ed. 
  Jan. 29, 2020)]................................................  1222

                            January 30, 2020

Questions submitted by senators and answers of House managers and 
  counsel for the President [166 Cong. Rec. S693-739 (daily ed. 
  Jan. 30, 2020)]................................................  1343
Notice of intent to suspend the rules of the Senate by Senators 
  Blumenthal, Brown and Durbin [166 Cong. Rec. S739 (daily ed. 
  Jan. 30, 2020)]................................................  1463

                            January 31, 2020

Argument of House managers on the question of motions to subpoena 
  [166 Cong. Rec. S753-761 (daily ed. Jan. 31, 2020)]............  1464
Argument of counsel for the President on the question of motions 
  to subpoena [166 Cong. Rec. S761-66 (daily ed. Jan. 31, 2020)].  1486
Vote on the question of motions to subpoena [166 Cong. Rec. S766 
  (daily ed. Jan. 31, 2020)].....................................  1498
    Rollcall vote No. 27 [166 Cong. Rec. S766 (daily ed. Jan. 31, 
      2020)].....................................................  1499
Resolution by Senator McConnell and amendments thereto by Senator 
  Schumer relating to procedures concerning the articles of 
  impeachment against Donald John Trump, President of the United 
  States, S. Res. 488, 116th Cong. (2020) [166 Cong. Rec. S767-
  769 (daily ed. Jan. 31, 2020)].................................  1500
    Rollcall vote No. 28 [166 Cong. Rec. S767 (daily ed. Jan. 31, 
      2020)].....................................................  1501
    Rollcall vote No. 29 [166 Cong. Rec. S767 (daily ed. Jan. 31, 
      2020)].....................................................  1502
    Rollcall vote No. 30 [166 Cong. Rec. S768 (daily ed. Jan. 31, 
      2020)].....................................................  1504
    Rollcall vote No. 31 [166 Cong. Rec. S769 (daily ed. Jan. 31, 
      2020)].....................................................  1506
    Rollcall vote No. 32 [166 Cong. Rec. S769 (daily ed. Jan. 31, 
      2020)].....................................................  1506
Unanimous consent agreement on printing documentation of the 
  impeachment proceedings [166 Cong. Rec. S769 (daily ed. Jan. 
  31, 2020)].....................................................  1507
Text of amendments submitted and proposed, SA 1295-1298 [166 
  Cong. Rec. S769-772 (daily ed. Jan. 3, 2020)]..................  1508
S. Res. 488, 116th Cong. (2020)..................................  1516

                            February 3, 2020

Final arguments of House managers [166 Cong. Rec. S773-778 (daily 
  ed. Feb. 3, 2020)].............................................  1519
Final arguments of counsel for the President [166 Cong. Rec. 
  S778-785 (daily ed. Feb. 3, 2020)].............................  1531
Rebuttal final arguments of House managers [166 Cong. Rec. S785-
  790 (daily ed. Feb. 3, 2020)]..................................  1549

                            February 5, 2020

Vote on first article of impeachment [166 Cong. Rec. S937 (daily 
  ed. Feb. 5, 2020)].............................................  1563
    Rollcall vote No. 33 [166 Cong. Rec. S937 (daily ed. Feb. 5, 
      2020)].....................................................  1564
Vote on second article of impeachment [166 Cong. Rec. S938 (daily 
  ed. Feb. 5, 2020)].............................................  1565
    Rollcall vote No. 34 [166 Cong. Rec. S938 (daily ed. Feb. 5, 
      2020)].....................................................  1566
Communication to the Secretary of State and House of 
  Representatives [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)].  1567
Expressions of gratitude by the Majority Leader and Minority 
  Leader [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)]..........  1567
Statement of the Chief Justice [166 Cong. Rec. S938 (daily ed. 
  Feb. 5, 2020)].................................................  1569
Adjournment sine die [166 Cong. Rec. S939 (daily ed. Feb. 5, 
  2020)].........................................................  1570
Legislative Clerk's tally sheets for Senate votes on articles of 
  impeachment....................................................  1571
Judgment of the United States Senate (Feb. 5, 2020)..............  1573

                         TABLE OF ROLLCALL VOTES
------------------------------------------------------------------------
                                Measure/
 Vote No.        Date          Description           Result         Page
------------------------------------------------------------------------
15........  1/21/20......  To subpoena         Motion to Table       649
                            certain White       Agreed 53-47.....
                            House documents
                            and records......
16........  1/21/20......  To subpoena         Motion to Table       668
                            certain             Agreed 53-47.....
                            Department of
                            State documents
                            and records......
17........  1/21/20......  To subpoena         Motion to Table       681
                            certain Office of   Agreed 53-47.....
                            Management and
                            Budget documents
                            and records......
18........  1/21/20......  To subpoena John    Motion to Table       698
                            Michael "Mick"      Agreed 53-47.....
                            Mulvaney.........
19........  1/21/20......  To subpoena         Motion to Table       709
                            certain             Agreed 53-47.....
                            Department of
                            Defense documents
                            and records......
20........  1/21/20......  To subpoena Robert  Motion to Table       720
                            B. Blair and        Agreed 53-47.....
                            Michael P. Duffey
21........  1/21/20......  To prevent the      Motion to Table       726
                            selective           Agreed 53-47.....
                            admission of
                            evidence and to
                            provide for
                            appropriate
                            handling of
                            classified and
                            confidential
                            materials........
22........  1/22/20......  To subpoena John    Motion to Table       741
                            Robert Bolton....   Agreed 53-47.....
23........  1/22/20......  To provide that     Motion to Table       744
                            motions to          Agreed 53-47.....
                            subpoena
                            witnesses or
                            documents shall
                            be in order after
                            the question
                            period...........
24........  1/22/20......  To allow            Motion to Table       746
                            additional time     Agreed 52-48.....
                            to file responses
                            to Motions.......
25........  1/22/20......  To help ensure      Motion to Table       749
                            impartial justice   Agreed 53-47.....
                            by requiring the
                            Chief Justice of
                            the United States
                            to rule on
                            motions to
                            subpoena
                            witnesses and
                            documents........
26........  1/22/20......  S. Res. 483.......  Resolution Agreed     750
                                                53-47............
27........  1/31/20......  Whether to          Answered No 49-51.   1499
                            consider and
                            debate any motion
                            to subpoena
                            witnesses or
                            documents........
28........  1/31/20......  To subpoena         Motion to Table      1501
                            certain relevant    Agreed 53-47.....
                            witnesses and
                            documents........
29........  1/31/20......  To subpoena John    Motion to Table      1502
                            Robert Bolton....   Agreed 51-49.....
30........  1/31/20......  To subpoena John    Motion to Table      1504
                            Robert Bolton....   Agreed 51-49.....
31........  1/31/20......  To help ensure      Motion to Table      1506
                            impartial justice   Agreed 53-47.....
                            by requiring the
                            Chief Justice of
                            the United States
                            to rule on
                            motions to
                            subpoena
                            witnesses and
                            documents and
                            issues of
                            privilege........
32........  1/31/20......  S. Res. 488.......  Resolution Agreed    1506
                                                53-47............
33........  2/05/20......  Impeachment         Not Guilty 48-52..   1564
                            Article I........
34........  2/05/20......  Impeachment         Not Guilty 47-53..   1566
                            Article II.......
------------------------------------------------------------------------

               VOLUME III: VISUAL AIDS FROM THE TRIAL\ii\
                            January 21, 2020

Slides 1-142 [166 Cong. Rec. S380-426 (daily ed. Jan. 21, 2020)].  1577

                            January 22, 2020

Slides 143-228 [166 Cong. Rec. S443-483 (daily ed. Jan. 22, 
  2020)].........................................................  1649

                            January 23, 2020

Slides 229-378 [166 Cong. Rec. S488-527 (daily ed. Jan. 23, 
  2020)].........................................................  1693

                            January 24, 2020

Slides 379-480 [166 Cong. Rec. S531-559 (daily ed. Jan. 24, 
  2020)].........................................................  1769

                            January 25, 2020

Slides 481-504 [166 Cong. Rec. S568-578 (daily ed. Jan. 25, 
  2020)].........................................................  1821

                            January 27, 2020

Slides 505-555 [166 Cong. Rec. S580-613 (daily ed. Jan. 27, 
  2020)].........................................................  1833

                            January 28, 2020

Slides 556-559 [166 Cong. Rec. S621-622 (daily ed. Jan. 28, 
  2020)].........................................................  1859

                            January 29, 2020

Slides 560-571 [166 Cong. Rec. S647-686 (daily ed. Jan. 29, 
  2020)].........................................................  1861

                            January 30, 2020

Slides 572-580 [166 Cong. Rec. S693-729 (daily ed. Jan. 30, 
  2020)].........................................................  1867

                            January 31, 2020

Slides 581-608 [166 Cong. Rec. S753-760 (daily ed. Jan. 31, 
  2020)].........................................................  1873

                            February 3, 2020

Slides 609-616 [166 Cong. Rec. S773-783 (daily ed. Feb. 3, 2020)]  1887

                   VOLUME IV: STATEMENTS OF SENATORS
                            February 3, 2020

Sen. Heinrich....................................................  1891
Sen. Grassley....................................................  1893
Sen. Murray......................................................  1896
Sen. Stabenow....................................................  1899
Sen. Wyden.......................................................  1901
Sen. Manchin.....................................................  1903
Sen. Blackburn...................................................  1907
Sen. Cantwell....................................................  1908
Sen. Schatz......................................................  1911
Sen. Inhofe......................................................  1912
Sen. Cardin......................................................  1917
Sen. Loeffler....................................................  1925
Sen. Udall.......................................................  1926
Sen. Gillibrand..................................................  1929
Sen. Murkowski...................................................  1930
Sen. Young.......................................................  1932

                            February 4, 2020

Sen. McConnell...................................................  1935
Sen. Schumer.....................................................  1938
Sen. Thune.......................................................  1939
Sen. Cassidy.....................................................  1942
Sen. Ernst.......................................................  1945
Sen. Wicker......................................................  1946
Sen. Blumenthal..................................................  1948
Sen. Van Hollen..................................................  1952
Sen. Peters......................................................  1954
Sen. Whitehouse..................................................  1956
Sen. Smith.......................................................  1960
Sen. Paul........................................................  1962
Sen. Fischer.....................................................  1966
Sen. Capito......................................................  1968
Sen. Roberts.....................................................  1970
Sen. Hoeven......................................................  1972
Sen. Menendez....................................................  1973
Sen. Markey......................................................  1976
Sen. Carper......................................................  1979
Sen. Kaine.......................................................  1982
Sen. Cruz........................................................  1984
Sen. Kennedy.....................................................  1987
Sen. Perdue......................................................  1989
Sen. Daines......................................................  1992
Sen. Rounds......................................................  1994
Sen. Shaheen.....................................................  1998
Sen. Feinstein...................................................  2001
Sen. Warner......................................................  2003
Sen. Tester......................................................  2006
Sen. Collins.....................................................  2008
Sen. Booker......................................................  2011
Sen. Portman.....................................................  2016
Sen. Casey.......................................................  2019
Sen. Boozman.....................................................  2021
Sen. Lankford....................................................  2024
Sen. King........................................................  2028

                            February 5, 2020

Sen. Merkley.....................................................  2031
Sen. Cornyn......................................................  2033
Sen. Hawley......................................................  2042
Sen. Alexander...................................................  2043
Sen. Sasse.......................................................  2053
Sen. Harris......................................................  2055
Sen. Hassan......................................................  2057
Sen. Jones.......................................................  2059
Sen. Reed........................................................  2062
Sen. Duckworth...................................................  2065
Sen. Blunt.......................................................  2068
Sen. Lee.........................................................  2070
Sen. Cramer......................................................  2075
Sen. Hyde-Smith..................................................  2076
Sen. Risch.......................................................  2077
Sen. Brown.......................................................  2079
Sen. Hirono......................................................  2082
Sen. Bennet......................................................  2085
Sen. Baldwin.....................................................  2088
Sen. Murphy......................................................  2091
Sen. Romney......................................................  2093
Sen. Scott (SC)..................................................  2096
Sen. Coons.......................................................  2098
Sen. Gardner.....................................................  2101
Sen. Leahy.......................................................  2104
Sen. Shelby......................................................  2108
Sen. Durbin......................................................  2110
Sen. Graham......................................................  2116
Sen. Schumer.....................................................  2122
Sen. McConnell...................................................  2127
Sen. Grassley....................................................  2129
Sen. Leahy.......................................................  2135
Sen. Enzi........................................................  2137
Sen. Burr........................................................  2140
Sen. Sanders.....................................................  2145
Sen. Toomey......................................................  2147
Sen. Rubio.......................................................  2149
Sen. Johnson.....................................................  2150
Sen. Blumenthal..................................................  2164
Sen. Warren......................................................  2176
Sen. Peters......................................................  2177
Sen. Cotton......................................................  2179
Sen. Sullivan....................................................  2181
Sen. Cortez Masto................................................  2187
Sen. Rosen.......................................................  2190

                           February 10, 2020

Sen. Barrasso....................................................  2192

                           February 12, 2020

Sen. Schumer.....................................................  2197
Sen. Brown.......................................................  2200

                           February 13, 2020

Sen. McConnell...................................................  2203

                           February 25, 2020

Sen. Lankford....................................................  2206
Sen. Tillis......................................................  2222

                           February 27, 2020

Sen. Reed........................................................  2225
Sen. Casey.......................................................  2272
Sen. Cramer......................................................  2283

    \i\For ease of reference, the documents contained in S. Doc. 116-
12, i.e., the pertinent constitutional provisions, the Senate 
Impeachment Rules, the Articles of Impeachment, the Answer of President 
Trump, and the Replication of the House of Representatives, are 
reprinted in this publication.
    \ii\Slide images are only printed in Volume III. Congressional 
Record pages have been listed for ease of reference.
      
    
    
SENATORS DULY SWORN FOR THE IMPEACHMENT TRIAL OF PRESIDENT DONALD JOHN 
                                 TRUMP

Alexander, Lamar (R-TN)             Klobuchar, Amy (D-MN)
Baldwin, Tammy (D-WI)               Lankford, James (R-OK)
Barrasso, John (R-WY)               Leahy, Patrick (D-VT)
Bennet, Michael F. (D-CO)           Lee, Mike (R-UT)
Blackburn, Marsha (R-TN)            Loeffler, Kelly (R-GA)
Blumenthal, Richard (D-CT)          Manchin, Joe, III (D-WV)
Blunt, Roy (R-MO)                   Markey, Edward J. (D-MA)
Booker, Cory (D-NJ)                 McConnell, Mitch (R-KY)
Boozman, John (R-AR)                McSally, Martha (R-AZ)
Braun, Mike (R-IN)                  Menendez, Robert (D-NJ)
Brown, Sherrod (D-OH)               Merkley, Jeff (D-OR)
Burr, Richard (R-NC)                Moran, Jerry (R-KS)
Cantwell, Maria (D-WA)              Murkowski, Lisa (R-AK)
Capito, Shelley Moore (R-WV)        Murphy, Christopher (D-CT)
Cardin, Benjamin L. (D-MD)          Murray, Patty (D-WA)
Carper, Thomas R. (D-DE)            Paul, Rand (R-KY)
Casey, Robert P., Jr. (D-PA)        Perdue, David (R-GA)
Cassidy, Bill (R-LA)                Peters, Gary C. (D-MI)
Collins, Susan M. (R-ME)            Portman, Rob (R-OH)
Coons, Christopher A. (D-DE)        Reed, Jack (D-RI)
Cornyn, John (R-TX)                 Risch, James E. (R-ID)
Cortez Masto, Catherine (D-NV)      Roberts, Pat (R-KS)
Cotton, Tom (R-AR)                  Romney, Mitt (R-UT)
Cramer, Kevin (R-ND)                Rosen, Jacky (D-NV)
Crapo, Mike (R-ID)                  Rounds, Mike (R-SD)
Cruz, Ted (R-TX)                    Rubio, Marco (R-FL)
Daines, Steve (R-MT)                Sanders, Bernard (I-VT)
Duckworth, Tammy (D-IL)             Sasse, Ben (R-NE)
Durbin, Richard J. (D-IL)           Schatz, Brian (D-HI)
Enzi, Michael B. (R-WY)             Schumer, Charles E. (D-NY)
Ernst, Joni (R-IA)                  Scott, Rick (R-FL)
Feinstein, Dianne (D-CA)            Scott, Tim (R-SC)
Fischer, Deb (R-NE)                 Shaheen, Jeanne (D-NH)
Gardner, Cory (R-CO)                Shelby, Richard C. (R-AL)
Gillibrand, Kirsten E. (D-NY)       Sinema, Kyrsten (D-AZ)
Graham, Lindsey (R-SC)              Smith, Tina (D-MN)
Grassley, Chuck (R-IA)              Stabenow, Debbie (D-MI)
Harris, Kamala D. (D-CA)            Sullivan, Dan (R-AK)
Hassan, Margaret Wood (D-NH)        Tester, Jon (D-MT)
Hawley, Josh (R-MO)                 Thune, John (R-SD)
Heinrich, Martin (D-NM)             Tillis, Thom (R-NC)
Hirono, Mazie K. (D-HI)             Toomey, Patrick J. (R-PA)
Hoeven, John (R-ND)                 Udall, Tom (D-NM)
Hyde-Smith, Cindy (R-MS)            Van Hollen, Chris (D-MD)
Inhofe, James M. (R-OK)             Warner, Mark R. (D-VA)
Johnson, Ron (R-WI)                 Warren, Elizabeth (D-MA)
Jones, Doug (D-AL)                  Whitehouse, Sheldon (D-RI)
Kaine, Tim (D-VA)                   Wicker, Roger F. (R-MS)
Kennedy, John (R-LA)                Wyden, Ron (D-OR)
King, Angus S., Jr. (I-ME)          Young, Todd (R-IN)
           [From the Congressional Record, January 15, 2020]

                                ------                                


                   RECOGNITION OF THE MAJORITY LEADER

                              IMPEACHMENT

    Mr. McCONNELL. Mr. President, today it appears that the 
House Democrat majority will finally stand behind its decision 
to impeach the President of the United States. Last year, the 
House of Representatives rushed through the least thorough and 
most unclear impeachment inquiry in American history. They took 
just 12 weeks--12 weeks.
    There was more than a year of hearings before the 
impeachment of President Nixon. There were multiple years of 
investigation for President Clinton. When people are serious 
about compiling evidence and proving a case, these things take 
time.
    That is not what happened this time. House Democrats 
performed a pale imitation of a real inquiry. They did not 
pursue their own subpoenas through the courts. They declined to 
litigate potential questions of privilege. They pulled the plug 
as soon as Speaker Pelosi realized she had enough Democrat 
votes to achieve a political outcome.
    This isn't really about Ukraine policy or military 
assistance money. It can't be because, for one thing, prominent 
Democrats were promising to impeach President Trump years--
years--before those events even happened.
    The day this President was inaugurated, the Washington Post 
said: ``The campaign to impeach President Trump has begun.'' 
That was the day he was inaugurated, stated in the Washington 
Post.
    More than 2 years ago, Congressman Jerry Nadler was 
campaigning to be the top Democrat on the House Judiciary 
Committee, specifically because he was an impeachment expert.
    Just a few weeks ago, when a reporter asked Speaker Pelosi 
why the Democrats were in such a hurry, here is her response:

    Speed? It's been going on for 22 months. Two and a half years, 
actually.

    That is really interesting--really, really interesting. The 
events over which the Democrats want to impeach happened just 6 
months ago--just 6 months ago--not 2\1/2\ years ago.
    So how has impeachment been underway for 2\1/2\ years? The 
Speaker tried to say she was referring to the Mueller 
investigation, except the House couldn't impeach on the Mueller 
investigation because the facts let them down; remember?
    The House impeached over events in Ukraine, events that 
happened only 6 months ago, but they still admit this was years 
in the making. It was not some earnest factfinding mission that 
brought us to where we are. This is not about the nuances of 
foreign assistance to Eastern Europe. This has been naked 
partisanship all along--naked partisanship all along.
    If that weren't already obvious, our colleague the Senate 
Democratic leader helpfully removed any shred of doubt just 
this past weekend. Here is what he said: He told reporters that 
as long as he can try to use the trial to hurt some Republican 
Senators' reelection chances, then whatever happens, ``it's a 
win-win.'' That is what the Democratic leader said. This is a 
stunning statement.
    Presidential impeachment may be the gravest process our 
Constitution contemplates. It undoes the people's decision in a 
national election. Going about it in this subjective, unfair, 
and rushed way is corrosive to our institutions. It hurts 
national unity, and it virtually guarantees--guarantees--that 
future Houses of either party will feel free--free--to impeach 
any future President because they don't like him. If you don't 
like him, impeach him. That is the message coming out of this.
    But as long as our colleague the Democratic leader can 
weaponize this process in the next election, he thinks ``it's a 
win-win.'' That really says it all; doesn't it? That really 
sums it up.
    This partisanship led House Democrats to cross a rubicon 
that every other House of Representatives had avoided for 230 
years. They passed the first Presidential impeachment that does 
not even allege an actual crime under our laws. We had a 230-
year tradition of rejecting purely political impeachments, and 
it died last month in this House of Representatives.
    So Speaker Pelosi and the House have taken our Nation down 
a dangerous road. If the Senate blesses this unprecedented and 
dangerous House process by agreeing that an incomplete case and 
a subjective basis are enough to impeach a President, we will 
almost guarantee the impeachment of every future President of 
either party when the House doesn't like that President.
    This grave process of last constitutional resort will be 
watered down into the kind of anti-democratic recall measure 
that the Founding Fathers explicitly--explicitly--did not want.
    The Senate was designed to stabilize our institutions, to 
break partisan fevers, and to stop short-term passions from 
destroying our long-term future. House Democrats may have 
descended into pure factionalism, but the U.S. Senate must not.
    This is the only body that can consider all factors 
presented by the House, decide what has or has not been proven, 
and choose what outcome best serves the Nation. This is what we 
must do.
                                ------                                


                           ORDER OF PROCEDURE

    Mr. McCONNELL. Mr. President, for the information of all 
Senators, with the House signaling that they will move forward 
later today, Members can expect to receive further guidance 
about the logistics and practicalities of the next several 
session days in short order.
                                ------                                


                   RECOGNITION OF THE MINORITY LEADER

                              IMPEACHMENT

    Mr. SCHUMER. Mr. President, today is a momentous, historic, 
and solemn day in the history of the U.S. Senate and in the 
history of our Republic. The House of Representatives will send 
Articles of Impeachment against President Trump to the Senate, 
and the Speaker will appoint the House managers of the 
impeachment case.
    Two articles will be delivered. The first charges the 
President with abuse of power--of coercing a foreign leader 
into interfering in our elections and of using the powers of 
the Presidency, the most powerful public office in the Nation, 
to benefit himself. The second charges the President with 
obstruction of Congress for an unprecedented blockade of the 
legislature's authority to oversee and investigate the 
executive branch.
    Let's put it a different way.
    The House of Representatives has accused the President of 
trying to shake down a foreign leader for personal gain to help 
him in his campaign, and he has done everything possible to 
cover it up. This administration is unprecedented in its not 
being open, in its desire for secrecy, in its desire to prevent 
the public from knowing what it is doing, and it is worst of 
all when it comes in an impeachment trial.
    The two offenses are the types of offenses the Founders had 
in mind when they designed the impeachment powers of Congress. 
Americans and the Founding Fathers, in particular, from the 
very founding day of the Republic, have feared the ability of a 
foreign power to interfere in our elections. Americans have 
never wanted a foreign power to have sway over our elections, 
but that is what President Trump is accused of doing--of 
soliciting--in these articles.
    I would ask my colleagues, and I would ask the American 
people: Do we want a foreign power determining who our 
President is or do we want the American voters to determine it? 
It is that serious. That is the central question: Who should 
determine who our President and our other elected officials 
are?
    From the early days of the Republic, foreigners have tried 
to interfere, and from the early days of the Republic, we have 
resisted. Yet, according to these articles and other things he 
has done, President Trump seems to aid and abet it. His view 
is, if it is good for him, then, that is good enough. That is 
not America. We are a nation of laws--of the rule of law, not 
of the rule of one man.
    So now the Senate's job is to try the case--to conduct a 
fair trial on these very severe charges of letting, aiding, 
abetting, and encouraging a foreign power to interfere in our 
elections and of threatening them with the cutoff of aid--and 
to determine if the President's offenses merit, if they are 
proven, the most severe punishment our Constitution imagines.
    The House has made a very strong case, but, clearly, the 
Senators have to see that case and watch it firsthand. A fair 
trial means the prosecutors who make the case and the 
President's counsel who provide the defense have all of the 
evidence available. It means that Senators have all of the 
facts to make an informed decision. That means relevant 
witnesses, and that means relevant documents. We all know that. 
We all know--every Member of this body, Democrat or 
Republican--that you can't have a fair, open trial, 
particularly on something as weighty as impeachment, when we 
don't have the evidence and the facts.
    The precedents of the Senate are clear. Leader McConnell is 
constantly citing precedent. Here is one: The Senate has always 
heard from witnesses in impeachment trials. There have been 15 
completed impeachment trials in the history of this country. In 
every single one of them, the Senate has heard from witnesses. 
Let me repeat that for Leader McConnell's benefit since he is 
always citing the precedent of 1999. There have been 15 
completed impeachment trials, including the one in 1999. In the 
history of this country, in every single one of them, the 
Senate has heard from witnesses. It would be unprecedented not 
to. President Johnson's impeachment trial had witnesses--41 of 
them. President Clinton's trial had witnesses. Several of my 
colleagues, including the Republican leader, voted for them. 
Conducting an impeachment trial of the President of the United 
States and having no witnesses would be without precedent and, 
frankly, a new low for the majority in this body that history 
will not look kindly on.
    Each day that goes by, the case for witnesses and documents 
gains force and gains momentum. Last night, a new cache of 
documents, including dozens of pages of notes, text messages, 
and other records, shed light on the activities of the 
President's associates in Ukraine. The documents paint a sordid 
picture of the efforts by the President's personal attorney, 
Rudy Giuliani, and his associate, Lev Parnas, to remove a 
sitting U.S. Ambassador and to pressure Ukraine President 
Zelensky to announce an investigation of one of the President's 
political rivals. Part of the plot to remove Ambassador 
Yovanovitch involved hiring a cheap Republican operative to 
follow her around and monitor her movements. How low can they 
go?
    Just when you think that President Trump and his network 
couldn't possibly get any more into the muck, reports suggest 
they are even dirtier than you could imagine. I saw a novelist 
on TV this morning. He said: If I had brought this plot to my 
publisher, he would have rejected it. He would have said it was 
absurd, that it could never happen, and that people will not 
believe it.
    Well, here it is, led by President Trump, who, again, cares 
not for the morals, ethics, and honor of this country as much 
as he cares about himself.
    To allegedly have some cut-rate political operative stalk 
an American Ambassador at the direction of the President's 
lawyer, potentially with the President's ``knowledge and 
consent''--that is what one of the emails read--I mean, how 
much more can America take in the decline of our morals, our 
values, and our standing in the world?
    I don't care who you are--Democrat, Republican, liberal, 
conservative. Doesn't this kind of thing bother you if anyone 
does it, let alone the President of the United States?
    I don't know how any Member of this body could pick up the 
newspaper this morning, read this new revelation, and not 
conclude that the Senate needs access to relevant documents 
like these in the trial of President Trump. The release of this 
new information dramatically underscores the need for witnesses 
and for documents.
    The Republican leader has, so far, opposed Democratic 
requests to call for factfinding witnesses and to subpoena 
three specific sets of relevant documents. Despite their having 
no argument against them, the Republicans' position at the 
moment is to punt the question of witnesses and documents until 
after both sides finish their presentations. Then, they say 
they will consider documents and witnesses with an open mind.
    The Democrats have requested four fact witnesses. They are 
the President's top advisers, like Mr. Mulvaney. They are not 
the Democrats' men. They are the President's men. They are not 
Democratic witnesses. They are not our witnesses. They are just 
witnesses, plain and simple. Each of them has firsthand 
information about the charges against the President.
    So, as the House prepares to send the articles to the 
Senate today, it is time for us--all of us--to turn to the 
serious job of conducting a fair trial, one that the American 
people will accept as fair, not as a coverup and not as 
something that has hidden the evidence. The focus of Senators 
on both sides must fall on the question of witnesses and 
documents.
                                ------                                


  MESSAGE FROM THE HOUSE--APPOINTING AND AUTHORIZING MANAGERS FOR THE 
 IMPEACHMENT TRIAL OF DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES

    The PRESIDENT pro tempore. The Senate will receive a 
message from the House of Representatives.
    A message from the House of Representatives by Ms. Johnson, 
Clerk of the U.S. House of Representatives, announced that the 
House of Representatives had passed a resolution (H. Res. 798) 
appointing and authorizing managers for the impeachment trial 
of Donald John Trump, President of the United States.
    The PRESIDENT pro tempore. The message will be received.
    The majority leader.
                                ------                                


   UNANIMOUS CONSENT AGREEMENTS--RELATING TO ARTICLES OF IMPEACHMENT 
                       AGAINST DONALD JOHN TRUMP

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
pursuant to rule I of the Rules of Procedure and Practice When 
Sitting on Impeachment Trials, the Secretary of the Senate 
inform the House of Representatives that the Senate is ready to 
receive the managers appointed by the House for the purpose of 
exhibiting Articles of Impeachment against Donald John Trump, 
President of the United States, agreeably to the notice 
communicated to the Senate; further, that at the hour of 12 
noon on Thursday, January 16, 2020, the Senate will receive the 
managers on the part of the House of Representatives in order 
that they may present and exhibit the Articles of Impeachment 
against Donald John Trump, President of the United States.
    The PRESIDENT pro tempore. Is there any objection?
    Without objection, it is so ordered.
    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
pursuant to rules III and IV of the Rules of Procedure and 
Practice When Sitting on Impeachment Trials, that at the hour 
of 2 p.m. on Thursday, January 16, 2020, the Senate proceed to 
the consideration of the Articles of Impeachment and that the 
Presiding Officer, through the Secretary of the Senate, notify 
the Chief Justice of the United States of the time and place 
fixed for consideration of the articles and request his 
attendance as Presiding Officer pursuant to article I, section 
3, clause 6, of the U.S. Constitution.
    The PRESIDENT pro tempore. Without objection, it is so 
ordered.
                                ------                                


 UNANIMOUS CONSENT AGREEMENT--AUTHORIZATION FOR APPOINTMENT OF ESCORT 
                    COMMITTEE AND HOUSE NOTIFICATION

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
the Presiding Officer be authorized to appoint a committee of 
Senators, two upon the recommendation of the majority leader 
and two upon the recommendation of the Democratic leader, to 
escort the Chief Justice into the Senate Chamber. I further ask 
consent that the Secretary of the Senate be directed to notify 
the House of Representatives of the time and place fixed for 
the Senate to proceed upon the impeachment of Donald John Trump 
in the Senate Chamber.
    The PRESIDENT pro tempore. Without objection, it is so 
ordered.
                                ------                                


               UNANIMOUS CONSENT AGREEMENT--SENATE ACCESS

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
access to the Senate wing, the Senate floor, and the Senate 
Chamber Galleries during all of the proceedings involving the 
exhibition of consideration of the Articles of Impeachment 
against Donald John Trump, President of the United States, and 
at all times that the Senate is sitting for trial with the 
Chief Justice of the United States presiding, be in accordance 
with the allocations and provisions I now send to the desk, and 
I ask that it be printed in the Record.
    The PRESIDENT pro tempore. Is there objection?
    Without objection, it is so ordered.
    The documents follow:

SECTION 1. SENATE FLOOR ACCESS.

  During impeachment proceedings for the President of the United 
States, the following procedures relating to access to the Senate floor 
shall apply:
          (1) In general.--
                  (A) Entrance through cloakrooms.--Individuals with 
                privileges under rule XXIII of the Standing Rules of 
                the Senate (as limited by paragraph (2) of this 
                section), or with privileges under paragraph (3) of 
                this section, shall access the floor of the Senate 
                through the cloakrooms only, unless otherwise directed 
                by the Sergeant at Arms and Doorkeeper of the Senate.
                  (B) General limits on access.--Access to the floor of 
                the Senate shall be limited to the number of vacant 
                seats available on the floor of the Senate based on 
                protocol considerations enforced by the Secretary for 
                the Majority, the Secretary for the Minority, and the 
                Sergeant at Arms and Doorkeeper of the Senate.
                  (C) Seating requirements.--All individuals with 
                access to the floor of the Senate shall remain seated 
                at all times.
          (2) Limited staff access.--Officers and employees of the 
        Senate, including members of the staffs of committees of the 
        Senate or joint committees of the Congress and employees in the 
        office of a Senator, shall not have privileges under rule XXIII 
        of the Standing Rules of the Senate to access the floor of the 
        Senate, except as needed for official impeachment proceeding 
        duties in accordance with the following:
                  (A) The Majority Leader and the Minority Leader shall 
                each be limited to not more than 4 assistants.
                  (B) The Secretary of the Senate and the Assistant 
                Secretary of the Senate shall each have access, and the 
                legislative staff of the Secretary of the Senate shall 
                be permitted as needed under the supervision of the 
                Secretary of the Senate.
                  (C) The Sergeant at Arms and Doorkeeper of the Senate 
                and the Deputy Sergeant at Arms and Doorkeeper shall 
                each have access, and doorkeepers shall be permitted as 
                needed under the supervision of the Sergeant at Arms 
                and Doorkeeper of the Senate.
                  (D) The Secretary for the Majority, the Secretary for 
                the Minority, the Assistant Secretary for the Majority, 
                and the Assistant Secretary for the Minority shall each 
                have access, and cloakroom employees shall be permitted 
                as needed under the supervision of the Secretary for 
                the Majority or the Secretary for the Minority, as 
                appropriate.
                  (E) The Senate Legal Counsel and the Deputy Senate 
                Legal Counsel shall have access on an as-needed basis.
                  (F) The Parliamentarian of the Senate and assistants 
                to the Parliamentarian of the Senate shall have access 
                on an as-needed basis.
                  (G) Counsel for the Secretary of the Senate and the 
                Sergeant at Arms and Doorkeeper of the Senate shall 
                have access on an as-needed basis.
                  (H) The minimum number of Senate pages necessary to 
                carry out their duties, as determined by the Secretary 
                for the Majority and the Secretary for the Minority, 
                shall have access.
          (3) Other individuals with senate floor access.--The 
        following individuals shall have privileges of access to the 
        floor of the Senate:
                  (A) Not more than 3 assistants to the Chief Justice 
                of the United States.
                  (B) Assistants to the managers of the impeachment of 
                the House of Representatives.
                  (C) Counsel and assistants to counsel for the 
                President of the United States.

SEC. 2. ACCESS TO THE SENATE WING OF THE CAPITOL.

  (a) In General.--During impeachment proceedings against the President 
of the United States, access to the basement and the first, second, and 
third floors of the Senate Wing of the Capitol shall be limited to--
          (1) Senators;
          (2) officers and employees of the Senate with appropriate 
        Senate-issued identification cards and appropriate credentials;
          (3) employees of the Architect of the Capitol (as necessary 
        and in accordance with subsection (b));
          (4) individuals with privileges under rule XXIII of the 
        Standing Rules of the Senate (as limited by section 1(2)) or 
        with privileges under section 1(3);
          (5) individuals with official business related to the 
        impeachment proceedings;
          (6) members of the press with appropriate credentials;
          (7) individuals with special gallery tickets; and
          (8) individuals with regular gallery passes to the Senate 
        gallery when the bearer is admitted through tour lines.
  (b) Architect of the Capitol.--The Architect of the Capitol shall 
advise the Sergeant at Arms and Doorkeeper of the Senate of all 
officers or employees of the Architect of the Capitol who require 
access to the Senate Wing of the Capitol during the impeachment 
proceedings.

SEC. 3. ENFORCEMENT BY THE SERGEANT AT ARMS AND DOORKEEPER.

  The Sergeant at Arms and Doorkeeper of the Senate shall enforce this 
resolution and take such other actions as necessary to fulfill the 
responsibilities of the Sergeant at Arms and Doorkeeper of the Senate 
under this resolution, including the issuance of appropriate 
credentials as required under paragraphs (2) and (6) of section 2(a).
                                ------                                


  AUTHORIZING THE TAKING OF A PHOTOGRAPH IN THE CHAMBER OF THE UNITED 
                             STATES SENATE

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
the Senate proceed to the consideration of S. Res. 471, 
submitted earlier today.
    The PRESIDENT pro tempore. The clerk will report the 
resolution by title.
    The legislative clerk read as follows:

    A resolution (S. Res. 471) authorizing the taking of a 
photograph in the Chamber of the United States Senate.

    There being no objection, the Senate proceeded to consider 
the resolution.
    Mr. McCONNELL. I ask unanimous consent that the resolution 
be agreed to and the motion to reconsider be considered made 
and laid upon the table with no intervening action or debate.
    The PRESIDENT pro tempore. Without objection, it is so 
ordered.
    The resolution (S. Res. 471) was agreed to.
    (The resolution is printed in today's Record under 
``Submitted Resolutions.'')
                                ------                                


                                PROGRAM

    Mr. McCONNELL. Mr. President, for the information of all 
Senators, a few minutes ago, the Senate was notified that the 
House of Representatives is finally ready to proceed with their 
Articles of Impeachment. So, by unanimous consent, we have just 
laid some of the groundwork that will structure the next 
several days.
    We have officially invited the House managers to come to 
the Senate tomorrow at noon to exhibit their Articles of 
Impeachment. Then later tomorrow afternoon, at 2 p.m., the 
Chief Justice of the United States will arrive here in the 
Senate. He will be sworn in by the President pro tempore, 
Senator Grassley. Then the Chief Justice will swear in all of 
us Senators. We will pledge to rise above the petty 
factionalism and do justice for our institutions, for our 
States, and for the Nation. Then we will formally notify the 
White House of our pending trial and summon the President to 
answer the articles and send his counsel.
    So the trial will commence in earnest on Tuesday.
    First, Mr. President, some important good news for the 
country. We anticipate the Senate will finish the USMCA 
tomorrow and send this landmark trade deal to President Trump 
for his signature. This is a major victory for the 
administration, but more importantly, for American families.
    Let me close with this: This is a difficult time for our 
country, but this is precisely the kind of time for which the 
Framers created the Senate. I am confident this body can rise 
above short-termism and factional fever and serve the long-term 
best interests of our Nation. We can do this, and we must.
                                ------                                


                         MESSAGE FROM THE HOUSE

    At 5:36 p.m., a message from the House of Representatives, 
delivered by Ms. Johnson, the Clerk of the House of 
Representatives, announced that the House of Representatives 
has impeached for high crimes and misdemeanors Donald John 
Trump, President of the United States; the House of 
Representatives adopted articles of impeachment against Donald 
John Trump, which the managers on the part of the House of 
Representatives have been directed to carry to the Senate; and 
Mr. Schiff, Mr. Nadler, Ms. Lofgren, Mr. Jeffries, Mrs. 
Demings, Mr. Crow, and Ms. Garcia of Texas, have been appointed 
such managers.

  House Resolution 755, in the House of Representatives, December 18, 
                                  2019

    Resolved, That Donald John Trump, President of the United States, 
is impeached for high crimes and misdemeanors and that the following 
articles of impeachment be exhibited to the United States Senate:
    Articles of impeachment exhibited by the House of Representatives 
of the United States of America in the name of itself and of the people 
of the United States of America, against Donald John Trump, President 
of the United States of America, in maintenance and support of its 
impeachment against him for high crimes and misdemeanors.
                       article i: abuse of power
    The Constitution provides that the House of Representatives ``shall 
have the sole Power of Impeachment'' and that the President ``shall be 
removed from Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the 
office of President of the United States--and in violation of his 
constitutional oath faithfully to execute the office of President of 
the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in violation of 
his constitutional duty to take care that the laws be faithfully 
executed--Donald J. Trump has abused the powers of the Presidency, in 
that:
    Using the powers of his high office, President Trump solicited the 
interference of a foreign government, Ukraine, in the 2020 United 
States Presidential election. He did so through a scheme or course of 
conduct that included soliciting the Government of Ukraine to publicly 
announce investigations that would benefit his reelection, harm the 
election prospects of a political opponent, and influence the 2020 
United States Presidential election to his advantage. President Trump 
also sought to pressure the Government of Ukraine to take these steps 
by conditioning official United States Government acts of significant 
value to Ukraine on its public announcement of the investigations. 
President Trump engaged in this scheme or course of conduct for corrupt 
purposes in pursuit of personal political benefit. In so doing, 
President Trump used the powers of the Presidency in a manner that 
compromised the national security of the United States and undermined 
the integrity of the United States democratic process. He thus ignored 
and injured the interests of the Nation.
    President Trump engaged in this scheme or course of conduct through 
the following means:
    (1) President Trump--acting both directly and through his agents 
within and outside the United States Government--corruptly solicited 
the Government of Ukraine to publicly announce investigations into--
    (A) a political opponent, former Vice President Joseph R. Biden, 
Jr.; and
    (B) a discredited theory promoted by Russia alleging that Ukraine--
rather than Russia--interfered in the 2016 United States Presidential 
election.
    (2) With the same corrupt motives, President Trump--acting both 
directly and through his agents within and outside the United States 
Government--conditioned two official acts on the public announcements 
that he had requested--
    (A) the release of $391 million of United States taxpayer funds 
that Congress had appropriated on a bipartisan basis for the purpose of 
providing vital military and security assistance to Ukraine to oppose 
Russian aggression and which President Trump had ordered suspended; and
    (B) a head of state meeting at the White House, which the President 
of Ukraine sought to demonstrate continued United States support for 
the Government of Ukraine in the face of Russian aggression.
    (3) Faced with the public revelation of his actions, President 
Trump ultimately released the military and security assistance to the 
Government of Ukraine, but has persisted in openly and corruptly urging 
and soliciting Ukraine to undertake investigations for his personal 
political benefit.
    These actions were consistent with President Trump's previous 
imitations of foreign interference in United States elections.
    In all of this, President Trump abused the powers of the Presidency 
by ignoring and injuring national security and other vital national 
interests to obtain an improper personal political benefit. He has also 
betrayed the Nation by abusing his high office to enlist a foreign 
power in corrupting democratic elections.
    Wherefore President Trump, by such conduct, has demonstrated that 
he will remain a threat to national security and the Constitution if 
allowed to remain in office, and has acted in a manner grossly 
incompatible with self-governance and the rule of law. President Trump 
thus warrants impeachment and trial, removal from office, and 
disqualification to hold and enjoy any office of honor, trust, or 
profit under the United States.
                  article ii: obstruction of congress
    The Constitution provides that the House of Representatives ``shall 
have the sole Power of Impeachment'' and that the President ``shall be 
removed from Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the 
office of President of the United States--and in violation of his 
constitutional oath faithfully to execute the office of President of 
the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in violation of 
his constitutional duty to take care that the laws be faithfully 
executed--Donald J. Trump has directed the unprecedented, categorical, 
and indiscriminate defiance of subpoenas issued by the House of 
Representatives pursuant to its ``sole Power of Impeachment''. 
President Trump has abused the powers of the Presidency in a manner 
offensive to, and subversive of, the Constitution, in that:
    The House of Representatives has engaged in an impeachment inquiry 
focused on President Trump's corrupt solicitation of the Government of 
Ukraine to interfere in the 2020 United States Presidential election. 
As part of this impeachment inquiry, the Committees undertaking the 
investigation served subpoenas seeking documents and testimony deemed 
vital to the inquiry from various Executive Branch agencies and 
offices, and current and former officials.
    In response, without lawful cause or excuse, President rump 
directed Executive Branch agencies, offices, and officials not to 
comply with those subpoenas. President Trump thus interposed the powers 
of the Presidency against the lawful subpoenas of the House of 
Representatives, and assumed to himself functions and judgments 
necessary to the exercise of the ``sole Power of Impeachment'' vested 
by the Constitution in the House of Representatives.
    President Trump abused the powers of his high office through the 
following means:
    (1) Directing the White House to defy a lawful subpoena by 
withholding the production of documents sought therein by the 
Committees.
    (2) Directing other Executive Branch agencies and offices to defy 
lawful subpoenas and withhold the production of documents and records 
from the Committees--in response to which the Department of State, 
Office of Management and Budget, Department of Energy, and Department 
of Defense refused to produce a single document or record.
    (3) Directing current and former Executive Branch officials not to 
cooperate with the Committees--in response to which nine Administration 
officials defied subpoenas for testimony, namely John Michael ``Mick'' 
Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston 
Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and 
T. Ulrich Brechbuhl.
    These actions were consistent with President Trump's previous 
efforts to undermine United States Government investigations into 
foreign interference in United States elections.
    Through these actions, President Trump sought to arrogate to 
himself the right to determine the propriety, scope, and nature of an 
impeachment inquiry into his own conduct, as well as the unilateral 
prerogative to deny any and all information to the House of 
Representatives in the exercise of its ``sole Power of Impeachment''. 
In the history of the Republic, no President has ever ordered the 
complete defiance of an impeachment inquiry or sought to obstruct and 
impede so comprehensively the ability of the House of Representatives 
to investigate ``high Crimes and Misdemeanors''. This abuse of office 
served to cover up the President's own repeated misconduct and to seize 
and control the power of impeachment--and thus to nullify a vital 
constitutional safeguard vested solely in the House of Representatives.
    In all of this, President Trump has acted in a manner contrary to 
his trust as President and subversive of constitutional government, to 
the great prejudice of the cause of law and justice, and to the 
manifest injury of the people of the United States.
    Wherefore; President Trump, by such conduct, has demonstrated that 
he will remain a threat to the Constitution if allowed to remain in 
office, and has acted in a manner grossly incompatible with self-
governance and the rule of law. President Trump thus warrants 
impeachment and trial, removal from office, and disqualification to 
hold and enjoy any office of honor, trust, or profit under the United 
States.
                                 ______
                                 

House Resolution 798, in the House of Representatives, January 15, 2020

    Resolved, That Mr. Schiff, Mr. Nadler, Ms. Lofgren, Mr. Jeffries, 
Mrs. Demings, Mr. Crow, and Ms. Garcia of Texas are appointed managers 
to conduct the impeachment trial against Donald John Trump, President 
of the United States, that a message be sent to the Senate to inform 
the Senate of these appointments, and that the managers so appointed 
may, in connection with the preparation and the conduct of the trial, 
exhibit the articles of impeachment to the Senate and take all other 
actions necessary, which may include the following:
    (1) Employing legal, clerical and other necessary assistants and 
incurring such other expenses as may be necessary, to be paid from 
amounts available to the Committee on the Judiciary under applicable 
expense resolutions or from the applicable accounts of the House of 
Representatives.
    (2) Sending for persons and papers, and filing with the Secretary 
of the Senate, on the part of the House of Representatives, any 
pleadings, in conjunction with or subsequent to, the exhibition of the 
articles of impeachment that the managers consider necessary.
                                ------                                


 SENATE RESOLUTION 471--AUTHORIZING THE TAKING OF A PHOTOGRAPH IN THE 
                  CHAMBER OF THE UNITED STATES SENATE

    Mr. McCONNELL submitted the following resolution; which was 
considered and agreed to:

                              S. Res. 471

  Resolved,

SECTION 1. AUTHORIZATION FOR PHOTOGRAPH.

  (a) In General.--Paragraph 1 of Rule IV of the Rules for the 
Regulation of the Senate Wing of the United States Capitol (prohibiting 
the taking of pictures in the Senate Chamber) shall be temporarily 
suspended for the sole and specific purpose of permitting an official 
photograph to be taken on January 16, 2020, of the swearing in of 
Members of the United States Senate for the impeachment trial of the 
President of the United States.
  (b) Administration.--The Sergeant at Arms and Doorkeeper of the 
Senate is authorized and directed to make the necessary arrangements to 
carry out subsection (a), which arrangements shall provide for a 
minimum of disruption to Senate proceedings.


           [From the Congressional Record, January 16, 2020]

                                ------                                


                   RECOGNITION OF THE MAJORITY LEADER

                              IMPEACHMENT

    Mr. McCONNELL. Madam President, it took 4 weeks--4 weeks, 
but the Democratic majority in the House of Representatives is 
finally ready--finally ready--to defend their impeachment of 
the President of the United States.
    After weeks of delay, the Speaker of the House decided 
yesterday that a trial could finally go forward. She signed the 
impeachment papers. That took place at a table with a political 
slogan stuck onto it. And they posed--they posed--afterward for 
smiling photos. And the Speaker distributed souvenir pens--
souvenir pens--to her own colleagues, emblazoned with her 
golden signature that literally came in on silver platters. The 
pens literally came in on silver platters. There were golden 
pens on silver platters, a souvenir to celebrate the moment.
    I seem to remember Democrats falling over themselves to say 
they did not see impeachment as a long-sought political win. 
House Democrats said over and over that they recognized the 
gravity and the seriousness of this action, and, of course, 
they had only come to it reluctantly. Well, nothing says 
seriousness and sobriety like handing out souvenirs, as though 
this were a happy bill-signing instead of the gravest process 
in our Constitution.
    This final display neatly distilled the House's partisan 
process into one perfect visual. It was a transparently 
partisan performance from beginning to end.
    That is why they sped through a slapdash inquiry in 12 
weeks, when previous Presidential impeachments came after 
months, if not years, of investigations and hearings. That is 
why the House cut short their own inquiry, declined to pursue 
their own subpoenas, and denied the President due process, but 
now--now they want the Senate to redo their homework and rerun 
the investigation.
    That is why our colleague the Democratic leader told the 
press that whatever happens next, as long as he can weaponize 
the trial to hurt the Republicans in the 2020 election, ``it's 
a win-win.'' That is what the Democratic leader of the Senate 
said.
    That is why the Speaker of the House apparently saw nothing 
strange about celebrating the third Presidential impeachment in 
American history with souvenirs and posed for photographs--
souvenirs and posed photographs.
    That pretty well sums it up. That is what the process has 
been thus far, but it is not what this process will be going 
forward.
    The Founding Fathers who crafted and ratified our 
Constitution knew that our Nation might sometimes fall prey to 
the kind of dangerous factualism and partisanship that has 
consumed--literally consumed the House of Representatives.
    The Framers set up the Senate specifically to act as a 
check against the short-termism and the runaway passions to 
which the House of Representatives might fall victim.
    Alexander Hamilton worried that ``the demon of faction'' 
would ``extend his scepter'' over the House majorities ``at 
certain seasons.'' That is what Alexander Hamilton said. He 
feared for the viability of the government established by the 
Constitution if, blinded by factualism, the House of 
Representatives would abuse the power of impeachment to serve 
nakedly partisan goals rather than long-term interests of the 
American people and their Republic, but, fortunately, they did 
something about it.
    They did not give both the power to impeach and the power 
to remove to the House. They divided the power and placed the 
final decision on removal over here in the Senate.
    This body, this Chamber, exists precisely--precisely so we 
can look past the daily dramas and understand how our actions 
will reverberate for generations; so we can put aside animal 
reflexes and animosity and coolly consider how to best serve 
our country in the long run; so we can break factional fevers 
before they jeopardize the core institutions of our government.
    As Hamilton put it, only the Senate, with ``confidence 
enough in its own situation,'' can ``preserve, unawed and 
uninfluenced, the necessary impartiality between an individual 
accused, and the representatives of the people, his accusers.''
    The House's hour is over. The Senate's time is at hand. It 
is time for this proud body to honor our founding purpose.
                                ------                                


                   RECOGNITION OF THE MINORITY LEADER

                              IMPEACHMENT

    Mr. SCHUMER. Madam President, this is a serious, solemn, 
and historic day. The events that will take place this 
afternoon have happened only twice before in our grand Nation's 
250-year history. The Chief Justice will swear in every U.S. 
Senator to participate as a court of impeachment in a trial of 
the President of the United States.
    Yesterday, the Senate received notice that the House of 
Representatives has two Articles of Impeachment to present. The 
House managers will exhibit those two articles today at noon. 
The first article charges the President with abuse of power: 
coercing a foreign leader into interfering in our elections, 
thereby using the powers of the Presidency, the most powerful 
public office in the Nation, to benefit himself rather than the 
public interest. The second charges the President with 
obstruction of Congress for an unprecedented blockade of the 
legislature's ability to investigate those very matters. Let me 
talk about each one.
    The first is so serious. Some of our Republican colleagues 
have said--some of the President's own men have said: Yeah, he 
did it, but it doesn't matter; it is not impeachable. Some of 
them even failed to say--many of my Republican colleagues, 
amazingly--it is wrong.
    Let me ask the American people: Do we want foreign leaders 
helping determine who is our President, our Senators, our 
Congressmen, our Governors, our legislators? That is what 
President Trump's argument will be: that it is OK to do that, 
that there is nothing wrong with it, that it is perfect.
    Hardly anything is more serious than powers outside the 
borders of the United States determining, influencing elections 
inside the United States. It is bad enough to do it but even 
worse to blackmail a country of aid that was legally allocated 
to get them to do it. It is low. It is not what America has 
been all about.
    The second charge as well. The President says he wants the 
truth, but he blocks every attempt to get the facts. All the 
witnesses we are asking for--he could have allowed them to 
testify in the House. They wanted them. The President is 
blocking.
    Again, the American people--just about all of them--are 
asking the question: What is the President hiding? What is he 
afraid of? If he did nothing wrong, why didn't he let the 
witnesses and the documents come forward in the House of 
Representatives?
    Put another way, the House of Representatives has accused 
the President of trying to shake down a foreign leader for 
personal gain, deliberately soliciting foreign interference in 
our elections--something the Founding Fathers greatly feared--
and then doing everything he could to cover it up.
    The gravity of these charges is self-evident to anyone who 
is not self-interested. If proved, they are not petty crimes or 
politics as usual but a deep, wounding injury to democracy 
itself, precisely the conduct most feared by the Founders of 
our Constitution.
    We as Senators, Democrats and Republicans, must rise to the 
occasion, realizing the seriousness of the charges and the 
solemnity of an impeachment proceeding. The beginning of the 
impeachment trial today will be largely ceremonial, but soon 
our duty will be constitutional. The constitutional duty is to 
conduct a fair trial, and then, as our oaths this afternoon 
command, Senators must ``do impartial justice.'' Senators must 
``do impartial justice.'' The weight of that oath will fall on 
our shoulders. Our ability to honor it will be preserved in 
history.
    Yesterday evening, I was gratified to hear the Republican 
leader, at least in part of his speech, ask the Senate to rise 
to the occasion. I was glad to hear him say so. For somebody 
who has been partisan--deeply, strongly, and almost 
unrelentingly partisan--for 2 months, he said something that 
could bring us together: The Senate should rise to the 
occasion.
    Far more important than saying it is doing it. What does 
``doing it'' mean? The best way for the Senate to rise to the 
occasion would be to retire partisan considerations and to have 
everyone agree on the parameters of a fair trial. The best way 
for the Senate to rise to the occasion would be for Democrats 
and Republicans to agree on relevant witnesses and relevant 
documents, not run the trial with votes of a slim majority, not 
jam procedures through, not define ``rising to the occasion'' 
as ``doing things my way,'' which is what the majority leader 
has done thus far, but, rather, a real and honest and 
bipartisan agreement on a point we all know must be confronted: 
that we must--we must--have witnesses and documents in order to 
have a fair trial.
    A trial without witnesses is not a trial. A trial without 
documents is not a trial. That is why every completed 
impeachment trial in our Nation's history--every single one 
that has gone to completion--15, have all included witnesses. 
The majority leader claims to believe in precedent. That is the 
precedent: witnesses. There is no deviation. Let us hope we 
don't have one this time.
    Over the centuries, Senators have stood where we stand 
today, confronted with the responsibility of judging the 
removal of the President. They rightly concluded they were 
obligated to seek the truth. They were under a solemn 
obligation to hear the facts before rendering a final judgment.
    The leader--incorrectly, in my judgment--complained the 
House was doing short-termism and rush. The leader is trying to 
do the exact same thing in the Senate. The very things he 
condemns the House Democrats for, he seems bent on doing. 
Condemning short-termism? Are we going to have a full trial? 
Condemning the rush? Are we going to allow the time for 
witnesses and documents or is the leader going to try to rush 
it through? At the very same time, out of the other side of his 
mouth, he condemns the House--incorrectly, in my judgment--for 
doing it.
    Another thing about the importance of witnesses and 
documents, the leader has still not given a good argument about 
why we shouldn't have witnesses and documents. He complains 
about process and pens and signing ceremonies but still does 
not address the charges against the President and why we 
shouldn't have witnesses and documents.
    We are waiting. Rise to the occasion. Remember the history. 
That is what the leader said he would do last night, and I was 
glad to hear it, but he must act, not talk about rising to the 
occasion and then doing the very same things he condemns the 
House for.
    If my colleagues have any doubts about the case for 
witnesses and documents in a Senate trial, the stunning 
revelations this week should put those to rest. We have new 
information about a plot by the President's attorney and his 
associates to oust an American ambassador and potentially with 
the ``knowledge and consent'' of the President, pressure 
Ukrainian President Zelensky to announce an investigation of 
one of the President's political rivals. The effort to remove 
Ambassador Yovanovitch by Lev Parnas and Mr. Giuliani is now 
the subject of an official probe by the Government of Ukraine.
    My friends, this information is not extraneous; it is 
central to the charges against the President. We have a 
responsibility to call witnesses and subpoena documents that 
will shed light on the truth here. God forbid we rush through 
this trial and only afterward the truth comes out.
    How will my colleagues on the other side of the aisle feel 
if they rushed it through and then even more evidence comes 
out? We have seen lots come out. There has barely been a week 
where significant new evidence, further making the House case, 
hasn't come out as strong as the House case was to begin with.
    Here is what Alexander Hamilton warned of in the Federalist 
65. He said: ``The greatest danger is that the decision [in an 
impeachment trial] will be regulated more by the comparative 
strength of parties than by the real demonstration of innocence 
or guilt.''
    Alexander Hamilton, even before the day political parties 
were as strong as they are today, wanted us to come together. 
The leader wants to do things on his own, without any 
Democratic input, but, fortunately, we have the right to demand 
votes and to work as hard as we can for a fair trial, a full 
trial, a trial with witnesses, a trial with documents.
    The Founders anticipated that impeachment trials would 
always be buffeted by the winds of politics, but they gave the 
power to the Senate anyway because they believed the Chamber 
was the only place where impartial justice of the President 
could truly be sought.
    In the coming days, these eventful and important coming 
days, each of us--each of us will face a choice about whether 
to begin this trial in search of the truth or in the service of 
the President's desire to cover up and rush things through. The 
Senate can either rise to the occasion or demonstrate that the 
faith of our Founders was misplaced in what they considered a 
grand institution. As each of us swears an oath this afternoon, 
let every Senator--every Senator reflect on these questions.
                                ------                                


                                PROGRAM

    Mr. McCONNELL. Mr. President, for the information of 
Senators, under the previous order, at 12 noon the Senate will 
receive the managers of the House of Representatives to exhibit 
the Articles of Impeachment against Donald John Trump, 
President of the United States.
    The PRESIDENT pro tempore. The hour of 12 noon having 
arrived and a quorum being present, the Sergeant at Arms will 
present the managers on the part of the House of 
Representatives.
                                ------                                


   EXHIBITION OF ARTICLES OF IMPEACHMENT AGAINST DONALD JOHN TRUMP, 
                     PRESIDENT OF THE UNITED STATES

    At noon, the managers on the part of the House of 
Representatives of the impeachment of Donald John Trump 
appeared below the bar of the Senate, and the Sergeant at Arms, 
Michael C. Stenger, announced their presence, as follows:

    Mr. President and Members of the Senate, I announce the presence of 
the managers on the part of the House of Representatives to conduct the 
proceedings on behalf of the House concerning the impeachment of Donald 
John Trump, President of the United States.

    The PRESIDENT pro tempore. The managers on the part of the 
House will be received and escorted to the well of the Senate.
    The managers were thereupon escorted by the Sergeant at 
Arms of the Senate, Michael C. Stenger, to the well of the 
Senate.
    The PRESIDENT pro tempore. The Sergeant at Arms will make 
the proclamation.
    The Sergeant at Arms, Michael C. Stenger, made the 
proclamation, as follows:

    Hear ye! Hear ye! Hear ye! All persons are commanded to keep 
silent, on pain of imprisonment, while the Senate of the United States 
is sitting for the trial of the articles of impeachment exhibited by 
the House of Representatives against Donald John Trump, President of 
the United States.

    The PRESIDENT pro tempore. The managers on the part of the 
House will now proceed.
    Mr. Manager SCHIFF. Mr. President, the managers on the part 
of the House of Representatives are present and ready to 
present the Articles of Impeachment which have been referred by 
the House of Representatives against Donald John Trump, 
President of the United States.
    The House adopted the following resolution, which with 
permission of the Senate I will read.

                          House Resolution 798

appointing and authorizing managers for the impeachment trial of donald 
               john trump, president of the united states
    Resolved, That Mr. Schiff, Mr. Nadler, Ms. Lofgren, Mr. Jeffries, 
Mrs. Demings, Mr. Crow, and Ms. Garcia of Texas are appointed managers 
to conduct the impeachment trial against Donald John Trump, President 
of the United States, that a message be sent to the Senate to inform 
the Senate of these appointments, and that the managers so appointed 
may, in connection with the preparation and the conduct of the trial, 
exhibit the articles of impeachment to the Senate and take all other 
actions necessary, which may include the following:
    (1) Employing legal, clerical, and other necessary assistants and 
incurring such other expenses as may be necessary, to be paid from 
amounts available to the Committee on the Judiciary under applicable 
expense resolutions or from the applicable accounts of the House of 
Representatives.
    (2) Sending for persons and papers, and filing with the Secretary 
of the Senate, on the part of the House of Representatives, any 
pleadings, in conjunction with or subsequent to, the exhibition of the 
articles of impeachment that the managers consider necessary.
                                              Nancy Pelosi,
                           Speaker of the House of Representatives.
    Attest:
                                         Cheryl L. Johnson,
                                                             Clerk.
[Seal Affixed]

    With the permission of the Senate, I will now read the 
Articles of Impeachment, House Resolution 755.

                          House Resolution 755

impeaching donald john trump, president of the united states, for high 
                        crimes and misdemeanors
    Resolved, That Donald John Trump, President of the United States, 
is impeached for high crimes and misdemeanors and that the following 
articles of impeachment be exhibited to the United States Senate:
    Articles of impeachment exhibited by the House of Representatives 
of the United States of America in the name of itself and of the people 
of the United States of America, against Donald John Trump, President 
of the United States of America, in maintenance and support of its 
impeachment against him for high crimes and misdemeanors.
                       article i: abuse of power
    The Constitution provides that the House of Representatives ``shall 
have the sole Power of Impeachment'' and that the President ``shall be 
removed from Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the 
office of President of the United States--and in violation of his 
constitutional oath faithfully to execute the office of President of 
the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in violation of 
his constitutional duty to take care that the laws be faithfully 
executed--Donald J. Trump has abused the powers of the Presidency, in 
that:
    Using the powers of his high office, President Trump solicited the 
interference of a foreign government, Ukraine, in the 2020 United 
States Presidential election. He did so through a scheme or course of 
conduct that included soliciting the Government of Ukraine to publicly 
announce investigations that would benefit his reelection, harm the 
election prospects of a political opponent, and influence the 2020 
United States Presidential election to his advantage. President Trump 
also sought to pressure the Government of Ukraine to take these steps 
by conditioning official United States Government acts of significant 
value to Ukraine on its public announcement of the investigations. 
President Trump engaged in this scheme or course of conduct for corrupt 
purposes in pursuit of personal political benefit. In so doing, 
President Trump used the powers of the Presidency in a manner that 
compromised the national security of the United States and undermined 
the integrity of the United States democratic process. He thus ignored 
and injured the interests of the Nation.
    President Trump engaged in this scheme or course of conduct through 
the following means:
    (1) President Trump--acting both directly and through his agents 
within and outside the United States Government--corruptly solicited 
the Government of Ukraine to publicly announce investigations into--
    (A) a political opponent, former Vice President Joseph R. Biden, 
Jr.; and
    (B) a discredited theory promoted by Russia alleging that Ukraine--
rather than Russia--interfered in the 2016 United States Presidential 
election.
    (2) With the same corrupt motives, President Trump--acting both 
directly and through his agents within and outside the United States 
Government--conditioned two official acts on the public announcements 
that he had requested--
    (A) the release of $391 million of United States taxpayer funds 
that Congress had appropriated on a bipartisan basis for the purpose of 
providing vital military and security assistance to Ukraine to oppose 
Russian aggression and which President Trump had ordered suspended; and
    (B) a head of state meeting at the White House, which the President 
of Ukraine sought to demonstrate continued United States support for 
the Government of Ukraine in the face of Russian aggression.
    (3) Faced with the public revelation of his actions, President 
Trump ultimately released the military and security assistance to the 
Government of Ukraine, but has persisted in openly and corruptly urging 
and soliciting Ukraine to undertake investigations for his personal 
political benefit.
    These actions were consistent with President Trump's previous 
invitations of foreign interference in United States elections.
    In all of this, President Trump abused the powers of the Presidency 
by ignoring and injuring national security and other vital national 
interests to obtain an improper personal political benefit. He has also 
betrayed the Nation by abusing his high office to enlist a foreign 
power in corrupting democratic elections.
    Wherefore President Trump, by such conduct, has demonstrated that 
he will remain a threat to national security and the Constitution if 
allowed to remain in office, and has acted in a manner grossly 
incompatible with self-governance and the rule of law. President Trump 
thus warrants impeachment and trial, removal from office, and 
disqualification to hold and enjoy any office of honor, trust, or 
profit under the United States.
                  article ii: obstruction of congress
    The Constitution provides that the House of Representatives ``shall 
have the sole Power of Impeachment'' and that the President ``shall be 
removed from Office on Impeachment for, and Conviction of, Treason, 
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the 
office of President of the United States--and in violation of his 
constitutional oath faithfully to execute the office of President of 
the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in violation of 
his constitutional duty to take care that the laws be faithfully 
executed--Donald J. Trump has directed the unprecedented, categorical, 
and indiscriminate defiance of subpoenas issued by the House of 
Representatives pursuant to its ``sole Power of Impeachment''. 
President Trump has abused the powers of the Presidency in a manner 
offensive to, and subversive of, the Constitution, in that:
    The House of Representatives has engaged in an impeachment inquiry 
focused on President Trumps corrupt solicitation of the Government of 
Ukraine to interfere in the 2020 United States Presidential election. 
As part of this impeachment inquiry, the Committees undertaking the 
investigation served subpoenas seeking documents and testimony deemed 
vital to the inquiry from various Executive Branch agencies and 
offices, and current and former officials.
    In response, without lawful cause or excuse, President Trump 
directed Executive Branch agencies, offices, and officials not to 
comply with those subpoenas. President Trump thus interposed the powers 
of the Presidency against the lawful subpoenas of the House of 
Representatives, and assumed to himself functions and judgments 
necessary to the exercise of the ``sole Power of Impeachment'' vested 
by the Constitution in the House of Representatives.
    President Trump abused the powers of his high office through the 
following means:
    (l) Directing the White House to defy a lawful subpoena by 
withholding the production of documents sought therein by the 
Committees.
    (2) Directing other Executive Branch agencies and offices to defy 
lawful subpoenas and withhold the production of documents and records 
from the Committees--in response to which the Department of State, 
Office of Management and Budget, Department of Energy, and Department 
of Defense refused to produce a single document or record.
    (3) Directing current and former Executive Branch officials not to 
cooperate with the Committees--in response to which nine Administration 
officials defied subpoenas for testimony, namely John Michael ``Mick'' 
Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston 
Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and 
T. Ulrich Brechbuhl.
    These actions were consistent with President Trump's previous 
efforts to undermine United States Government investigations into 
foreign interference in United States elections.
    Through these actions, President Trump sought to arrogate to 
himself the right to determine the propriety, scope, and nature of an 
impeachment inquiry into his own conduct, as well as the unilateral 
prerogative to deny any and all information to the House of 
Representatives in the exercise of its ``sole Power of Impeachment''. 
In the history of the Republic, no President has ever ordered the 
complete defiance of an impeachment inquiry or sought to obstruct and 
impede so comprehensively the ability of the House of Representatives 
to investigate ``high Crimes and Misdemeanors''. This abuse of office 
served to cover up the President's own repeated misconduct and to seize 
and control the power of impeachment and thus to nullify a vital 
constitutional safeguard vested solely in the House of Representatives.
    In all of this, President Trump has acted in a manner contrary to 
his trust as President and subversive of constitutional government, to 
the great prejudice of the cause of law and justice, and to the 
manifest injury of the people of the United States.
    Wherefore, President Trump, by such conduct, has demonstrated that 
he will remain a threat to the Constitution if allowed to remain in 
office, and has acted in a manner grossly incompatible with self-
governance and the rule of law. President Trump thus warrants 
impeachment and trial, removal from office, and disqualification to 
hold and enjoy any office of honor, trust, or profit under the United 
States.
                                              Nancy Pelosi,
                           Speaker of the House of Representatives.
    Attest:
                                         Cheryl L. Johnson,
                                                             Clerk.
[Seal Affixed]

    Mr. Manager SCHIFF. Mr. President, that completes the 
exhibition of the Articles of Impeachment against Donald John 
Trump, President of the United States.
    The managers request that the Senate take order for the 
trial, and the managers now request leave to withdraw.
    The PRESIDENT pro tempore. Thank you, Mr. Schiff.
    The Senate will duly notify the House of Representatives 
when it is ready to proceed to trial.
    The majority leader.
                                ------                                


                                PROGRAM

    Mr. McCONNELL. Mr. President, for the information of 
Senators, pursuant to yesterday's order, at 2 o'clock today, 
the Senate will proceed to the consideration of the Articles of 
Impeachment. The Chief Justice of the United States will 
preside over the trial, as required in article I, section 3, 
clause 6, of the United States Constitution.
                                ------                                


                    APPOINTMENT OF ESCORT COMMITTEE

    Mr. McCONNELL. Mr. President, also, under the previous 
order, the Presiding Officer has been authorized to appoint a 
committee of four Senators, two upon the recommendation of the 
majority leader and two upon the recommendation of the 
Democratic leader, to escort the Chief Justice into the Senate 
Chamber. I ask that the Presiding Officer do so now.
    The PRESIDENT pro tempore. The Chair, pursuant to the order 
of January 15, 2020, on behalf of the majority leader and the 
Democratic leader, appoints Mr. Blunt of Missouri, Mr. Leahy of 
Vermont, Mr. Graham of South Carolina, and Mrs. Feinstein of 
California to escort the Chief Justice of the United States 
into the Senate Chamber.
                                ------                                


                                PROGRAM

    Mr. McCONNELL. Mr. President, for the information of 
Senators, there will be a live quorum call prior to the arrival 
of the Chief Justice at 2 p.m. today.
                                ------                                


                RECESS SUBJECT TO THE CALL OF THE CHAIR

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
the Senate stand in recess subject to the call of the Chair.
    The PRESIDENT pro tempore. Without objection, the Senate 
stands in recess subject to the call of the Chair.
    Thereupon, the Senate, at 12:21 p.m., recessed subject to 
the call of the Chair and reassembled at 2 p.m. when called to 
order by the President pro tempore.
                                ------                                


                           ORDER OF PROCEDURE

    The PRESIDENT pro tempore. The majority leader.
    Mr. McCONNELL. Mr. President, I would like to ask all of 
our colleagues to take a seat.
    Mr. President, I am about to suggest the absence of a 
quorum. For the information of all of our colleagues, this will 
be a live quorum. Following that, we will consider the Articles 
of Impeachment, which will commence with the swearing in of the 
Chief Justice of the United States and all Senators.
                                ------                                


                              QUORUM CALL

    Mr. McCONNELL. Accordingly, then, Mr. President, I suggest 
the absence of a quorum.
    The PRESIDENT pro tempore. The clerk will call the roll.
    The legislative clerk called the roll, and the following 
Senators entered the Chamber and answered to their name:

                             [Quorum No. 1]

Alexander
Baldwin
Barrasso
Bennet
Blackburn
Blumenthal
Blunt
Booker
Boozman
Braun
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Duckworth
Durbin
Enzi
Ernst
Feinstein
Fischer
Gardner
Gillibrand
Graham
Grassley
Harris
Hassan
Hawley
Heinrich
Hirono
Hoeven
Hyde-Smith
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Loeffler
Manchin
Markey
McConnell
McSally
Menendez
Merkley
Moran
Murkowski
Murphy
Murray
Paul
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Sanders
Sasse
Schatz
Schumer
Scott (FL)
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Stabenow
Sullivan
Tester
Thune
Tillis
Toomey
Udall
Van Hollen
Warner
Warren
Whitehouse
Wicker
Wyden
Young
      
                                ------                                


       TRIAL OF DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES

    The PRESIDENT pro tempore. A quorum is present.
    Under the previous order, the hour of 2 p.m. having arrived 
and a quorum having been established, the Senate will proceed 
to the consideration of the Articles of Impeachment against 
Donald John Trump, President of the United States.
    The majority leader.
    Mr. McCONNELL. Mr. President, at this time, pursuant to 
rule IV of the Senate Rules on Impeachment and the United 
States Constitution, the Presiding Officer will now administer 
the oath to John G. Roberts, Chief Justice of the United 
States.
    The PRESIDENT pro tempore. Under the previous order, the 
escort committee will now conduct the Chief Justice of the 
United States to the dais to be administered the oath.
    (Senators rising.)
    The Chief Justice was thereupon escorted into the Chamber 
by Senators Blunt, Leahy, Graham, and Feinstein.
    The CHIEF JUSTICE. Senators, I attend the Senate in 
conformity with your notice, for the purpose of joining with 
you for the trial of the President of the United States. I am 
now prepared to take the oath.
    The PRESIDENT pro tempore. Will you place your left hand on 
the Bible and raise your right hand.
    Do you solemnly swear that in all things appertaining to 
the trial of the impeachment of Donald John Trump, President of 
the United States, now pending, you will do impartial justice 
according to the Constitution and the laws, so help you God?
    The CHIEF JUSTICE. I do.
    At this time I will administer the oath to all Senators in 
the Chamber in conformance with article I, section 3, clause 6 
of the Constitution and the Senate's impeachment rules.
    Will all Senators now stand, remain standing, and raise 
their right hand.
    Do you solemnly swear that in all things appertaining to 
the trial of the impeachment of Donald J. Trump, President of 
the United States, now pending, you will do impartial justice 
according to the Constitution and laws, so help you God?
    SENATORS. I do.
    The CHIEF JUSTICE. The clerk will call the names in groups 
of four. The Senators will present themselves at the desk to 
sign the Oath Book.
    The legislative clerk called the roll, and the Senators 
present answered ``I do'' and signed the Official Oath Book.
    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, any Senator who was not 
in the Senate Chamber at the time the oath was administered to 
the other Senators will make that fact known to the Chair so 
that the oath may be administered as soon as possible.
    The CHIEF JUSTICE. The Sergeant at Arms will make the 
proclamation.
    The Sergeant at Arms, Michael C. Stenger, made the 
proclamation as follows:

    Hear ye! Hear ye! Hear ye! All persons are commanded to 
keep silent, on pain of imprisonment, while the House of 
Representatives is exhibiting to the Senate of the United 
States Articles of Impeachment against Donald John Trump, 
President of the United States.

    The CHIEF JUSTICE. The majority leader is recognized.
                                ------                                


                           ORDER OF PROCEDURE

    Mr. McCONNELL. Mr. Chief Justice, for the information of 
the Senate, on my behalf and that of the distinguished 
Democratic leader, I am about to propound several unanimous 
consent requests that will assist with the organization of the 
next steps of these proceedings. They deal largely with 
necessary paperwork incident to the trial.

 UNANIMOUS CONSENT AGREEMENT--PROVIDING ISSUANCE OF A SUMMONS AND FOR 
   RELATED PROCEDURES CONCERNING THE ARTICLES OF IMPEACHMENT AGAINST 
           DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the summons be issued in the usual form provided that the 
President may have until 6 p.m. on Saturday, January 18, 2020, 
to file his answer with the Secretary of the Senate, which will 
be spread upon the Journal, and the House of Representatives 
have until 12 noon on Monday, January 20, 2020, to file its 
replication with the Secretary of the Senate; finally, I ask 
unanimous consent that the Secretary of the Senate be 
authorized to print as a Senate document those documents filed 
by the parties together, to be available to all parties.
    The CHIEF JUSTICE. Without objection, it is so ordered.

            UNANIMOUS CONSENT AGREEMENT--FILING TRIAL BRIEFS

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that if the House of Representatives wishes to file a trial 
brief, it be filed with the Secretary of the Senate by 5 p.m. 
on Saturday, January 18, 2020; further, that if the President 
wishes to file a trial brief, it be filed with the Secretary of 
the Senate by 12 noon on Monday, January 20, 2020; further, 
that if the House wishes to file a rebuttal brief, it be filed 
with the Secretary of the Senate by 12 noon on Tuesday, January 
21, 2020. Finally, I ask unanimous consent that the Secretary 
of the Senate be authorized to print as a Senate document all 
documents filed by the parties together, to be available for 
all parties.
    The CHIEF JUSTICE. Without objection, it is so ordered.

 UNANIMOUS CONSENT AGREEMENT--AUTHORIZATION FOR EQUIPMENT AND FURNITURE

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that in recognition of the unique requirements raised by the 
impeachment trial of Donald John Trump, President of the United 
States, the Sergeant at Arms shall install appropriate 
equipment and furniture in the Senate Chamber during all times 
that the Senate is sitting for trial with the Chief Justice of 
the United States presiding, the appropriate equipment, 
furniture, and computer equipment in accordance with the 
allocations and provisions I now send to the desk, and I ask 
that they be printed in the Record.
    The CHIEF JUSTICE. Is there objection?
    Without objection, it is so ordered.
    The documents follow:

SECTION 1. AUTHORIZATION FOR EQUIPMENT AND FURNITURE.

  (a) In General.--In recognition of the unique requirements raised by 
the impeachment trial of a President of the United States, the Sergeant 
at Arms and Doorkeeper of the Senate shall install appropriate 
equipment and furniture in the Senate chamber for use by the managers 
from the House of Representatives and counsel to the President in their 
presentations to the Senate during all times that the Senate is sitting 
for trial with the Chief Justice of the United States presiding.
  (b) Scope.--The appropriate equipment and furniture referred to in 
subsection (a) is as follows:
          (1) A lectern, a witness table and chair if required, and 
        tables and chairs to accommodate an equal number of managers 
        from the House of Representatives and counsel for the 
        President, which shall be placed in the well of the Senate.
          (2) Such equipment as may be required to permit the display 
        of video or audio evidence, including video monitors and 
        microphones, which may be placed in the chamber for use by the 
        managers from the House of Representatives or the counsel to 
        the President.
  (c) Manner.--All equipment and furniture authorized by this 
resolution shall be placed in the chamber in a manner that provides the 
least practicable disruption to Senate proceedings.

SECTION 1. LAPTOP COMPUTER ACCESS.

  (a) In General.--During impeachment proceedings against the President 
of the United States, laptop computers may be used on the floor of the 
Senate Chamber only in accordance with the following:
          (1) Two laptop computers may be used by the impeachment 
        managers and their assistants.
          (2) Two laptop computers may be used by the counsel for the 
        President of the United States and their assistants.
          (3) Two laptop computer may be used by the Chief Justice of 
        the United States and the assistants of the Chief Justice.
          (4) Laptop computers available to employees and officers of 
        the Senate on the floor of the Senate Chamber during a regular 
        session of the Senate may be used by such employees and 
        officers as necessary.
  (b) Use of Laptop Computers in Other Rooms of the Senate Floor.--
During impeachment proceedings against the President of the United 
States, laptop computers may be used in other areas of the floor of the 
Senate (not including the Senate Chamber) by individuals described in 
paragraphs (1) through (4) of subsection (a) and, as determined 
necessary, other employees and officers of the Senate.
  (c) Enforcement by the Sergeant at Arms and Doorkeeper.--The Sergeant 
at Arms and Doorkeeper of the Senate shall take such actions as are 
necessary to enforce this resolution.
                                ------                                


              ADJOURNMENT UNTIL TUESDAY, JANUARY 21, 2020,

                               AT 1 P.M.

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Senate, sitting as a Court of Impeachment, adjourn 
until Tuesday, January 21, 2020, at 1 p.m.
    There being no objection, the Senate, at 2:33 p.m., sitting 
as Court of Impeachment, adjourned until Tuesday, January 21, 
at 1 p.m.
                                ------                                


                      UNANIMOUS CONSENT AGREEMENT

    Mr. McCONNELL. Mr. President, I ask unanimous consent that 
on Tuesday, January 21, from 10 a.m. until 11 a.m., while the 
Senate is sitting as a court of impeachment and notwithstanding 
the Senate's adjournment, the Senate can receive House messages 
and executive matters, committees be authorized to report 
legislative and executive matters, and Senators be allowed to 
submit statements for the Record, bills and resolutions and 
cosponsor requests, and, where applicable, the Secretary of the 
Senate, on behalf of the Presiding Officer, be permitted to 
refer such matters.
      
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
  
           [From the Congressional Record, January 21, 2020]

                                ------                                


                   RECOGNITION OF THE MAJORITY LEADER

                              IMPEACHMENT

    Mr. McCONNELL. Mr. President, last Thursday, the U.S. 
Senate crossed one of the greatest thresholds that exist in our 
system of government. We began just the third Presidential 
impeachment trial in American history. This is a unique 
responsibility which the Framers of our Constitution knew that 
the Senate--and only the Senate--could handle. Our Founders 
trusted the Senate to rise above short-term passions and 
factionalism. They trusted the Senate to soberly consider what 
has actually been proven and which outcome best serves the 
Nation. That is a pretty high bar, and you might say that later 
today, this body will take our entrance exam.
    Today, we will consider and pass an organizing resolution 
that will structure the first phase of the trial. This initial 
step will offer an early signal to our country. Can the Senate 
still serve our founding purpose? Can we still put fairness, 
evenhandedness, and historical precedent ahead of the partisan 
passions of the day? Today's vote will contain some answers. 
The organizing resolution we will put forward already has the 
support of a majority of the Senate. That is because it sets up 
a structure that is fair, evenhanded, and tracks closely with 
past precedents that were established unanimously.
    After pretrial business, the resolution establishes the 
four things that need to happen next. First, the Senate will 
hear an opening presentation from the House managers. Second, 
we will hear from the President's counsel. Third, Senators will 
be able to seek further information by posing written questions 
to either side through the Chief Justice. Fourth, with all that 
information in hand, the Senate will consider whether we feel 
any additional evidence or witnesses are necessary to evaluate 
whether the House case has cleared or failed to clear the high 
bar of overcoming the presumption of innocence and undoing a 
democratic election.
    The Senate's fair process will draw a sharp contrast with 
the unfair and precedent-breaking inquiry that was carried on 
by the House of Representatives. The House broke with precedent 
by denying Members of the Republican minority the same rights 
that Democrats had received when they were in the minority back 
in 1998. Here in the Senate, every single Senator will have 
exactly the same rights and exactly the same ability to ask 
questions.
    The House broke with fairness by cutting President Trump's 
counsel out of their inquiry to an unprecedented degree. Here 
in the Senate, the President's lawyers will finally receive a 
level playing field with the House Democrats and will finally 
be able to present the President's case. Finally, some 
fairness.
    On every point, our straightforward resolution will bring 
the clarity and fairness that everyone deserves--the President 
of the United States, the House of Representatives, and the 
American people. This is the fair roadmap for our trial. We 
need it in place before we can move forward, so the Senate 
should prepare to remain in session today until we complete 
this resolution and adopt it.
    This basic, four-part structure aligns with the first steps 
of the Clinton impeachment trial in 1999. Twenty-one years ago, 
100 Senators agreed unanimously that this roadmap was the right 
way to begin the trial. All 100 Senators agreed the proper time 
to consider the question of potential witnesses was after--
after--opening arguments and Senators' questions.
    Now, some outside voices have been urging the Senate to 
break with precedent on this question. Loud voices, including 
the leadership of the House majority, colluded with Senate 
Democrats and tried to force the Senate to precommit ourselves 
to seek specific witnesses and documents before Senators had 
even heard opening arguments or even asked questions. These are 
potential witnesses whom the House managers themselves--
themselves--declined to hear from, whom the House itself 
declined to pursue through the legal system during its own 
inquiry.
    The House was not facing any deadline. They were free to 
run whatever investigation they wanted to run. If they wanted 
witnesses who would trigger legal battles over Presidential 
privilege, they could have had those fights. However, the 
chairman of the House Intelligence Committee and the chairman 
of the House Judiciary Committee decided not to. They decided 
their inquiry was finished and moved right ahead. The House 
chose not to pursue the same witnesses they apparently would 
now like--would now like--the Senate to precommit to pursuing 
ourselves.
    As I have been saying for weeks, nobody--nobody--will 
dictate Senate procedure to U.S. Senators. A majority of us are 
committed to upholding the unanimous, bipartisan Clinton 
precedent against outside influences with respect to the proper 
timing of these midtrial questions. So if any amendments are 
brought forward to force premature decisions on midtrial 
questions, I will move to table such amendments and protect our 
bipartisan precedent. If a Senator moves to amend the 
resolution or to subpoena specific witnesses or documents, I 
will move to table such motions because the Senate will decide 
those questions later in the trial, just like we did back in 
1999.
    Now, today may present a curious situation. We may hear 
House managers themselves agitate for such amendments. We may 
hear a team of managers led by the House Intelligence and 
Judiciary Committees chairmen argue that the Senate must 
precommit ourselves to reopen the very investigation they 
themselves oversaw and voluntarily shut down. It would be 
curious to hear these two House chairmen argue that the Senate 
must precommit ourselves to supplementing their own evidentiary 
record, to enforcing subpoenas they refused to enforce, to 
supplementing a case they themselves have recently described as 
``overwhelming''--``overwhelming''--and ``beyond any reasonable 
doubt.''
    These midtrial questions could potentially take us even 
deeper into even more complex constitutional waters. For 
example, many Senators, including me, have serious concerns 
about blurring--blurring--the traditional role between the 
House and the Senate within the impeachment process. The 
Constitution divides the power to impeach from the power to 
try. The first belongs solely to the House, and with the power 
to impeach comes the responsibility to investigate.
    The Senate agreeing to pick up and carry on the House's 
inadequate investigation would set a new precedent that could 
incentivize frequent and hasty impeachments from future House 
majorities. It could dramatically change the separation of 
powers between the House and the Senate if the Senate agrees we 
will conduct both the investigation and the trial of an 
impeachment.
    What is more, some of the proposed new witnesses include 
executive branch officials whose communications with the 
President and with other executive branch officials lie at the 
very core of the President's constitutional privilege. Pursuing 
those witnesses could indefinitely delay the Senate trial and 
draw our body into a protracted and complex legal fight over 
Presidential privilege. Such litigation could potentially have 
permanent repercussions for the separation of powers and the 
institution of the Presidency that Senators would need to 
consider very, very carefully.
    So the Senate is not about to rush into these weighty 
questions without discussion and without deliberation--without 
even hearing opening arguments first. There were good reasons 
why 100 out of 100 Senators agreed two decades ago to cross 
these bridges when we came to them. That is what we will do 
this time as well. Fair is fair. The process was good enough 
for President Clinton, and basic fairness dictates it ought to 
be good enough for this President as well.
    The eyes are on the Senate. The country is watching to see 
if we can rise to the occasion. Twenty-one years ago, 100 
Senators, including a number of us who sit in the Chamber 
today, did just that. The body approved a fair, commonsense 
process to guide the beginning of a Presidential impeachment 
trial. Today, two decades later, this Senate will retake that 
entrance exam. The basic structure we are proposing is just as 
eminently fair and evenhanded as it was back then. The question 
is whether the Senators are themselves ready to be as fair and 
as evenhanded.
    The Senate made a statement 21 years ago. We said that 
Presidents of either party deserve basic justice and a fair 
process. A challenging political moment like today does not 
make such statements less necessary but all the more necessary, 
in fact.
    So I would say to my colleagues across the aisle: There is 
no reason why the vote on this resolution ought to be remotely 
partisan. There is no reason other than base partisanship to 
say this particular President deserves a radically different 
rule book than what was good enough for a past President of 
your own party. I urge every single Senator to support our fair 
resolution. I urge everyone to vote to uphold the Senate's 
unanimous bipartisan precedent of a fair process.
                                ------                                


                   RECOGNITION OF THE MINORITY LEADER

                              IMPEACHMENT

    Mr. SCHUMER. Mr. President, before I begin, there has been 
well-founded concern that the additional security measures 
required for access to the Galleries during the trial could 
cause reporters to miss some of the events on the Senate floor. 
I want to assure everyone in the press that I will vociferously 
oppose any attempt to begin the trial unless the reporters 
trying to enter the Galleries are seated.
    The press is here to inform the American public about these 
pivotal events in our Nation's history. We must make sure they 
are able to. Some may not want what happens here to be public; 
we do.
    Mr. President, after the conclusion of my remarks, the 
Senate will proceed to the impeachment trial of President 
Donald John Trump for committing high crimes and misdemeanors. 
President Trump is accused of coercing a foreign leader into 
interfering in our elections to benefit himself and then doing 
everything in his power to cover it up. If proved, the 
President's actions are crimes against democracy itself.
    It is hard to imagine a greater subversion of our democracy 
than for powers outside our borders to determine the elections 
there within. For a foreign country to attempt such a thing on 
its own is bad enough. For an American President to 
deliberately solicit such a thing--to blackmail a foreign 
country with military assistance to help him win an election--
is unimaginably worse. I can't imagine any other President 
doing this.
    Beyond that, for then the President to deny the right of 
Congress to conduct oversight, deny the right to investigate 
any of his activities, to say article II of the Constitution 
gives him the right to ``do whatever [he] wants''--we are 
staring down an erosion of the sacred democratic principles for 
which our Founders fought a bloody war of independence. Such is 
the gravity of this historic moment.
    Once Senator Inhofe is sworn in at 1 p.m., the ceremonial 
functions at the beginning of a Presidential trial will be 
complete. The Senate then must determine the rules of the 
trial. The Republican leader will offer an organizing 
resolution that outlines his plan--his plan--for the rules of 
the trial. It is completely partisan. It was kept secret until 
the very eve of the trial. Now that it is public, it is very 
easy to see why.
    The McConnell rules seem to be designed by President Trump 
for President Trump. It asks the Senate to rush through as fast 
as possible and makes getting evidence as hard as possible. It 
could force presentations to take place at 2 o'clock or 3 
o'clock in the morning so the American people will not see 
them.
    In short, the McConnell resolution will result in a rushed 
trial, with little evidence, in the dark of the night--
literally the dark of night. If the President is so confident 
in his case, if Leader McConnell is so confident the President 
did nothing wrong, why don't they want the case to be presented 
in broad daylight?
    On something as important as impeachment, the McConnell 
resolution is nothing short of a national disgrace. This will 
go down--this resolution--as one of the darker moments in the 
Senate history, perhaps one of even the darkest.
    Leader McConnell has just said he wants to go by the 
Clinton rules. Then why did he change them, in four important 
ways at minimum, to all make the trial less transparent, less 
clear, and with less evidence? He said he wanted to get started 
in exactly the same way. It turns out, contrary to what the 
leader said--I am amazed he could say it with a straight face--
that the rules are the same as the Clinton rules. The rules are 
not even close to the Clinton rules.
    Unlike the Clinton rules, the McConnell resolution does not 
admit the record of the House impeachment proceedings into 
evidence. Leader McConnell wants a trial with no existing 
evidence and no new evidence. A trial without evidence is not a 
trial; it is a coverup.
    Second, unlike the Clinton rules, the McConnell resolution 
limits presentation by the parties to 24 hours per side over 
only 2 days. We start at 1, 12 hours a day, we are at 1 a.m., 
and that is without breaks. It will be later. Leader McConnell 
wants to force the managers to make important parts of their 
case in the dark of night.
    No. 3, unlike the Clinton rules, the McConnell resolution 
places an additional hurdle to get witnesses and documents by 
requiring a vote on whether such motions are even in order. If 
that vote fails, then no motions to subpoena witnesses and 
documents will be in order.
    I don't want anyone on the other side to say: I am going to 
vote no first on witnesses, but then later I will determine--if 
they vote for McConnell's resolution, they are making it far 
more difficult to vote in the future, later on in the trial.
    And finally, unlike the Clinton rules, the McConnell 
resolution allows a motion to dismiss at any time--any time--in 
the trial.
    In short, contrary to what the leader has said, the 
McConnell rules are not at all like the Clinton rules. The 
Republican leader's resolution is based neither in precedent 
nor in principle. It is driven by partisanship and the politics 
of the moment.
    Today I will be offering amendments to fix the many flaws 
in Leader McConnell's deeply unfair resolution and seek the 
witnesses and documents we have requested, beginning with an 
amendment to have the Senate subpoena White House documents.
    Let me be clear. These amendments are not dilatory. They 
only seek one thing: the truth. That means relevant documents. 
That means relevant witnesses. That is the only way to get a 
fair trial, and everyone in this body knows it.
    Each Senate impeachment trial in our history, all 15 that 
were brought to completion, feature witnesses--every single 
one.
    The witnesses we request are not Democrats. They are the 
President's own men. The documents are not Democratic 
documents. They are documents, period. We don't know if the 
evidence of the witnesses or the documents will be exculpatory 
to the President or incriminating, but we have an obligation--a 
solemn obligation, particularly now during this most deep and 
solemn part of our Constitution--to seek the truth and then let 
the chips fall where they may.
    My Republican colleagues have offered several explanations 
for opposing witnesses and documents at the start of the trial. 
None of them has much merit. Republicans have said we should 
deal with the question of witnesses later in the trial. Of 
course, it makes no sense to hear both sides present their case 
first and then afterward decide if the Senate should hear 
evidence. The evidence is supposed to inform arguments, not 
come after they are completed.
    Some Republicans have said the Senate should not go beyond 
the House record by calling any witnesses, but the Constitution 
gives the Senate the sole power to try impeachments--not the 
sole power to review, not the sole power to rehash but to try.
    Republicans have called our request for witnesses and 
documents political. If seeking the truth is political, then 
the Republican Party is in serious trouble.
    The White House has said that the Articles of Impeachment 
are brazen and wrong. Well, if the President believes his 
impeachment is so brazen and wrong, why won't he show us why? 
Why is the President so insistent that no one come forward, 
that no documents be released? If the President's case is so 
weak, that none of the President's men can defend him under 
oath, shame on him and those who allow it to happen. What is 
the President hiding? What are our Republican colleagues 
hiding? If they weren't afraid of the truth, they would say: Go 
right ahead, get at the truth, get witnesses, get documents.
    In fact, at no point over the last few months have I heard 
a single, solitary argument on the merits of why witnesses and 
documents should not be part of the trial. No Republicans 
explained why less evidence is better than more evidence.
    Nevertheless, Leader McConnell is poised to ask the Senate 
to begin the first impeachment trial of a President in history 
without witnesses; that rushes through the arguments as quickly 
as possible; that, in ways both shameless and subtle, will 
conceal the truth--the truth--from the American people.
    Leader McConnell claimed that the House ``ran the most 
rushed, least thorough, and most unfair impeachment inquiry in 
modern history.'' The truth is, Leader McConnell is plotting 
the most rushed, least thorough, and most unfair impeachment 
trial in modern history, and it begins today.
    The Senate has before it a very straightforward question. 
The President is accused of coercing a foreign power to 
interfere in our elections to help himself. It is the job of 
the Senate to determine if these very serious charges are true. 
The very least we can do is examine the facts, review the 
documents, hear the witnesses, try the case, not run from it, 
not hide from it--try it.
    If the President commits high crimes and misdemeanors and 
Congress refuses to act, refuses even to conduct a fair trial 
of his conduct, then Presidents--this President and future 
Presidents--can commit impeachable crimes with impunity, and 
the order and rigor of our democracy will dramatically decline.
    The fail-safe--the final fail-safe of our democracy will be 
rendered mute. The most powerful check on the Executive--the 
one designed to protect the people from tyranny--will be 
erased.
    In a short time, my colleagues, each of us, will face a 
choice about whether to begin this trial in search of the truth 
or in service of the President's desire to cover it up, whether 
the Senate will conduct a fair trial and a full airing of the 
facts or rush to a predetermined political outcome.
    My colleagues, the eyes of the Nation, the eyes of history, 
the eyes of the Founding Fathers are upon us. History will be 
our final judge. Will Senators rise to the occasion?
    I yield the floor.
                                ------                                


               TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE

                             UNITED STATES

    The CHIEF JUSTICE. The Senate will convene as a Court of 
Impeachment.
                              the journal
    The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
                                  oath
    I am aware of one Senator present who was unable to take 
the impeachment oath last Thursday.
    Will he please rise and raise his right hand and be sworn.
    Do you solemnly swear that in all things pertaining to the 
trial of the impeachment of Donald John Trump, President of the 
United States, now pending, you will do impartial justice 
according to the Constitution and laws, so help you God?
    Mr. INHOFE. I do.
    The CHIEF JUSTICE. The Secretary will note the name of the 
Senator who has just taken the oath and will present the oath 
book to him for signature.
    The CHIEF JUSTICE. The Sergeant at Arms will make the 
proclamation.
    The Sergeant at Arms, Michael C. Stenger, made the 
proclamation as follows:

    Hear ye! Hear ye! Hear ye! All persons are commanded to keep 
silent, on pain of imprisonment, while the Senate of the United States 
is sitting for the trial of the Articles of Impeachment exhibited by 
the House of Representatives against Donald John Trump, President of 
the United States.

    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, I would like to state 
that, for the information of all Senators, the trial briefs 
filed yesterday by the parties have been printed and are now at 
each Senator's desk.
    unanimous consent agreement--authority to print senate documents
    The CHIEF JUSTICE. The following documents will be 
submitted to the Senate for printing in the Senate Journal: the 
precept, issued January 16, 2020; the writ of summons, issued 
on January 16, 2020; and the receipt of summons, dated January 
16, 2020.
    The following documents, which were received by the 
Secretary of the Senate, will be submitted to the Senate for 
printing in the Senate Journal, pursuant to the order of 
January 16, 2020: the answer of Donald John Trump, President of 
the United States, to the Articles of Impeachment exhibited by 
the House of Representatives against him on January 16, 2020, 
received by the Secretary of the Senate on January 18, 2020; 
the trial brief filed by the House of Representatives, received 
by the Secretary of the Senate on January 18, 2020; the trial 
brief filed by the President, received by the Secretary of the 
Senate on January 20, 2020; the replication of the House of 
Representatives, received by the Secretary of the Senate on 
January 20, 2020; and the rebuttal brief filed by the House of 
Representatives, received by the Secretary of the Senate on 
January 21, 2020.
    Without objection, the foregoing documents will be printed 
in the Congressional Record.
    The documents follow:
            [In Proceedings Before the United States Senate]

                  ANSWER OF PRESIDENT DONALD J. TRUMP

 The Honorable Donald J. Trump, President of the United States, Hereby 
                               Responds:

    The Articles of Impeachment submitted by House Democrats are a 
dangerous attack on the right of the American people to freely choose 
their President. This is a brazen and unlawful attempt to overturn the 
results of the 2016 election and interfere with the 2020 election--now 
just months away. The highly partisan and reckless obsession with 
impeaching the President began the day he was inaugurated and continues 
to this day.
    The Articles of Impeachment are constitutionally invalid on their 
face. They fail to allege any crime or violation of law whatsoever, let 
alone ``high Crimes and Misdemeanors,'' as required by the 
Constitution. They are the result of a lawless process that violated 
basic due process and fundamental fairness. Nothing in these Articles 
could permit even beginning to consider removing a duly elected 
President or warrant nullifying an election and subverting the will of 
the American people.
    The Articles of Impeachment now before the Senate are an affront to 
the Constitution of the United States, our democratic institutions, and 
the American people. The Articles themselves--and the rigged process 
that brought them here--are a transparently political act by House 
Democrats. They debase the grave power of impeachment and the solemn 
responsibility that power entails. They must be rejected. The House 
process violated every precedent and every principle of fairness 
governing impeachment inquiries for more than 150 years. Even so, all 
that House Democrats have succeeded in proving is that the President 
did absolutely nothing wrong.
    President Trump categorically and unequivocally denies each and 
every allegation in both Articles of Impeachment. The President 
reserves all rights and all available defenses to the Articles of 
Impeachment. For the reasons set forth in this Answer and in the 
forthcoming Trial Brief, the Senate must reject the Articles of 
Impeachment.
          i. the first article of impeachment must be rejected
    The first Article fails on its face to state an impeachable 
offense. It alleges no crimes at all, let alone ``high Crimes and 
Misdemeanors,'' as required by the Constitution. In fact, it alleges no 
violation of law whatsoever. House Democrats' ``abuse of power'' claim 
would do lasting damage to the separation of powers under the 
Constitution.
    The first Article also fails on the facts, because President Trump 
has not in any way ``abused the powers of the Presidency.'' At all 
times, the President has faithfully and effectively executed the duties 
of his Office on behalf of the American people. The President's actions 
on the July 25, 2019, telephone call with President Volodymyr Zelensky 
of Ukraine (the ``July 25 call''), as well as on the earlier April 21, 
2019, telephone call (the ``April 21 call''), and in all surrounding 
and related events, were constitutional, perfectly legal, completely 
appropriate, and taken in furtherance of our national interest.
    President Trump raised the important issue of burden sharing on the 
July 25 call, noting that other European countries such as Germany were 
not carrying their fair share. President Trump also raised the 
important issue of Ukrainian corruption. President Zelensky 
acknowledged these concerns on that same call.
    Despite House Democrats having run an entirely illegitimate and 
one-sided process, several simple facts were established that prove the 
President did nothing wrong:
    First, the transcripts of both the April 21 call and the July 25 
call make absolutely clear that the President did nothing wrong.
    Second, President Zelensky and other Ukrainian officials have 
repeatedly confirmed that the call was ``good'' and ``normal,'' that 
there was no quid pro quo, and that no one pressured them on anything.
    Third, the two individuals who have stated for the record that they 
spoke to the President about the subject actually exonerate him. 
Ambassador to the European Union Gordon Sondland stated that when he 
asked the President what he wanted from Ukraine, the President said: 
``I want nothing. I want nothing. I want no quid pro quo.'' Senator Ron 
Johnson reported that, when he asked the President whether there was 
any connection between security assistance and investigations, the 
President responded: ``No way. I would never do that.'' House Democrats 
ignore these facts and instead rely entirely on assumptions, 
presumptions, and speculation from witnesses with no first-hand 
knowledge. Their accusations are founded exclusively on inherently 
unreliable hearsay that would never be accepted in any court in our 
country.
    Fourth, the bilateral presidential meeting took place in the 
ordinary course, and the security assistance was sent, all without the 
Ukrainian government announcing any investigations.
    Not only does the evidence collected by House Democrats refute each 
and every one of the factual predicates underlying the first Article, 
the transcripts of the April 21 call and the July 25 call disprove what 
the Article alleges. When the House Democrats realized this, Mr. Schiff 
created a fraudulent version of the July 25 call and read it to the 
American people at a congressional hearing, without disclosing that he 
was simply making it all up. The fact that Mr. Schiff felt the need to 
fabricate a false version of the July 25 call proves that he and his 
colleagues knew there was absolutely nothing wrong with that call.
    House Democrats ran a fundamentally flawed and illegitimate process 
that denied the President every basic right, including the right to 
have counsel present, the right to cross-examine witnesses, and the 
right to present evidence. Despite all this, the information House 
Democrats assembled actually disproves their claims against the 
President. The President acted at all times with full constitutional 
and legal authority and in our national interest. He continued his 
Administration's policy of unprecedented support for Ulaaine, including 
the delivery of lethal military aid that was denied to the Ukrainians 
by the prior administration.
    The first Article is therefore constitutionally invalid, founded on 
falsehoods, and must be rejected.
         ii. the second article of impeachment must be rejected
    The second Article also fails on its face to state an impeachable 
offense. It does not allege any crime or violation of law whatsoever. 
To the contrary, the President's assertion of legitimate Executive 
Branch confidentiality interests grounded in the separation of powers 
cannot constitute obstruction of Congress.
    Furthermore, the notion that President Trump obstructed Congress is 
absurd. President Trump acted with extraordinary and unprecedented 
transparency by declassifying and releasing the transcript of the July 
25 call that is at the heart of this matter.
    Following the President's disclosure of the July 25 call 
transcript, House Democrats issued a series of unconstitutional 
subpoenas for documents and testimony. They issued their subpoenas 
without a congressional vote and, therefore, without constitutional 
authority. They sought testimony from a number of the President's 
closest advisors despite the fact that, under longstanding, bipartisan 
practice of prior administrations of both political parties and 
similarly longstanding guidance from the Department of Justice, those 
advisors are absolutely immune from compelled testimony before Congress 
related to their official duties. And they sought testimony disclosing 
the Executive Branch's confidential communications and internal 
decision-making processes on matters of foreign relations and national 
security, despite the well-established constitutional privileges and 
immunities protecting such information. As the Supreme Court has 
recognized, the President's constitutional authority to protect the 
confidentiality of Executive Branch information is at its apex in the 
field of foreign relations and national security. House Democrats also 
barred the attendance of Executive Branch counsel at witness 
proceedings, thereby preventing the President from protecting important 
Executive Branch confidentiality interests.
    Notwithstanding these abuses, the Trump Administration replied 
appropriately to these subpoenas and identified their constitutional 
defects. Tellingly, House Democrats did not seek to enforce these 
constitutionally defective subpoenas in court. To the contrary, when 
one subpoena recipient sought a declaratory judgment as to the validity 
of the subpoena he had received, House Democrats quickly withdrew the 
subpoena to prevent the court from issuing a ruling.
    The House may not usurp Executive Branch authority and may not 
bypass our Constitution's system of checks and balances. Asserting 
valid constitutional privileges and immunities cannot be an impeachable 
offense. The second Article is therefore invalid and must be rejected.
                            iii. conclusion
    The Articles of Impeachment violate the Constitution. They are 
defective in their entirety. They are the product of invalid 
proceedings that flagrantly denied the President any due process 
rights. They rest on dangerous distortions of the Constitution that 
would do lasting damage to our structure of government.
    In the the first Article, the House attempts to seize the 
President's power under Article II of the Constitution to determine 
foreign policy. In the second Article, the House attempts to control 
and penalize the assertion of the Executive Branch's constitutional 
privileges, while simultaneously seeking to destroy the Framers' system 
of checks and balances. By approving the Articles, the House violated 
our constitutional order, illegally abused its power of impeachment, 
and attempted to obstruct President Trump's ability to faithfully 
execute the duties of his Office. They sought to undermine his 
authority under Article II of the Constitution, which vests the 
entirety of ``[t]he executive Power'' in ``a President of the United 
States of America.''
    In order to preserve our constitutional structure of government, to 
reject the poisonous partisanship that the Framers warned against, to 
ensure one-party political impeachment vendettas do not become the 
``new normal,'' and to vindicate the will of the American people, the 
Senate must reject both Articles of Impeachment. In the end, this 
entire process is nothing more than a dangerous attack on the American 
people themselves and their fundamental right to vote.
                                  Jay Alan Sekulow,
                      Counsel to President Donald J. Trump,
                                                    Washington, DC.
                                          Pat A. Cipollone,
                         Counsel to the President, The White House.
    Dated this 18th day of January, 2020.
                                 ______
                                 
 [In the Senate of the United States Sitting as a Court of Impeachment]
             In re Impeachment of President Donald J. Trump

 TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN THE 
             IMPEACHMENT TRIAL OF PRESIDENT DONALD J. TRUMP

                              introduction
    President Donald J. Trump used his official powers to pressure a 
foreign government to interfere in a United States election for his 
personal political gain, and then attempted to cover up his scheme by 
obstructing Congress's investigation into his misconduct. The 
Constitution provides a remedy when the President commits such serious 
abuses of his office: impeachment and removal. The Senate must use that 
remedy now to safeguard the 2020 U.S. election, protect our 
constitutional form of government, and eliminate the threat that the 
President poses to America's national security.
    The House adopted two Articles of Impeachment against President 
Trump: the first for abuse of power, and the second for obstruction of 
Congress.\1\ The evidence overwhelmingly establishes that he is guilty 
of both. The only remaining question is whether the members of the 
Senate will accept and carry out the responsibility placed on them by 
the Framers of our Constitution and their constitutional Oaths.
                             abuse of power
    President Trump abused the power of his office by pressuring the 
government of Ukraine to interfere in the 2020 U.S. Presidential 
election for his own benefit. In order to pressure the recently elected 
Ukrainian President, Volodymyr Zelensky, to announce investigations 
that would advance President Trump's political interests and his 2020 
reelection bid, the President exercised his official power to withhold 
from Ukraine critical U.S. government support--$391 million of vital 
military aid and a coveted White House meeting.\2\
    During a July 25, 2019 phone call, after President Zelensky 
expressed gratitude to President Trump for American military 
assistance, President Trump immediately responded by asking President 
Zelensky to ``do us a favor though.''\3\ The ``favor'' he sought was 
for Ukraine to publicly announce two investigations that President 
Trump believed would improve his domestic political prospects.\4\ One 
investigation concerned former Vice President Joseph Biden, Jr.--a 
political rival in the upcoming 2020 election--and the false claim 
that, in seeking the removal of a corrupt Ukrainian prosecutor four 
years earlier, then-Vice President Biden had acted to protect a company 
where his son was a board member.\5\ The second investigation concerned 
a debunked conspiracy theory that Russia did not interfere in the 2016 
Presidential election to aid President Trump, but instead that Ukraine 
interfered in that election to aid President Trump's opponent, Hillary 
Clinton.\6\
    These theories were baseless. There is no credible evidence to 
support the allegation that the former Vice President acted improperly 
in encouraging Ukraine to remove an incompetent and corrupt prosecutor 
in 2016.\7\ And the U.S. Intelligence Community, the Senate Select 
Committee on Intelligence, and Special Counsel Robert S. Mueller, III 
unanimously determined that Russia, not Ukraine, interfered in the 2016 
U.S. Presidential election ``in sweeping and systematic fashion'' to 
help President Trump's campaign.\8\ In fact, the theory that Ukraine, 
rather than Russia, interfered in the 2016 election has been advanced 
by Russia's intelligence services as part of Russia's propaganda 
campaign.\9\
    Although these theories were groundless, President Trump sought a 
public announcement by Ukraine of investigations into them in order to 
help his 2020 reelection campaign.\10\ An announcement of a Ukrainian 
investigation into one of his key political rivals would be enormously 
valuable to President Trump in his efforts to win reelection in 2020--
just as the FBI's investigation into Hillary Clinton's emails had 
helped him in 2016. And an investigation suggesting that President 
Trump did not benefit from Russian interference in the 2016 election 
would give him a basis to assert--falsely--that he was the victim, 
rather than the beneficiary, of foreign meddling in the last election. 
Ukraine's announcement of that investigation would bolster the 
perceived legitimacy of his Presidency and, therefore, his political 
standing going into the 2020 race.
    Overwhelming evidence shows that President Trump solicited these 
two investigations in order to obtain a personal political benefit, not 
because the investigations served the national interest.\11\ The 
President's own National Security Advisor characterized the efforts to 
pressure Ukraine to announce investigations in exchange for official 
acts as a ``drug deal.''\12\ His Acting Chief of Staff candidly 
confessed that President Trump's decision to withhold security 
assistance was tied to his desire for an investigation into alleged 
Ukrainian interference in the 2020 election, stated that there ``is 
going to be political influence in foreign policy,'' and told the 
American people to ``get over it.''\13\ Another one of President 
Trump's key national security advisors testified that the agents 
pursuing the President's bidding were ``involved in a domestic 
political errand,'' not national security policy.\14\ And, immediately 
after speaking to President Trump by phone about the investigations, 
one of President Trump's ambassadors involved in carrying out the 
President's agenda in Ukraine said that President Trump ``did not give 
a [expletive] about Ukraine,'' and instead cared only about ``big 
stuff'' that benefitted him personally, like ``the Biden 
investigation.''\15\
    To execute his scheme, President Trump assigned his personal 
attorney, Rudy Giuliani, the task of securing the Ukrainian 
investigations.\16\ Mr. Giuliani repeatedly and publicly emphasized 
that he was not engaged in foreign policy but was instead seeking a 
personal benefit for his client, Donald Trump.\17\
    President Trump used the vast powers of his office as President to 
pressure Ukraine into announcing these investigations. President Trump 
illegally withheld $391 million in taxpayer-funded military assistance 
to Ukraine that Congress had appropriated for expenditure in fiscal 
year 2019.\18\ That assistance was a critical part of long-running 
bipartisan efforts to advance the security interests of the United 
States by ensuring that Ukraine is properly equipped to defend itself 
against Russian aggression.\19\ Every relevant Executive Branch agency 
agreed that continued American support for Ukraine was in America's 
national security interests, but President Trump ignored that view and 
personally ordered the assistance held back, even after serious 
concerns--now confirmed by the Government Accountability Office 
(GAO)\20\--were raised within his Administration about the legality of 
withholding funding that Congress had already appropriated.\21\ 
President Trump released the funding only after he got caught trying to 
use the security assistance as leverage to obtain foreign interference 
in his reelection campaign. When news of his scheme to withhold the 
funding broke, and shortly after investigative committees in the House 
opened an investigation, President Trump relented and released the 
aid.\22\
    As part of the same pressure campaign, President Trump withheld a 
crucial White House meeting with President Zelensky--a meeting that he 
had previously promised and that was a shared goal of both the United 
States and Ukraine.\23\ Such face-to-face Oval Office meetings with a 
U.S. President are immensely important for international 
credibility.\24\ In this case, an Oval Office meeting with President 
Trump was critical to the newly elected Ukrainian President because it 
would signal to Russia--which had invaded Ukraine in 2014 and still 
occupied Ukrainian territory--that Ukraine could count on American 
support.\25\ That meeting still has not occurred, even though President 
Trump has met with over a dozen world leaders at the White House since 
President Zelensky's election--including an Oval Office meeting with 
Russia's top diplomat.\26\
    President Trump's solicitation of foreign interference in our 
elections to secure his own political success is precisely why the 
Framers of our Constitution provided Congress with the power to impeach 
a corrupt President and remove him from office. One of the Founding 
generation's principal fears was that foreign governments would seek to 
manipulate American elections--the defining feature of our self-
government. Thomas Jefferson and John Adams warned of ``foreign 
Interference, Intrigue, Influence'' and predicted that, ``as often as 
Elections happen, the danger of foreign Influence recurs.''\27\ The 
Framers therefore would have considered a President's attempt to 
corrupt America's democratic processes by demanding political favors 
from foreign powers to be a singularly pernicious act. They designed 
impeachment as the remedy for such misconduct because a President who 
manipulates U.S. elections to his advantage can avoid being held 
accountable by the voters through those same elections. And they would 
have viewed a President's efforts to encourage foreign election 
interference as all the more dangerous where, as here, those efforts 
are part of an ongoing pattern of misconduct for which the President is 
unrepentant.
    The House of Representatives gathered overwhelming evidence of 
President Trump's misconduct, which is summarized in the attached 
Statement of Material Facts and in the comprehensive reports prepared 
by the House Permanent Select Committee on Intelligence and the 
Committee on the Judiciary.\28\ On the strength of that evidence, the 
House approved the First Article of Impeachment against President Trump 
for abuse of power.\29\ The Senate should now convict him on that 
Article. President Trump's continuing presence in office undermines the 
integrity of our democratic processes and endangers our national 
security.
                        obstruction of congress
    President Trump obstructed Congress by undertaking an unprecedented 
campaign to prevent House Committees from investigating his misconduct. 
The Constitution entrusts the House with the ``sole Power of 
Impeachment.''\30\ The Framers thus ensured what common sense 
requires--that the House, and not the President, determines the 
existence, scope, and procedures of an impeachment investigation into 
the President's conduct. The House cannot conduct such an investigation 
effectively if it cannot obtain information from the President or the 
Executive Branch about the Presidential misconduct it is investigating. 
Under our constitutional system of divided powers, a President cannot 
be permitted to hide his offenses from view by refusing to comply with 
a Congressional impeachment inquiry and ordering Executive Branch 
agencies to do the same. That conclusion is particularly important 
given the Department of Justice's position that the President cannot be 
indicted. If the President could both avoid accountability under the 
criminal laws and preclude an effective impeachment investigation, he 
would truly be above the law.
    But that is what President Trump has attempted to do, and why 
President Trump's conduct is the Framers' worst nightmare. He directed 
his Administration to defy every subpoena issued in the House's 
impeachment investigation.\31\ At his direction, the White House, 
Department of State, Department of Defense, Department of Energy, and 
Office of Management and Budget (OMB) refused to produce a single 
document in response to those subpoenas.\32\ Several witnesses also 
followed President Trump's orders, defying requests for voluntary 
appearances and lawful subpoenas, and refusing to testify.\33\ And 
President Trump's interference in the House's impeachment inquiry was 
not an isolated incident--it was consistent with his past efforts to 
obstruct the Special Counsel's investigation into Russian interference 
in the 2016 election.\34\
    By categorically obstructing the House's impeachment inquiry, 
President Trump claimed the House's sole impeachment power for himself 
and sought to shield his misconduct from Congress and the American 
people. Although his sweeping cover-up effort ultimately failed--
seventeen public officials courageously upheld their duty, testified, 
and provided documentary evidence of the President's wrongdoing\35\--
his obstruction will do long-lasting and potentially irreparable damage 
to our constitutional system of divided powers if it goes unchecked.
    Based on the overwhelming evidence of the President's misconduct in 
attempting to thwart the impeachment inquiry, the House approved the 
Second Article of Impeachment, for obstruction of Congress.\36\ The 
Senate should now convict President Trump on that Article. If it does 
not, future Presidents will feel empowered to resist any investigation 
into their own wrongdoing, effectively nullifying Congress's power to 
exercise the Constitution's most important safeguard against 
Presidential misconduct. That outcome would not only embolden this 
President to continue seeking foreign interference in our elections but 
would telegraph to future Presidents that they are free to engage in 
serious misconduct without accountability or repercussions.
    The Constitution entrusts Congress with the solemn task of 
impeaching and removing from office a President who engages in 
``Treason, Bribery, or other high Crimes and Misdemeanors.''\37\ The 
impeachment power is an essential check on the authority of the 
President, and Congress must exercise this power when the President 
places his personal and political interests above those of the Nation. 
President Trump has done exactly that. His misconduct challenges the 
fundamental principle that Americans should decide American elections, 
and that a divided system of government, in which no single branch 
operates without the check and balance of the others, preserves the 
liberty we all hold dear.
    The country is watching to see how the Senate responds. History 
will judge each Senator's willingness to rise above partisan 
differences, view the facts honestly, and defend the Constitution. The 
outcome of these proceedings will determine whether generations to come 
will enjoy a safe and secure democracy in which the President is not a 
king, and in which no one, particularly the President, is above the 
law.
                               background
I. Constitutional Grounds for Presidential Impeachment
    To understand why President Trump must be removed from office now, 
it is necessary to understand why the Framers of our Constitution 
included the impeachment power as an essential part of the republic 
they created.
    The Constitution entrusts Congress with the exclusive power to 
impeach the President and to convict and remove him from office. 
Article I vests the House with the ``sole Power of Impeachment,''\38\ 
and the Senate with the ``sole Power to try all Impeachments'' and to 
``convict[]'' upon a vote of two thirds of its Members.\39\ The 
Constitution specifies that the President ``shall be removed from 
Office on Impeachment for, and Conviction of, Treason, Bribery, or 
other high Crimes and Misdemeanors.''\40\ The Constitution further 
provides that the Senate may vote to permanently ``disqualif[y]'' an 
impeached President from government service.\41\
    The President takes an oath to ``faithfully execute the Office of 
the President of the United States.''\42\ Impeachment imposes a check 
on a President who violates that oath by using the powers of the office 
to advance his own interests at the expense of the national interest. 
Fresh from their experience under British rule by a king, the Framers 
were concerned that corruption posed a grave threat to their new 
republic. As George Mason warned the other delegates to the 
Constitutional Convention, ``if we do not provide against corruption, 
our government will soon be at an end.''\43\ The Framers stressed that 
a President who ``act[s] from some corrupt motive or other'' or 
``willfully abus[es] his trust'' must be impeached,\44\ because the 
President ``will have great opportunitys of abusing his power.''\45\
    The Framers recognized that a President who abuses his power to 
manipulate the democratic process cannot properly be held accountable 
by means of the very elections that he has rigged to his advantage.\46\ 
The Framers specifically feared a President who abused his office by 
sparing ``no efforts or means whatever to get himself re-elected.''\47\ 
Mason asked: ``Shall the man who has practised corruption & by that 
means procured his appointment in the first instance, be suffered to 
escape punishment, by repeating his guilt?''\48\
    Thus, the Framers resolved to hold the President ``impeachable 
whilst in office'' as ``an essential security for the good behaviour of 
the Executive.''\49\ By empowering Congress to immediately remove a 
President when his misconduct warrants it, the Framers established the 
people's elected representatives as the ultimate check on a President 
whose corruption threatened our democracy and the Nation's core 
interests.\50\
    The Framers particularly feared that foreign influence could 
undermine our new system of self-government.\51\ In his farewell 
address to the Nation, President George Washington warned Americans 
``to be constantly awake, since history and experience prove that 
foreign influence is one of the most baneful foes of republican 
government.''\52\ Alexander Hamilton cautioned that the ``most deadly 
adversaries of republican government'' may come ``chiefly from the 
desire in foreign powers to gain an improper ascendant in our 
councils.''\53\ James Madison worried that a future President could 
``betray his trust to foreign powers,'' which ``might be fatal to the 
Republic.''\54\ And, of particular relevance now, in their personal 
correspondence about ``foreign Interference,'' Thomas Jefferson and 
John Adams discussed their apprehension that ``as often as Elections 
happen, the danger of foreign Influence recurs.''\55\
    Guided by these concerns, the Framers included within the 
Constitution various mechanisms to ensure the President's 
accountability and protect against foreign influence--including a 
requirement that Presidents be natural-born citizens of the United 
States,\56\ prohibitions on the President's receipt of gifts, 
emoluments, or titles from foreign states,\57\ prohibitions on 
profiting from the Presidency,\58\ and, of course, the requirement that 
the President face reelection after a four-year Term.\59\ But the 
Framers provided for impeachment as a final check on a President who 
sought foreign interference to serve his personal interests, 
particularly to secure his own reelection.
    In drafting the Impeachment Clause, the Framers adopted a standard 
flexible enough to reach the full range of potential Presidential 
misconduct: ``Treason, Bribery, or other high Crimes and 
Misdemeanors.''\60\ The decision to denote ``Treason'' and ``Bribery'' 
as impeachable conduct reflects the Founding-era concerns over foreign 
influence and corruption. But the Framers also recognized that ``many 
great and dangerous offenses'' could warrant impeachment and immediate 
removal of a President from office.\61\ These ``other high Crimes and 
Misdemeanors'' provided for by the Constitution need not be indictable 
criminal offenses. Rather, as Hamilton explained, impeachable offenses 
involve an ``abuse or violation of some public trust'' and are of ``a 
nature which may with peculiar propriety be denominated political, as 
they relate chiefly to injuries done immediately to the society 
itself.''\62\ The Framers thus understood that ``high crimes and 
misdemeanors'' would encompass acts committed by public officials that 
inflict severe harm on the constitutional order.\63\
II. The House's Impeachment of President Donald J. Trump and 
        Presentation of This Matter to the Senate
    Committees of the House have undertaken investigations into 
allegations of misconduct by President Trump and his Administration. On 
September 9, 2019, after evidence surfaced that the President and his 
associates were seeking Ukraine's assistance in the President's 
reelection, the House Permanent Select Committee on Intelligence, 
together with the Committees on Oversight and Reform and Foreign 
Affairs, announced a joint investigation into the President's conduct 
and issued document requests to the White House and State 
Department.\64\
    On September 24, 2019, Speaker Nancy Pelosi announced that the 
House was ``moving forward with an official impeachment inquiry'' and 
directed the Committees to ``proceed with their investigations under 
that umbrella of [an] impeachment inquiry.''\65\ They subsequently 
issued multiple subpoenas for documents as well as requests and 
subpoenas for witness interviews and testimony.\66\ On October 31, 
2019, the House approved a resolution adopting procedures to govern the 
impeachment inquiry.\67\
    Both before and after Speaker Pelosi's announcement, President 
Trump categorically refused to provide any information in response to 
the House's inquiry. He stated that ``we're fighting all the 
subpoenas,'' and that ``I have an Article II, where I have the right to 
do whatever I want as president.''\68\ Through his White House Counsel, 
the President later directed his Administration not to cooperate.\69\ 
Heeding the President's directive, the Executive Branch did not produce 
any documents in response to subpoenas issued by the three 
investigating Committees,\70\ and nine current or former Administration 
officials, including the President's top aides, continue to refuse to 
comply with subpoenas for testimony.\71\
    Notwithstanding the President's attempted cover-up, seventeen 
current and former government officials courageously complied with 
their legal obligations and testified before the three investigating 
Committees in depositions or transcribed interviews that all Members of 
the Committees--as well as staff from the Majority and Minority--were 
permitted to attend.\72\ Some witnesses produced documentary evidence 
in their possession. In late November 2019, twelve of these witnesses, 
including three requested by the Minority, testified in public hearings 
convened by the Intelligence Committee.\73\
    Stressing the ``overwhelming'' evidence of misconduct already 
uncovered by the investigation, on December 3, 2019, the Intelligence 
Committee released a detailed nearly 300-page report documenting its 
findings, which it transmitted to the Judiciary Committee.\74\ The 
Judiciary Committee held public hearings evaluating the constitutional 
standard for impeachment and the evidence against President Trump--in 
which the President's counsel was invited, but declined, to 
participate--and then reported two Articles of Impeachment to the 
House.\75\
    On December 18, 2019, the House voted to impeach President Trump 
and adopted two Articles of Impeachment.\76\ The First Article for 
Abuse of Power states that President Trump ``abused the powers of the 
Presidency'' by ``soliciting the Government of Ukraine to publicly 
announce investigations that would benefit his reelection, harm the 
election prospects of a political opponent, and influence the 2020 
United States Presidential election to his advantage.''\77\ President 
Trump sought to ``pressure the Government of Ukraine to take these 
steps by conditioning official United States Government acts of 
significant value to Ukraine on its public announcement of the 
investigations.''\78\ President Trump undertook these acts ``for 
corrupt purposes in pursuit of personal political benefit''\79\ and 
``used the powers of the Presidency in a manner that compromised the 
national security of the United States and undermined the integrity of 
the United States democratic process.''\80\ These actions were 
``consistent'' with President Trump's ``previous invitations of foreign 
interference in United States elections,''\81\ and demonstrated that 
President Trump ``will remain a threat to national security and the 
Constitution if allowed to remain in office.''\82\
    The Second Article for Obstruction of Congress states that 
President Trump ``abused the powers of the Presidency in a manner 
offensive to, and subversive of, the Constitution'' when he ``directed 
the unprecedented, categorical, and indiscriminate defiance of 
subpoenas issued by the House of Representatives pursuant to its `sole 
Power of Impeachment.'''\83\ Without ``lawful cause or excuse, 
President Trump directed Executive Branch agencies, offices, and 
officials not to comply with those subpoenas'' and ``thus interposed 
the powers of the Presidency against the lawful subpoenas of the House 
of Representatives, and assumed to himself functions and judgments 
necessary to the exercise of the `sole Power of Impeachment' vested by 
the Constitution in the House of Representatives.''\84\ The President's 
``complete defiance of an impeachment inquiry . . . served to cover up 
the President's own repeated misconduct and to seize and control the 
power of impeachment.''\85\ President Trump's misconduct was 
``consistent'' with his ``previous efforts to undermine United States 
Government investigations into foreign interference in United States 
elections,''\86\ demonstrated that he has ``acted in a manner grossly 
incompatible with self-governance,'' and established that he ``will 
remain a threat to the Constitution if allowed to remain in 
office.''\87\
                                argument
I. The Senate Should Convict President Trump of Abuse of Power
    President Trump abused the power of the Presidency by pressuring a 
foreign government to interfere in an American election on his 
behalf.\88\ He solicited this foreign interference to advance his 
reelection prospects at the expense of America's national security and 
the security of Ukraine, a vulnerable American ally at war with Russia, 
an American adversary.\89\ His effort to gain a personal political 
benefit by encouraging a foreign government to undermine America's 
democratic process strikes at the core of misconduct that the Framers 
designed impeachment to protect against. President Trump's abuse of 
power requires his conviction and removal from office.
    An officer abuses his power if he exercises his official power to 
obtain an improper personal benefit while ignoring or undermining the 
national interest.\90\ An abuse that involves an effort to solicit 
foreign interference in an American election is uniquely dangerous. 
President Trump's misconduct is an impeachable abuse of power.\91\
  A. President Trump Exercised His Official Power to Pressure Ukraine 
                       into Aiding His Reelection
    After President Zelensky won a landslide victory in Ukraine in 
April 2019, President Trump pressured the new Ukrainian President to 
help him win his own reelection by announcing investigations that were 
politically favorable for President Trump and designed to harm his 
political rival.\92\
    First, President Trump sought to pressure President Zelensky 
publicly to announce an investigation into former Vice President Biden 
and a Ukrainian gas company, Burisma Holdings, on whose board Biden's 
son sat.\93\ As Vice President, Biden had in late 2015 encouraged the 
government of Ukraine to remove a Ukrainian prosecutor general who had 
failed to combat corruption.\94\ The Ukrainian parliament removed the 
prosecutor in March 2016.\95\ President Trump and his allies have 
asserted that the former Vice President acted in order to stop an 
investigation of Burisma and thereby protect his son.\96\ This is 
false. There is no evidence that Vice President Biden acted 
improperly.\97\ He was carrying out official United States policy--with 
the backing of the international community and bipartisan support in 
Congress--when he sought the removal of the prosecutor, who was himself 
corrupt.\98\ In addition, the prosecutor's removal made it more likely 
that the investigation into Burisma would be pursued.\99\ President 
Trump nevertheless sought an official Ukrainian announcement of an 
investigation into this theory.\100\
    Second, President Trump sought to pressure President Zelensky 
publicly to announce an investigation into a conspiracy theory that 
Ukraine had colluded with the Democratic National Committee to 
interfere in the 2016 U.S. Presidential election in order to help the 
campaign of Hillary Clinton against then-candidate Donald Trump.\101\ 
This theory was not only pure fiction, but malign Russian 
propaganda.\102\ In the words of one of President Trump's own top 
National Security Council officials, President Trump's theory of 
Ukrainian election interference is ``a fictional narrative that is 
being perpetrated and propagated by the Russian security services 
themselves'' to deflect from Russia's culpability and to drive a wedge 
between the United States and Ukraine.\103\ President Trump's own FBI 
Director confirmed that American law enforcement has ``no information 
that indicates that Ukraine interfered with the 2016 presidential 
election.''\104\ The Senate Select Committee on Intelligence similarly 
concluded that Russia, not Ukraine, interfered in the 2016 U.S. 
Presidential election.\105\ President Trump nevertheless seized on the 
false theory and sought an announcement of an investigation that would 
give him a basis to assert that Ukraine rather than Russia interfered 
in the 2016 election. Such an investigation would eliminate a perceived 
threat to his own legitimacy and boost his political standing in 
advance of the 2020 election.\106\
    In furtherance of the corrupt scheme, President Trump exercised his 
official power to remove a perceived obstacle to Ukraine's pursuit of 
the two sham investigations. On April 24, 2019--one day after the media 
reported that former Vice President Biden would formally enter the 2020 
U.S. Presidential race\107\--the State Department executed President 
Trump's order to recall the U.S. ambassador to Ukraine, a well-regarded 
career diplomat and anti-corruption crusader.\108\ President Trump 
needed her ``out of the way'' because ``she was going to make the 
investigations difficult for everybody.''\109\ President Trump then 
proceeded to exercise his official power to pressure Ukraine into 
announcing his desired investigations by withholding valuable support 
that Ukraine desperately needed and that he could leverage only by 
virtue of his office: $391 million in security assistance and a White 
House meeting.
                      withheld security assistance
    President Trump illegally ordered the Office of Management and 
Budget to withhold $391 million in taxpayer-funded military and other 
security assistance to Ukraine.\110\ This assistance would provide 
Ukraine with sniper rifles, rocket-propelled grenade launchers, 
counter-artillery radars, electronic warfare detection and secure 
communications, and night vision equipment, among other military 
equipment, to defend itself against Russian forces that occupied part 
of eastern Ukraine since 2014.\111\ The new and vulnerable government 
headed by President Zelensky urgently needed this assistance--both 
because the funding itself was critically important to defend against 
Russia, and because the funding was a highly visible sign of American 
support for President Zelensky in his efforts to negotiate an end to 
the conflict from a position of strength.\112\
    Every relevant Executive Branch agency supported the assistance, 
which also had broad bipartisan support in Congress.\113\ President 
Trump, however, personally ordered OMB to withhold the assistance after 
the bulk of it had been appropriated by Congress and all of the 
Congressionally mandated conditions on assistance--including anti-
corruption reforms--had been met.\114\ The Government Accountability 
Office has determined that the President's hold was illegal and 
violated the Impoundment Control Act, which limits the President's 
authority to withhold funds that Congress has appropriated.\115\
    The evidence is clear that President Trump conditioned release of 
the vital military assistance on Ukraine's announcement of the sham 
investigations. During a telephone conversation between the two 
Presidents on July 25, immediately after President Zelensky raised the 
issue of U.S. military support for Ukraine, President Trump replied: 
``I would like you to do us a favor though.''\116\ President Trump then 
explained that the ``favor'' he wanted President Zelensky to perform 
was to begin the investigations, and President Zelensky confirmed his 
understanding that the investigations should be done ``openly.''\117\ 
In describing whom he wanted Ukraine to investigate, President Trump 
mentioned only two people: former Vice President Biden and his 
son.\118\ And in describing the claim of foreign interference in the 
2016 election, President Trump declared that ``they say a lot of it 
started with Ukraine,'' and that ``[w]hatever you can do, it's very 
important that you do it if that's possible.''\119\ Absent from the 
discussion was any mention by President Trump of anti-corruption 
reforms in Ukraine.
    One of President Trump's chief agents for carrying out the 
President's agenda in Ukraine, Ambassador Gordon Sondland, testified 
that President Trump's effort to condition release of the much-needed 
security assistance on an announcement of the investigations was as 
clear as ``two plus two equals four.''\120\ Sondland communicated to 
President Zelensky's advisor that Ukraine would likely not receive 
assistance unless President Zelensky publicly announced the 
investigations.\121\ And President Trump later confirmed to Ambassador 
Sondland that President Zelensky ``must announce the opening of the 
investigations and he should want to do it.''\122\
    President Trump ultimately released the military assistance, but 
only after the press publicly reported the hold, after the President 
learned that a whistleblower within the Intelligence Community had 
filed a complaint about his misconduct, and after the House publicly 
announced an investigation of the President's scheme. In short, 
President Trump released the security assistance for Ukraine only after 
he got caught.\123\
                      withheld white house meeting
    On April 21, 2019, the day President Zelensky was elected, 
President Trump invited him to a meeting at the White House.\124\ The 
meeting would have signaled American support for the new Ukrainian 
administration, its strong anti-corruption reform agenda, and its 
efforts to defend against Russian aggression and to make peace.\125\ 
President Trump, however, exercised his official power to withhold the 
meeting as leverage in his scheme to pressure President Zelensky into 
announcing the investigations to help his reelection campaign.
    The evidence is unambiguous that President Trump and his agents 
conditioned the White House meeting on Ukraine's announcement of the 
investigations. Ambassador Sondland testified that President Trump 
wanted ``a public statement from President Zelensky'' committing to the 
investigations as a ``prerequisite[]'' for the White House 
meeting.\126\ Ambassador Sondland further testified: ``I know that 
members of this committee frequently frame these complicated issues in 
the form of a simple question: Was there a quid pro quo? As I testified 
previously with regard to the requested White House call and the White 
House meeting, the answer is yes.''\127\
    To this day, President Trump maintains leverage over President 
Zelensky. A White House meeting has still not taken place,\128\ and 
President Trump continues publicly to urge Ukraine to conduct these 
investigations.\129\
    B. President Trump Exercised Official Power to Benefit Himself 
                               Personally
    Overwhelming evidence demonstrates that the announcement of 
investigations on which President Trump conditioned the official acts 
had no legitimate policy rationale, and instead were corruptly intended 
to assist his 2020 reelection campaign.\130\
    First, although there was no basis for the two conspiracy theories 
that President Trump advanced,\131\ public announcements that these 
theories were being investigated would be of immense political value to 
him--and him alone. The public announcement of an investigation of 
former Vice President Biden would yield enormous political benefits for 
President Trump, who viewed the former Vice President as a serious 
political rival in the 2020 U.S. Presidential election. Unsurprisingly, 
President Trump's efforts to advance the conspiracy theory accelerated 
after news broke that Vice President Biden would run for President in 
2020.\132\ President Trump benefited from such an announcement of a 
criminal investigation into his Presidential opponent in 2016.\133\ An 
announcement of a criminal investigation regarding a 2020 rival would 
likewise be extremely helpful to his reelection prospects.
    President Trump would similarly have viewed an investigation into 
Ukrainian interference in the 2016 election as helpful in undermining 
the conclusion that he had benefitted from Russian election 
interference in 2016, and that he was the preferred candidate of 
President Putin--both of which President Trump viewed as calling into 
question the legitimacy of his Presidency. An announcement that Ukraine 
was investigating its own alleged 2016 election interference would have 
turned these facts on their head. President Trump would have grounds to 
claim--falsely--that he was elected President in 2016 not because he 
was the beneficiary of Russian election interference, but in spite of 
Ukrainian election interference aimed at helping his opponent.
    Second, agents and associates of President Trump who helped carry 
out his agenda in Ukraine confirmed that his efforts to pressure 
President Zelensky into announcing the desired investigations were 
intended for his personal political benefit rather than for a 
legitimate policy purpose. For example, after speaking with President 
Trump, Ambassador Sondland told a colleague that President Trump ``did 
not give a [expletive] about Ukraine,'' and instead cared only about 
``big stuff'' that benefitted him personally ``like the Biden 
investigation that Mr. Giuliani was pushing.''\134\ And Mick Mulvaney, 
President Trump's Acting Chief of Staff, acknowledged to a reporter 
that there was a quid pro quo with Ukraine involving the military aid, 
conceded that ``[t]here is going to be political influence in foreign 
policy,'' and stated, ``I have news for everybody: get over it.''\135\
    Third, the involvement of President Trump's personal attorney, Mr. 
Giuliani--who has professional obligations to the President but not the 
Nation--underscores that President Trump sought the investigations for 
personal and political reasons rather than legitimate foreign policy 
reasons. Mr. Giuliani openly and repeatedly acknowledged that he was 
pursuing the Ukrainian investigations to advance the President's 
interests, stating: ``this isn't foreign policy.''\136\ Instead, Mr. 
Giuliani said that he was seeking information that ``will be very, very 
helpful to my client.''\137\ Mr. Giuliani made similar representations 
to the Ukrainian government. In a letter to President-elect Zelensky, 
Mr. Giuliani stated that he ``represent[ed] him [President Trump] as a 
private citizen, not as President of the United States'' and was acting 
with the President's ``knowledge and consent.''\138\ President Trump 
placed Mr. Giuliani at the hub of the pressure campaign on Ukraine, and 
directed U.S. officials responsible for Ukraine to ``talk to 
Rudy.''\139\ Indeed, during their July 25 call, President Trump pressed 
President Zelensky to speak with Mr. Giuliani directly, stating: ``Rudy 
very much knows what's happening and he is a very capable guy. If you 
could speak to him that would be great.''\140\
    Fourth, President Trump's pursuit of the sham investigations marked 
a dramatic deviation from longstanding bipartisan American foreign 
policy goals in Ukraine. Legitimate investigations could have been 
recognized as an anti-corruption foreign policy goal, but there was no 
factual basis for an investigation into the Bidens or into supposed 
Ukrainian interference in the 2016 election.\141\ To the contrary, the 
requested investigations were precisely the type of political 
investigations that American foreign policy dissuades other countries 
from undertaking. That explains why the scheme to obtain the 
announcements was pursued through the President's chosen political 
appointees and his personal attorney;\142\ why Trump Administration 
officials attempted to keep the scheme from becoming public due to its 
``sensitive nature'';\143\ why no credible explanation for the hold on 
security assistance was provided even within the U.S. government;\144\ 
why, over Defense Department objections, President Trump and his allies 
violated the law by withholding the aid;\145\ and why, after the scheme 
was uncovered, President Trump falsely claimed that his pursuit of the 
investigations did not involve a quid pro quo.\146\
    Fifth, American and Ukrainian officials alike saw President Trump's 
scheme for what it was: improper and political. As we expect the 
testimony of Ambassador John Bolton would confirm, President Trump's 
National Security Advisor stated that he wanted no ``part of whatever 
drug deal'' President Trump's agents were pursuing in Ukraine.\147\ Dr. 
Hill testified that Ambassador Sondland was becoming involved in a 
``domestic political errand'' in pressing Ukraine to announce the 
investigations.\148\ Jennifer Williams, an advisor to Vice President 
Mike Pence, testified that the President's solicitation of 
investigations was a ``domestic political matter.''\149\ Lt. Col. 
Alexander Vindman, the NSC's Director for Ukraine, testified that 
``[i]t is improper for the President of the United States to demand a 
foreign government investigate a U.S. citizen and a political 
opponent.''\150\ William Taylor, who took over as Charge d'Affaires in 
Kyiv after President Trump recalled Ambassador Yovanovitch, emphasized 
that ``I think it's crazy to withhold security assistance for help with 
a political campaign.''\151\ And George Kent, a State Department 
official, testified that ``asking another country to investigate a 
prosecution for political reasons undermines our advocacy of the rule 
of law.''\152\
    Ukrainian officials also understood that President Trump's corrupt 
effort to solicit the sham investigations would drag them into domestic 
U.S. politics. In response to the President's efforts, a senior 
Ukrainian official conveyed to Ambassador Taylor that President 
Zelensky ``did not want to be used as a pawn in a U.S. reelection 
campaign.''\153\ Another Ukrainian official later stated that ``it's 
critically important for the west not to pull us into some conflicts 
between their ruling elites[.]''\154\ And when Ambassador Kurt Volker 
tried to warn President Zelensky's advisor against investigating 
President Zelensky's former political opponent--the prior Ukrainian 
president--the advisor retorted, ``What, you mean like asking us to 
investigate Clinton and Biden?''\155\ David Holmes, a career diplomat 
at the U.S. Embassy in Kyiv, highlighted this hypocrisy: ``While we had 
advised our Ukrainian counterparts to voice a commitment to following 
the rule of law and generally investigating credible corruption 
allegations,'' U.S. officials were making ``a demand that President 
Zelensky personally commit on a cable news channel to a specific 
investigation of President Trump's political rival.''\156\
    Finally, there is no credible alternative explanation for President 
Trump's conduct. It is not credible that President Trump sought 
announcements of the investigations because he was in fact concerned 
with corruption in Ukraine or burden-sharing with our European allies, 
as he claimed after the scheme was uncovered.\157\
    Before news of former Vice President Biden's candidacy broke, 
President Trump showed no interest in corruption in Ukraine, and in 
prior years he approved military assistance to Ukraine without 
controversy.\158\ After his candidacy was announced, President Trump 
remained indifferent to anti-corruption measures beyond the two 
investigations he was demanding.\159\ When he first spoke with 
President Zelensky on April 21, President Trump ignored the 
recommendation of his national security advisors and did not mention 
corruption at all--even though the purpose of the call was to 
congratulate President Zelensky on a victory based on an anti-
corruption platform.\160\ President Trump's entire policy team agreed 
that President Zelensky was genuinely committed to reforms, yet 
President Trump refused a White House meeting that the team advised 
would support President Zelensky's anti-corruption agenda.\161\ 
President Trump's own Department of Defense, in consultation with the 
State Department, had certified in May 2019 that Ukraine satisfied all 
anti-corruption standards needed to receive the Congressionally 
appropriated military aid, yet President Trump nevertheless withheld 
that vital assistance.\162\ He recalled without explanation Ambassador 
Yovanovitch, who was widely recognized as a champion in fighting 
corruption,\163\ disparaged her while praising a corrupt Ukrainian 
prosecutor general,\164\ and oversaw efforts to cut foreign programs 
tasked with combating corruption in Ukraine and elsewhere.\165\
    Moreover, had President Trump truly sought to assist Ukraine's 
anti-corruption efforts, he would have focused on ensuring that Ukraine 
actually conducted investigations of the purported issues he 
identified. But actual investigations were never the point. President 
Trump was interested only in the announcement of the investigations 
because that announcement would accomplish his real goal--bolstering 
his reelection efforts.\166\
    President Trump's purported concern about sharing the burden of 
assistance to Ukraine with Europe is equally without basis. From the 
time OMB announced the illegal hold until it was lifted, no credible 
reason was provided to Executive Branch agencies for the hold, despite 
repeated efforts by national security officials to obtain an 
explanation.\167\ It was not until September-- approximately two months 
after President Trump had directed the hold and after the President had 
learned of the whistleblower complaint--that the hold, for the first 
time, was attributed to the President's concern about other countries 
not contributing more to Ukraine.\168\ If the President was genuinely 
concerned about burden-sharing, it makes no sense that he kept his own 
Administration in the dark about the issue for months, never made any 
contemporaneous public statements about it, never ordered a review of 
burden-sharing,\169\ never ordered his officials to push Europe to 
increase their contributions,\170\ and then released the aid without 
any change in Europe's contribution.\171\ The concern about burden-
sharing is an after-the-fact rationalization designed to conceal 
President Trump's abuse of power.
         C. President Trump Jeopardized U.S. National Interests
    President Trump's efforts to solicit foreign interference to help 
his reelection campaign is pernicious, but his conduct is all the more 
alarming because it endangered U.S. national security, jeopardized our 
alliances, and undermined our efforts to promote the rule of law 
globally.
    Ukraine is a ``strategic partner of the United States'' on the 
front lines of an ongoing conflict with Russia.\172\ The United States 
has approved military assistance to Ukraine with bipartisan support 
since 2014, and that assistance is critical to preventing Russia's 
expansion and aggression. This military assistance--which President 
Trump withheld in service of his own political interests--``saves 
lives'' by making Ukrainian resistance to Russia more effective.\173\ 
It likewise advances American national security interests because, 
``[i]f Russia prevails and Ukraine falls to Russian dominion, we can 
expect to see other attempts by Russia to expand its territory and 
influence.''\174\ Indeed, the reason the United States provides 
assistance to the Ukrainian military is ``so that they can fight Russia 
over there, and we don't have to fight Russia here.''\175\ President 
Trump's delay in providing the military assistance jeopardized these 
national security interests and emboldened Russia even though the 
funding was ultimately released--particularly because the delay 
occurred ``when Russia was watching closely to gauge the level of 
American support for the Ukrainian Government.''\176\ But for a 
subsequent act of Congress, approximately $35 million of military 
assistance to Ukraine would have lapsed and been unavailable as a 
result of the President's abuse of power.\177\
    The White House meeting that President Trump promised President 
Zelensky--but continues to withhold--would similarly have signaled to 
Russia that the United States stands behind Ukraine, showing ``U.S. 
support at the highest levels.''\178\ By refusing to hold this meeting, 
President Trump denied Ukraine a showing of strength that could deter 
further Russian aggression and help Ukraine negotiate a favorable end 
to its war with Russia.\179\ The withheld meeting also undercuts 
President Zelensky's domestic standing, diminishing his ability to 
advance his ambitious anti-corruption reforms.\180\
    Equally troubling is that President Trump's scheme sent a clear 
message to our allies that the United States may capriciously withhold 
critical assistance for our President's personal benefit, causing our 
allies to constantly ``question the extent to which they can count on 
us.''\181\ Because American leadership depends on ``the power of our 
example and the consistency of our purpose,'' President Trump's 
``conduct undermines the U.S., exposes our friends, and widens the 
playing field for autocrats like President Putin.''\182\ And President 
Trump's use of official acts to pressure Ukraine to announce 
politically motivated investigations harms our credibility in promoting 
democratic values and the rule of law in Ukraine and around the world. 
American credibility abroad ``is based on a respect for the United 
States,'' and ``if we damage that respect,'' American foreign policy 
cannot do its job.\183\
    President Trump abused the powers of his office to invite foreign 
interference in an election for his own personal political gain and to 
the detriment of American national security interests. He abandoned his 
oath to faithfully execute the laws and betrayed his public trust. 
President Trump's misconduct presents a danger to our democratic 
processes, our national security, and our commitment to the rule of 
law. He must be removed from office.
II. The Senate Should Convict President Trump of Obstruction of 
        Congress
    In exercising its responsibility to investigate and consider the 
impeachment of a President of the United States, the House is 
constitutionally entitled to the relevant information from the 
Executive Branch concerning the President's misconduct.\184\ The 
Framers, the courts, and past Presidents have recognized that honoring 
Congress's right to information in an impeachment investigation is a 
critical safeguard in our system of divided powers.\185\ Otherwise, a 
President could hide his own wrongdoing to prevent Congress from 
discovering impeachable misconduct, effectively nullifying Congress's 
impeachment power.\186\ President Trump's sweeping effort to shield his 
misconduct from view and protect himself from impeachment thus works a 
grave constitutional harm and is itself an impeachable offense.
 A. The House Is Constitutionally Entitled to the Relevant Information 
                       in an Impeachment Inquiry
    The House has the power to issue subpoenas and demand compliance in 
an impeachment investigation. The Supreme Court has long recognized 
that, ``[w]ithout the power to investigate--including of course the 
authority to compel testimony, either through its own processes or 
through judicial trial--Congress could be seriously handicapped in its 
efforts to exercise its constitutional function wisely and 
effectively.''\187\ The Court has stressed that it is the ``duty of all 
citizens'' and ``their unremitting obligation to respond to subpoenas, 
to respect the dignity of the Congress and its committees and to 
testify fully with respect to matters within the province of proper 
investigation.''\188\ The Court has repeatedly emphasized that 
Congress's ``power of inquiry--with process to enforce it--is an 
essential and appropriate auxiliary to the legislative function.''\189\ 
Congress ``cannot legislate wisely or effectively in the absence of 
information.''\190\
    This principle is most compelling when the House exercises its 
``sole Power of Impeachment.'' Congress's already ``broad'' 
investigatory authority,\191\ and its need for information, are at 
their apex in an impeachment inquiry. The principle that the President 
cannot stand in the way of an impeachment investigation is ``of great 
consequence'' because, as Supreme Court Justice Joseph Story long ago 
explained, ``the president should not have the power of preventing a 
thorough investigation of [his] conduct, or of securing [himself] 
against the disgrace of a public conviction by impeachment, if [he] 
should deserve it.''\192\ A Presidential impeachment is ``a matter of 
the most critical moment to the Nation'' and it is ``difficult to 
conceive of a more compelling need than that of this country for an 
unswervingly fair inquiry based on all the pertinent 
information.''\193\ The Supreme Court thus recognized nearly 140 years 
ago that where the House or Senate is determining a ``question of . . . 
impeachment,'' there is ``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.''\194\
    Like the Supreme Court, members of the earliest Congresses 
understood that, without ``the right to inspect every paper and 
transaction in any department . . . the power of impeachment could 
never be exercised with any effect.''\195\ Previous Presidents have 
acknowledged their obligation to comply with an impeachment 
investigation, explaining that such an inquiry ``penetrate[s] into the 
most secret recesses of the Executive Departments'' and ``could command 
the attendance of any and every agent of the Government, and compel 
them to produce all papers, public or private, official or unofficial, 
and to testify on oath to all facts within their knowledge.''\196\ That 
acknowledgement is a matter of common sense. An impeachment inquiry 
cannot root out bad actors if those same bad actors control the scope 
and nature of the inquiry.
    President Trump is an aberration among Presidents in refusing any 
and all cooperation in a House impeachment investigation. Even 
President Nixon produced numerous documents in response to 
Congressional subpoenas and instructed ``[a]ll members of the White 
House Staff . . . [to] appear voluntarily when requested by the 
[House],'' to ``testify under oath,'' and to ``answer fully all proper 
questions''\197\--consistent with the near uniform cooperation of prior 
Executive Branch officials who had been subject to impeachment 
investigations.\198\
    Because President Nixon's production of records in response to the 
House Judiciary Committee's inquiry was incomplete in important 
respects, however, the Committee voted to adopt an article of 
impeachment for his obstruction of the inquiry.\199\ As the Committee 
explained, in refusing to provide materials that the Committee ``deemed 
necessary'' to the impeachment investigation, President Nixon had 
``substitute[ed] his judgment'' for that of the House and interposed 
``the powers of the presidency against the lawful subpoenas of the 
House of Representatives, thereby assuming to himself functions and 
judgments necessary to exercise the sole power of impeachment vested by 
the Constitution in the House.''\200\ The Committee stated that it was 
not ``within the power of the President to conduct an inquiry into his 
own impeachment, to determine which evidence, and what version or 
portion of that evidence, is relevant and necessary to such an inquiry. 
These are matters which, under the Constitution, the House has the sole 
power to determine.''\201\ In the face of Congress's investigation and 
the mounting evidence of his misdeeds, President Nixon resigned before 
the House had the chance to impeach him for this misconduct.
 B. President Trump's Obstruction of the Impeachment Inquiry Violates 
                 Fundamental Constitutional Principles
    The Senate should convict President Trump of Obstruction of 
Congress as charged in the Second Article of Impeachment. President 
Trump unilaterally declared the House's investigation 
``illegitimate.''\202\ President Trump's White House Counsel notified 
the House that ``President Trump cannot permit his Administration to 
participate in this partisan inquiry under these circumstances.''\203\ 
President Trump then directed his Administration categorically to 
withhold documents and testimony from the House.
    The facts are undisputed. As charged in the Second Article of 
Impeachment, President Trump ``[d]irect[ed] the White House to defy a 
lawful subpoena by withholding the production of documents'' to the 
Committees; ``[d]irect[ed] other Executive Branch agencies and offices 
to defy lawful subpoenas and withhold the production of documents and 
records from the Committees''; and ``[d]irected current and former 
Executive Branch officials not to cooperate with the Committees.''\204\ 
In response to President Trump's directives, OMB, the Department of 
State, Department of Energy, and Department of Defense refused to 
produce any documents to the House, even though witness testimony has 
revealed that additional highly relevant records exist.\205\ To date, 
the House Committees have not received a single document or record from 
these departments and agencies pursuant to subpoenas, which remain in 
effect.
    President Trump personally demanded that his top aides refuse to 
testify in response to subpoenas, and nine Administration officials 
followed his directive and continue to defy subpoenas for 
testimony.\206\ For example, when the Intelligence Committee issued a 
subpoena for Mick Mulvaney's testimony, he produced a November 8 letter 
from the White House stating: ``the President directs Mr. Mulvaney not 
to appear at the Committee's scheduled deposition on November 8, 
2019.''\207\ When President Trump was unable to silence witnesses, he 
resorted to tactics to penalize and intimidate them. These efforts 
include President Trump's sustained attacks on the anonymous 
whistleblower, and his public statements designed to discourage 
witnesses from coming forward and to embarrass those who did 
testify.\208\
    Refusing to comply with a Congressional impeachment investigation 
is not a constitutionally valid decision for a President to make. 
President Trump's unprecedented ``complete defiance of an impeachment 
inquiry . . . served to cover up the President's own repeated 
misconduct and to seize and control the power of impeachment.''\209\ 
President Trump's directive rejects one of the key features 
distinguishing our Republic from a monarchy: that ``[t]he President of 
the United States [is] liable to be impeached, tried, and, upon 
conviction . . . removed.''\210\ Allowing President Trump to avoid 
conviction on the Second Article would set a dangerous precedent for 
future Presidents to hide their misconduct from Congressional scrutiny 
during an impeachment inquiry without fear of accountability.
    Notwithstanding President Trump's obstruction, the House obtained 
compelling evidence that he abused his power. The failure of President 
Trump's obstruction and attempted cover-up, however, does not excuse 
his misconduct. There can be no doubt that the withheld documents and 
testimony would provide Congress with highly pertinent information 
about the President's corrupt scheme. Indeed, witnesses have testified 
about specific withheld records concerning President Trump's July 25 
call with President Zelensky and related materials,\211\ and public 
reports have referred to additional responsive documents, including 
``hundreds of documents that reveal extensive efforts to generate an 
after-the-fact justification for'' withholding the security aid.\212\
     C. President Trump's Excuses for His Obstruction Are Meritless
    President Trump has offered various unpersuasive excuses for his 
blanket refusal to comply with the House's impeachment inquiry. 
President Trump's refusal to provide information is not a principled 
assertion of executive privilege, but rather is a transparent attempt 
to cover-up wrongdoing and amass power that the Constitution does not 
give him, including the power to decide whether and when Congress can 
hold him accountable.
    First, while Congressional investigators often accommodate 
legitimate Executive Branch interests, the President's blanket 
directive to all Executive Branch agencies and witnesses to defy 
Congressional subpoenas was not based on any actual assertion of 
executive privilege or identification of particular sensitive 
information.\213\ The White House Counsel's letter alluded to ``long-
established Executive Branch confidentiality interests and privileges'' 
that the State Department could theoretically invoke,\214\ and the 
Justice Department's Office of Legal Counsel preemptively dismissed 
certain subpoenas as ``invalid'' on the ground that responsive 
information was ``potentially protected by executive privilege.''\215\ 
But neither document conveyed an actual assertion of executive 
privilege,\216\ which would require, at a minimum, identification by 
the President of particular communications or documents containing 
protected material.\217\ The White House cannot justify a blanket 
refusal to respond to Congressional subpoenas based on an executive or 
other privilege it never in fact invoked.
    Regardless, executive privilege is inapplicable here, both because 
it may not be used to conceal wrongdoing--particularly in an 
impeachment inquiry--and because the President and his agents have 
already diminished any confidentiality interests by speaking at length 
about these events in every forum except Congress.\218\ President Trump 
has been impeached for Obstruction of Congress not based upon discrete 
invocations of privilege or immunity, but for his directive that the 
Executive Branch categorically stonewall the House impeachment inquiry 
by refusing to comply with all subpoenas.\219\
    To the extent President Trump claims that he has concealed evidence 
to protect the Office of the President, the Framers considered and 
rejected that defense. Several delegates at the Constitutional 
Convention warned that the impeachment power would be ``destructive of 
[the executive's] independence.''\220\ But the Framers adopted an 
impeachment power anyway because, as Alexander Hamilton observed, ``the 
powers relating to impeachments'' are ``an essential check in the hands 
of [Congress] upon the encroachments of the executive.''\221\ The 
impeachment power does not exist to protect the Presidency; it exists 
to protect the nation from a corrupt and dangerous President like 
Donald Trump.
    Second, President Trump has no basis for objecting to how the House 
conducted its impeachment proceedings. The Constitution vests the House 
with the ``sole Power of Impeachment''\222\ and the power to 
``determine the Rules of its Proceedings.''\223\
    The rights that President Trump has demanded have never been 
recognized and have not been afforded in any prior Presidential 
impeachment.\224\ President Trump has been afforded protections equal 
to or greater than those afforded Presidents Nixon and Clinton during 
their impeachment proceedings in the House.\225\ Any claim that 
President Trump was entitled to due process rights modeled on a 
criminal trial during the entirety of the House impeachment inquiry 
ignores both law and history. A House impeachment inquiry cannot be 
compared to a criminal trial because the Senate, not the House, 
possesses the ``sole Power to try Impeachments.''\226\ The Constitution 
does not entitle President Trump to a separate, full trial first in the 
House.
    Even indulging the analogy to a criminal trial, no person appearing 
before a prosecutor or grand jury deciding whether to bring charges 
would have the rights President Trump has claimed. As the House 
Judiciary Committee Chairman observed during Watergate, ``it is not a 
right but a privilege or a courtesy'' for the President to participate 
through counsel in House impeachment proceedings.\227\ President 
Trump's demands are just another effort to obstruct the House in the 
exercise of its constitutional duty.
    Third, President Trump's assertion that his impeachment for 
obstruction of Congress is invalid because the Committees did not first 
seek judicial enforcement of their subpoenas ignores again the 
Constitutional dictate that the House has sole authority to determine 
how to proceed with an impeachment. It also ignores President Trump's 
own arguments to the federal courts.
    President Trump is telling one story to Congress while spinning a 
different tale in the courts. He is saying to Congress that the 
Committees should have sued the Executive Branch in court to enforce 
their subpoenas. But he has argued to that court that Congressional 
Committees cannot sue the Executive Branch to enforce their 
subpoenas.\228\ President Trump cannot tell Congress that it must 
pursue him in court, while simultaneously telling the courts that they 
are powerless to enforce Congressional subpoenas.
    President Trump's approach to the Judicial Branch thus mirrors his 
obstruction of the Legislative Branch--in his view, neither can engage 
in any review of his conduct. This position conveys the President's 
dangerously misguided belief that no other branch of government may 
check his power or hold him accountable for abusing it.\229\ That 
belief is fundamentally incompatible with our form of government.
    Months or years of litigation over each of the House's subpoenas is 
in any event no answer in this time-sensitive inquiry. The House's 
subpoena to former White House Counsel Don McGahn was issued in April 
2019, but it is still winding its way through the courts over President 
Trump's strong opposition, even on an expedited schedule.\230\ 
Litigating President Trump's direction that each subpoena be denied 
would conflict with the House's urgent duty to act on the compelling 
evidence of impeachable misconduct that it has uncovered. Further delay 
could also compromise the integrity of the 2020 election.
    When the Framers entrusted the House with the sole power of 
impeachment, they obviously meant to equip the House with the necessary 
tools to discover abuses of power by the President. Without that 
authority, the Impeachment Clause would fail as an effective safeguard 
against tyranny. A system in which the President cannot be charged with 
a crime, as the Department of Justice believes, and in which he can 
nullify the impeachment power through blanket obstruction, as President 
Trump has done here, is a system in which the President is above the 
law. The Senate should convict President Trump for his categorical 
obstruction of the House's impeachment inquiry and ensure that this 
President, and any future President, cannot commit impeachable offenses 
and then avoid accountability by covering them up.
III. The Senate Should Immediately Remove President Trump From Office 
        to Prevent Further Abuses
    President Trump has demonstrated his continued willingness to 
corrupt free and fair elections, betray our national security, and 
subvert the constitutional separation of powers--all for personal gain. 
President Trump's ongoing pattern of misconduct demonstrates that he is 
an immediate threat to the Nation and the rule of law. It is imperative 
that the Senate convict and remove him from office now, and permanently 
bar him from holding federal office.
A. President Trump's Repeated Abuse of Power Presents an Ongoing Threat 
                            to Our Elections
    President Trump's solicitation of Ukrainian interference in the 
2020 election is not an isolated incident. It is part of his ongoing 
and deeply troubling course of misconduct that, as the First Article of 
Impeachment states, is ``consistent with President Trump's previous 
invitations of foreign interference in United States elections.''\231\
    These previous efforts include inviting Russian interference in the 
2016 Presidential election.\232\ As Special Counsel Mueller concluded, 
the ``Russian government interfered in the 2016 presidential election 
in sweeping and systematic fashion.''\233\ Throughout the 2016 election 
cycle, the Trump Campaign maintained significant contacts with agents 
of the Russian government who were offering damaging information 
concerning then-candidate Trump's political opponent, and Mr. Trump 
repeatedly praised--and even publicly requested--the release of 
politically charged Russian-hacked emails.\234\ The Trump Campaign 
welcomed Russia's election interference because it ``expected it would 
benefit electorally from information stolen and released through 
Russian efforts.''\235\
    President Trump's recent actions confirm that public censure is 
insufficient to deter him from continuing to facilitate foreign 
interference in U.S. elections. In June 2019, President Trump declared 
that he sees ``nothing wrong with listening'' to a foreign power that 
offers information detrimental to a political adversary. In the 
President's words: ``I think I'd take it.''\236\ Asked whether such 
information should be reported to law enforcement, President Trump 
retorted: ``Give me a break, life doesn't work that way.''\237\
    Only one day after Special Counsel Mueller testified to Congress 
that the Trump Campaign welcomed and sought to capitalize on Russia's 
efforts to damage the President's political rival in 2016, President 
Trump spoke to President Zelensky, pressuring Ukraine to announce 
investigations to damage President Trump's political opponent in the 
2020 election and undermine Special Counsel Mueller's findings.\238\ 
President Trump still embraces that call as both ``routine'' and 
``perfect.''\239\ President Trump's conduct would have horrified the 
Framers of our republic.
    In its findings, the Intelligence Committee emphasized the 
``proximate threat of further presidential attempts to solicit foreign 
interference in our next election.''\240\ That threat has not abated. 
In a sign that President Trump's corrupt efforts to encourage 
interference in the 2020 election persist, he reiterated his desire for 
Ukraine to investigate his political opponents even after the scheme 
was discovered and the impeachment inquiry was announced. When asked in 
October 2019 what he hoped President Zelensky would do about ``the 
Bidens,'' President Trump answered that it was ``very simple'' and he 
hoped Ukraine would ``start a major investigation.''\241\ Unsolicited, 
he added that ``China should [likewise] start an investigation into the 
Bidens.''\242\
    President Trump has also continued to engage Mr. Giuliani to pursue 
the sham investigations on his behalf.\243\ One day after President 
Trump was impeached, Mr. Giuliani claimed that he gathered derogatory 
evidence against Vice President Biden during a fact-finding trip to 
Ukraine--a trip where he met with a current Ukrainian official who 
attended a KGB school in Moscow and has led calls in Ukraine to 
investigate Burisma and the Bidens.\244\ During the trip, Mr. Giuliani 
tweeted: ``The conversation about corruption in Ukraine was based on 
compelling evidence of criminal conduct by then VP Biden, in 2016, that 
has not been resolved and until it is will be a major obstacle to the 
US assisting Ukraine with its anti-corruption reforms.''\245\ Not only 
was Mr. Giuliani perpetuating the false allegations against the former 
Vice President, but he was reiterating the threat that President Trump 
had used to pressure President Zelensky to announce the investigations: 
that U.S. assistance to Ukraine would be withheld until Ukraine pursued 
the sham investigations. Mr. Giuliani has stated that he and the 
President continue to be ``on the same page.''\246\ Ukraine, as well, 
understands that Mr. Giuliani represents President Trump's 
interests.\247\
    President Trump's unrepentant embrace of foreign election 
interference illustrates the threat posed by his continued occupancy of 
the Office of the President. It also refutes the assertion that the 
consequences of his misconduct should be decided by the voters in the 
2020 election. The aim of President Trump's Ukraine scheme was to 
corrupt the integrity of the 2020 election by enlisting a foreign power 
to give him an unfair advantage--in short, to cheat. That threat 
persists today.
      B. President Trump's Obstruction of Congress Threatens Our 
                          Constitutional Order
    President Trump's obstruction of the House's impeachment inquiry 
intended to hold him accountable for his misconduct presents a serious 
danger to our constitutional checks and balances.
    President Trump has made clear that he refuses to accept Congress's 
express--and exclusive--constitutional role in conducting 
impeachments.\248\ He has thereby subverted the Constitution that he 
pledged to uphold when he was inaugurated on the steps of the Capitol. 
By his words and deeds, President Trump has obstructed the House's 
impeachment inquiry at every turn: He has dismissed impeachment as 
``illegal, invalid, and unconstitutional'';\249\ directed the Executive 
Branch not to comply with House subpoenas for documents and 
testimony;\250\ and intimidated and threatened the anonymous 
intelligence community whistleblower as well as the patriotic public 
servants who honored their subpoenas and testified before the 
House.\251\
    President Trump's obstruction is part of an ominous pattern of 
efforts ``to undermine United States Government investigations into 
foreign interference in United States elections.''\252\ Rather than 
assist Special Counsel Mueller's investigation into Russian 
interference in the 2016 election and his own campaign's exploitation 
of that foreign assistance, President Trump repeatedly used the powers 
of his office to impede it. Among other actions, President Trump 
directed the White House Counsel to fire the Special Counsel and then 
create a false record of the firing, tampered with witnesses in the 
Special Counsel's investigation, and repeatedly and publicly attacked 
the legitimacy of the investigation.\253\ President Trump has 
instructed the former White House Counsel to defy a House Committee's 
subpoena for testimony concerning these matters and the Department of 
Justice has argued that the courts cannot even hear the Committee's 
action to enforce its subpoena.\254\
    President Trump's current obstruction of Congress is, therefore, 
not the first time he has committed misconduct concerning a federal 
investigation into election interference and then sought to hide it. 
Allowing this pattern to continue without repercussion would send the 
clear message that President Trump is correct in his view that no 
governmental body can hold him accountable for wrongdoing. That view is 
erroneous and exceptionally dangerous.
C. The Senate Should Convict and Remove President Trump to Protect Our 
          System of Government and National Security Interests
    The Senate should convict and remove President Trump to avoid 
serious and long-term damage to our democratic values and the Nation's 
security.
    If the Senate permits President Trump to remain in office, he and 
future leaders would be emboldened to welcome, and even enlist, foreign 
interference in elections for years to come. When the American people's 
faith in their electoral process is shaken and its results called into 
question, the essence of democratic self-government is called into 
doubt.
    Failure to remove President Trump would signal that a President's 
personal interests may take precedence over those of the Nation, 
alarming our allies and emboldening our adversaries. Our leadership 
depends on the power of our example and the consistency of our 
purpose,'' but because of President Trump's actions, ``[b]oth have now 
been opened to question.''\255\
    Ratifying President Trump's behavior would likewise erode 
longstanding U.S. anti-corruption policy, which encourages countries to 
refrain from using the criminal justice system to investigate political 
opponents. As many witnesses explained, urging Ukraine to engage in 
``selective politically associated investigations or prosecutions'' 
undermines the power of America's example and our longstanding efforts 
to promote the rule of law abroad.\256\
    An acquittal would also provide license to President Trump and his 
successors to use taxpayer dollars for personal political ends. Foreign 
aid is not the only vulnerable source of funding; Presidents could also 
hold hostage federal funds earmarked for States--such as money for 
natural disasters, highways, and healthcare--unless and until State 
officials perform personal political favors. Any Congressional 
appropriation would be an opportunity for a President to solicit a 
favor for his personal political purposes--or for others to seek to 
curry favor with him. Such an outcome would be entirely incompatible 
with our constitutional system of self-government.
    President Trump has betrayed the American people and the ideals on 
which the Nation was founded. Unless he is removed from office, he will 
continue to endanger our national security, jeopardize the integrity of 
our elections, and undermine our core constitutional principles.
            Respectfully submitted,
                                   Adam B. Schiff,
                                   Jerrold Nadler,
                                   Zoe Lofgren,
                                   Hakeem S. Jeffries,
                                   Val Butler Demings,
                                   Jason Crow,
                                   Sylvia R. Garcia.
                                           U.S. House of 
                                               Representatives Managers
    January 18, 2020

    The House Managers wish to acknowledge the assistance of the 
following individuals in preparing this trial memorandum: Douglas N. 
Letter, Megan Barbero, Josephine Morse, Adam A. Grogg, William E. 
Havemann, and Jonathan B. Schwartz of the House Office of General 
Counsel; Daniel Noble, Daniel S. Goldman, and Maher Bitar of the House 
Permanent Select Committee on Intelligence; Norman L. Eisen, Barry H. 
Berke, Joshua Matz, and Sophia Brill of the House Committee on the 
Judiciary; the investigative staff of the House Committee on Oversight 
and Reform; and David A. O'Neil, Anna A. Moody, and Laura E. O'Neill.
                                endnotes
    1. H. Res. 755, 116th Cong. (2019).
    2. See Statement of Material Facts (Statement of Facts) (Jan. 18, 
2020), para.para.1-151 (filed as an attachment to this Trial 
Memorandum).
    3. Id. para.para.75-76.
    4. Id. para.para.76-77.
    5. Id. para.para.11-12.
    6. Id. para.para.11, 76.
    7. Id. para.12.
    8. Id. para.13.
    9. Id. para.14.
    10. See, e.g., id. para.53.
    11. See, e.g., id. para.para.16, 18.
    12. Id. para.59.
    13. Id. para.para.120-21.
    14. Id. para.122.
    15. Id. para.88.
    16. See, e.g., id. para.24.
    17. See, e.g., id. para.para.19, 25, 145-47.
    18. Id. para.para.28-48.
    19. Id. para.para.30-31.
    20. Id. para.46.
    21. Id. para.para.43, 46-48.
    22. See, e.g., id. para.para.127, 131.
    23. See id. para.para.49-69.
    24. Id. para.50.
    25. Id. para.para.3-4, 50.
    26. See id. para.137.
    27. Letter from John Adams to Thomas Jefferson (Dec. 6, 1787) 
(Adams-Jefferson Letter), https://perma.cc/QWD8-222B.
    28. See Impeachment of Donald J. Trump, President of the United 
States: Report of the Comm. on the Judiciary of the H. of 
Representatives, together with Dissenting Views, to Accompany H. Res. 
755, H. Rep. No. 116-346 (2019); Report of the H. Permanent Select 
Comm. on Intelligence on the Trump-Ukraine Impeachment Inquiry, 
together with Minority Views, H. Rep. No. 116-335 (2019); see also 
Majority Staff of the H. Comm. on the Judiciary, 116th Cong., 
Constitutional Grounds for Presidential Impeachment (Comm. Print 2019).
    29. H. Res. 755, at 2-5.
    30. U.S. Const., Art. I, Sec. 2, cl. 5.
    31. See Statement of Facts para.para.164-69.
    32. Id. para.para.179-83.
    33. See, e.g., id. para.para.186-87.
    34. See id. para.para.191-93.
    35. Id. para.para.187-90.
    36. See id. para.178; H. Res. 755, at 5-8.
    37. U.S. Const., Art. II, Sec. 4.
    38. U.S. Const., Art. I, Sec. 2, cl. 5.
    39. U.S. Const., Art. I, Sec. 3, cl. 6.
    40. U.S. Const., Art. II, Sec. 4.
    41. U.S. Const., Art. I, Sec. 3, cl. 6.
    42. U.S. Const., Art. II, Sec. 1, cl. 8.
    43. 2 The Records of the Federal Convention of 1787, at 392 (Max 
Farrand ed., 1911) (Farrand).
    44. Background and History of Impeachment: Hearing Before the 
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 105th 
Cong. 49 (1998) (quoting James Iredell).
    45. 2 Farrand at 67.
    46. See id. at 65.
    47. Id. at 64.
    48. Id. at 65.
    49. Id. at 64.
    50. See The Federalist No. 65 (Alexander Hamilton).
    51. See, e.g., 2 Farrand at 65-66; George Washington, Farewell 
Address (Sept. 19, 1796), George Washington Papers, Series 2, 
Letterbooks 1754-1799: Letterbook 24, April 3, 1793-March 3, 1797, 
Library of Congress (Washington Farewell Address); Adams-Jefferson 
Letter, https://perma.cc/QWD8-222B.
    52. Washington Farewell Address.
    53. The Federalist No. 68 (Alexander Hamilton).
    54. 2 Farrand at 66.
    55. Adams-Jefferson Letter, https://perma.cc/QWD8-222B.
    56. U.S. Const., Art. II, Sec. 1, cl. 5.
    57. U.S. Const., Art. I, Sec. 9, cl. 8.
    58. U.S. Const., Art. II, Sec. 1, cl. 7.
    59. U.S. Const., Art. II, Sec. 1, cl. 1.
    60. U.S. Const., Art. II, Sec. 4; see 2 Farrand at 550.
    61. 2 Farrand at 550.
    62. The Federalist No. 65 (Alexander Hamilton) (capitalization 
altered).
    63. These issues are discussed at length in the report by the House 
Committee on the Judiciary. See H. Rep. No. 116-346, at 28-75.
    64. Statement of Facts para. 160.
    65. Id. para. 161.
    66. See id. para.para. 166, 180, 183, 189-90.
    67. Id. para. 162.
    68. Id. para. 164.
    69. Id. para.para. 164-69.
    70. Id. para. 183.
    71. Id. para. 187.
    72. Id. para.para. 188-89.
    73. Id. para. 189.
    74. Id. para. 176; see also H. Rep. No. 116-335.
    75. Statement of Facts para. 176; see also H. Res. 755.
    76. Statement of Facts para. 178; H. Res. 755.
    77. H. Res. 755, at 2-3.
    78. Id.
    79. Id. at 3.
    80. Id.
    81. Id. at 4.
    82. Id. at 5.
    83. Id. at 6.
    84. Id.
    85. Id. at 8.
    86. Id. at 7.
    87. Id. at 5, 8.
    88. See Statement of Facts para.para. 1-157.
    89. See id. para.para. 1-157.
    90. See, e.g., Report of the Impeachment Trial Comm. on the 
Articles Against Judge G. Thomas Porteous, Jr., S. Rep. No. 111-347, at 
6-7 (2010); Impeachment of Judge Alcee L. Hastings: Report of the H. 
Comm. of the Judiciary to Accompany H. Res. 499, H. Rep. No. 100-810, 
at 1-5, 8, 41 (1988); 132 Cong. Rec. H4710-22 (daily ed. July 22, 1986) 
(impeachment of Judge Claiborne).
    91. For a more detailed discussion of abuse of power as an 
impeachable offense, see H. Rep. No. 116-346, at 43-48, 68-70, 78-81.
    92. Statement of Facts para.para. 1-151.
    93. Id. para.para. 11-12.
    94. See id. para. 12.
    95. Id.
    96. Id. para.para. 11, 17.
    97. Id. para. 12.
    98. Id.
    99. Id.
    100. Id.; see also id. para.para. 83-84, 150.
    101. Id. para.para. 11, 84.
    102. Id. para.para. 12-14.
    103. Id. para. 14.
    104. Id. para. 13.
    105. Id.
    106. See id. para.para. 11-13, 83-84.
    107. Id. para. 6.
    108. Id. para.para. 7-9.
    109. Id. para. 10 (quoting Mr. Giuliani).
    110. Id. para.para. 28-48.
    111. Id. para. 35.
    112. See id. para.para. 30-31, 34-35.
    113. Id. para. 39.
    114. Id. para.para. 39, 41-42.
    115. Id. para. 46. The GAO opinion addresses only the portion of 
the funds appropriated to the Department of Defense. The opinion 
explains that OMB and the State Department have not provided the 
information GAO needs to evaluate the legality of the hold placed by 
the President on the remaining funds.
    116. Id. para. 76.
    117. Id. para.para. 76, 80.
    118. Id. para. 82.
    119. Id. para. 77.
    120. Id. para. 101.
    121. Id. para. 110.
    122. Id. para. 114.
    123. Id. para.para. 103, 130-31.
    124. Id. para. 3.
    125. See, e.g., id. para. 4.
    126. Id. para. 88.
    127. Id. para. 52.
    128. Id. para. 137.
    129. Id. para.para. 141-42, 150.
    130. See generally Statement of Facts; H. Rep. No. 116-346; H. Rep. 
No. 116-335.
    131. Statement of Facts para.para. 11-15.
    132. Id. para.para. 16-19.
    133. See id. para.para. 154-56 (then-candidate Trump's actions 
relating to the FBI's investigation into Hillary Clinton).
    134. Id. para.88.
    135. Id. para.121. Mr. Mulvaney, along with his deputy Robert Blair 
and OMB official Michael Duffey--who were subpoenaed by the House, but 
refused to testify at the President's direction, see id. 187--would 
provide additional firsthand testimony regarding the President's 
withholding of official acts in exchange for Ukraine's assistance with 
his reelection.
    136. Id. para. 18.
    137. Id.
    138. Id. para. 19 (emphasis added).
    139. Id. para. 24.
    140. Id. 78.
    141. Id. para.para.11-15. 122.
    142. Id.
    143. Id. para.42.
    144. Id. para.para.43-48.
    145. Id. para.para.45-46.
    146. Id. para.140.
    147. Id. para.59. Although Bolton has not cooperated with the 
House's inquiry, he has offered to testify to the Senate if subpoenaed.
    148. Id. para.58.
    149. Id. para.84.
    150. Id. para.83.
    151. Id. para.118.
    152. Id. para.55 (recalling his statement to Ambassador Volker in 
July 2019).
    153. Id. para.68.
    154. Id. para.104.
    155. Id. para.150.
    156. Id. para.151.
    157. Id. para.143.
    158. See id. para.para.2, 33.
    159. See id. para.88.
    160. See id. para.para.1-2.
    161. See id. para.para.22-24.
    162. See id. para.para.36 n.73, 39.
    163. See id. para.7.
    164. See id. para.para.8-9, 81.
    165. See id. para.82 n.138.
    166. See e.g., id. para.para.82, 131.
    167. See id. para.para.41-48.
    168. See id. para.para.43-45.
    169. See id. para.44.
    170. See id.
    171. See id. para.131.
    172. Id. para.28.
    173. Id. para.31.
    174. Id.
    175. Id.
    176. Id. para.4.
    177. Id. para.para.132-33.
    178. Id. para.4 & n.8.
    179. See id. para.50.
    180. See id.
    181. Transcript, Impeachment Inquiry: Fiona Hill and David Holmes: 
Hearing Before the H. Permanent Select Comm. on Intelligence, 116th 
Cong. 175 (Nov. 21, 2019).
    182. Transcript, Impeachment Inquiry: Ambassador Marie ``Masha'' 
Yovanovitch: Hearing Before the H. Permanent Select Comm. on 
Intelligence, 116th Cong. 19 (Nov. 15, 2019) (Yovanovitch Hearing Tr.).
    183. Transcript, Impeachment Inquiry: Ambassador William B. Taylor 
and George Kent: Hearing Before the H. Permanent Select Comm. on 
Intelligence, 116th Cong. 165 (Nov. 13, 2019).
    184. 4 Annals of Cong. 601 (1796) (statement of Rep. William Lyman) 
(noting that Congress has ``the right to inspect every paper and 
transaction in any department'' during an impeachment inquiry).
    185. See, e.g., The Federalist No. 65 (Alexander Hamilton) 
(referring to the House as the ``inquisitors for the nation'' for 
purposes of impeachment); Kilbourn v. Thompson, 103 U.S. 168, 193 
(1880); 4 James D. Richardson ed., Messages and Papers of Presidents 
434-35 (1896); see also H. Rep. No. 116-346, at 139-42 (collecting 
examples of past Presidents beginning with George Washington 
acknowledging the importance of Congress's right to information from 
the Executive Branch in impeachment inquiries).
    186. See generally H. Rep. No. 116-346, at 139-48.
    187. Quinn v. United States, 349 U.S. 155, 160-61 (1955).
    188. Watkins v. United States, 354 U.S. 178, 187-88 (1957).
    189. McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
    190. Id. at 175.
    191. Watkins, 354 U.S. at 187.
    192. 2 Joseph Story, Commentaries on the Constitution of the United 
States Sec.  1501 (2d ed. 1851).
    193. In re Report & Recommendation of June 5, 1972 Grand Jury 
Concerning Transmission of Evidence to House of Representatives, 370 F. 
Supp. 1219, 1230 (D.D.C. 1974).
    194. Kilbourn, 103 U.S. at 190. The Court in Kilbourn invalidated a 
contempt order by the House but explained that the ``whole aspect of 
the case would have changed'' if it had been an impeachment proceeding. 
Id. at 193.
    195. 4 Annals of Cong. 601 (statement of Rep. William Lyman).
    196. Cong. Globe, 29th Cong., 1st Sess. 698 (1846) (statement of 
President James K. Polk); see also H. Rep. No. 116-346, at 139-42.
    197. Remarks by President Nixon (Apr. 17, 1973), reprinted in 
Statement of Information: Hearings Before the Comm. on the Judiciary, 
H. of Representatives: Book IV--Part 2, Events Following the Watergate 
Break-in (1974).
    198. H. Rep. No. 116-346, at 142; see Impeachment of Richard M. 
Nixon, President of the United States: Report of the Comm. on the 
Judiciary, H. of Representatives, H. Rep. No. 93-1305, at 196 (1974).
    199. See H. Rep. No. 93-1305, at 10.
    200. Id. at 4.
    201. Id. at 194.
    202. See Statement of Facts para.177.
    203. See id. para.169.
    204. H. Res. 755, at 7; see Statement of Facts para.169.
    205. Statement of Facts para.para.179-83.
    206. Id. para.para.186-87.
    207. Id. para.186.
    208. Id. para.190 & nn.309-10.
    209. H. Res. 755, at 8.
    210. The Federalist No. 69 (Alexander Hamilton).
    211. See Statement of Facts para.184 & nn.296-97.
    212. Id. para.45. As noted above, the testimony of Messrs. 
Mulvaney, Blair, and Duffey would shed additional light on the White 
House's efforts to create an after-the-fact justification for the 
President's withholding of security assistance. Ambassador Bolton's 
testimony would likewise be illuminating in this regard given public 
reporting of his repeated, yet unsuccessful, efforts to convince the 
President to lift the hold.
    213. See id. para.172.
    214. Id.
    215. Id.
    216. Id.
    217. See, e.g., Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 
1135 (D.C. Cir. 2000).
    218. See, e.g., In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 
1997); Statement of Facts para.173 & n.280.
    219. See H. Res. 755, at 7.
    220. 2 Farrand at 67.
    221. The Federalist No. 66 (Alexander Hamilton).
    222. U.S. Const., Art. I, Sec. 2, cl. 5.
    223. U.S. Const., Art. I, Sec. 5, cl. 2.
    224. See, e.g., Statement of Facts para.163; see also U.S. Const., 
Art. I, Sec. 2, cl. 5.
    225. Statement of Facts para.163; 165 Cong. Rec. E1357 (2019) 
(Impeachment Inquiry Procedures in the Committee on the Judiciary 
Pursuant to H. Res. 660); Investigatory Powers of the Comm. on the 
Judiciary with Respect to its Impeachment Inquiry, H. Rep. No. 105-795 
(1998); H. Rep. No. 93-1305, at 8.
    226. U.S. Const., Art. I, Sec. 3, cl. 6.
    227. Impeachment Inquiry: Hearings Before the H. Comm. on the 
Judiciary, Book I, 93d Cong. 497 (1974) (statement of Chairman Peter W. 
Rodino, Jr.).
    228. See Statement of Facts para.192; Def.'s Mot. to Dismiss, or in 
the Alternative, for Summ. J. at 20, Kupperman v. U.S. House of 
Representatives, No. 19-3224 (D.D.C. Nov. 14, 2019), ECF No. 40; Defs.' 
and Def.-Intervenors' Mot. to Dismiss at 46-47, Comm. on Ways & Means 
v. U.S. Dep't of the Treasury, No. 19-1974 (D.D.C. Sept. 6, 2019), ECF 
No. 44; see also Brief for Def.-Appellant at 2, 3233, Comm. on the 
Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Dec. 9, 2019).
    229. See also Statement of Facts para.164 (``I have an Article II, 
where I have the right to do whatever I want as president.'').
    230. See id. para.192 & n.316.
    231. H. Res. 755, at 5.
    232. Statement of Facts para.para.191-93.
    233. Id. para.13.
    234. Id. para.para.152-56.
    235. Id. para.152.
    236. Id para.156.
    237. Id.
    238. Id. para.para.76, 157.
    239. Id. para.77 n.132.
    240. H. Rep. No. 116-335, at XI.
    241. Statement of Facts para.142.
    242. Id.
    243. See id. para.para.144-49.
    244. Id.
    245. Id. para.146.
    246. Id. para.149.
    247. Id. para.para.19, 69, 89.
    248. See, e.g., id. para.para.169-71; U.S. Const., Art. I, Sec. 2, 
cl. 5; U.S. Const., Art. I, Sec. 3, cl. 6.
    249. Statement of Facts para.177.
    250. Id. para.169.
    251. Id. para.177.
    252. H. Res. 755, at 7-8.
    253. See Statement of Facts para.193.
    254. Id. para.192 & n.316.
    255. Yovanovitch Hearing Tr. at 19.
    256. Statement of Facts para.122.
                                 ______
                                 
 [In the Senate of the United States Sitting as a Court of Impeachment]
             In re Impeachment of President Donald J. Trump

STATEMENT OF MATERIAL FACTS--ATTACHMENT TO THE TRIAL MEMORANDUM OF THE 
  UNITED STATES HOUSE OF REPRESENTATIVES IN THE IMPEACHMENT TRIAL OF 
                       PRESIDENT DONALD J. TRUMP

                              introduction
    The U.S. House of Representatives has adopted Articles of 
Impeachment charging President Donald J. Trump with abuse of office and 
obstruction of Congress. The House's Trial Memorandum explains why the 
Senate should convict and remove President Trump from office, and 
permanently bar him from government service. The Memorandum relies on 
this Statement of Material Facts, which summarizes key evidence 
relating to the President's misconduct.
    As further described below, and as detailed in House Committee 
reports,\1\ President Trump used the powers of his office and U.S. 
taxpayers' money to pressure a foreign country, Ukraine, to interfere 
in the 2020 U.S. Presidential election on his behalf. President Trump's 
goals--which became known to multiple U.S. officials who testified 
before the House--were simple and starkly political: he wanted 
Ukraine's new President to announce investigations that would assist 
his 2020 reelection campaign and tarnish a political opponent, former 
Vice President Joseph Biden, Jr. As leverage, President Trump illegally 
withheld from Ukraine nearly $400 million in vital military and other 
security assistance that had been appropriated by Congress, and an 
official White House meeting that President Trump had promised 
Volodymyr Zelensky, the newly elected President of Ukraine. President 
Trump did this despite U.S. national security officials' unanimous 
opposition to withholding the aid from Ukraine, placing his own 
personal and political interests above the national security interests 
of the United States and undermining the integrity of our democracy.
    When this scheme became known and Committees of the House launched 
an investigation, the President, for the first time in American 
history, ordered the categorical obstruction of an impeachment inquiry. 
President Trump directed that no witnesses should testify and no 
documents should be produced to the House, a co-equal branch of 
government endowed by the Constitution with the ``sole Power of 
Impeachment.''\2\ President Trump's conduct--both in soliciting a 
foreign country's interference in a U.S. election and then obstructing 
the ensuing investigation into that interference--was consistent with 
his prior conduct during and after the 2016 election.
                      statement of material facts
I. President Trump's Abuse of Power
 A. The President's Scheme To Solicit Foreign Interference in the 2020 
    Election From the New Ukrainian Government Began in Spring 2019
    1. On April 21, 2019, Volodymyr Zelensky, a political neophyte, won 
a landslide victory in Ukraine's Presidential election.\3\ Zelensky 
campaigned on an anti-corruption platform, and his victory reaffirmed 
the Ukrainian people's strong desire for reform.\4\
    2. When President Trump called to congratulate Zelensky later that 
day, President Trump did not raise any concerns about corruption in 
Ukraine, although his staff had prepared written materials for him 
recommending that he do so, and the White House call readout 
incorrectly indicated he did.\5\
    3. During the call, President Trump promised President-elect 
Zelensky that a high-level U.S. delegation would attend his 
inauguration and told him, ``When you're settled in and ready, I'd like 
to invite you to the White House.''\6\
    4. Both events would have demonstrated strong support by the United 
States as Ukraine fought a war--and negotiated for peace--with Russia. 
``Russia was watching closely to gauge the level of American support 
for the Ukrainian Government.''\7\ A White House visit also would have 
bolstered Zelensky's standing at home as he pursued his anti-corruption 
agenda.\8\
    5. Following the April 21 call, President Trump asked Vice 
President Mike Pence to lead the American delegation to President 
Zelensky's inauguration. During his own call with President-elect 
Zelensky on April 23, Vice President Pence confirmed that he would 
attend the inauguration ``if the dates worked out.''\9\
    6. On April 23, the media reported that former Vice President Biden 
was going to enter the 2020 race for the Democratic nomination for 
President of the United States.\10\
    7. The next day, April 24, the State Department executed President 
Trump's order to recall the U.S. ambassador to Ukraine, Marie ``Masha'' 
Yovanovitch, who was a well-regarded career diplomat and champion for 
anti-corruption reforms in Ukraine.\11\
    8. The removal of Ambassador Yovanovitch was the culmination of a 
months-long smear campaign waged by the President's personal lawyer, 
Rudy Giuliani, and other allies of the President.\12\ The President 
also helped amplify the smear campaign.\13\
    9. Upon her return to the United States, Ambassador Yovanovitch was 
informed by State Department officials that there was no substantive 
reason or cause for her removal, but that President Trump had simply 
``lost confidence'' in her.\14\
    10. Mr. Giuliani later disclosed the true motive for Ambassador 
Yovanovitch's removal: Mr. Giuliani ``believed that [he] needed 
Yovanovitch out of the way'' because ``[s]he was going to make the 
investigations difficult for everybody.''\15\
    11. Mr. Giuliani was referring to the two politically motivated 
investigations that President Trump solicited from Ukraine in order to 
assist his 2020 reelection campaign: one into former Vice President 
Biden and a Ukrainian gas company, Burisma Holdings, on whose board 
Biden's son sat;\16\ the other into a discredited conspiracy theory 
that Ukraine, not Russia, had interfered in the 2016 U.S. election to 
help Hillary Clinton's campaign. One element of the latter conspiracy 
theory was that CrowdStrike--a NASDAQ-listed cybersecurity firm based 
in Sunnyvale, California, that the President erroneously believed was 
owned by a Ukrainian oligarch--had colluded with the Democratic 
National Committee (DNC) to frame Russia and help the election campaign 
of Hillary Clinton.\17\
    12. There was no factual basis for either investigation. As to the 
first, witnesses unanimously testified that there was no credible 
evidence to support the allegations that, in late 2015, Vice President 
Biden corruptly encouraged Ukraine to remove then-Prosecutor General 
Viktor Shokin because he was investigating Burisma.\18\ Rather, Vice 
President Biden was carrying out official U.S. policy--with bipartisan 
support\19\--and promoting anti-corruption reforms in Ukraine because 
Shokin was viewed by the United States, its European partners, and the 
International Monetary Fund to be ineffectual at prosecuting corruption 
and was himself corrupt.\20\ In fact, witnesses unanimously testified 
that the removal of Shokin made it more likely that Ukraine would 
investigate corruption, including Burisma and its owner, not less 
likely.\21\ The Ukrainian Parliament removed Shokin in March 2016.\22\
    13. As to the second investigation, the U.S. Intelligence Community 
determined that Russia--not Ukraine--interfered in the 2016 
election.\23\ The Senate Select Committee on Intelligence reached the 
same conclusion following its own lengthy bipartisan investigation.\24\ 
Special Counsel Robert Mueller, III, likewise concluded that the 
``Russian government interfered in the 2016 presidential election in 
sweeping and systematic fashion.''\25\ And FBI Director Christopher 
Wray, a Trump appointee, recently confirmed that law enforcement 
``ha[s] no information that indicates that Ukraine interfered with the 
2016 presidential election.''\26\
    14. As Dr. Fiona Hill--who served until July 2019 as the Senior 
Director of European and Russian Affairs at the National Security 
Council (NSC) under President Trump until July 2019--testified, the 
theory of Ukrainian interference in the 2016 election is a ``fictional 
narrative that is being perpetrated and propagated by the Russian 
security services themselves'' to deflect from Russia's own culpability 
and to drive a wedge between the United States and Ukraine.\27\ In 
fact, shortly after the 2016 U.S. election, this conspiracy theory was 
promoted by none other than President Vladimir Putin himself.\28\ On 
May 3, 2019, shortly after President Zelensky's election, President 
Trump and President Putin spoke by telephone, including about the so-
called ``Russian Hoax.''\29\
    15. President Trump's senior advisors had attempted to dissuade the 
President from promoting this conspiracy theory, to no avail. Dr. Hill 
testified that President Trump's former Homeland Security Advisor Tom 
Bossert and former National Security Advisor H.R. McMaster ``spent a 
lot of time trying to refute this [theory] in the first year of the 
administration.''\30\ Bossert later said the false narrative about 
Ukrainian interference in the 2016 election was ``not only a conspiracy 
theory, it is completely debunked.''\31\
 B. The President Enlisted His Personal Attorney and U.S. Officials To 
            Help Execute the Scheme for His Personal Benefit
    16. Shortly after his April 21 call with President Zelensky, 
President Trump began to publicly press for the two investigations he 
wanted Ukraine to pursue. On April 25--the day that former Vice 
President Biden announced his candidacy for the Democratic nomination 
for President--President Trump called into Sean Hannity's prime time 
Fox News show. Referencing alleged Ukrainian interference in the 2016 
election, President Trump said, ``It sounds like big stuff,'' and 
suggested that the Attorney General might investigate.\32\
    17. On May 6, in a separate Fox News interview, President Trump 
claimed Vice President Biden's advocacy for Mr. Shokin's dismissal in 
2016 was ``a very serious problem'' and ``a major scandal, major 
problem.''\33\
    18. On May 9, the New York Times reported that Mr. Giuliani was 
planning to travel to Ukraine to urge President Zelensky to pursue the 
investigations.\34\ Mr. Giuliani acknowledged that ``[s]omebody could 
say it's improper'' to pressure Ukraine to open investigations that 
would benefit President Trump, but he argued:
    [T]his isn't foreign policy--I'm asking them to do an investigation 
that they're doing already, and that other people are telling them to 
stop. And I'm going to give them reasons why they shouldn't stop it 
because that information will be very, very helpful to my client, and 
may turn out to be helpful to my government.\35\
    Ukraine was not, in fact, ``already'' conducting these 
investigations. As described below, the Trump Administration repeatedly 
tried but failed to get Ukrainian officials to instigate these 
investigations. According to Mr. Giuliani, the President supported his 
actions, stating that President Trump ``basically knows what I'm doing, 
sure, as his lawyer.''\36\
    19. In a letter dated May 10, 2019, and addressed to President-
elect Zelensky, Mr. Giuliani wrote that he ``represent[ed] him 
[President Trump] as a private citizen, not as President of the United 
States.'' In his capacity as ``personal counsel to President Trump, and 
with his knowledge and consent,'' Mr. Giuliani requested a meeting with 
President Zelensky the following week to discuss a ``specific 
request.''\37\
    20. On the evening of Friday, May 10, however, Mr. Giuliani 
announced that he was canceling his trip.\38\ He later explained, ``I'm 
not going to go'' to Ukraine ``because I'm walking into a group of 
people that are enemies of the President.''\39\
    21. By the following Monday morning, May 13, President Trump had 
ordered Vice President Pence not to attend President Zelensky's 
inauguration in favor of a lower-ranking delegation led by Secretary of 
Energy Rick Perry.\40\
    22. The U.S. delegation--which also included Ambassador to the 
European Union Gordon Sondland, Special Representative for Ukraine 
Negotiations Ambassador Kurt Volker, and NSC Director for Ukraine 
Lieutenant Colonel Alexander Vindman--returned from the inauguration 
convinced that President Zelensky was genuinely committed to anti-
corruption reforms.\41\
    23. At a meeting in the Oval Office on May 23, members of the 
delegation relayed their positive impressions to President Trump and 
encouraged him to schedule the promised Oval Office meeting for 
President Zelensky. President Trump, however, said he ``didn't 
believe'' the delegation's positive assessment, claiming ``that's not 
what I hear'' from Mr. Giuliani.\42\ The President cast his dim view of 
Ukraine in personal terms, stating that Ukraine ``tried to take me 
down'' during the 2016 election--an apparent reference to the debunked 
conspiracy theory that Ukraine interfered in the 2016 election to help 
Hillary Clinton and harm his campaign.\43\
    24. Rather than commit to a date for an Oval Office meeting with 
President Zelensky, President Trump directed the delegation to ``[t]alk 
to Rudy, talk to Rudy.''\44\ Ambassador Sondland testified that ``if 
[the delegation] never called Rudy and just left it alone nothing would 
happen with Ukraine,'' and ``if [the President] was going to have his 
mind changed, that was the path.''\45\ Following the May 23 meeting, 
Secretary Perry and Ambassadors Sondland and Volker began to coordinate 
and work with Mr. Giuliani to satisfy the President's demands.\46\
    25. Mr. Giuliani is not a U.S. government official and has never 
served in the Trump Administration. Rather, as he has repeatedly made 
clear, his goal was to obtain ``information [that] will be very, very 
helpful to my client''--President Trump.\47\ Mr. Giuliani made clear to 
Ambassadors Sondland and Volker, who were in direct communications with 
Ukrainian officials, that a White House meeting would not occur until 
Ukraine announced its pursuit of the two political investigations.\48\
    26. On June 17, Ambassador Bill Taylor, whom Secretary of State 
Mike Pompeo had asked to replace Ambassador Yovanovitch, arrived in 
Kyiv as the new Charge d'Affaires.\49\
    27. Ambassador Taylor quickly observed that there was an 
``irregular channel'' led by Mr. Giuliani that, over time, began to 
undermine the official channel of U.S. diplomatic relations with 
Ukraine.\50\ Ambassador Sondland similarly testified that the agenda 
described by Mr. Giuliani became more ``insidious'' over time.\51\ Mr. 
Giuliani would prove to be, as the President's National Security 
Advisor Ambassador John Bolton told a colleague, a ``hand grenade that 
was going to blow everyone up.''\52\
C. The President Froze Vital Military and Other Security Assistance for 
                                Ukraine
    28. Since 2014, Ukraine has been engaged in an ongoing armed 
conflict with Russia in the Donbas region of eastern Ukraine.\53\ 
Ukraine is a ``strategic partner of the United States,'' and the United 
States has long supported Ukraine in its conflict with Russia.\54\ As 
Ambassador Volker and multiple other witnesses testified, supporting 
Ukraine is ``critically important'' to U.S. interests, including 
countering Russian aggression in the region.\55\
    29. Ukrainians face casualties on a near-daily basis in their 
ongoing conflict with Russia.\56\ Since 2014, Russian aggression has 
resulted in more than 13,000 Ukrainian deaths on Ukrainian 
territory,\57\ including approximately 3,331 civilians, and has wounded 
another 30,000 persons.\58\
    30. Since 2014, following Russia's invasion of Ukraine and its 
annexation of the Crimean Peninsula, Congress has allocated military 
and other security assistance funds to Ukraine on a broad bipartisan 
basis.\59\ Since 2014, the United States has provided approximately 
$3.1 billion in foreign assistance to Ukraine: $1.5 billion in military 
and other security assistance, and $1.6 billion in non-military, non-
humanitarian aid to Ukraine.\60\
    31. The military assistance provided by the United States to 
Ukraine ``saves lives'' by making Ukrainian resistance to Russia more 
effective.\61\ It likewise advances U.S. national security interests 
because, ``[i]f Russia prevails and Ukraine falls to Russian dominion, 
we can expect to see other attempts by Russia to expand its territory 
and influence.''\62\ Indeed, the reason the United States provides 
assistance to the Ukrainian military is ``so that they can fight Russia 
over there, and we don't have to fight Russia here.''\63\
    32. The United States' European allies have similarly provided 
political and economic support to Ukraine. Since 2014, the European 
Union (EU) has been the largest donor to Ukraine.\64\ The EU has 
extended more macro-financial assistance to Ukraine--approximately =3.3 
billion--than to any other non-EU country and has committed to extend 
another =1.1 billion.\65\ Between 2014 and September 30, 2019, the EU 
and the European financial institutions (including the European 
Investment Bank, European Bank for Reconstruction and Development, and 
others) committed over 15 billion in grants and loans to support the 
reform process in Ukraine.\66\ According to EU data, Germany 
contributed =786.5 million to Ukraine between 2014 and 2017; the United 
Kingdom contributed =105.6 million; and France contributed =61.9 
million over that same period (not including the amounts these 
countries contribute through the EU).\67\
    33. In 2017 and 2018, the United States provided approximately $511 
million and $359 million, respectively, in foreign assistance to 
Ukraine, including military and other security assistance.\68\ During 
those two years, President Trump and his Administration allowed the 
funds to flow to Ukraine unimpeded.\69\
    34. For fiscal year 2019, Congress appropriated and authorized $391 
million in taxpayer-funded security assistance to Ukraine: $250 million 
in funds administered by the Department of Defense (DOD) and $115 
million in funds administered by the State Department, with another $26 
million carried over from fiscal year 2018.\70\
    35. DOD planned to use the funds to provide Ukraine with sniper 
rifles, rocket-propelled grenade launchers, counter-artillery radars, 
electronic warfare detection and secure communications, and night 
vision equipment, among other military equipment, to defend itself 
against Russian forces, which have occupied part of eastern Ukraine 
since 2014.\71\ These purposes were consistent with the goals of 
Congress, which had appropriated the funds administered by DOD under 
the Ukraine Security Assistance Initiative (USAI) for the purpose of 
providing ``training; equipment; lethal assistance; logistics support, 
supplies and services; sustainment; and intelligence support to the 
military and national security forces of Ukraine, and . . . replacement 
of any weapons or articles provided to the Government of Ukraine.''\72\
    36. On June 18, 2019, after all Congressionally mandated conditions 
on the DOD-administered aid--including certification that Ukraine had 
adopted sufficient anti-corruption reforms--were met, DOD issued a 
press release announcing its intention to provide the $250 million in 
security assistance to Ukraine.\73\
    37. On June 19, the Office of Management and Budget 1(OMB) received 
questions from President Trump about the funding for Ukraine.\74\ OMB, 
in turn, made inquiries with DOD.\75\
    38. On June 27, Acting Chief of Staff Mick Mulvaney reportedly 
emailed his senior advisor Robert Blair, ``Did we ever find out about 
the money for Ukraine and whether we can hold it back?'' Mr. Blair 
responded that it would be possible, but they should ``[e]xpect 
Congress to become unhinged'' if the President held back the 
appropriated funds.\76\
    39. Around this time, despite overwhelming support for the security 
assistance from every relevant Executive Branch agency,\77\ and despite 
the fact that the funds had been authorized and appropriated by 
Congress with strong bipartisan support,\78\ the President ordered a 
hold on all military and other security assistance for Ukraine.\79\
    40. By July 3, OMB had blocked the release of $141 million in State 
Department funds. By July 12, all military and other security 
assistance for Ukraine had been blocked.\80\
    41. On July 18, OMB announced to the relevant Executive Branch 
agencies during a secure videoconference that President Trump had 
ordered a hold on all Ukraine security assistance.\81\ No explanation 
for the hold was provided.\82\
    42. On July 25--approximately 90 minutes after President Trump 
spoke by phone with President Zelensky--OMB's Associate Director for 
National Security Programs, Michael Duffey, a political appointee, 
instructed DOD officials: ``Based on guidance I have received and in 
light of the Administration's plan to review assistance to Ukraine, 
including the Ukraine Security Assistance Initiative, please hold off 
on any additional DoD obligations of these funds, pending direction 
from that process.''\83\ He added: ``Given the sensitive nature of the 
request, I appreciate your keeping that information closely held to 
those who need to know to execute the direction.''\84\
    43. In late July, the NSC convened a series of interagency meetings 
during which senior Executive Branch officials discussed the hold on 
security assistance.\85\ Over the course of these meetings, a number of 
facts became clear: (1) the President personally directed the hold 
through OMB;\86\ (2) no credible justification was provided for the 
hold;\87\ (3) with the exception of OMB, all relevant agencies 
supported the Ukraine security assistance because, among other things, 
it was in the national security interests of the United States;\88\ and 
(4) there were serious concerns about the legality of the hold.\89\
    44. Although President Trump later claimed that the hold was part 
of an effort to get European allies to share more of the costs for 
security assistance for Ukraine, officials responsible for the security 
assistance testified they had not heard that rationale discussed in 
June, July, or August. For example, Mark Sandy, OMB's Deputy Associate 
Director for National Security Programs, who is responsible for DOD's 
portion of the Ukraine security assistance, testified that the European 
burden-sharing explanation was first provided to him in September--
following his repeated requests to learn the reason for the hold.\90\ 
Deputy Assistant Secretary of Defense Laura Cooper, whose 
responsibilities include the Ukraine security assistance, testified 
that she had ``no recollection of the issue of allied burden sharing 
coming up'' in the three meetings she attended about the freeze on 
security assistance, nor did she recall hearing about a lack of funding 
from Ukraine's allies as a reason for the freeze.\91\ Ms. Cooper 
further testified that there was no policy or interagency review 
process relating to the Ukraine security assistance that she 
``participated in or knew of'' in August 2019.\92\ In addition, while 
the aid was being withheld, Ambassador Sondland, the U.S. Ambassador to 
the EU, was never asked to reach out to the EU or its member states to 
ask them to increase their contributions to Ukraine.\93\
    45. Two OMB career officials, including one of its legal counsel, 
ultimately resigned, in part, over concerns about the handling of the 
hold on security assistance.\94\ A confidential White House review has 
reportedly ``turned up hundreds of documents that reveal extensive 
efforts to generate an after-the-fact justification'' for the hold.\95\
    46. Throughout August, officials from DOD warned officials from OMB 
that, as the hold continued, there was an increasing risk that the 
funds for Ukraine would not be timely obligated, in violation of the 
Impoundment Control Act of 1974.\96\ On January 16, 2020, the U.S. 
Government Accountability Office (GAO) concluded that OMB had, in fact, 
violated the Impoundment Control Act when it withheld from obligation 
funds appropriated by Congress to DOD for security assistance to 
Ukraine. GAO stated that ``[f]aithful execution of the law does not 
permit the President to substitute his own policy priorities for those 
that Congress has enacted into law.''\97\
    47. In late August, Secretary of Defense Mike Esper, Secretary of 
State Pompeo, and National Security Advisor Bolton reportedly urged the 
President to release the aid to Ukraine, advising the President that 
the aid was in America's national security interest.\98\ On August 30, 
however, an OMB official advised a Pentagon official by email that 
there was a ``clear direction from POTUS to continue to hold.''\99\
    48. Contrary to U.S. national security interests--and over the 
objections of his own advisors--President Trump continued to withhold 
the funding to Ukraine through August and into September, without any 
credible explanation.\100\
    D. President Trump Conditioned a White House Meeting on Ukraine 
    Announcing It Would Launch Politically Motivated Investigations
    49. Upon his arrival in Kyiv in June 2019, Ambassador Taylor sought 
to schedule the promised White House meeting for President Zelensky, 
which was ``an agreed-upon goal'' of policymakers in Ukraine and the 
United States.\101\
    50. As Ambassador Volker explained, a White House visit by 
President Zelensky would constitute ``a tremendous symbol of support'' 
for Ukraine and would ``enhance[] [President Zelensky's] 
stature.''\102\
    51. Ambassador Taylor learned, however, that President Trump 
``wanted to hear from Zelensky,'' who had to ``make clear'' to 
President Trump that he was not ``standing in the way of 
investigations.'''\103\ It soon became clear to Ambassador Taylor and 
others that the White House meeting would not be scheduled until the 
Ukraine committed to the investigations of ``Burisma and alleged 
Ukrainian influence in the 2016 elections.''\104\
    52. Ambassador Sondland was unequivocal in describing this 
conditionality. He testified:
    I know that members of this committee frequently frame these 
complicated issues in the form of a simple question: Was there a quid 
pro quo? As I testified previously with regard to the requested White 
House call and the White House meeting, the answer is yes.\105\
    53. According to Ambassador Sondland, the public announcement of 
the investigations--and not necessarily the pursuit of the 
investigations themselves--was the price President Trump sought in 
exchange for a White House meeting with Ukrainian President 
Zelensky.\106\
    54. Both Ambassadors Volker and Sondland explicitly communicated 
this quid pro quo to Ukrainian government officials. For example, on 
July 2, in Toronto, Canada, Ambassador Volker conveyed the message 
directly to President Zelensky and referred to the ``Giuliani factor'' 
in President Zelensky's engagement with the United States.\107\ 
Ambassador Volker told Ambassador Taylor that during the Toronto 
conference, he counseled President Zelensky about how he ``could 
prepare for the phone call with President Trump''--specifically, that 
President Trump ``would like to hear about the investigations.''\108\
    55. Ambassador Volker confirmed that, in ``a pull-aside'' meeting 
in Toronto, he ``advise[d] [President Zelensky] that he should call 
President Trump personally because he needed to . . . be able to convey 
to President Trump that he was serious about fighting corruption, 
investigating things that happened in the past and so forth.''\109\ 
Upon hearing about this discussion, Deputy Assistant Secretary of State 
for European and Eurasian Affairs George Kent told Ambassador Volker 
that ``asking for another country to investigate a prosecution for 
political reasons undermines our advocacy of the rule of law.''\110\
    56. On July 10, at a meeting with Ukrainian officials in Ambassador 
Bolton's office at the White House, Ambassador Sondland was even more 
explicit about the quid pro quo. He stated--in front of multiple 
witnesses, including two top advisors to President Zelensky and 
Ambassador Bolton--that he had an arrangement with Mr. Mulvaney to 
schedule the White House visit after Ukraine initiated the 
``investigations.''\111\
    57. In a second meeting in the White House Ward Room shortly 
thereafter, ``Ambassador Sondland, in front of the Ukrainians . . . was 
talking about how he had an agreement with Chief of Staff Mulvaney for 
a meeting with the Ukrainians if they were going to go forward with 
investigations.''\112\ More specifically, Lt. Col. Vindman testified 
that Ambassador Sondland said ``[t]hat the Ukrainians would have to 
deliver an investigation into the Bidens.''\113\
    58. During that meeting, Dr. Hill and Lt. Col. Vindman objected to 
Ambassador Sondland intertwining what Dr. Hill later described as a 
``domestic political errand'' with official national security policy 
toward Ukraine.\114\
    59. Following the July 10 meetings, Dr. Hill discussed what had 
occurred with Ambassador Bolton, including Ambassador Sondland's 
reiteration of the quid pro quo to the Ukrainians in the Ward Room. 
Ambassador Bolton told her to ``go and tell [the NSC Legal Advisor] 
that I am not part of whatever drug deal Sondland and Mulvaney are 
cooking up on this.''\115\
    60. Both Dr. Hill and Lt. Col. Vindman separately reported 
Sondland's description of the quid pro quo during the July 10 meetings 
to NSC Legal Advisor, John Eisenberg, who said he would follow up.\116\
    61. After the July 10 meetings, Andriy Yermak, a top aide to 
President Zelensky who was in the meetings, followed up with Ambassador 
Volker by text message: ``Thank you for meeting and your clear and very 
logical position . . . I feel that the key for many things is Rudi 
[sic] and I [am] ready to talk with him at any time.''\117\
    62. Over the next two weeks, Ambassadors Sondland and Volker 
coordinated with Mr. Giuliani and senior Ukrainian and American 
officials to arrange a telephone call between President Trump and 
President Zelensky. They also worked to ensure that, during that phone 
call, President Zelensky would convince President Trump of his 
willingness to undertake the investigations in order to get the White 
House meeting scheduled.\118\
    63. On July 19, Ambassador Volker had breakfast with Mr. Giuliani 
at the Trump Hotel in Washington, D.C. After the meeting, Ambassador 
Volker reported back to Ambassadors Sondland and Taylor about his 
conversation with Mr. Giuliani, stating, ``Most impt is for Zelensky to 
say that he will help investigation--and address any specific personnel 
issues--if there are any.''\119\
    64. The same day, Ambassador Sondland spoke with President Zelensky 
and recommended that the Ukrainian leader tell President Trump that he 
``will leave no stone unturned'' regarding the investigations during 
the upcoming Presidential phone call.\120\
    65. Following his conversation with President Zelensky, Ambassador 
Sondland emailed top Trump Administration officials, including 
Secretary Pompeo, Mr. Mulvaney, and Secretary Perry. Ambassador 
Sondland stated that President Zelensky confirmed that he would 
``assure'' President Trump that ``he intends to run a fully transparent 
investigation and will turn over every stone.'''\121\
    66. Secretary Perry responded to Ambassador Sondland's email, 
``Mick just confirmed the call being set up for tomorrow by NSC.'' 
About an hour later, Mr. Mulvaney replied, ``I asked NSC to set it up 
for tomorrow.''\122\
    67. According to Ambassador Sondland, this email--and other 
correspondence with top Trump Administration officials--showed that his 
efforts regarding Ukraine were not part of a rogue foreign policy. To 
the contrary, Ambassador Sondland testified that ``everyone was in the 
loop.''\123\
    68. The Ukrainians also understood the quid pro quo--and the 
domestic U.S. political ramifications of the investigations they were 
being asked to pursue. On July 20, a close advisor to President 
Zelensky warned Ambassador Taylor that the Ukrainian leader ``did not 
want to be used as a pawn in a U.S. reelection campaign.''\124\ The 
next day, Ambassador Taylor warned Ambassador Sondland that President 
Zelensky was ``sensitive about Ukraine being taken seriously, not 
merely as an instrument in Washington domestic, reelection 
politics.''\125\
    69. Nevertheless, President Trump, directly and through his hand-
picked representatives, continued to press the Ukrainian government for 
the announcement of the investigations, including during President 
Trump's July 25 call with President Zelensky.\126\
   E. President Trump Directly Solicited Election Interference From 
                           President Zelensky
    70. In the days leading up to President Trump's July 25 call with 
President Zelensky, U.S. polling data showed former Vice President 
Biden leading in a head-to-head contest against President Trump.\127\
    71. Meanwhile, Ambassadors Sondland and Volker continued to prepare 
President Zelensky and his advisors for the call with President Trump 
until right before it occurred.
    72. On the morning of July 25, Ambassador Sondland spoke with 
President Trump in advance of his call with President Zelensky. 
Ambassador Sondland then called Ambassador Volker and left a 
voicemail.\128\
    73. After receiving Ambassador Sondland's message, Ambassador 
Volker sent a text message to President Zelensky's aide, Mr. Yermak, 
approximately 30 minutes before the call:
    Heard from White House--assuming President Z convinces trump he 
will investigate/ ``get to the bottom of what happened'' in 2016, we 
will nail down date for visit to Washington. Good luck!\129\
    74. In his public testimony, Ambassador Sondland confirmed that 
Ambassador Volker's text message to Mr. Yermak accurately summarized 
the directive he had received from President Trump earlier that 
morning.\130\
    75. During the roughly 30-minute July 25 call, President Zelensky 
thanked President Trump for the ``great support in the area of 
defense'' provided by the United States and stated that Ukraine would 
soon be prepared to purchase additional Javelin anti-tank missiles from 
the United States.\131\
    76. President Trump immediately responded with his own request: ``I 
would like you to do us a favor though,'' which was ``to find out what 
happened'' with alleged Ukrainian interference in the 2016 election and 
to ``look into'' former Vice President Biden's role in encouraging the 
removal of the former Ukrainian prosecutor general.
    77. Referencing Special Counsel Mueller's investigation into 
Russian interference in the 2016 election, President Trump told 
President Zelensky, ``[T]hey say a lot of it started with Ukraine,'' 
and ``[w]hatever you can do, it's very important that you do it if 
that's possible.''\132\
    78. President Trump repeatedly pressed the Ukrainian President to 
consult with his personal lawyer, Mr. Giuliani, as well as Attorney 
General William Barr, about the two specific investigations.\133\ 
President Trump stated, ``Rudy very much knows what's happening and he 
is a very capable guy. If you could speak to him that would be 
great.''\134\
    79. President Zelensky agreed, referencing Mr. Giuliani's back-
channel role, noting that Mr. Yermak ``spoke with Mr. Giuliani just 
recently and we are hoping very much that Mr. Giuliani will be able to 
travel to Ukraine and we will meet once he comes to Ukraine.''\135\
    80. Later in the call, President Zelensky heeded the directives he 
had received from Ambassadors Sondland and Volker: he thanked President 
Trump for his invitation to the White House and then reiterated that, 
``[o]n the other hand,'' he would ``ensure'' that Ukraine pursued ``the 
investigation'' that President Trump had requested. President Zelensky 
confirmed the investigations should be done ``openly.''\136\
    81. During the call, President Trump also attacked Ambassador 
Yovanovitch. He said, ``The former ambassador from the United States, 
the woman, was bad news and the people she was dealing with in the 
Ukraine were bad news so I just want to let you know that.'' He later 
added, ``Well, she's going to go through some things.'' President Trump 
also defended then-Ukrainian Prosecutor General Yuriy Lutsenko, who was 
widely known to be corrupt.\137\
    82. The President did not mention any other issues relating to 
Ukraine, including concerns about Ukrainian corruption, President 
Zelensky's anti-corruption reforms, or the ongoing war with Russia. The 
President only identified two people in reference to investigations: 
Vice President Biden and his son.\138\
    83. Listening to the call as it transpired, several White House 
staff members became alarmed. Lt. Col. Vindman immediately reported his 
concerns to NSC lawyers because, as he testified, ``[i]t is improper 
for the President of the United States to demand a foreign government 
investigate a U.S. citizen and a political opponent.''\139\
    84. Jennifer Williams, an advisor to Vice President Pence, 
testified that the call struck her as ``unusual and inappropriate'' and 
that ``the references to specific individuals and investigations, such 
as former Vice President Biden and his son, struck me as political in 
nature.''\140\ She believed President Trump's solicitation of an 
investigation was ``inappropriate'' because it ``appeared to be a 
domestic political matter.''\141\
    85. Timothy Morrison, Dr. Hill's successor as the NSC's Senior 
Director for Europe and Russia and Lt. Col. Vindman's supervisor, said 
that ``the call was not the full-throated endorsement of the Ukraine 
reform agenda that I was hoping to hear.''\142\ He too reported the 
call to NSC lawyers, worrying that the call would be ``damaging'' if 
leaked publicly.\143\
    86. In response, Mr. Eisenberg and his deputy, Michael Ellis, 
tightly restricted access to the call summary, which was placed on a 
highly classified NSC server even though it did not contain any highly 
classified information.\144\
    87. On July 26, the day after the call, Ambassador Sondland had 
lunch with State Department aides in Kyiv, including David Holmes, the 
Counselor for Political Affairs at the U.S. Embassy in Kyiv. During the 
lunch, Ambassador Sondland called President Trump directly from his 
cellphone. President Trump asked Ambassador Sondland whether President 
Zelensky was ``going to do the investigation.'' Ambassador Sondland 
stated that President Zelensky was ``going to do it'' and would ``do 
anything you ask him to.''\145\
    88. After the call, it was clear to Ambassador Sondland that ``a 
public statement from President Zelensky'' committing to the 
investigations was a ``prerequisite'' for a White House meeting.\146\ 
He told Mr. Holmes that President Trump ``did not give a [expletive] 
about Ukraine.'' Rather, the President cared only about ``big stuff'' 
that benefited him personally, like ``the Biden investigation that Mr. 
Giuliani was pushing,'' and that President Trump had directly solicited 
during the July 25 call.\147\
 F. President Trump Conditioned the Release of Security Assistance for 
 Ukraine, and Continued To Leverage a White House Meeting, To Pressure 
         Ukraine To Launch Politically Motivated Investigations
    89. As discussed further below, following the July 25 call, 
President Trump's representatives, including Ambassadors Sondland and 
Volker, in coordination with Mr. Giuliani, pressed the Ukrainians to 
issue a public statement announcing the investigations. At the same 
time, officials in both the United States and Ukraine became 
increasingly concerned about President Trump's continuing hold on 
security assistance.\148\
    90. The Ukrainian government was aware of the hold by at least late 
July, around the time of President Trump's July 25 call with President 
Zelensky. On the day of the call itself, DOD officials learned that 
diplomats at the Ukrainian Embassy in Washington, D.C., had made 
multiple overtures to DOD and the State Department ``asking about 
security assistance.''\149\
    91. Around this time, two different officials at the Ukrainian 
Embassy approached Ambassador Volker's special advisor to ask her about 
the hold.\150\
    92. By mid-August, before the hold was public, Lt. Col. Vindman 
also received inquiries from the Ukrainian Embassy. Lt. Col. Vindman 
testified that during this timeframe, ``it was no secret, at least 
within government and official channels, that security assistance was 
on hold.''\151\
    93. The former Ukrainian deputy foreign minister, Olena Zerkal, has 
acknowledged that she became aware of the hold on security assistance 
no later than July 30 based on a diplomatic cable--transmitted the 
previous week--from Ukrainian officials in Washington, D.C.\152\ She 
said that President Zelensky's office had received a copy of the cable 
``simultaneously.''\153\ Ms. Zerkal further stated that President 
Zelensky's top advisor, Andriy Yermak, told her ``to keep silent, to 
not comment without permission'' about the hold or about when the 
Ukrainian government became aware of it.\154\
    94. In early August, Ambassadors Sondland and Volker, in 
coordination with Mr. Giuliani, endeavored to pressure President 
Zelensky to make a public statement announcing the investigations. On 
August 10--in a text message that showed the Ukrainians' understanding 
of the quid pro quo--President Zelensky's advisor, Mr. Yermak, told 
Ambassador Volker that, once a date was set for the White House 
meeting, he would ``call for a press briefing, announcing upcoming 
visit and outlining vision for the reboot of US-UKRAINE relationship, 
including among other things Burisma and election meddling in 
investigations[.]''\155\
    95. On August 11, Ambassador Sondland emailed two State Department 
officials, one of whom acted as a direct line to Secretary Pompeo, to 
inform them about the agreement for President Zelensky to issue a 
statement that would include an announcement of the two investigations. 
Ambassador Sondland stated that he expected a draft of the statement to 
be ``delivered for our review in a day or two[,]'' and that he hoped 
the statement would ``make the boss [i.e., President Trump] happy 
enough to authorize an invitation'' for a White House meeting.\156\
    96. On August 12, Mr. Yermak texted Ambassador Volker an initial 
draft of the statement. The draft referred to ``the problem of 
interference in the political processes of the United States,'' but it 
did not explicitly mention the two investigations that President Trump 
had requested in the July 25 call.\157\
    97. The next day, Ambassadors Volker and Sondland discussed the 
draft statement with Mr. Giuliani, who told them, ``If [the statement] 
doesn't say Burisma and 2016, it's not credible[.]''\158\ As Ambassador 
Sondland would later testify, ``Mr. Giuliani was expressing the desires 
of the President of the United States, and we knew these investigations 
were important to the President.''\159\
    98. Ambassadors Volker and Sondland relayed this message to Mr. 
Yermak and sent him a revised statement that included explicit 
references to ``Burisma and the 2016 U.S. elections.''\160\
    99. In light of President Zelensky's anti-corruption agenda, 
Ukrainian officials resisted issuing the statement in August and, as a 
result, there was no movement toward scheduling the White House 
meeting.\161\
    100. Meanwhile, there was growing concern about President Trump's 
continued hold on the security assistance for Ukraine. The hold 
remained in place through August, against the unanimous judgment of 
American national security officials charged with overseeing U.S.-
Ukraine policy. For example, during a high-level interagency meeting in 
late July, officials unanimously advocated for releasing the hold--with 
the sole exception of OMB, which was acting under ``guidance from the 
President and from Acting Chief of Staff Mulvaney to freeze the 
assistance.''\162\ But even officials within OMB had internally 
recommended that the hold be removed because ``assistance to Ukraine is 
consistent with [U.S.] national security strategy,'' provides the 
``benefit . . . of opposing Russian aggression,'' and is backed by 
``bipartisan support.''\163\
    101. Without an explanation for the hold, and with President Trump 
already conditioning a White House visit on the announcement of the 
investigations, it became increasingly apparent to multiple witnesses 
that the security assistance was being withheld in order to pressure 
Ukraine to announce the investigations. As Ambassador Sondland 
testified, President Trump's effort to condition release of the 
security assistance on an announcement of the investigations was as 
clear as ``two plus two equals four.''\164\
    102. On August 22, Ambassador Sondland emailed Secretary Pompeo in 
an effort to ``break the logjam'' on the security assistance and the 
White House meeting. He proposed that President Trump should arrange to 
speak to President Zelensky during an upcoming trip to Warsaw, during 
which President Zelensky could ``look [President Trump] in the eye and 
tell him'' he was prepared ``to move forward publicly . . . on those 
issues of importance to Potus and to the U.S.''--i.e., the announcement 
of the two investigations.\165\
    103. On August 28, news of the hold was publicly reported by 
Politico.\166\
    104. As soon as the hold became public, Ukrainian officials 
expressed significant concern to U.S. officials.\167\ They were deeply 
worried not only about the practical impact that the hold would have on 
efforts to fight Russian aggression, but also about the symbolic 
message the now-publicized lack of support from the Trump 
Administration sent to the Russian government, which would almost 
certainly seek to exploit any real or perceived crack in U.S. resolve 
toward Ukraine. Mr. Yermak and other Ukrainian officials told 
Ambassador Taylor that they were ``desperate'' and would be willing to 
travel to Washington to raise with U.S. officials the importance of the 
assistance.\168\ The recently appointed Ukrainian prosecutor general 
later remarked, ``It's critically important for the west not to pull us 
into some conflicts between their ruling elites[.]''\169\
    105. On September 1--within days of President Trump rejecting the 
request from Secretaries Pompeo and Esper and Ambassador Bolton to 
release the hold\170\--Vice President Pence met with President Zelensky 
in Warsaw, Poland after President Trump cancelled his trip.\171\
    106. In advance of this meeting, Ambassador Sondland told Vice 
President Pence that he ``had concerns that the delay in aid had become 
tied to the issue of investigations.''\172\ Sondland testified that 
Vice President Pence ``nodded like, you know, he heard what I said, and 
that was pretty much it.''\173\
    107. During the meeting that followed, which Ambassador Sondland 
also attended, ``the very first question'' that President Zelensky 
asked Vice President Pence related to the status of U.S. security 
assistance.\174\ President Zelensky emphasized that ``the symbolic 
value of U.S. support in terms of security assistance . . . was just as 
valuable to the Ukrainians as the actual dollars.''\175\ He also voiced 
concern that ``any hold or appearance of reconsideration of such 
assistance might embolden Russia to think that the United States was no 
longer committed to Ukraine.''\176\
    108. Vice President Pence told President Zelensky that he would 
speak with President Trump that evening. Although Vice President Pence 
did speak with President Trump, the President still did not lift the 
hold.\177\
    109. Following the meeting between Vice President Pence and 
President Zelensky, Ambassador Sondland pulled aside President 
Zelensky's advisor, Mr. Yermak, to explain that ``the resumption of 
U.S. aid would likely not occur until Ukraine took some kind of action 
on [issuing a] public statement'' about the investigations.\178\
    110. Immediately following that conversation, Ambassador Sondland 
walked over to Mr. Morrison, who had been standing across the room 
observing their interactions. Ambassador Sondland told Mr. Morrison 
that ``what he had communicated [to Mr. Yermak] was that . . . what 
could help [Ukraine] move the aid was if the prosecutor general would 
go to the mike [sic] and announce that he was opening'' the 
investigations.\179\
    111. Later that day, Mr. Morrison reported this conversation to 
Ambassador Bolton, who advised him to ``stay out of it'' and to brief 
the NSC's lawyers. Mr. Morrison subsequently reported the conversation 
to Mr. Eisenberg.\180\
    112. Mr. Morrison also informed Ambassador Taylor about his 
conversation with Ambassador Sondland. Ambassador Taylor was ``alarmed 
by what Mr. Morrison told [him] about the Sondland-Yermak 
conversation.''\181\ He followed up by texting Ambassador Sondland, 
``Are we now saying that security assistance and WH meeting are 
conditioned on investigations?'' Ambassador Sondland responded, ``Call 
me.''\182\
    113. Ambassadors Sondland and Taylor then spoke by telephone. 
Ambassador Sondland again relayed what he told Mr. Yermak and explained 
that he had made a ``mistake'' in telling Ukrainian officials that only 
the White House meeting was conditioned on a public announcement of the 
investigations. He clarified that ``everything''--the White House 
meeting and security assistance for Ukraine--was conditioned on the 
announcement of the investigations.\183\ Ambassador Sondland explained 
to Ambassador Taylor that ``President Trump wanted President Zelensky 
in a public box, by making a public statement about ordering such 
investigations.''\184\
    114. On September 7, President Trump and Ambassador Sondland spoke 
by telephone.\185\ As Ambassador Sondland relayed later that day during 
a call with Mr. Morrison, President Trump told him ``that there was no 
quid pro quo, but President Zelensky must announce the opening of the 
investigations and he should want to do it.''\186\
    115. Mr. Morrison conveyed the substance of the September 7 call 
between President Trump and Ambassador Sondland to Ambassador Taylor. 
Mr. Morrison said that the call had given him ``a sinking feeling'' 
because he feared the security assistance would not be released before 
September 30, the end of the fiscal year, and because he ``did not 
think it was a good idea for the Ukrainian President to . . . involve 
himself in our politics.''\187\ At Ambassador Bolton's direction, Mr. 
Morrison reported Ambassador Sondland's description of the President's 
statements to the NSC lawyers.\188\
    116. The next day, September 8, Ambassador Sondland confirmed in a 
phone call with Ambassador Taylor that he had spoken to President Trump 
and that ``President Trump was adamant that President Zelensky himself 
had to'' announce the investigations publicly.\189\
    117. Ambassador Sondland also told Ambassador Taylor that he had 
passed President Trump's message directly to President Zelensky and Mr. 
Yermak and had told them that ``although this was not a quid pro quo, 
if President Zelensky did not clear things up in public, we would be at 
a stalemate''--meaning ``Ukraine would not receive the much-needed 
military assistance.''\190\
    118. Early the next morning, on September 9, Ambassador Taylor 
texted Ambassadors Sondland and Volker: ``As I said on the phone, I 
think it's crazy to withhold security assistance for help with a 
political campaign.''\191\
    119. The Ukrainians succumbed to the pressure. In early September, 
President Zelensky agreed to do a televised interview, during which he 
would publicly announce the investigations. The Ukrainians made 
arrangements for the interview to occur on CNN later in September.\192\
    120. The White House subsequently confirmed that the release of the 
security assistance had been conditioned on Ukraine's announcement of 
the investigations. During a White House press conference on October 
17, Acting Chief of Staff Mulvaney acknowledged that he had discussed 
security assistance with the President and that the President's 
decision to withhold it was directly tied to his desire that Ukraine 
investigate alleged Ukrainian interference in the 2016 U.S. 
election.\193\
    121. After a reporter attempted to clarify this explicit 
acknowledgement of a ``quid pro quo,'' Mr. Mulvaney replied, ``We do 
that all the time with foreign policy.'' He added, ``I have news for 
everybody: get over it. There is going to be political influence in 
foreign policy.''\194\
    122. Multiple foreign policy and national security officials 
testified that the pursuit of investigations into the Bidens and 
alleged Ukrainian interference in the 2016 election was not part of 
official U.S. policy.\195\ Instead, as Dr. Hill described, these 
investigations were part of a ``domestic political errand'' of 
President Trump.\196\ Mr. Kent further explained that urging Ukraine to 
engage in ``selective politically associated investigations or 
prosecutions'' undermines our longstanding efforts to promote the rule 
of law abroad.\197\
    123. Ambassador Volker, in response to an inquiry from President 
Zelensky's advisor, Mr. Yermak, confirmed that the U.S. Department of 
Justice (DOJ) did not make an official request for Ukraine's assistance 
in these investigations.\198\
    124. Within hours after the White House publicly released a record 
of the July 25 call, DOJ itself confirmed in a statement that no such 
request was ever made:
    The President has not spoken with the Attorney General about having 
Ukraine investigate anything related to former Vice President Biden or 
his son. The President has not asked the Attorney General to contact 
Ukraine--on this or any other matter. The Attorney General has not 
communicated with Ukraine--on this or any other subject.\199\
  G. President Trump Was Forced to Lift the Hold but Has Continued to 
         Solicit Foreign Interference in the Upcoming Election
    125. As noted above, by early September 2019, President Zelensky 
had signaled his willingness to announce the two investigations to 
secure a White House meeting and the security assistance. He was 
scheduled to make the announcement during a CNN interview later in 
September, but other events intervened.\200\
    126. On September 9, the House Permanent Select Committee on 
Intelligence, the Committee on Oversight and Reform, and the Committee 
on Foreign Affairs announced a joint investigation into the scheme by 
President Trump ``to improperly pressure the Ukrainian government to 
assist the President's bid for reelection.''\201\ The same day, the 
Committees sent document production and preservation requests to the 
White House and the State Department.\202\
    127. NSC staff members believed that the Congressional 
investigation ``might have the effect of releasing the hold'' on 
Ukraine military assistance, because it would have been ``potentially 
politically challenging'' to ``justify that hold.''\203\
    128. Later that day, the Inspector General of the Intelligence 
Community (ICIG) wrote to the Chairman and Ranking Member of the 
Intelligence Committee notifying them that a whistleblower had filed a 
complaint on August 12 that the ICIG had determined to be both an 
``urgent concern'' and ``credible.'' The ICIG did not disclose the 
contents of the complaint.\204\
    129. The ICIG further stated that the Acting Director of National 
Intelligence (DNI) had taken the unprecedented step of withholding the 
whistleblower complaint from Congress.\205\ It was later revealed that 
the Acting DNI had done so as a result of communications with the White 
House and the Department of Justice.\206\ The next day, September 10, 
Chairman Schiff wrote to Acting DNI Joseph Maguire to express his 
concern about the Acting DNI's ``unprecedented departure from past 
practice'' in withholding the whistleblower complaint and observed that 
the ``failure to transmit to the Committee an urgent and credible 
whistleblower complaint, as required by law, raises the prospect that 
an urgent matter of a serious nature is being purposefully concealed 
from the Committee.''\207\
    130. The White House was aware of the contents of the whistleblower 
complaint since at least August 26, when the Acting DNI informed the 
White House Counsel's Office of the complaint.\208\ White House Counsel 
Pat Cipollone and Mr. Eisenberg reportedly briefed President Trump on 
the whistleblower complaint in late August and discussed whether they 
had to give it to Congress.\209\
    131. On September 11--two days after the ICIG notified Congress of 
the whistleblower complaint and the three House Committees announced 
their investigation--President Trump lifted the hold on security 
assistance. As with the implementation of the hold, no credible reason 
was provided for lifting the hold.\210\ At the time of the release, 
there had been no discernible changes in international assistance 
commitments for Ukraine or Ukrainian anti-corruption reforms.\211\
    132. Because of the hold the President placed on security 
assistance for Ukraine, DOD was unable to spend approximately $35 
million--or 14 percent--of the funds appropriated by Congress for 
fiscal year 2019.\212\
    133. Congress was forced to pass a new law to extend the funding in 
order to ensure the full amount could be used by Ukraine to defend 
itself.\213\ Still, by early December 2019, Ukraine had not received 
approximately $20 million of the military assistance.\214\
    134. Although the hold was lifted, the White House still had not 
announced a date for President Zelensky's meeting with President Trump, 
and there were indications that President Zelensky's interview with CNN 
would still occur.\215\
    135. On September 18, a week before President Trump was scheduled 
to meet with President Zelensky on the sidelines of the U.N. General 
Assembly in New York, Vice President Pence had a telephone call with 
President Zelensky. During the call, Vice President Pence ``ask[ed] a 
bit more about . . . how Zelensky's efforts were going.''\216\ 
Additional details about this call were provided to the House by Vice 
President Pence's advisor, Jennifer Williams, but were classified by 
the Office of the Vice President.\217\ Despite repeated requests, the 
Vice President has refused to declassify Ms. Williams' supplemental 
testimony.
    136. On September 18 or 19, at the urging of Ambassador 
Taylor,\218\ President Zelensky cancelled the CNN interview.\219\
    137. To date, almost nine months after the initial invitation was 
extended by President Trump on April 21, a White House meeting for 
President Zelensky has not occurred.\220\ Since the initial invitation, 
President Trump has met with more than a dozen world leaders at the 
White House, including a meeting in the Oval Office with the Foreign 
Minister of Russia on December 10.\221\
    138. Since lifting the hold, and even after the House impeachment 
inquiry was announced on September 24, President Trump has continued to 
press Ukraine to investigate Vice President Biden and alleged 2016 
election interference by Ukraine.\222\
    139. On September 24, in remarks at the opening session of the U.N. 
General Assembly, President Trump stated: ``What Joe Biden did for his 
son, that's something they [Ukraine] should be looking at.''\223\
    140. On September 25, in a joint public press availability with 
President Zelensky, President Trump stated that ``I want him to do 
whatever he can'' in reference to the investigation of the Bidens.\224\ 
The same day, President Trump denied that his pursuit of the 
investigation involved a quid pro quo.\225\
    141. On September 30, during remarks at the swearing-in of the new 
Labor Secretary, President Trump stated: ``Now, the new President of 
Ukraine ran on the basis of no corruption. . . . But there was a lot of 
corruption having to do with the 2016 election against us. And we want 
to get to the bottom of it, and it's very important that we do.''\226\
    142. On October 3, when asked by a reporter what he had hoped 
President Zelensky would do following their July 25 call, President 
Trump responded: ``Well, I would think that, if they were honest about 
it, they'd start a major investigation into the Bidens. It's a very 
simple answer.''\227\ The President also suggested that ``China should 
start an investigation into the Bidens, because what happened in China 
is just about as bad as what happened with--with Ukraine.\228\
    143. On October 4, President Trump equated his interest in 
``looking for corruption'' to the investigation of two particular 
subjects: the Bidens and alleged Ukrainian interference in the 2016 
election. He told reporters:
    What I want to do--and I think I have an obligation to do it, 
probably a duty to do it: corruption--we are looking for corruption. 
When you look at what Biden and his son did, and when you look at other 
people--what they've done. And I believe there was tremendous 
corruption with Biden, but I think there was beyond--I mean, beyond 
corruption--having to do with the 2016 campaign, and what these 
lowlifes did to so many people, to hurt so many people in the Trump 
campaign--which was successful, despite all of the fighting us. I mean, 
despite all of the unfairness.\229\
    When asked by a reporter, ``Is someone advising you that it is okay 
to solicit the help of other governments to investigate a potential 
political opponent?,'' Trump replied in part, ``Here's what's okay: If 
we feel there's corruption, like I feel there was in the 2016 
campaign--there was tremendous corruption against me--if we feel 
there's corruption, we have a right to go to a foreign country.''\230\
    144. As the House's impeachment inquiry unfolded, Mr. Giuliani, on 
behalf of the President, also continued to urge Ukraine to pursue the 
investigations and dig up dirt on former Vice President Biden. Mr. 
Giuliani's own statements about these efforts further confirm that he 
has been working in furtherance of the President's personal and 
political interests.\231\
    145. During the first week of December, Mr. Giuliani traveled to 
Kyiv and Budapest to meet with both current and former Ukrainian 
government officials,\232\ including a current Ukrainian member of 
Parliament who attended a KGB school in Moscow and has led calls to 
investigate Burisma and the Bidens.\233\ Mr. Giuliani also met with the 
corrupt former prosecutor generals, Viktor Shokin and Yuriy Lutsenko, 
who had promoted the false allegations underlying the investigations 
President Trump wanted.\234\ Mr. Giuliani told the New York Times that 
in meeting with Ukrainian officials he was acting on behalf of his 
client, President Trump: ``[L]ike a good lawyer, I am gathering 
evidence to defend my client against the false charges being leveled 
against him.''\235\
    146. During his trip to Ukraine, on December 5, Mr. Giuliani 
tweeted: ``The conversation about corruption in Ukraine was based on 
compelling evidence of criminal conduct by then VP Biden, in 2016, that 
has not been resolved and until it is will be a major obstacle to the 
U.S. assisting Ukraine with its anti-corruption reforms.''\236\ Not 
only was Mr. Giuliani perpetuating the false allegations against Vice 
President Biden, but he was reiterating the threat that President Trump 
had used to pressure President Zelensky to announce the investigations: 
that U.S. assistance to Ukraine could be in jeopardy until Ukraine 
investigated Vice President Biden.
    147. Mr. Giuliani told the Wall Street Journal that when he 
returned to New York on December 7, President Trump called him as his 
plane was still taxiing down the runway. ```What did you get?' he said 
Mr. Trump asked. `More than you can imagine,' Mr. Giuliani 
replied.''\237\
    148. Later that day, President Trump told reporters that he was 
aware of Mr. Giuliani's efforts in Ukraine and believed that Mr. 
Giuliani wanted to report the information he'd gathered to the Attorney 
General and Congress.\238\
    149. On December 17, Mr. Giuliani confirmed that President Trump 
has been ``very supportive'' of his continuing efforts to dig up dirt 
on Vice President Biden in Ukraine and that they are ``on the same 
page.''\239\
    150. Such ongoing efforts by President Trump, including through his 
personal attorney, to solicit an investigation of his political 
opponent have undermined U.S. credibility. On September 14, Ambassador 
Volker advised Mr. Yermak against the Zelensky Administration 
conducting an investigation into President Zelensky's own former 
political rival, former Ukrainian President Petro Poroshenko. When 
Ambassador Volker raised concerns about such an investigation, Mr. 
Yermak retorted, ``What, you mean like asking us to investigate Clinton 
and Biden?''\240\ Ambassador Volker offered no response.\241\
    151. Mr. Holmes, a career diplomat, highlighted this hypocrisy: 
``While we had advised our Ukrainian counterparts to voice a commitment 
to following the rule of law and generally investigating credible 
corruption allegations,'' U.S. officials were making ``a demand that 
President Zelensky personally commit on a cable news channel to a 
specific investigation of President Trump's political rival.''\242\
     H. President Trump's Conduct Was Consistent with His Previous 
         Invitations of Foreign Interference in U.S. Elections
    152. President Trump's efforts to solicit Ukraine's interference in 
the 2020 U.S. Presidential election to help his own reelection campaign 
were consistent with his prior solicitation and encouragement of 
Russia's interference in the 2016 election, when the Trump Campaign 
``expected it would benefit electorally from information stolen and 
released through Russian efforts.''\243\
    153. As a Presidential candidate, Mr. Trump repeatedly sought to 
benefit from Russia's actions to help his campaign. For example, during 
a public rally on July 27, 2016, then-candidate Trump declared: 
``Russia, if you're listening, I hope you're able to find the 30,000 
emails that are missing'' from opposing candidate Hillary Clinton's 
personal server.\244\ Within hours, Russian hackers targeted Clinton's 
personal office for the first time.\245\
    154. Days earlier, WikiLeaks had begun releasing emails and 
documents that were stolen by Russian military intelligence services in 
order to damage the Clinton campaign.\246\ WikiLeaks continued 
releasing stolen documents through October 2016.\247\ Then-candidate 
Trump repeatedly applauded and sought to capitalize on WikiLeaks's 
releases of these stolen documents, even after Russia's involvement was 
heavily reported by the press.\248\ Members of the Trump Campaign also 
planned messaging and communications strategies around releases by 
WikiLeaks.\249\ In the last month of the campaign, then-candidate Trump 
publicly referred to the emails hacked by Russia and disseminated by 
WikiLeaks over 150 times.\250\
    155. Multiple members of the Trump Campaign used additional 
channels to seek Russia's assistance in obtaining damaging information 
about Clinton. For example, senior representatives of the Trump 
Campaign--including the Campaign's chairman and the President's son--
met with a Russian attorney in June 2016 who had offered to provide 
damaging information about Clinton from the Russian government.\251\ A 
foreign policy advisor to the Trump Campaign also met repeatedly with 
people connected to the Russian government and their associates, one of 
whom claimed to have ``dirt'' on Clinton in the form of ``thousands of 
emails.''\252\
    156. Even after Special Counsel Mueller released his report, 
President Trump confirmed his willingness to benefit from foreign 
election interference. When asked during a televised interview in June 
2019 whether he would accept damaging information from a foreign 
government about a political opponent, the President responded, ``I 
think I'd take it.''\253\ President Trump declared that he sees 
``nothing wrong with listening'' to a foreign power that offers 
information detrimental to a political adversary.\254\ Asked whether 
such an offer of information should be reported to law enforcement, 
President Trump retorted: ``Give me a break, life doesn't work that 
way.''\255\ Just weeks later, President Trump froze security assistance 
to Ukraine as his agents were pushing that country to pursue 
investigations that would help the President's reelection 
campaign.\256\
    157. In addition, President Trump's request for the investigations 
on the July 25 call with President Zelensky took place one day after 
former Special Counsel Mueller testified before the House Judiciary 
Committee and the House Permanent Select Committee on Intelligence 
about the findings of his investigation into Russia's interference in 
the 2016 Presidential election and President Trump's efforts to 
undermine that investigation.\257\ During his call with President 
Zelensky, President Trump derided former Special Counsel Mueller's 
``poor performance'' in his July 24 testimony and speculated that 
``that whole nonsense . . . started with Ukraine.''\258\
II. President Trump's Obstruction of Congress
    158. President Trump ordered categorical obstruction of the 
impeachment inquiry undertaken by the House under Article I of the 
Constitution, which vests the House with the ``sole Power of 
Impeachment.''\259\
              A. The House Launched an Impeachment Inquiry
    159. During the 116th Congress, a number of Committees of the House 
have undertaken investigations into allegations of misconduct by 
President Trump and his Administration, including to determine whether 
to recommend articles of impeachment.\260\
    160. As discussed above, on September 9, the Intelligence Committee 
and the Committees on Oversight and Reform and Foreign Affairs 
announced they would conduct a joint investigation into the President's 
scheme to pressure Ukraine to announce the politically motivated 
investigations.\261\
    161. Given the gravity of the allegations that President Trump was 
soliciting foreign interference in the upcoming 2020 election, Speaker 
Nancy P. Pelosi announced on September 24 that the House was ``moving 
forward with an official impeachment inquiry.''\262\ Speaker Pelosi 
directed the Committees to ``proceed with their investigations under 
that umbrella of [an] impeachment inquiry.''\263\
    162. On October 31, the House enacted a resolution confirming the 
Committees' authority to conduct the impeachment inquiry and adopting 
procedures governing the inquiry.\264\
    163. The procedures adopted by the House afforded procedural 
privileges to the President that were equivalent to, or in some 
instances exceeded, those afforded during prior impeachment 
inquiries.\265\ Transcripts of all witness interviews and depositions 
were released to the public, and President Trump was offered--but 
refused--multiple opportunities to have his counsel participate in 
proceedings before the Judiciary Committee, including by cross-
examining witnesses and presenting evidence.\266\
   B. President Trump Ordered Categorical Obstruction of the House's 
                          Impeachment Inquiry
    164. Even before the House launched its impeachment inquiry into 
President Trump's misconduct concerning Ukraine, he rejected Congress's 
Article I investigative and oversight authority, proclaiming, ``[W]e're 
fighting all the subpoenas,''\267\ and ``I have an Article II, where I 
have the right to do whatever I want as president.''\268\
    165. In response to the House impeachment inquiry regarding 
Ukraine, the Executive Branch categorically refused to provide any 
requested documents or information at President Trump's direction.
    166. On September 9, 2019, three House Committees sent a letter to 
White House Counsel Pat Cipollone requesting six categories of 
documents relevant to the Ukraine investigation by September 16.\269\ 
When the White House did not respond, the Committees sent a follow-up 
letter on September 24.\270\
    167. Instead of responding directly to the Committees, the 
President publicly declared the impeachment inquiry ``a disgrace,'' and 
stated that ``it shouldn't be allowed'' and that ``[t]here should be a 
way of stopping it.''\271\
    168. When the White House still did not respond to the Committees' 
request, the Committees issued a subpoena compelling the White House to 
turn over documents.\272\
    169. The President's response to the House's inquiry--sent by Mr. 
Cipollone on October 8 sought to accomplish the President's goal of 
``stopping'' the House's investigation. Mr. Cipollone wrote ``on behalf 
of President Donald J. Trump'' to notify Congress that ``President 
Trump cannot permit his Administration to participate in this partisan 
inquiry under these circumstances.''\273\
    170. Despite the Constitution's placement of the ``sole Power'' of 
impeachment in the House, Mr. Cipollone's October 8 letter opined that 
the House's inquiry was ``constitutionally invalid,'' ``lack[ed] . . . 
any basis,'' ``lack[ed] the necessary authorization for a valid 
impeachment,'' and was merely ``labeled . . . as an `impeachment 
inquiry.'''\274\
    171. The letter's rhetoric aligned with the President's public 
campaign against the impeachment inquiry, which he has branded ``a 
COUP, intended to take away the Power of the People,''\275\ an 
``unconstitutional abuse of power,''\276\ and an ``open war on American 
Democracy.''\277\
    172. Although President Trump has categorically sought to obstruct 
the House's impeachment inquiry, he has never formally asserted a claim 
of executive privilege as to any document or testimony. Mr. Cipollone's 
October 8 letter refers to ``long-established Executive Branch 
confidentiality interests and privileges'' but the President did not 
actually assert executive privilege.\278\ Similarly, a Department of 
Justice Office of Legal Counsel November 1, 2019 opinion only 
recognized that information responsive to the subpoenas was 
``potentially protected by executive privilege.''\279\
    173. In addition, the President and his agents have spoken at 
length about these events to the press and on social media. Since the 
impeachment inquiry was announced on September 24, the President has 
made numerous public statements about his communications with President 
Zelensky and his decision-making relating to the hold on security 
assistance.\280\
    174. The President's agents have done the same. For example, on 
October 16, Secretary Perry gave an interview to the Wall Street 
Journal. During the interview, Secretary Perry stated that after the 
May 23 meeting at which President Trump refused to schedule a White 
House meeting with President Zelensky, Secretary Perry ``sought out 
Rudy Giuliani this spring at President Trump's direction to address Mr. 
Trump's concerns about alleged Ukrainian corruption.''\281\ During a 
phone call with Secretary Perry, Mr. Giuliani said, ``Look, the 
president is really concerned that there are people in Ukraine that 
tried to beat him during this presidential election. . . . He thinks 
they're corrupt and . . . that there are still people over there 
engaged that are absolutely corrupt.''\282\
    175. On October 17, Acting Chief of Staff Mulvaney acknowledged 
during a White House press conference that he discussed security 
assistance with the President and that the President's decision to 
withhold it was directly tied to his desire that Ukraine investigate 
alleged Ukrainian interference in the 2016 U.S. election.\283\
    176. On December 3, 2019, the Intelligence Committee transmitted a 
detailed nearly 300-page report documenting its findings about this 
scheme and about the related investigation into it, to the Judiciary 
Committee.\284\ The Judiciary Committee held public hearings evaluating 
the constitutional standard for impeachment and the evidence against 
President Trump--in which the President's counsel was invited to 
participate, but declined--and then reported two Articles of 
Impeachment to the House.\285\
    177. The President maintained his obstructionist position 
throughout this process, declaring the House's investigation 
``illegitimate'' in a letter to Speaker Nancy Pelosi on December 17, 
2019.\286\ President Trump further attempted to undermine the House's 
inquiry by dismissing impeachment as ``illegal, invalid, and 
unconstitutional''\287\ and by intimidating and threatening an 
anonymous Intelligence Community whistleblower as well as the patriotic 
public servants who honored their subpoenas and testified before the 
House.\288\
    178. On December 18, 2019, the House voted to impeach President 
Trump and adopted two Articles of Impeachment.\289\
C. Following President Trump's Directive, the Executive Branch Refused 
             to Produce Requested and Subpoenaed Documents
    179. Adhering to President Trump's directive, every Executive 
Branch agency that received an impeachment inquiry request or subpoena 
defied it.\290\
    180. House Committees issued document requests or subpoenas to the 
White House, the Office of the Vice President, OMB, the Department of 
State, DOD, and the Department of Energy.\291\
    181. In its response, the Office of the Vice President echoed Mr. 
Cipollone's assertions that the impeachment inquiry was procedurally 
invalid,\292\ while agencies such as OMB and DOD expressly cited the 
President's directive.\293\
    182. The Executive Branch has refused to produce any documents in 
response to the Committees' valid, legally binding subpoenas, even 
though witness testimony has revealed that highly relevant records 
exist.\294\
    183. Indeed, by virtue of President Trump's order, not a single 
document has been produced by the White House, the Office of the Vice 
President, OMB, the Department of State, DOD, or the Department of 
Energy in response to 71 specific, individualized requests or demands 
for records in their possession, custody, or control. These agencies 
and offices also blocked many current and former officials from 
producing records to the Committees.\295\
    184. Certain witnesses, however, defied the President's order and 
identified the substance of key documents. For example, Lt. Col. 
Vindman described a ``Presidential Decision Memo'' he prepared in 
August that conveyed the ``consensus views'' among foreign policy and 
national security officials that the hold on aid to Ukraine should be 
released.\296\ Other witnesses identified additional documents that the 
President and various agencies were withholding from Congress that were 
directly relevant to the impeachment inquiry.\297\
    185. Some responsive documents have been released by the State 
Department, DOD, and OMB pursuant to judicial orders issued in response 
to lawsuits filed under the Freedom of Information Act (FOIA).\298\ 
Although limited in scope and heavily redacted, these FOIA productions 
confirm that the Trump Administration is withholding highly pertinent 
documents from Congress without any valid legal basis.\299\
 D. President Trump Ordered Top Aides Not to Testify, Even Pursuant to 
                                Subpoena
    186. President Trump directed government witnesses to violate their 
legal obligations and defy House subpoenas--regardless of their offices 
or positions. In some instances, the President personally directed that 
senior aides defy subpoenas on the ground that they are ``absolutely 
immune'' from compelled testimony.\300\ Other officials refused to 
appear ``as directed by'' Mr. Cipollone's October 8 letter.\301\ Still 
others refused to appear because--consistent with the House Deposition 
Rules drafted by the then-majority Republicans--agency counsel was not 
permitted in the depositions.\302\
    187. This Administration-wide effort to prevent witnesses from 
providing testimony was coordinated and comprehensive. In total, twelve 
current or former Administration officials refused to testify as part 
of the House's impeachment inquiry into the Ukrainian matter, nine of 
whom did so in defiance of duly authorized subpoenas.\303\ House 
Committees advised such witnesses that their refusal to testify may be 
used as an adverse inference against the President.\304\ Nonetheless--
despite being instructed by senior political appointees not to 
cooperate with the House's impeachment inquiry, in directives that 
frequently cited or enclosed copies of Mr. Cipollone's October 8 
letter\305\--many current and former officials complied with their 
legal obligations to appear for testimony.
    188. House Committees conducted depositions or transcribed 
interviews of seventeen witnesses.\306\ All members of the Committees--
as well as staff from the Majority and the Minority--were permitted to 
attend. The Majority and Minority were allotted an equal amount of time 
to question witnesses.\307\
    189. In late November 2019, twelve of these witnesses testified in 
public hearings convened by the Intelligence Committee, including three 
witnesses called by the Minority.\308\
    190. Unable to silence certain witnesses, President Trump resorted 
to intimidation tactics to penalize them.\309\ He also levied sustained 
attacks on the anonymous whistleblower.\310\
 E. President Trump's Conduct Was Consistent with His Previous Efforts 
 to Obstruct Investigations into Foreign Interference in U.S. Elections
    191. President Trump's obstruction of the House's impeachment 
inquiry was consistent with his previous efforts to undermine Special 
Counsel Mueller's investigation of Russia's interference in the 2016 
election and of the President's own misconduct.
    192. President Trump repeatedly used his powers of office to 
undermine and derail the Mueller investigation, particularly after 
learning that he was personally under investigation for obstruction of 
justice.\311\ Among other things, President Trump ordered White House 
Counsel Don McGahn to fire Special Counsel Mueller;\312\ instructed Mr. 
McGahn to create a record and issue statements falsely denying this 
event;\313\ sought to curtail Special Counsel Mueller's investigation 
in a manner exempting his own prior conduct;\314\ and tampered with at 
least two key witnesses.\315\ President Trump has since instructed 
McGahn to defy a House Committee's subpoena for testimony, and his DOJ 
has erroneously argued that the courts can play no role in enforcing 
Congressional subpoenas.\316\
    193. Special Counsel Mueller's investigation--like the House's 
impeachment inquiry--sought to uncover whether President Trump 
coordinated with a foreign government in order to obtain an improper 
advantage during a Presidential election.\317\ And the Mueller 
investigation--like the House's impeachment inquiry--exposed President 
Trump's eagerness to benefit from foreign election interference.\318\ 
In the former instance, the President used his powers of office to 
undermine an investigation conducted by officials within the Executive 
Branch.\319\ In the latter, he attempted to block the United States 
House of Representatives from exercising its ``sole Power of 
Impeachment'' assigned by the Constitution. In both instances, 
President Trump obstructed investigations into foreign election 
interference to hide his own misconduct.
                                endnotes
    1. See Report of the H. Permanent Select Comm. on Intelligence on 
the Trump-Ukraine Impeachment Inquiry, together with Minority Views, H. 
Rep. No. 116-335 (2019); Impeachment of Donald J. Trump, President of 
the United States: Report of the Comm. on the Judiciary of the H. of 
Representatives, together with Dissenting Views, to Accompany H. Res. 
755, H. Rep. No. 116-346 (2019).
    2. U.S. Const., Art. I, Sec. 2, cl. 5.
    3. Transcript, Deposition of Lt. Colonel Alexander S. Vindman 
Before the H. Permanent Select Comm. on Intelligence 16 (Oct. 29, 2019) 
(Vindman Dep. Tr.); Anton Troianovski, Comedian Volodymyr Zelensky 
Unseats Incumbent in Ukraine's Presidential Election, Exit Polls Show, 
Wash. Post (Apr. 21, 2019), https://perma.cc/J8KE-2UJU.
    4. Id.
    5. See White House, Memorandum of Telephone Conversation (Apr. 21, 
2019) (Apr. 21 Memorandum), https://perma.cc/EY4N-B8VS; Deb Riechmann 
et al., Conflicting White House Accounts of 1st Trump-Zelenskiy Call, 
Associated Press (Nov. 15, 2019), https://perma.cc/A6U9-89ZG.
    6. Apr. 21 Memorandum at 2, https://perma.cc/EY4N-B8VS.
    7. Transcript, Impeachment Inquiry: Ambassador William B. Taylor 
and George Kent: Hearing Before the H.Permanent Select Comm. on 
Intelligence, 116th Cong. 40 (Nov. 13, 2019) (Taylor-Kent Hearing Tr.).
    8. See, e.g., Transcript, Interview of Kurt Volker Before the H. 
Permanent Select Comm. on Intelligence 58-59 (Oct. 3, 2019) (Volker 
Interview Tr.); Transcript, Interview of George Kent Before the H. 
Permanent Select Comm. on Intelligence 202 (Oct. 15, 2019) (Kent Dep. 
Tr.); Transcript, Deposition of Fiona Hill Before the H. Permanent 
Select Comm. on Intelligence 64-65 (Oct. 14, 2019) (Hill Dep. Tr.); see 
also Transcript, Deposition of David A. Holmes Before the H. Permanent 
Select Comm. on Intelligence 18 (Nov. 15, 2019) (Holmes Dep. Tr.) 
(``[A] White House visit was critical to President Zelensky,'' because 
``[h]e needed to demonstrate U.S. support at the highest levels, both 
to advance his ambitious anti-corruption agenda at home and to 
encourage Russian President Putin to take seriously President 
Zelensky's peace efforts.'').
    9. Transcript, Deposition of Jennifer Williams Before the H. 
Permanent Select Comm. on Intelligence 36-37 (Nov. 7, 2019) (Williams 
Dep. Tr.).
    10. Matt Viser, Joe Biden to Enter 2020 Presidential Race with 
Thursday Video Announcement, Wash. Post (Apr. 23, 2019), https://
perma.cc/M2B9-6J48.
    11. Transcript, Impeachment Inquiry: Ambassador Marie ``Masha'' 
Yovanovitch: Hearing Before the H. Permanent Select Comm. on 
Intelligence, 116th Cong. 21-22 (Nov. 15, 2019) (Yovanovitch Hearing 
Tr.); Transcript, Impeachment Inquiry: Fiona Hill and David Holmes: 
Hearing Before the H. Permanent Select Comm. on Intelligence, 116th 
Cong. 18-19 (Nov. 21, 2019) (Hill-Holmes Hearing Tr.); Holmes Dep. Tr. 
at 13-14, 142.
    12. See, e.g., Taylor-Kent Hearing Tr. at 25; Yovanovitch Hearing 
Tr. at 21-22; Hill-Holmes Hearing Tr. at 19-21.
    13. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Mar. 
20, 2019, 7:40 PM), https://perma.cc/D4UT-5M6F (referencing Sean 
Hannity's interview with John Solomon regarding his opinion piece in 
The Hill titled As Russia Collusion Fades, Ukrainian Plot to Help 
Clinton Emerges (Mar. 20, 2019), https://perma.cc/2M35-LUQE).
    14. Yovanovitch Hearing Tr. at 21-22, 34-35.
    15. Adam Entous, The Ukrainian Prosecutor Behind Trump's 
Impeachment, New Yorker (Dec. 16, 2019), https://perma.cc/5XMR-BS8L 
(quoting Mr. Giuliani).
    16. See White House, Memorandum of Telephone Conversation  4 (July 
25, 2019) (July 25 Memorandum), https://perma.cc/8JRD-6K9V; Kyle 
Cheney, ``Of Course I Did'': Giuliani Acknowledges Asking Ukraine to 
Investigate Biden, Politico (Sept. 19, 2019), https://perma.cc/J7PY-
N3SG.
    17. July 25 Memorandum at 3, https://perma.cc/8JRD-6K9V; see also 
Remarks by President Trump and President Putin of the Russian 
Federation in Joint Press Conference, White House (July 16, 2018), 
https://perma.cc/6M5R-XW7F (``[A]ll I can do is ask the question. My 
people came to me, Dan Coates came to me and some others--they said 
they think it's Russia. I have President Putin; he just said it's not 
Russia. I will say this: I don't see any reason why it would be, but I 
really do want to see the server.''); Transcript of AP Interview with 
Trump, Associated Press (Apr. 23, 2017), https://perma.cc/2EFT-84N8 
(``TRUMP: . . . Why wouldn't (former Hillary Clinton campaign chairman 
John) Podesta and Hillary Clinton allow the FBI to see the server? They 
brought in another company that I hear is Ukrainian-based. AP: 
CrowdStrike? TRUMP: That's what I heard. I heard it's owned by a very 
rich Ukrainian, that's what I heard.'').
    18. See, e.g., Volker Interview Tr. at 203.
    19. See, e.g., Press Release, Senator Rob Portman, Portman, Durbin, 
Shaheen, and Senate Ukraine Caucus Reaffirm Commitment to Help Ukraine 
Take on Corruption (Feb. 12, 2016), https://perma.cc/9WD2-CZ29 (quoting 
bipartisan letter urging then-President Poroshenko of Ukraine ``to 
press ahead with urgent reforms to the Prosecutor General's office and 
judiciary'').
    20. See, e.g., Kent Dep. Tr. at 45, 91-94 (describing ``a broad-
based consensus'' among the United States, European allies, and 
international financial institutions that Mr. Shokin was ``a typical 
Ukraine prosecutor who lived a lifestyle far in excess of his 
government salary, who never prosecuted anybody known for having 
committed a crime'' and who ``covered up crimes that were known to have 
been committed.''); Daryna Krasnolutska et al., Ukraine Prosecutor Says 
No Evidence of Wrongdoing by Bidens, Bloomberg (May 16, 2019), https://
perma.cc/YYX8-U33C (quoting Yuriy Lutsenko, Ukraine's then-Prosecutor 
General: ``Hunter Biden did not violate any Ukrainian laws--at least as 
of now, we do not see any wrongdoing. A company can pay however much it 
wants to its board . . . . Biden was definitely not involved . . . . We 
do not have any grounds to think that there was any wrongdoing starting 
from 2014 [when Hunter Biden joined the board of Burisma].'').
    21. See Kent Dep. Tr. at 45, 93-94; Volker Interview Tr. at 36-37, 
330, 355.
    22. See Kent Dep. Tr. at 101-02.
    23. Office of the Dir. of Nat'l Intelligence, ICA 2017-01D, 
Assessing Russian Activities and Intentions in Recent U.S. Elections 
(Jan. 6, 2017), https://perma.cc/M4A3-DWML; see, e.g., id. at ii (``We 
assess Russian President Vladimir Putin ordered an influence campaign 
in 2016 aimed at the US presidential election. Russia's goals were to 
undermine public faith in the US democratic process, denigrate 
Secretary Clinton, and harm her electability and potential presidency. 
We further assess Putin and the Russian Government developed a clear 
preference for President-elect Trump. We have high confidence in these 
judgements.'').
    24. Senate Select Comm. on Intelligence, Russian Active Measures 
Campaigns and Interference in the 2016 U.S. Election, Vol. II (May 8, 
2018), https://perma.cc/96EC-22RU; see, e.g., id. at 4-5 (``The 
Committee found that the [Russian-based Internet Research Agency (IRA)] 
sought to influence the 2016 U.S. presidential election by harming 
Hillary Clinton's chances of success and supporting Donald Trump at the 
direction of the Kremlin. . . . The Committee found that the Russian 
government tasked and supported the IRA's interference in the 2016 U.S. 
election.'').
    25. Robert S. Mueller III, Report on the Investigation into Russian 
Interference in the 2016 Presidential Election, Vol. I at 1 (2019) 
(Mueller Report), https://perma.cc/DN3N-9UW8.
    26. Luke Barr & Alexander Mallin, FBI Director Pushes Back on 
Debunked Conspiracy Theory About 2016 Election Interference, ABC News 
(Dec. 9, 2019), https://perma.cc/8JKC-6RB8 (quoting Mr. Wray).
    27. Hill-Holmes Hearing Tr. at 40-41, 56-57.
    28. Press Statement, President of Russ., Joint News Conference with 
Hungarian Prime Minister Viktor Orban (Feb. 2, 2017), https://perma.cc/
5Z2R-ZECB (``[A]s we all know, during the presidential campaign in the 
United States, the Ukrainian government adopted a unilateral position 
in favour of one candidate. More than that, certain oligarchs, 
certainly with the approval of the political leadership, funded this 
candidate, or female candidate, to be more precise.'').
    29. See Kent Dep. Tr. at 338; @realDonaldTrump (May 3, 2019, 10:06 
AM) https://perma.cc/7LS9-P35U.
    30. Hill Dep. Tr. at 234; see also id. at 235.
    31. Chris Francescani, President Trump's Former National Security 
Advisor ``Deeply Disturbed'' by Ukraine Scandal: ``Whole World Is 
Watching,'' ABC News (Sept. 29, 2019), https://perma.cc/C76K-7SMA 
(quoting Mr. Bossert).
    32. Full Video: Sean Hannity Interviews Trump on Biden, Russia 
Probe, FISA Abuse, Comey, Real Clear Politics (Apr. 26, 2019), https://
perma.cc/3CLR-9MVA.
    33. Transcript: Fox News Interview with President Trump, Fox News 
(May 6, 2019), https://perma.cc/NST6-X7WS.
    34. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for 
Inquiries That Could Help Trump, N.Y. Times (May 9, 2019) (Giuliani 
Plans Ukraine Trip), https://perma.cc/SC6J-4PL9.
    35. Id. (quoting Mr. Giuliani).
    36. Id. (quoting Mr. Giuliani).
    37. Lev Parnas Production to the House Permanent Select Comm. on 
Intelligence at 28 (Jan. 14, 2019), https://perma.cc/PWX4-LEMS (letter 
from Rudolph Giuliani to Volodymyr Zelensky, President-elect of Ukraine 
(May 10, 2019)).
    38. See Andrew Restuccia & Darren Samuelsohn, Giuliani Cancels 
Ukraine Trip amid Political Meddling Charges, Politico (May 11, 2019), 
https://perma.cc/V5S8-2FV4.
    39. Giuliani: I Didn't Go to Ukraine to Start an Investigation, 
There Already Was One, Fox News (May 11, 2019), https://perma.cc/HT7V-
2ZYA.
    40. Williams Dep. Tr. at 37; Volker Interview Tr. at 288-90; 
Vindman Dep. Tr. at 125-27.
    41. Volker Interview Tr. at 29-30, 304.
    42. Id. at 305.
    43. Id. at 304; Transcript, Interview of Gordon Sondland Before the 
H. Permanent Select Comm. on Intelligence 337 (Oct. 17, 2019) (Sondland 
Dep. Tr.).
    44. Sondland Dep. Tr. at 62, 69-70; Volker Interview Tr. at 305; 
Transcript, Impeachment Inquiry: Ambassador Kurt Volker and Timothy 
Morrison: Hearing Before the H. Permanent Select Comm. on Intelligence, 
116th Cong. 39-40 (Nov. 19, 2019) (Volker-Morrison Hearing Tr.).
    45. Sondland Dep. Tr. at 90.
    46. See id. at 77-78; Volker-Morrison Hearing Tr. at 17, 19; see 
also Timothy Puko & Rebecca Ballhaus, Rick Perry Called Rudy Giuliani 
at Trump's Direction on Ukraine Concerns, Wall Street J. (Oct. 16, 
2019) (Rick Perry Called Rudy Giuliani), https://perma.cc/E4F2-9U23.25.
    47. Giuliani Plans Ukraine Trip, https://perma.cc/SC6J-4PL9.
    48. See, e.g., Transcript, Impeachment Inquiry: Ambassador 
Sondland: Hearing Before the H. Permanent Select Comm. on Intelligence, 
116th Cong. 18 (Nov. 20, 2019) (Sondland Hearing Tr.) (``[A]s I 
testified previously . . . Mr. Giuliani's requests were a quid pro quo 
for arranging a White House visit for President Zelensky''); id. at 34, 
42-43.
    49. Transcript, Deposition of William B. Taylor Before the H. 
Permanent Select Comm. on Intelligence (Oct. 22, 2019) (Taylor Dep. 
Tr.).
    50. Taylor-Kent Hearing Tr. at 34-36.
    51. Sondland Dep. Tr. at 240.
    52. Hill Dep. Tr. at 127 (Dr. Hill, quoting Mr. Bolton).
    53. See Taylor Dep. Tr. at 20, 23, 27-28, 31, 33-34; Transcript, 
Deposition of Ambassador Marie ``Masha'' Yovanovitch Before the H. 
Permanent Select Comm. on Intelligence 16, 18, 73, 302 (Oct. 11, 2019) 
(Yovanovitch Dep. Tr.); see also Conflilct in Ukraine Enters Its Fourth 
Year with No End in Sight, Office of the U.N. High Comm'r for Human 
Rights (June 13, 2017), https://perma.cc/K9N8-F22E.
    54. Taylor-Kent Hearing Tr. at 28.
    55. Volker Interview Tr. at 329; see Yovanovitch Hearing Tr. at 17-
18; Volker-Morrison Hearing Tr. at 11.
    56. Transcript, Deposition of Catherine Croft Before the H. 
Permanent Select Comm. on Intelligence 16 (Oct. 30, 2019) (Croft Dep. 
Tr.).
    57. Kent Dep. Tr. at 338-39.
    58. Viacheslav Shramovych, Ukraine's Deadliest Day: The Battle of 
Ilovaisk, August 2014, BBC News (Aug. 29, 2019), https://perma.cc/6B2F-
B72W.
    59. See Transcript, Deposition of Laura Katherine Cooper Before the 
H. Permanent Select Comm. on Intelligence 16, 38, 98 (Oct. 23, 2019) 
(Cooper Dep. Tr.); Vindman Dep. Tr. at 41, 57, 165; Transcript, 
Deposition of Mark Sandy Before the H. Permanent Select Comm. on 
Intelligence 59-60 (Nov. 16, 2019) (Sandy Dep. Tr.); Taylor-Kent 
Hearing Tr. at 29-30; Taylor Dep. Tr. at 38, 40-41, 171, 217-18, 281-
82; Letter from Senators Jeanne Shaheen et al. to Acting White House 
Chief of Staff Mick Mulvaney (Sept. 3, 2019) (Sept. 3 Letter), https://
perma.cc/4TU8-H7UR; Letter from Senator Christopher Murphy to Chairman 
Adam B. Schiff, House Permanent Select Comm. on Intelligence, and 
Acting Chairwoman Carolyn Maloney, House Comm. on Oversight and Reform 
(Nov. 19, 2019) (Nov. 19 Letter), https://perma.cc/4BDP-2SRJ.
    60. Cory Welt, Cong. Research Serv., R45008, Ukraine: Background, 
Conflict with Russia, and U.S. Policy 30 (Sept. 19, 2019), https://
perma.cc/4HCR-VKA5; see also Hill-Holmes Hearing Tr. at 97 (testimony 
of David Holmes) (``The United States has provided combined civilian 
and military assistance to Ukraine since 2014 of about $3 billion, plus 
two $1 billion--three $1 billion loan guarantees. That is not--those 
get paid back largely. So just over $3 billion.'').
    61. Taylor Dep. Tr. at 153.
    62. Yovanovitch Hearing Tr. at 18.
    63. Volker-Morrison Hearing Tr. at 11.
    64. Iain King, Not Contributing Enough? A Summary of European 
Military and Development Assistance to Ukraine Since 2014, Ctr. for 
Strategic & Int'l Stud. (Sept. 26, 2019), https://perma.cc/FF6F-Q9MX.
    65. EU-Ukraine Relations--Factsheet, European External Action Serv. 
(Sept. 30, 2019), https://perma.cc/4YKE-T2WT.
    66. Id.
    67. See EU Aid Explorer: Donors, European Comm'n, https://perma.cc/
79H6-AFHY.
    68. U.S. Foreign Aid by Country, USAID, https://perma.cc/9YK2-9BKJ 
(last updated Sept. 23, 2019) (Ukraine data for fiscal year 2017 and 
fiscal year 2018).
    69. Transcript, Impeachment Inquiry: Ms. Laura Cooper and Mr. David 
Hale: Hearing Before the H. Permanent Select Comm. on Intelligence, 
116th Cong. 22-23 (Nov. 20, 2019) (Cooper-Hale Hearing Tr.); Cooper 
Dep. Tr. at 95-96.
    70. Department of Defense and Labor, Health and Human Services, and 
Education Appropriations Act, 2019 and Continuing Appropriations Act, 
2019, Pub. L. No. 115-245, Sec. 9013 (2018); Consolidated 
Appropriations Act, 2019, Pub. L. No. 116-6, Sec. 7046(a)(2) (2019); 
Conference Report to Accompany H.J. Res. 31, H. Rep. No. 116-9, at 869 
(2019) (allocating $115,000,000 in assistance to Ukraine for the 
Foreign Military Financing Program); Aaron Mehta, U.S. State Department 
Clears Ukraine Security Assistance Funding. Is the Pentagon Next?, Def. 
News (Sept. 12, 2019), https://perma.cc/723T-9XUN (noting that 
approximately $26 million rolled over from fiscal year 2018).
    71. Press Release, Dep't of Def., DOD Announces $250M to Ukraine, 
(June 18, 2019) (DOD Announces $250M to Ukraine), https://perma.cc/
U4HX-ZKXP.
    72. Pub. L. No. 115-245, Sec. 9013.
    73. DOD Announces $250M to Ukraine, https://perma.cc/U4HX-ZKXP. DOD 
had certified in May 2019 that Ukraine satisfied all anti-corruption 
standards needed to receive the Congressionally appropriated military 
aid. See Letter from John C. Rood, Under Sec'y of Def. for Pol'y, Dep't 
of Def., to Chairman Eliot L. Engel, House Comm. on Foreign Affairs 
(May 23, 2019), https://perma.cc/68FS-ZXZ6 (``Ukraine has taken 
substantial actions to make defense institutional reforms for the 
purposes of decreasing corruption. . . . [N]ow that this defense 
institution reform has occurred, we will use the authority provided . . 
. to support programs in Ukraine further.'').
    74. Sandy Dep. Tr. at 24-25; Cooper Dep. Tr. at 33-34.
    75. Sandy Dep. Tr. at 24-28.
    76. Eric Lipton et al., Behind the Ukraine Aid Freeze: 84 Days of 
Conflict and Confusion, N.Y. Times (Dec. 29, 2019) (Behind the Ukraine 
Aid Freeze), https://perma.cc/TA5J-NJFX.
    77. See, e.g., Cooper Dep. Tr. at 13, 16, 32, 46, 60-62, 64-65; 
Taylor Dep. Tr. at 28, 132, 170.
    78. See Nov. 19 Letter, https://perma.cc/4BDP-2SRJ; Sept. 3 Letter, 
https://perma.cc/4TU8-H7UR.
    79. Williams Dep. Tr. at 54; Croft Dep. Tr. at 15; Kent Dep. Tr. at 
303-305; Transcript, Deposition of Ambassador David Maclain Hale Before 
the H. Permanent Select Comm. on Intelligence 81 (Oct. 31, 2019) (Hale 
Dep. Tr.); Sandy Dep. Tr. at 99; Vindman Dep. Tr. at 181-82; 
Transcript, Deposition of Ambassador Tim Morrison Before the H. 
Permanent Select Comm. on Intelligence 264 (Nov. 6, 2019) (Morrison 
Dep. Tr.).
    80. Cooper-Hale Hearing Tr. at 14; Vindman Dep. Tr. at 178-79; see 
also Stalled Ukraine Military Aid Concerned Members of Congress for 
Months, CNN (Sept. 30, 2019), https://perma.cc/5CHF-HFKJ; Sandy Dep. 
Tr. at 38-39 (describing July 12 email from White House to OMB stating 
``that the President is directing a hold on military support funding 
for Ukraine.'').
    81. See Sandy Dep. Tr. at 90; Hill Dep. Tr. at 225; Taylor-Kent 
Hearing Tr. at 35; Vindman Dep. Tr. at 181; Holmes Dep. Tr. at 153-54.
    82. Taylor-Kent Hearing Tr. at 35; Hill Dep. Tr. at 225.
    83. Email from Michael Duffey, Assoc. Dir. for Nat'l Sec. Programs, 
Office of Mgmt. & Budget, to David Norquist et al. (July 25, 2019, 
11:04 AM), https://perma.cc/PG93-3M6B.
    84. Id.
    85. Kent Dep. Tr. at 303, 307, 311; Taylor-Kent Hearing Tr. at 36; 
Vindman Dep. Tr. at 182-85, Cooper Dep. Tr. at 45.
    86. Kent Dep. Tr. at 303-305; Hale Dep. Tr. at 81.
    87. Croft Dep. Tr. at 15; Hale Dep. Tr. at 105; Holmes Dep. Tr. at 
21; Kent Dep. Tr. at 304, 310; Cooper Dep. Tr. at 44-45; Sandy Dep. Tr. 
at 91, 97; Morrison Dep. Tr. at 162-63. Mr. Morrison testified that, 
during a Deputies Committee meeting on July 26, OMB stated that the 
``President was concerned about corruption in Ukraine, and he wanted to 
make sure that Ukraine was doing enough to manage that corruption.'' 
Morrison Dep. Tr. at 165. Mr. Morrison did not testify that concerns 
about Europe's contributions were raised during this meeting. In 
addition, Mark Sandy testified that, as of July 26, despite OMB's own 
statement, senior OMB officials were unaware of the reason for the hold 
at that time. See Sandy Dep. Tr. at 55-56.
    88. Sandy Dep. Tr. at 99; Vindman Dep. Tr. at 181-82; Kent Dep. Tr. 
at 305; Morrison Dep. Tr. at 264.
    89. Morrison Dep. Tr. at 163; Cooper Dep. Tr. at 47-48. For 
example, Deputy Assistant Secretary of Defense Laura Cooper testified 
that, during an interagency meeting on July 26 involving senior 
leadership from the State Department and DOD and officials from the 
National Security Council, ``immediately deputies began to raise 
concerns about how this could be done in a legal fashion'' and there 
``was a sense that there was not an available mechanism to simply not 
spend money'' that already had been notified to Congress or earmarked 
for Ukraine. Cooper Dep. Tr. at 47-48.
    90. Sandy Dep. Tr. at 42-43.
    91. Cooper-Hale Hearing Tr. at 75-76.
    92. Cooper Dep. Tr. at 91.
    93. Sondland Dep. Tr. at 338-39.
    94. Sandy Dep. Tr. at 149-55.
    95. Josh Dawsey et al., White House Review Turns Up Emails Showing 
Extensive Efforts to Justify Trump's Decision to Block Ukraine Military 
Aid, Wash. Post (Nov. 24, 2019), https://perma.cc/99TX-5KFE. Because 
the President obstructed the House's investigation, the House was 
unable to obtain documents to confirm this reporting.
    96. See Sandy Dep. Tr. at 75; Kate Brannen, Exclusive: Unredacted 
Ukraine Documents Reveal Extent of Pentagon's Legal Concerns, Just 
Security (Jan. 2, 2020) (Just Security Report), https://perma.cc/VA6U-
RYPK (reporting about review of unredacted copies of OMB documents that 
were produced to the Center for Public Integrity in redacted form).
    97. Matter of Office of Mgmt. & Budget--Withholding of Ukraine Sec. 
Assistance, B-331564 (Comp. Gen. Jan. 16, 2020), https://perma.cc/5CDX-
XLX6.
    98. See Behind the Ukraine Aid Freeze, https://perma.cc/TA5J-NJFX.
    99. See Just Security Report, https://perma.cc/VA6U-RYPK (quoting 
email from Michael Duffey to Elaine McCusker).
    100. See, e.g., Sandy Dep. Tr. at 133 (``[W]ere we ever given any 
reason for the hold? And I would say only in September did we receive 
an explanation that the hold--that the President's direction reflected 
his concerns about the contributions from other countries for 
Ukraine.''); Cooper Dep. Tr. at 93-94; Vindman Dep. Tr. at 181-82; 
Williams Dep. at 91-92.
    101. Taylor Dep. Tr. at 24-25 (``In late June, one of the goals of 
both channels was to facilitate a visit by President Zelensky to the 
White House for a meeting with President Trump, which President Trump 
had promised in his congratulatory letter of May 29. [The] Ukrainians 
were clearly eager for the meeting to happen. During a conference call 
with Ambassador Volker, Acting Assistant Secretary of State for 
European and Eurasian Affairs Phil Reeker, Secretary Perry, Ambassador 
Sondland, and Counselor of the U.S. Department of State Ulrich 
Brechbuhl on June 18, it was clear that a meeting between the two 
presidents was an agreed-on--agreed-upon goal.'').
    102. Volker Interview Tr. at 59, 328.
    103. Id.
    104. Taylor Dep. Tr. at 26.
    105. Sondland Hearing Tr. at 26.
    106. Id. at 43.
    107. Kurt Volker Text Messages Received by the House Committees at 
KV00000027 (Oct. 2, 2019) (Volker Text Messages), https://perma.cc/
CG7Y-FHXZ.
    108. Taylor Dep. Tr. at 65-66.
    109. Volker-Morrison Hearing Tr. at 70.
    110. Kent Dep. Tr. at 246-47.
    111. Hill Dep. Tr. at 67.
    112. Id. at 69.
    113. Vindman Dep. Tr. at 64.
    114. Id. at 69-70; Vindman Dep. Tr. at 31; see Hill-Holmes Hearing 
Tr. at 92.
    115. Hill Dep. Tr. at 70-72.
    116. Id. at 139 (``I told him exactly, you know, what had 
transpired and that Ambassador Sondland had basically indicated that 
there was an agreement with the Chief of Staff that they would have a 
White House meeting or, you know, a Presidential meeting if the 
Ukrainians started up these investigations again.''); Vindman Dep. Tr. 
at 37 (``Sir, I think I--I mean, the top line I just offered, I'll 
restate it, which is that Mr. Sondland asked for investigations, for 
these investigations into Bidens and Burisma. I actually recall having 
that particular conversation. Mr. Eisenberg doesn't really work on this 
issue, so I had to go a little bit into the back story of what these 
investigations were, and that I expressed concerns and thought it was 
inappropriate.''). A third NSC official, P. Wells Griffith, also 
reported the July 10 meeting to the NSC Legal Advisor, but he refused 
to comply with a subpoena and did not testify before the House.
    117. Volker Text Messages at KV00000018.
    118. See, e.g., id. at KV00000037; Ambassador Gordon D. Sondland, 
Opening Statement Before the U.S. House of Representatives Permanent 
Select Comm. on Intelligence 15 (Nov. 20, 2019) (Sondland Opening 
Statement), https://perma.cc/Z2W6-A9HS (``As I communicated to the 
team, I told President Zelensky in advance that assurances to run a 
fully transparent investigation and turn over every stone were 
necessary in his call with President Trump.'').
    119. Volker Text Messages at KV00000037.
    120. Taylor-Kent Hearing Tr. at 37-38 (Ambassador Taylor quoting 
Ambassador Sondland).
    121. Sondland Hearing Tr. at 27; Sondland Opening Statement at 21, 
Ex. 4.
    122. Sondland Opening Statement at 21, Ex. 4.
    123. Sondland Hearing Tr. at 27.
    124. Taylor Dep. Tr. at 30.
    125. Volker Text Messages at KV00000037.
    126 See, e.g., id. at KV00000019; July 25 Memorandum at 3-4, 
https://perma.cc/8JRD-6K9V.
    127. See, e.g., Washington Post-ABC News Poll, June 28-July 1, 
2019, Wash. Post (July 11, 2019), https://perma.cc/NS4B-PRWC.
    128. Sondland Hearing Tr. at 53-54.
    129. Volker Text Messages at KV00000019.
    130. Sondland Hearing Tr. at 53-55.
    131. See July 25 Memorandum at 2, https://perma.cc/8JRD-6K9V.
    132. Id. at 3-4. President Trump continues to embrace this call as 
both ``routine'' and ``perfect.'' See, e.g., Remarks by President Trump 
upon Arriving at the U.N. General Assembly, White House (Sept. 24, 
2019) (Trump Sept. 24 Remarks), https://perma.cc/ZQ4P-FGT4; Colby 
Itkowitz, Trump Defends Call with Ukrainian President, Calling It 
``Perfectly Fine and Routine,'' Wash. Post (Sept. 21, 2019), https://
perma.cc/T3ZM-GKLB.
    133. See July 25 Memorandum at 4-5, https://perma.cc/8JRD-6K9V.
    134. Id. at 4.
    135. Id.
    136. Id. at 3, 5.
    137. See id. at 2.
    138. See generally id. Mr. Trump had previously engaged in efforts 
to cut aid to anti-corruption programs in Ukraine and other foreign 
nations. See Erica Werner, Trump Administration Sought Billions of 
Dollars in Cuts to Programs Aimed at Fighting Corruption in Ukraine and 
Elsewhere, Wash. Post (Oct. 23, 2019), https://perma.cc/R9AJ-AZ65.
    139. Transcript, Impeachment Inquiry: Ms. Jennifer Williams and 
Lieutenant Colonel Alexander Vindman: Hearing Before the H. Permanent 
Select Comm. on Intelligence, 116th Cong. 19 (Nov. 19, 2019) (Vindman-
Williams Hearing Tr.).
    140. Id. at 34; Williams Dep. Tr. at 148-49.
    141. Vindman-Williams Hearing Tr. at 15.
    142. Morrison Dep. Tr. at 41.
    143 Id. at 43.
    144. Id. at 43, 47-50, 52; see also Vindman Dep. Tr. at 49-51, 119-
22.
    145. Holmes Dep. Tr. at 24.
    146. Sondland Hearing Tr. at 26-27.
    147. Holmes Dep. Tr. at 25-26.
    148. See, e.g., Cooper-Hale Hearing Tr. at 13-14; Vindman Dep. Tr. 
at 222; Sandy Dep. Tr. at 59-60.
    149. Cooper-Hale Hearing Tr. at 13-14.
    150. Croft Dep. Tr. at 86-88.
    151. Vindman Dep. Tr. at 222.
    152. Andrew E. Kramer, Ukraine Knew of Aid Freeze in July, Says Ex-
Top Official in Kyiv, N.Y. Times (Dec. 3, 2019), https://perma.cc/SD98-
VPRN.
    153. Id. (quoting Ms. Zerkal).
    154. Id. (quoting Ms. Zerkal's summary of a statement by Mr. 
Yermak).
    155. Volker Text Messages at KV00000019.
    156. Sondland Opening Statement at 22, Ex. 7; Sondland Hearing Tr. 
at 28, 102.
    157. Volker Text Messages at KV00000020.
    158. Volker Interview Tr. at 113.
    159. Sondland Hearing Tr. at 18.
    160. Volker Text Messages at KV00000023. Ambassador Volker claimed 
that he ``stopped pursuing'' the statement from the Ukrainians around 
this time because of concerns raised by Mr. Yermak. Ambassador Kurt 
Volker, Testimony Before the House of Representatives Committee on 
Foreign Affairs, Permanent Select Committee on Intelligence, and 
Committee on Oversight 8 (Oct. 3, 2019) (Volker Opening Statement), 
https://perma.cc/9DDN-2WFW; Volker Interview Tr. at 44-45, 199; Volker-
Morrison Hearing Tr. at 21.
    161. See, e.g., Sondland Opening Statement at 16 (``[M]y goal, at 
the time, was to do what was necessary to get the aid released, to 
break the logjam. I believed that the public statement we had been 
discussing for weeks was essential to advancing that goal.'').
    162. Hale Dep. Tr. at 81; Vindman Dep. Tr. at 184.
    163. Sandy Dep. Tr. at 59-60.
    164. Sondland Hearing Tr. at 56-58; see also Taylor Dep. Tr. at 190 
(Ambassador Taylor's ``clear understanding'' was that ``security 
assistance money would not come until the [Ukrainian] President 
committed to pursue the investigation''); Hill-Holmes Hearing Tr. at 32 
(Mr. Holmes's ``clear impression was that the security assistance hold 
was likely intended by the President either as an expression of 
dissatisfaction with the Ukrainians, who had not yet agreed to the 
Burisma/Biden investigation, or as an effort to increase the pressure 
on them to do so.'').
    165. Sondland Opening Statement at 23.
    166. Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine Military 
Aid Meant to Confront Russia, Politico (Aug. 28, 2019), https://
perma.cc/54RZ-Q6NJ.104.
    167. Volker Text Messages at KV00000020; Volker Interview Tr. at 
80-81; Taylor Dep. Tr. at 34.
    168. Taylor Dep. Tr. at 137-38.
    169. Roman Olearchyk, Cleaning Up Ukraine in the Shadow of Trump, 
Fin. Times (Nov. 28, 2019), https://perma.cc/YMX9-XJ2B (quoting current 
Ukrainian Prosecutor General Ruslan Ryaboshapka).
    170. Behind the Ukraine Aid Freeze, https://perma.cc/TA5J-NJFX.
    171. Readout of Vice President Mike Pence's Meeting with Ukrainian 
President Volodymyr Zelensky, White House (Sep. 1, 2019), https://
perma.cc/K2PH-YPVK; Taylor-Kent Hearing Tr. at 41.
    172. Sondland Hearing Tr. at 30.
    173. Id. at 38.
    174. Williams Dep. Tr. at 81.
    175. Id. at 82.
    176. Id. at 82-83.
    177. Id. at 94.
    178. Sondland Hearing Tr. at 31.
    179. Morrison Dep. Tr. at 134.
    180. Id. at 182-83.
    181. Taylor-Kent Hearing Tr. at 42.
    182. Volker Text Messages at KV00000039.
    183. Taylor-Kent Hearing Tr. at 42.
    184. Id.; see also Taylor Dep. Tr. at 144.
    185. In Ambassador Sondland's testimony, he was not clear on 
whether he had one or two conversations with the President in which the 
subject of a quid pro quo came up, or on precisely which date such 
conversations took place during the period of September 6 through 9. 
Regardless of the date, Ambassador Sondland did not contest telling 
both Mr. Morrison and Ambassador Taylor--both of whom took 
contemporaneous notes--of a conversation he had with the President that 
reaffirmed Ambassador Sondland's understanding that President Zelensky 
had to make a public statement announcing the investigations in order 
to obtain the White House meeting and security assistance. See Sondland 
Hearing Tr. at 109. Both documentary evidence and testimony confirmed 
that the conversation described by Mr. Morrison and Ambassador Taylor 
occurred on September 7. See, e.g., Morrison Dep. Tr. at 144-45; Taylor 
Dep. Tr. at 38; Volker Text Messages at KV00000053 (Sondland text 
message to Volker and Taylor on September 8 stating, ``Guys, multiple 
convos with Ze, Potus. Lets talk'').
    186. Morrison Dep. Tr. at 190-91.
    187. Id. at 145.
    188. Id. at 223, 238.
    189. Taylor-Kent Hearing Tr. at 44.
    190. Sondland Hearing Tr. at 7; Taylor Dep. Tr. at 39.
    191. Volker Text Messages at KV00000053.
    192. Sondland Hearing Tr. at 110-11; Andrew E. Kramer, Ukraine's 
Zelensky Bowed to Trump's Demands until Luck Spared Him, N.Y. Times 
(Nov. 7, 2019), https://perma.cc/A5JE-N25L; Fareed Zakaria, Zelensky 
Planned to Announce Trump's ``Quo'' on My Show. Here's What Happened., 
Wash. Post (Nov. 14, 2019) (Zelensky Planned to Announce Trump's 
``Quo''), https://perma.cc/MMT7-D8XJ.
    193. Press Briefing by Acting Chief of Staff Mick Mulvaney, White 
House (Oct. 17, 2019) (Oct. 17 Briefing), https://perma.cc/Q45H-EMC7 
(``Q. So the demand for an investigation into the Democrats was part of 
the reason that he ordered to withhold funding to Ukraine? MR. 
MULVANEY: The look back to what happened in 2016--Q. The investigation 
into Democrats. MR. MULVANEY:--certainly was part of the thing that he 
was worried about in corruption with that nation. And that is 
absolutely appropriate. Q. And withholding the funding? MR. MULVANEY: 
Yeah. Which ultimately, then, flowed.'').
    194. Id.
    195. Volker-Morrison Hearing Tr. at 146-47 (Mr. Morrison did not 
follow up on the President's request to ``investigate the Bidens'' 
because he ``did not understand it as a policy objective''); Vindman-
Williams Hearing Tr. at 119 (Mr. Vindman confirmed that he was not 
``aware of any written product'' from the NSC suggesting that these 
investigations were ``part of the official policy of the United 
States''); Taylor-Kent Hearing Tr. at 179 (``Mrs. Demings[:] Was Mr. 
Giuliani promoting U.S. national interests or policy in Ukraine . . . ? 
Ambassador Taylor[:] I don't think so, ma'am. . . . Mr. Kent[:] No, he 
was not.'').
    196. Hill-Holmes Hearing Tr. at 92.
    197. Taylor-Kent Hearing Tr. at 24.
    198. Volker Interview Tr. at 197.
    199. Morgan Chalfant & Brett Samuels, White House Memo Shows Trump 
Pressed Ukraine Leader to Look into Biden, Hill (Sept. 25, 2019), 
https://perma.cc/5LHW-V4EB (quoting DOJ spokesperson Kerri Kupec).
    200. Taylor Dep. Tr. at 207-209; Taylor-Kent Hearing Tr. at 158 
(``[A]s we've determined, as we've discussed here on September 11th, 
just before any CNN discussion or interview, the hold was released, the 
hold on the security assistance was released.'' (quoting Ambassador 
Taylor)).
    201. Press Release, House Permanent Select Comm. on Intelligence, 
Three House Committees Launch Wide-Ranging Investigation into Trump-
Giuliani Ukraine Scheme (Sept. 9, 2019) (Sept. 9 Press Release), 
https://perma.cc/AX4Y-PWSH.
    202. Letter from Chairman Eliot L. Engel, House Comm. on Foreign 
Affairs, et al., to Pat A. Cipollone, Counsel to the President 3-4 
(Sept. 9, 2019) (Sept. 9 Letter), https://perma.cc/R2GH-TZ9P; Letter 
from Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et al., 
to Michael R. Pompeo, Sec'y, Dep't of State (Sept. 9, 2019), https://
perma.cc/C4W4-UBTF.
    203. Vindman Dep. Tr. at 304.
    204. Letter from Michael K. Atkinson, Inspector Gen. of the 
Intelligence Community, to Chairman Adam Schiff, House Permanent Select 
Comm. on Intelligence, and Ranking Member Devin Nunes, House Permanent 
Select Comm. on Intelligence 2 (Sept. 9, 2019), https://perma.cc/K78N-
SMRR.
    205. Id.
    206. Maguire Hearing Tr. at 14, 19-24.
    207. Letter from Chairman Adam B. Schiff, House Permanent Select 
Comm. on Intelligence, to Joseph Maguire, Acting Dir. of Nat'l 
Intelligence (Sept. 10, 2019), https://perma.cc/9X9V-G5ZN.
    208. Transcript, Whistleblower Disclosure: Hearing Before the H. 
Permanent Select Comm. on Intelligence, 116th Cong. 110 (Sept. 26, 209) 
(testimony of Joseph Maguire, Acting Dir., Nat'l Intelligence) (Maguire 
Hearing Tr.) (``Chairman Schiff, when I received the letter from 
Michael Atkinson on the 26th of August, he concurrently sent a letter 
to the Office of White House Counsel asking the White House counsel to 
control and keep any information that pertained to that phone call on 
the 25th.'').
    209. Michael S. Schmidt et al., Trump Knew of Whistle-Blower 
Complaint When He Released Aid to Ukraine, N.Y. Times (Nov. 26, 2019), 
https://perma.cc/7473-YFSY.
    210. See Morgan Philips, Trump Administration Lifts Hold on $250M 
in Military Aid for Ukraine, Fox News (Sept. 12, 2019), https://
perma.cc/8ABM-XNPV.
    211. See, e.g., Morrison Dep. Tr. at 244; Vindman Dep. Tr. at 306; 
Williams Dep. Tr. at 147. Mr. Sandy testified that he was not aware of 
any other countries committing to provide more financial assistance to 
Ukraine prior to the lifting of the hold on September 11. Sandy Dep. 
Tr. at 180. Lt. Col. Vindman similarly confirmed that none of the 
``facts on the ground'' changed before the President lifted the hold. 
Vindman Dep. Tr. at 306.
    212. Sandy Dep. Tr. at 146-47; H. Rep. No. 116-335, at 474.
    213. Continuing Appropriations Act, 2020, and Health Extenders Act 
of 2019, Pub. L. No. 116-59, Sec. 124 (2019).
    214. Molly O'Toole & Sarah D. Wire, Millions in Military Aid at 
Center of Impeachment Hasn't Reached Ukraine, L.A. Times (Dec. 12, 
2019), https://perma.cc/AR26-3KY2 (citing a DOD aide).
    215. Hill-Holmes Hearing Tr. at 33; Taylor-Kent Hearing Tr. at 106-
07; see also Zelensky Planned to Announce Trump's ``Quo'', https://
perma.cc/MMT7-D8XJ.
    216. Williams Dep. Tr. at 156.
    217. Classified Supp'l Submission of Jennifer Williams to the House 
Permanent Select Comm. on Intelligence (Nov. 26, 2019) (describing 
additional details of the Vice President's call with President Zelensky 
on September 18).
    218. Taylor-Kent Hearing Tr. at 106-07; Hill-Holmes Hearing Tr. at 
33.
    219. Zelensky Planned to Announce Trump's ``Quo'', https://
perma.cc/MMT7-D8XJ.
    220. Hill-Holmes Hearing Tr. at 46-47 (testimony of David Holmes) 
(``And although the hold on the security assistance may have been 
lifted, there were still things they wanted that they weren't getting, 
including a meeting with the President in the Oval Office. . . . And I 
think that continues to this day.'').
    221. John Hudson & Anne Gearan, Trump Meets Russia's Top Diplomat 
amid Scrap over Election Interference, Wash. Post (Dec. 10, 2019), 
https://perma.cc/X5WC-LKT5; see also Philip Bump, Trump Promised 
Zelensky a White House Meeting. More Than a Dozen Other Leaders Got One 
Instead, Wash. Post (Dec. 13, 2019), https://perma.cc/4XSP-R3JB 
(compiling White House meetings involving foreign officials since April 
2019).
    222. E.g., H. Rep. No. 116-346, at 124; see also Hill-Holmes 
Hearing Tr. at 46-47.
    223. Trump Sept. 24 Remarks, https://perma.cc/ZQ4P-FGT4.
    224. Remarks by President Trump and President Zelensky of Ukraine 
Before Bilateral Meeting, White House (Sept. 25, 2019) (Trump Sept. 25 
Remarks), https://perma.cc/XCJ4-A67L.
    225. Trump Quotes Sondland Quoting Him: ``I Want Nothing. I Want No 
Quid Pro Quo.,'' CBS News (Nov. 20, 2019), https://perma.cc/X34R-QG3R.
    226. Remarks by President Trump at the Swearing-In Ceremony of 
Secretary of Labor Eugene Scalia, White House (Sept. 30, 2019) (Trump 
Sept. 30 Remarks), https://perma.cc/R94C-5HAY.
    227. Remarks by President Trump Before Marine One Departure, White 
House (Oct. 3, 2019) (Trump Oct. 3 Remarks), https://perma.cc/WM8A-
NRA2.
    228. Id.
    229. Remarks by President Trump Before Marine One Departure, White 
House (Oct. 4, 2019) (Trump Oct. 4 Remarks), https://perma.cc/C78K-
NMDS.
    230. Id.
    231. See, e.g., Kenneth P. Vogel & Benjamin Novak, Giuliani, Facing 
Scrutiny, Travels to Europe to Interview Ukrainians, N.Y. Times (Dec. 
4, 2019) (Giuliani, Facing Scrutiny, Travels to Europe), https://
perma.cc/N28V-GPAC; Dana Bash & Michael Warren, Giuliani Says Trump 
Still Supports His Dirt-Digging in Ukraine, CNN (Dec. 17, 2019) 
(Giuliani Says Trump Still Supports His Dirt-Digging), https://
perma.cc/F399-B9AY.
    232. Giuliani, Facing Scrutiny, Travels to Europe, https://
perma.cc/HZ6F-E67G; David L. Stern & Robyn Dixon, Ukraine Lawmaker 
Seeking Biden Probe Meets with Giuliani in Kyiv, Wash. Post (Dec. 5, 
2019) (Ukraine Lawmaker Seeking Biden Probe), https://perma.cc/C3GW-
RF4T; Will Sommer, Rudy's New Ukraine Jaunt Is Freaking Out Trump's 
Lieutenants--and He Doesn't Care, Daily Beast (Dec. 6, 2019) (Rudy's 
New Ukraine Jaunt), https://perma.cc/UNR9-VWFZ.
    233. Ukraine Lawmaker Seeking Biden Probe, https://perma.cc/W3Q2-
E8QY.
    234. Philip Bump, Giuliani May Be Making a Stronger Case Against 
Trump Than Biden, Wash. Post (Dec. 16, 2019), https://perma.cc/7HR4-
TC9W; Rudy's New Ukraine Jaunt, https://perma.cc/UNR9-VWFZ.
    235. Giuliani, Facing Scrutiny, Travels to Europe, https://
perma.cc/HZ6F-E67G.
    236. Rudy Giuliani (@RudyGiuliani), Twitter (Dec. 5, 2019, 1:42 
PM), https://perma.cc/829X-TSKJ.
    237. Rebecca Ballhaus & Julie Bykowicz, ``Just Having Fun'': 
Giuliani Doubles Down on Ukraine Probes, Wall Street J. (Dec. 13, 
2019), https://perma.cc/5B69-2AVR.
    238. David Jackson, Trump Says Rudy Giuliani Will Give Information 
About Ukraine to Justice Department, Congress, USA Today (Dec. 7, 
2019), https://perma.cc/7RXJ-JG7F.
    239. Giuliani Says Trump Still Supports His Dirt-Digging, https://
perma.cc/F399-B9AY; see also Asawin Suebsaeng & Erin Banco, Trump Tells 
Rudy to Keep Pushing the Biden Conspiracies, Daily Beast (Dec. 18, 
2019), https://perma.cc/S5K6-K8J9 (quoting source who reported that 
President Trump told Mr. Giuliani to ``keep at it'').
    240. Volker-Morrison Hearing Tr. at 139; see Kent Dep. Tr. at 329.
    241. Kent Dep. Tr. at 329.
    242. Hill-Holmes Hearing Tr. at 32.
    243. Mueller Report, Vol. I at 1-2.
    244. Mueller Report, Vol. I at 49 (quoting then-candidate Donald 
Trump).
    245. Id. Beginning in early November 2019, while the House's 
impeachment inquiry was ongoing, Russian military hackers reportedly 
hacked Burisma's server using ``strikingly similar'' tactics to those 
used to hack the DNC in 2016. See Nicole Perlroth & Matthew Rosenberg, 
Russians Hacked Ukrainian Gas Company at Center of Impeachment, N.Y. 
Times (Jan. 13, 2019), https://perma.cc/5NSA-BELW.
    246. Mueller Report, Vol. I at 6.
    247. Id., Vol. I at 58.
    248. See Aaron Blake, The Trump Team's History of Flirting with--
and Promoting--Now-Accused-Criminal Julian Assange, Wash. Post (Nov. 
16, 2018), https://perma.cc/UL9R-YQN.
    249. Mueller Report, Vol. I at 54; id., Vol. II at 18.
    250. Judd Legum, Trump Mentioned WikiLeaks 164 Times in Last Month 
of Election, Now Claims It Didn't Impact One Voter, ThinkProgress (Jan. 
8, 2017), https://perma.cc/5J46-Y8RG.
    251. Mueller Report, Vol. I at 110-20.
    252. Id., Vol. I at 83-84, 87-89.
    253. Transcript: ABC News' George Stephanopoulos' Exclusive 
Interview with President Trump, ABC News (June 16, 2019), https://
perma.cc/C8DS-637R.
    254. Id.
    255. Id.
    256. Sandy Dep. Tr. at 37-39; Morrison Dep. Tr. at 161.
    257. See Press Release, House Permanent Select Comm. on 
Intelligence, House Judiciary and House Intelligence Committees to Hold 
Open Hearing with Special Counsel Robert Mueller (July 19, 2019), 
https://perma.cc/6TZZ-BJKS.
    258. The July 25 Memorandum at 3, https://perma.cc/8JRD-6K9V.
    259. U.S. Const., Art. I, Sec. 2, cl. 5.
    260. See, e.g., Resolution Recommending That the House of 
Representatives Find William P. Barr, Attorney General, U.S. Department 
of Justice, in Contempt of Congress for Refusal to Comply with a 
Subpoena Duly Issued by the Committee on the Judiciary, H. Rep. No. 
116-105, at 13 (June 6, 2019) (``The purposes of this investigation 
include . . . considering whether any of the conduct described in the 
Special Counsel's Report warrants the Committee in taking any further 
steps under Congress' Article I powers. That includes whether to 
approve articles of impeachment with respect to the President[.]''); 
Directing Certain Committees to Continue Their Ongoing Investigations 
as Part of the Existing House of Representatives Inquiry into Whether 
Sufficient Grounds Exist for the House of Representatives to Exercise 
its Constitutional Power to Impeach Donald John Trump, President of the 
United States of America, and for Other Purposes, H. Rep. No. 116-266, 
at 4 (Oct. 2019).
    261. Sept. 9 Press Release, https://perma.cc/AX4Y-PWSH.
    262. Press Release, Speaker of the House, Pelosi Remarks Announcing 
Impeachment Inquiry (Sept. 24, 2019), https://perma.cc/6EQM-34PT.
    263. Id.
    264. H. Res. 660, 116th Cong. (2019).
    265. Compare 165 Cong. Rec. E1357 (2019) (Impeachment Inquiry 
Procedures in the Committee on the Judiciary Pursuant to H. Res. 660), 
with Investigatory Powers of the Committee on the Judiciary with 
Respect to Its Impeachment Inquiry, H. Rep. No. 105-795 (1998), and 
with Impeachment Inquiry: Hearings Before the H. Comm. on the 
Judiciary, Book III, 93d Cong. 2249-52 (1974); see also H. Rep. No. 
116-346, at 17-25.
    266. H. Rep. No. 116-346, at 22-24.
    267. Remarks by President Trump Before Marine One Departure, White 
House (Apr. 24, 2019), https://perma.cc/W7VZ-FZ3T.
    268. Remarks by President Trump at Turning Point USA's Teen Student 
Action Summit 2019, White House (July 23, 2019), https://perma.cc/EFF6-
9BE7.
    269. Sept. 9 Letter, https://perma.cc/R2GH-TZ9P.
    270. Letter from Chairman Eliot L. Engel, House Comm. on Foreign 
Affairs, et al., to Pat A. Cipollone, Counsel to the President 3 (Sept. 
24, 2019), https://perma.cc/SCG3-6UEW.
    271. Remarks by President Trump upon Air Force One Arrival, White 
House (Sept. 26, 2019), https://perma.cc/5RWE-8VTB.
    272. Letter from Chairman Elijah E. Cummings, House Comm. on 
Oversight and Reform, et al., to John Michael Mulvaney, Acting Chief of 
Staff to the President (Oct. 4, 2019) (Oct. 4 Letter), https://
perma.cc/6RXE-WER8.
    273. Letter from Pat A. Cipollone, Counsel to the President, to 
Speaker Nancy Pelosi, House of Representatives, et al. 7 (Oct. 8, 
2019), https://perma.cc/5P57-773X (Oct. 8 Cipollone Letter).
    274. Id. at 1-3, 6.
    275. @realDonaldTrump (Oct. 1, 2019, 4:41 PM), https://perma.cc/
UX8Z-BFKL.
    276. Letter from President Donald J. Trump to Speaker Nancy Pelosi, 
House of Representatives (Dec. 17, 2019), https://perma.cc/MY49-HRXH.
    277. Id.
    278. Oct. 8 Cipollone Letter at 4.
    279. Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 O.L.C. *1 (Nov. 1, 2019), https://perma.cc/
T2PH-KC9V (emphasis added).
    280. See, e.g., Trump Sept. 25 Remarks, https://perma.cc/XCJ4-A67L; 
Trump Sept. 30 Remarks, https://perma.cc/R94C-5HAY; Remarks by 
President Trump and President Niinisto of the Republic of Finland 
Before Bilateral Meeting, White House (Oct. 2, 2019), https://perma.cc/
FN4D-6D8W; Trump Oct. 3 Remarks, https://perma.cc/WM8A-NRA2; Trump Oct. 
4 Remarks, https://perma.cc/C78K-NMDS; @realDonaldTrump (Nov. 10, 2019, 
11:43 AM), https://perma.cc/F9XH-48Z2; id. (Dec. 4, 2019, 7:50 PM), 
https://perma.cc/Q4VY-T3CN; id., https://perma.cc/3WCM-AQJG.
    281. Rick Perry Called Rudy Giuliani, https://perma.cc/S2ED-AUPR.
    282. Id. (quoting Secretary Rick Perry).
    283. Oct. 17 Briefing, https://perma.cc/Q45H-EMC7.
    284. H. Rep. No. 116-346, at 11 (``On December 3, 2019, in 
consultation with the Committees on Oversight and Reform and Foreign 
Affairs, HPSCI released and voted to adopt a report of nearly 300 pages 
detailing its extensive findings about the President's abuse of his 
office and obstruction of Congress.'').
    285. The Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment: Hearing Before the 
H. Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019); The Impeachment 
Inquiry into President Donald J. Trump: Presentations from H. Permanent 
Select Comm. on Intelligence and H. Comm. on the Judiciary Before the 
H. Comm. on the Judiciary, 116th Cong. (Dec. 9, 2019).
    286. See, e.g., Letter from President Donald J. Trump to Speaker 
Nancy Pelosi, U.S. House of Representatives (Dec. 17, 2019), https://
perma.cc/Y6X4-TTPR.
    287. Katie Rogers, At Louisiana Rally, Trump Lashes Out at 
Impeachment Inquiry and Pelosi, N.Y. TIMES (Oct. 11, 2019), https://
perma.cc/RX9Z-DQHK.
    288. See e.g., Danny Cevallos, Trump Tweeted as Marie Yovanovitch 
Testified: Was It Witness Tampering?, NBC News (Nov. 16, 2019), https:/
/perma.cc/RG5N-EQYN; @realDonaldTrump (Sept. 29, 2019, 3:53 PM), 
https://perma.cc/9C3P-E437; Trump War Room--Text FIGHT to 88022 
(@TrumpWarRoom) (Dec. 26, 2019, 1:50 PM), https://perma.cc/M5H7-B4VS 
(retweeted by @realDonaldTrump on Dec. 26, 2019).
    289. H. Res. 755, 116th Cong (2019).
    290. See H. Rep. No. 116-335, at 180-92.
    291. Oct. 4 Letter, https://perma.cc/6RXE-WER8; Letter from 
Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et al., to 
Vice President Michael R. Pence (Oct. 4, 2019), https://perma.cc/E6TR-
5N5F; Letter from Chairman Adam B. Schiff, House Permanent Select Comm. 
on Intelligence, et al., to Russell T. Vought, Acting Dir., Office of 
Mgmt. & Budget (Oct. 7, 2019), https://perma.cc/2HBV-2LNB; Letter from 
Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et al., to 
Michael R. Pompeo, Sec'y, Dep't of State (Sept. 27, 2019), https://
perma.cc/8N7L-VSDR; Letter from Chairman Adam B. Schiff, House 
Permanent Select Comm. on Intelligence, et al., to Mark Esper, Sec'y, 
Dep't of Def. (Oct. 7, 2019), https://perma.cc/LMU8-XWE9; Letter from 
Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et al., to 
Rick Perry, Sec'y, Dep't of Energy (Oct. 10, 2019), https://perma.cc/
586S-AR8A.
    292. Letter from Matthew E. Morgan, Counsel to the Vice President, 
to Chairman Elijah E. Cummings, House Comm. on Oversight and Reform, et 
al. (Oct. 15, 2019), https://perma.cc/L6LD-C4YM.
    293. Letter from Jason Yaworske, Assoc. Dir. for Legislative 
Affairs, Office of Mgmt. & Budget, to Chairman Adam B. Schiff, House 
Permanent Select Comm. on Intelligence (Oct. 15, 2019), https://
perma.cc/AL7W-YBLR; Letter from Robert R. Hood, Assistant Sec'y of Def. 
for Legislative Affairs, Dep't of Def., to Chairman Adam B. Schiff, 
House Permanent Select Comm. on Intelligence, et al. (Oct. 15, 2019), 
https://perma.cc/79ZG-ASGM.
    294. See, e.g., Vindman-Williams Hearing Tr. at 31-32 (briefing 
materials for President Trump's call with President Zelensky on July 25 
prepared by Lt. Col. Vindman, Director for Ukraine at the NSC); Vindman 
Dep. Tr. at 53 and Morrison Dep. Tr. at 19-20 (notes relating to the 
July 25 call taken by Lt. Col. Vindman and Mr. Morrison, the former 
Senior Director for Europe and Russia on the NSC); Vindman Dep. Tr. at 
186-87 and Morrison Dep. Tr. at 166-67 (an August 15 ``Presidential 
decision memo'' prepared by Lt. Col. Vindman and approved by Mr. 
Morrison conveying ``the consensus views from the entire deputies small 
group'' that ``the security assistance be released''); Cooper Dep. Tr. 
at 42-43 (NSC staff summaries of conclusions from meetings at the 
principal, deputy, or sub-deputy level relating to Ukraine, including 
military assistance); Sondland Hearing Tr. at 78-79 (call records 
between President Trump and Ambassador Sondland,); Vindman Dep. Tr. at 
36-37 (NSC Legal Advisor Eisenberg's notes and correspondence relating 
to discussions with Lt. Col. Vindman regarding the July 10 meetings in 
which Ambassador Sondland requested investigations in exchange for a 
White House meeting); Holmes Dep. Tr. at 31 (the memorandum of 
conversation from President Trump's meeting in New York with President 
Zelensky on September 25); Sondland Opening Statement (emails and other 
messages between Ambassador Sondland and senior White House officials, 
including Acting Chief of Staff Mulvaney, Senior Advisor to the Chief 
of Staff Blair, and then-National Security Advisor Bolton, among other 
high-level Trump Administration officials).
    295. See H. Rep. No. 116-335, at 180-244.
    296. Vindman Dep. Tr. at 186-87; Morrison Dep. Tr. at 166-67; see 
also, e.g., Sandy Dep. Tr. at 58-60 (describing an OMB memorandum 
prepared in August that recommended removing the hold).
    297. Taylor Dep. Tr. at 33-34, 45-46 (describing August 27 cable to 
Secretary Pompeo, WhatsApp messages with Ukrainian and American 
officials, and notes); Volker Dep. Tr. at 20 (describing State 
Department's possession of substantial paper trail of correspondence 
concerning meetings with Ukraine); Yovanovitch Dep. Tr. at 61 
(describing classified email to Under Secretary Hale); id. at 197-200 
(describing a dispute between George Kent and the State Department 
pertaining to subpoenaed documents).
    298. See, e.g., State Department Releases Ukraine Documents to 
American Oversight, American Oversight (Nov. 22, 2019), https://
perma.cc/N7K2-D7G3; Joint Status Report at 1, American Oversight v. 
Dep't of State, No. 19-cv-2934 (D.D.C. Nov. 25, 2019), ECF No. 19.
    299. For example, documents produced by OMB, unredacted copies of 
which reportedly were obtained by the online forum Just Security, 
corroborate the witnesses who testified that the military aid for 
Ukraine was withheld at the express direction of President Trump and 
that the White House was informed that doing so may violate the law. 
See Just Security Report, https://perma.cc/VA6U-RYPK.
    300. See Letter from Pat A. Cipollone, Counsel to the President, to 
William Pittard, Counsel to Acting Chief of Staff Mick Mulvaney (Nov. 
8, 2019), https://perma.cc/9PHC-84AM; Letter from Pat A. Cipollone, 
Counsel to the President, to William Burck, Counsel to Deputy Counsel 
to the President for Nat'l Security Affairs John Eisenberg (Nov. 3, 
2019), https://perma.cc/QP4G-YMKQ.
    301. See, e.g., Letter from Jason A. Yaworske, Associate Dir. for 
Leg. Affairs, Office of Mgmt. & Budget, to Chairman Adam B. Schiff, 
House Permanent Select Comm. on Intelligence (Nov. 4, 2019), https://
perma.cc/4AYC-8SD9 (asserting OMB's ``position that, as directed by the 
White House Counsel's October 8, 2019 letter, OMB will not participate 
in this partisan and unfair inquiry,'' and that three OMB officials 
would therefore defy subpoenas for their testimony).
    302. See H. Rep. No. 116-335, at 195, 198-99, 201, 203. Such 
witnesses included Robert Blair, Michael Ellis, P. Wells Griffith, 
Russell Vought, and Brian McCormack. Id.
    303. See id. at 193-206 (describing and quoting from correspondence 
with each witness who refused to appear).
    304. See H. Rep. No. 116-346, at 200, 365; see, e.g., Letter from 
Chairman Adam B. Schiff, House Permanent Select Comm. on Intelligence, 
et al., to Michael Duffey, Assoc. Dir. for Nat'l Sec. Programs, Office 
of Mgmt. & Budget (Oct. 25, 2019), https://perma.cc/3S5B-FH94; Email 
from Daniel S. Noble, Senior Investigative Counsel, House Permanent 
Select Comm. on Intelligence, to Mick Mulvaney, Acting Chief of Staff 
to the President (Nov. 7, 2019), https://perma.cc/A62P-5ACG.
    305. See, e.g., Letter from Brian Bulatao, Under Sec'y of State for 
Mgmt., Dep't of State, to Lawrence S. Robbins, Counsel to Ambassador 
Marie Yovanovitch 1 (Oct. 10, 2019), https://perma.cc/48UC-KJCM (``I 
write on behalf of the Department of State, pursuant to the President's 
instruction reflected in Mr. Cipollone's letter, to instruct your 
client . . . consistent with Mr. Cipollone's letter, not to appear 
before the Committees.''); id. at 3-10 (enclosing Mr. Cipollone's 
letter); Letter from David L. Norquist, Deputy Sec'y of Def., Dep't of 
Def., to Daniel Levin, Counsel to Deputy Assistant Sec'y of Def. Laura 
K. Cooper 1-2 (Oct. 22, 2019), https://perma.cc/WM97-DZJZ (``This 
letter informs you and Ms. Cooper of the Administration-wide direction 
that Executive Branch personnel `cannot participate in [the 
impeachment] inquiry under these circumstances.''' (quoting Mr. 
Cipollone's letter)); id. at 25-32 (enclosing Mr. Cipollone's letter).
    306. See H. Rep. No. 116-346, at 9; see also Read for Yourself: 
President Trump's Abuse of Power, House Permanent Select Comm. on 
Intelligence, https://perma.cc/2L54-YY9P.
    307. See H. Rep. No. 116-346, at 9.
    308. See id. at 10-11.
    309. See H. Rep. No. 116-335, at 217-20 (detailing the ways that 
``President Trump publicly attacked and intimidated witnesses who came 
forward to comply with duly authorized subpoenas and testify about his 
conduct.''); H. Rep. No. 116-346, at 366-67.
    310. See H. Rep. No. 116-335, at 221-23 (detailing the ways that 
President Trump ``threatened and attacked an Intelligence Community 
whistleblower''); H. Rep. No. 116-346, at 366-67.
    311. See generally Mueller Report, Vol. II; H. Rep. No. 116-346, at 
159-61.
    312. Mueller Report, Vol. II at 85-86.
    313. Id., Vol. II at 114-17.
    314. Id., Vol. II at 90-93.
    315. Id., Vol. II at 120-56.
    316. See Comm. on the Judiciary v. McGahn,--F. Supp. 3d--, No. 19-
2379. 2019 WL 6312011 (D.D.C. Nov. 25, 2019), appeal pending, No. 19-
5331 (D.C. Cir.). The U.S. Court of Appeals for the D.C. Circuit heard 
oral argument in the case on January 3, 2020.
    317. Mueller Report, Vol. I at 1 (describing the scope of the order 
appointing Special Counsel Mueller).
    318. See, e.g., id., Vol. I at 1-2 (the Trump Campaign ``expected 
it would benefit electorally from information stolen and released 
through Russian efforts'').
    319. See generally id., Vol. II. As the Mueller Report summarizes, 
the Special Counsel's investigation ``found multiple acts by the 
President that were capable of exerting undue influence over law 
enforcement investigations, including the Russian-interference and 
obstruction investigations. The incidents were often carried out 
through one-on-one meetings in which the President sought to use his 
official power outside of usual channels. These actions ranged from 
efforts to remove the Special Counsel and to reverse the effect of the 
Attorney General's recusal; to the attempted use of official power to 
limit the scope of the investigation; to direct and indirect contacts 
with witnesses with the potential to influence their testimony.'' Id., 
Vol. II at 157.
            [In Proceedings Before the United States Senate]
                                 ______
                                 

             TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP

                           executive summary
    The Articles of Impeachment now before the Senate are an affront to 
the Constitution and to our democratic institutions. The Articles 
themselves--and the rigged process that brought them here--are a 
brazenly political act by House Democrats that must be rejected. They 
debase the grave power of impeachment and disdain the solemn 
responsibility that power entails. Anyone having the most basic respect 
for the sovereign will of the American people would shudder at the 
enormity of casting a vote to impeach a duly elected President. By 
contrast, upon tallying their votes, House Democrats jeered until they 
were scolded into silence by the Speaker. The process that brought the 
articles here violated every precedent and every principle of fairness 
followed in impeachment inquiries for more than 150 years. Even so, all 
that House Democrats have succeeded in proving is that the President 
did absolutely nothing wrong.
    After focus-group testing various charges for weeks, House 
Democrats settled on two flimsy Articles of Impeachment that allege no 
crime or violation of law whatsoever--much less ``high Crimes and 
Misdemeanors,'' as required by the Constitution. They do not remotely 
approach the constitutional threshold for removing a President from 
office. The diluted standard asserted here would permanently weaken the 
Presidency and forever alter the balance among the branches of 
government in a manner that offends the constitutional design 
established by the Founders. House Democrats jettisoned all precedent 
and principle because their impeachment inquisition was never really 
about discovering the truth or conducting a fair investigation. 
Instead, House Democrats were determined from the outset to find some 
way--any way--to corrupt the extraordinary power of impeachment for use 
as a political tool to overturn the result of the 2016 election and to 
interfere in the 2020 election. All of this is a dangerous perversion 
of the Constitution that the Senate should swiftly and roundly condemn.
I. The articles fail because they do not identify any impeachable 
        offense
A. House Democrats' Theory of ``Abuse of Power'' Is Not an Impeachable 
                                Offense
    House Democrats' novel theory of ``abuse of power'' improperly 
supplants the standard of ``high Crimes and Misdemeanors'' with a made-
up theory that would permanently weaken the Presidency by effectively 
permitting impeachments based merely on policy disagreements.
    1. By limiting impeachment to cases of ``Treason, Bribery, or other 
high Crimes and Misdemeanors,''\1\ the Framers restricted impeachment 
to specific offenses against ``already known and established law.''\2\ 
That was a deliberate choice designed to constrain the impeachment 
power. In keeping with that restriction, every prior presidential 
impeachment in our history has been based on alleged violations of 
existing law--indeed, criminal law.\3\ House Democrats' newly invented 
``abuse of power'' theory collapses at the threshold because it fails 
to allege any violation of law whatsoever.
    2. House Democrats' concocted theory that the President can be 
impeached for taking permissible actions if he does them for what they 
believe to be the wrong reasons would also expand the impeachment power 
beyond constitutional bounds. It would allow a hostile House to attack 
almost any presidential action by challenging a President's subjective 
motives. Worse, House Democrats' methods for identifying supposedly 
illicit motives ignore the constitutional structure of our government. 
As proof of improper motive, they claim that the President supposedly 
``disregarded United States foreign policy towards Ukraine,''\4\ that 
he was ``briefed on official policy''\5\ but chose to ignore it, and 
that he ``ignored, defied, and confounded every office and agency 
within the Executive Branch.''\6\ These assertions are preposterous and 
dangerous. They misunderstand the assignment of power under the 
Constitution and the very concept of democratic accountability. Article 
II states that ``[t]he executive Power shall be vested in a 
President.''\7\ It is the President who defines foreign policy, not the 
unelected bureaucrats who are his subordinates. Any theory of an 
impeachable offense that turns on ferreting out supposedly 
``constitutionally improper''\8\ motives by measuring the President's 
policy decisions against a purported interagency consensus\9\ is both 
fundamentally anti-democratic and an absurdly impermissible inversion 
of the constitutional structure.
  B. House Democrats' Theory of ``Obstruction of Congress'' Is Not an 
                          Impeachable Offense
    House Democrats' ``obstruction of Congress'' claim is frivolous and 
dangerous. House Democrats propose removing the President from office 
because he asserted legal rights and privileges of the Executive Branch 
against defective subpoenas--based on advice from the Department of 
Justice. Accepting that theory would do lasting damage to the 
separation of powers.
   1. President Trump properly asserted executive branch prerogatives
    Contrary to the mistaken charge that the President lacked ``lawful 
cause or excuse'' to resist House Democrats' subpoenas,\10\ the 
President acted only after securing advice from the Department of 
Justice's Office of Legal Counsel (OLC) and based on established legal 
principles or immunities.
    a. Several Executive Branch officials refused to comply with 
subpoenas purportedly issued pursuant to an ``impeachment inquiry'' 
before the House had authorized any such inquiry, because, as OLC 
advised, the subpoenas were unauthorized and had no legal force.\11\
    b. The President directed three of his most senior advisers not to 
comply with subpoenas seeking their testimony because they are immune 
from compelled testimony before Congress. Through administrations of 
both political parties, OLC ``has repeatedly provided for nearly five 
decades'' that ``Congress may not constitutionally compel the 
President's senior advisers to testify about their official 
duties.''\12\ In the Clinton administration, for example, Attorney 
General Janet Reno explained that ``the immunity such [immediate] 
advisers enjoy from testimonial compulsion by a congressional committee 
is absolute and may not be overborne by competing congressional 
interests.''\13\
    c. Under the President's supervision, Executive Branch officials 
were directed not to comply with subpoenas because the committees 
seeking their testimony refused to allow them to be accompanied by 
agency counsel. OLC concluded that the committees ``may not bar agency 
counsel from assisting an executive branch witness without contravening 
the legitimate prerogatives of the Executive Branch,'' and that 
attempting to enforce a subpoena while barring agency counsel ``would 
be unconstitutional.''\14\
  2. Defending the separation of powers is not an impeachable offense
    Contrary to House Democrats' claims, asserting legal rights and 
constitutional privileges of the Executive Branch is not 
``obstruction.''
    a. In a government of laws, asserting legal defenses cannot be 
treated as obstruction; it is a fundamental right. As the Supreme Court 
has instructed: ``[F]or an agent of the State to pursue a course of 
action whose objective is to penalize a person's reliance on his legal 
rights is `patently unconstitutional.'''\15\ The same principles apply 
in impeachment. During the Clinton impeachment, Harvard Law Professor 
Laurence Tribe put it this way:
    The allegations that invoking privileges and otherwise using the 
judicial system to shield information . . . is an abuse of power that 
should lead to impeachment and removal from office is not only 
frivolous, but also dangerous.\16\
    In 1998, now-Chairman Jerrold Nadler agreed that a president cannot 
be impeached for asserting a legal privilege: ``[T]he use of a legal 
privilege is not illegal or impeachable by itself, a legal privilege, 
executive privilege.''\17\ And Chairman Adam Schiff has turned the law 
on its head with his unprecedented claim that it is ``obstruction'' for 
any official to assert rights that might prompt House committees even 
``to consider litigation'' to establish the validity of their subpoenas 
in court.\18\
    b. Where, as here, the principles the President invoked are 
critical for preserving Executive Branch prerogatives, treating the 
assertion of privileges as ``obstruction'' would do permanent damage to 
the separation of powers--among all three branches. House Democrats 
have essentially announced that they may treat any resistance to their 
demands as ``obstruction'' without taking any steps to resolve their 
dispute with the President. Accepting that unprecedented approach would 
fundamentally damage the separation of powers by making the House 
itself the sole judge of its authority. It would permit Congress to 
threaten every President with impeachment merely for protecting the 
prerogatives of the Presidency. As Professor Jonathan Turley testified 
before the House Judiciary Committee: ``Basing impeachment on this 
obstruction theory would itself be an abuse of power . . . by 
Congress.''\19\
    c. At bottom, the ``obstruction'' charge asks the Senate to remove 
a duly elected President from office because he acted on the advice of 
the Department of Justice concerning his legal and constitutional 
rights as President. Stating that proposition exposes it as frivolous. 
The Framers restricted impeachment to reach only egregious conduct that 
endangers the Constitution. A difference of legal opinion over whether 
subpoenas are enforceable cannot be dressed up to approach that level. 
As Edmund Randolph explained in the Virginia ratifying convention, ``No 
man ever thought of impeaching a man for an opinion.''\20\
II. The impeachment inquiry in the House was irredeemably flawed
   A. House Democrats' Inquiry Violated All Precedent and Due Process
    1. The process that resulted in these Articles of Impeachment was 
flawed from the start. Since the Founding of the Republic, the House 
has never launched an impeachment inquiry against a President without a 
vote of the full House authorizing it. And there is good reason for 
that. No committee can investigate pursuant to powers assigned by the 
Constitution to the House--including the ``sole Power of 
Impeachment''\21\--unless the House has voted to delegate authority to 
the committee.\22\ Here, it was emblematic of the lack of seriousness 
that characterized this whole process that House Democrats cast law and 
history aside and started their purported inquiry with nothing more 
than a press conference.\23\ On that authority alone, they issued 
nearly two dozen subpoenas that OLC determined were unauthorized and 
invalid.\24\ The full House did not vote to authorize the inquiry until 
five weeks later when it adopted House Resolution 660 on October 31, 
2019. That belated action was a telling admission that the process was 
unauthorized.
    2. Next, House Democrats concocted an unheard of procedure that 
denied the President any semblance of fair process. The proceedings 
began with secret hearings in a basement bunker before three committees 
under the direction of Chairman Schiff of the House Permanent Select 
Committee on Intelligence (HPSCI). The President was denied any right 
to participate at all. He was denied the right to have counsel present, 
to cross examine witnesses, to call witnesses, and to see and present 
evidence. Meanwhile, House Democrats selectively leaked distorted 
versions of the secret testimony to compliant members of the press, who 
happily fed the public a false narrative about the President.
    Then, House Democrats moved on to a true show trial as they brought 
their hand-picked witnesses, whose testimony had already been set in 
private, before the cameras to present prescreened testimony to the 
public. There, before HPSCI, they continued to deny the President any 
rights. He could not be represented by counsel, could not present 
evidence or witnesses, and could not cross examine witnesses.
    This process not only violated every precedent from the Nixon and 
Clinton impeachment inquiries, it violated every principle of justice 
and fairness known to our legal tradition. For more than 250 years, the 
common law system has regarded cross-examination as the ``greatest 
legal engine ever invented for the discovery of truth.''\25\ House 
Democrats denied the President that right and every other right because 
they were not interested in the truth. Their only interest was securing 
an impeachment, and they knew that a fair process could not get them 
there.
    When the impeachment stage-show moved on to the Judiciary 
Committee, House Democrats again denied the President his rights. The 
Committee had already decided to forego fact-finding and to adopt the 
one-sided record from HPSCI's ex parte hearings. Worse, Speaker Nancy 
Pelosi had already instructed the Committee to draft articles of 
impeachment. The only role for the Committee was to ram through the 
articles to secure a House vote by Christmas.\26\ There could not have 
been a more blatant admission that evidence did not matter, the process 
was rigged, and impeachment was a pre-ordained result.
    All of this reflected shameful hypocrisy from House Democrat 
leaders, who for decades had insisted on the importance of due process 
protections in an impeachment inquiry. Chairman Nadler himself has 
explained that a House impeachment inquiry ``demands a rigorous level 
of due process.''\27\ Specifically, he explained that ``due process 
mean[s] . . . the right to confront the witnesses against you, to call 
your own witnesses, and to have the assistance of counsel.''\28\ Here, 
however, all due process rights were denied to the President.
    3. Chairman Schiff's hearings were fatally defective for another 
reason--Schiff himself was instrumental in helping to create the story 
behind them. This inquiry centered on the President's conversation on 
July 25, 2019, with the President of Ukraine. That call became a matter 
of public speculation after a so-called whistleblower relayed a 
distorted, second-hand version of the call to the Inspector General of 
the Intelligence Community (ICIG). Before laundering his distortions 
through the ICIG, the same person secretly shared his false account 
with Chairman Schiff's HPSCI staff and asked ``for guidance.''\29\ 
After initially lying about it, Chairman Schiff was forced to admit 
that his staff had conferred with the so-called whistleblower before he 
filed his complaint. But the entirety of the role that Chairman Schiff 
and his staff played in orchestrating the complaint that launched this 
entire farce remains shrouded in secrecy to this day--Chairman Schiff 
himself shut down every effort to inquire into it.
    4. The denial of basic due process rights to the President is such 
a fundamental error infecting the House proceedings that the Senate 
could not possibly rely upon the corrupted House record to reach a 
verdict of conviction. Any such record is tainted, and any reliance on 
a record created through the wholesale denial of due process rights 
would be unconstitutional. Nor is it the Senate's role to remedy the 
House's errors by providing a ``do-over'' and developing the record 
itself.
       B. House Democrats' Goal Was Never to Ascertain the Truth
    House Democrats resorted to these unprecedented procedures because 
the goal was never to get to the truth. The goal was to impeach the 
President, no matter the facts.
    House Democrats' impeachment crusade started the day the President 
took office. As Speaker Pelosi confirmed in December 2019, her party's 
quest to impeach the President had already been ``going on for 22 
months . . . [t]wo and a half years, actually.''\30\ The moment the 
President was sworn in, The Washington Post reported that partisans had 
launched a campaign to impeach him.\31\ The current proceedings began 
with a complaint prepared with the assistance of a lawyer who declared 
in 2017 that he would use ``impeachment'' to effect a ``coup.''\32\
    House Democrats originally pinned their impeachment hopes on the 
lie that the Trump Campaign had colluded with Russia during the 2016 
election. That fixation brought the country the Mueller investigation. 
But after almost two years, $32 million, 2,800 subpoenas, and nearly 
500 search warrants\33\--along with incalculable damage to the Nation--
the Mueller investigation thoroughly disproved Democrats' Russian 
collusion delusion. To make matters worse, we now know that the Mueller 
investigation (and its precursor, Crossfire Hurricane) also brought 
with it shocking abuses in the use of FISA orders to spy on American 
citizens and a major-party presidential campaign--including omissions 
and even outright lies to the Foreign Intelligence Surveillance Court 
and the fabrication of evidence by a committed partisan embedded in the 
FBI.
    House Democrats could not tolerate the findings of the Mueller 
Report debunking the collusion myth. Instead, they launched hearings 
and issued subpoenas straining to find wrongdoing where Special Counsel 
Mueller and the Department of Justice had found none. And they launched 
new investigations, trying to rummage through the President's tax 
returns and pushing fishing expeditions everywhere in the hope that 
they might find something. No other President in history has been 
subjected to a comparable barrage of investigations, subpoenas, and 
lawsuits, all in service of an insatiable partisan desire to find some 
way to remove him from office.
    When those proceedings went nowhere, House Democrats seized on the 
next vehicle that could be twisted to carry their impeachment dream: a 
perfectly appropriate telephone call between President Trump and the 
President of Ukraine. House Democrats have pursued their newly 
concocted charges for two reasons. First, they have been obsessed for 
years with overturning the 2016 election. Radical left Democrats have 
never been able to come to grips with losing the election, and 
impeachment provides them a way to nullify the judgment of the tens of 
millions of voters who rejected their candidate. Second, they want to 
use impeachment to interfere in the 2020 election. It is no accident 
that the Senate is being asked to consider a presidential impeachment 
during an election year. Put simply, Democrats have no response to the 
President's record of achievement in restoring prosperity to the 
American economy, rebuilding America's military, and confronting 
America's adversaries abroad. Instead, they are held hostage by a 
radical left wing that has foisted on their party an agenda of 
socialism at home and appeasement abroad that Democrat leaders know the 
American people will never accept. For the Democrats, impeachment 
became an electoral imperative. Congressman Al Green summarized that 
thinking best: ``[I]f we don't impeach the [P]resident, he will get re-
elected.''\34\ In their scorched-earth campaign against the President, 
House Democrats view impeachment merely as the continuation of politics 
by other means.
    The result of House Democrats' pursuit of their obsessions--and 
their willingness to sacrifice every precedent and every principle 
standing in their way--is exactly what the Framers warned against: a 
wholly partisan impeachment. These articles were adopted without a 
single Republican vote. Indeed, there was bipartisan opposition to 
them.\35\
    Democrats used to recognize that the momentous act of overturning a 
national election by impeaching a President should never be done on a 
partisan basis. As Chairman Nadler explained:
    There must never be a narrowly voted impeachment or an impeachment 
supported by one of our major political parties and opposed by another. 
Such an impeachment will produce divisiveness and bitterness in our 
politics for years to come, and will call into question the very 
legitimacy of our political institutions.\36\
    Senator Patrick Leahy agreed: ``A partisan impeachment cannot 
command the respect of the American people. It is no more valid than a 
stolen election.''\37\ Chairman Nadler, again, acknowledged that merely 
``hav[ing] the votes'' and ``hav[ing] the muscle'' in the House, 
without ``the legitimacy of a national consensus,'' is just an 
attempted ``partisan coup d'etat.''\38\ Just last year, even Speaker 
Pelosi acknowledged that an impeachment ``would have to be so clearly 
bipartisan in terms of acceptance of it.''\39\ All of these prior 
invocations of principle have now been abandoned, adding to the 
wreckage littering the wake of House Democrats' impeach-at-all-costs 
strategy.
III. Article I fails because House Democrats have no evidence to 
        support their claims
  A. The Evidence Shows That the President Did Not Condition Security 
     Assistance or a Presidential Meeting on Announcements of Any 
                             Investigations
    House Democrats have falsely charged that the President supposedly 
conditioned military aid or a presidential meeting on Ukraine's 
announcing a specific investigation. Yet despite running an entirely ex 
parte, one-sided process to gather evidence, House Democrats do not 
have a single witness who claims, based on direct knowledge, that the 
President ever actually imposed such a condition. Several undisputed, 
core facts make clear that House Democrats' charges are baseless.
    1. In an unprecedented display of transparency, the President 
released the transcript of his July 25 call with President Volodymyr 
Zelensky, and it shows that the President did nothing wrong. The 
Department of Justice reviewed the transcript months ago and rejected 
the suggestion by the ICIG (based on the whistleblower's distorted 
account) that the call might have raised an election-law violation.\40\
    2. President Zelensky, his Foreign Minister, and other Ukrainian 
officials have repeatedly said there was no quid pro quo and no 
pressure placed on them by anyone.
    3. President Zelensky, his senior advisers, and House Democrats' 
own witnesses have all confirmed that Ukraine's senior leaders did not 
even know the aid was paused until after a Politico article was 
published on August 28, 2019--over a month after the July 25 call and 
barely two weeks before the aid was released on September 11.
    4. House Democrats' case rests almost entirely on: (i) statements 
from Ambassador to the European Union Gordon Sondland that he had come 
to believe (before talking to the President) that the aid and a meeting 
were ``likely'' linked to investigations; and (ii) hearsay and 
speculation from others echoing Sondland second- or third-hand. But 
Sondland admitted that he was only ``presuming'' a link.\41\ He stated 
unequivocally that he has no evidence ``[o]ther than [his] own 
presumption'' that President Trump connected releasing the aid to 
investigations, and he agreed that ``[n]o one on this planet told [him] 
that Donald Trump was tying aid to investigations.''\42\ Similarly, as 
for a link between a meeting and investigations, Sondland admitted that 
he was speculating about that as well, based on hearsay.\43\ When asked 
if ``the President ever [told him] personally about any preconditions 
for anything''--i.e., for aid or a meeting--Sondland responded, 
``No.''\44\ And when Ambassador Kurt Volker, the special envoy who had 
actually been negotiating with the Ukrainians, was asked if the 
President ever withheld a meeting to pressure the Ukrainians, he said: 
``The answer to the question is no.''\45\ ``[T]here was no linkage like 
that.''\46\
    The only two people with statements on record who spoke directly to 
the President on the matter--Sondland and Senator Ron Johnson--directly 
contradicted House Democrats' false allegations. Sondland testified 
that when he asked the President what he wanted, the President stated 
unequivocally: ``I want nothing. I want no quid pro quo.''\47\ 
Similarly, Senator Johnson related that, when he asked the President if 
there was any linkage between investigations and the aid, the President 
responded: ``(Expletive deleted)--No way. I would never do that.''\48\
    5. The military aid flowed on September 11, 2019, and a 
presidential meeting was first scheduled for September 1 and then took 
place on September 25, 2019, all without the Ukrainian government 
having done anything about investigations.
    6. The undisputed reality is that U.S. support for Ukraine against 
Russia has increased under President Trump. President Trump provided 
Ukraine Javelin anti-tank missiles to use against Russia after 
President Obama refused to provide that assistance. President Trump 
also imposed heavy sanctions on Russia, for which President Zelensky 
thanked him.\49\ A parade of State Department and National Security 
Council (NSC) career officials universally acknowledged that President 
Trump's policy was stronger in support of Ukraine against Russia than 
his predecessor's. Ambassador Yovanovitch testified that ``our policy 
actually got stronger'' under President Trump,\50\ and Ambassador 
Taylor agreed that aid under President Trump was a ``substantial 
improvement'' over the previous administration, largely because ``this 
administration provided Javelin anti-tank weapons,'' which ``are 
serious weapons'' that ``will kill Russian tanks.''\51\
    The evidence shows that President Trump had legitimate concerns 
about corruption and burden-sharing with our allies--two consistent 
themes in his foreign policy. When his concerns had been addressed, the 
aid was released on September 11 without any action concerning 
investigations. Similarly, a bilateral meeting with President Zelensky 
was first scheduled for September 1 in Warsaw and, after rescheduling 
due to Hurricane Dorian, took place on September 25 in New York, again, 
all without the Ukrainians doing anything related to investigations.
    As Professor Turley summed it up, this impeachment ``stand[s] out 
among modern impeachments as the shortest proceeding, with the thinnest 
evidentiary record, and the narrowest grounds ever used to impeach a 
president.''\52\ It is a constitutional travesty.
B. House Democrats Rest on the False Premise that There Could Have Been 
    No Legitimate Reason To Mention 2016 or the Biden-Burisma Affair
    The charges in Article I are further flawed because they rest on 
the mistaken premise that it would have been illegitimate for the 
President to mention to President Zelensky either (i) possible 
Ukrainian interference in the 2016 election; or (ii) an incident in 
which then-Vice President Biden had forced the dismissal of a Ukrainian 
prosecutor. House Democrats acknowledge that, even under their theory 
of ``abuse of power,'' they must establish (in their words) that these 
matters were ``bogus'' or ``sham investigations''\53\--that the only 
reason for raising them would have been ``to obtain an improper 
personal political benefit.''\54\ But that is obviously false. Even if 
the President had raised those issues, there were legitimate reasons to 
do so.
    1. Uncovering potential foreign interference in U.S. elections is 
always a legitimate goal, whatever the source of the interference and 
whether or not it fits with Democrats' preferred narrative about 2016. 
House Democrats' assertion that asking historical questions about the 
last election somehow equates to securing ``improper interference'' in 
the next election is nonsensical. Asking about the past cannot be 
twisted into interference in a future election. Even if facts uncovered 
about conduct in the last election were to have some impact on the next 
election, uncovering historical facts is not improper interference. Nor 
can House Democrats self-servingly equate asking any questions about 
Ukraine with advocating that Ukraine, instead of Russia, interfered in 
2016.\55\ Actors in more than one country can interfere in an election 
at the same time, in different ways and for different purposes. And 
there has been plenty of public reporting to give reason to be 
suspicious about many Ukrainians' conduct in 2016. Even one of House 
Democrats' own star witnesses, Dr. Fiona Hill, acknowledged that 
Ukrainian officials ``bet on Hillary Clinton winning the election,'' 
and that ``they were trying to curry favor with the Clinton campaign'' 
including by ``trying to collect information . . . on Mr. Manafort and 
on other people as well.''\56\ All of that--and more--provides 
legitimate grounds for inquiry.
    2. It also would have been legitimate to mention the Biden-Burisma 
affair. Public reports indicate that then-Vice President Biden 
threatened withholding U.S. loan guarantees to secure the dismissal of 
a Ukrainian prosecutor even though Biden was, at the time, operating 
under what appeared to be, at the very least, a serious conflict of 
interest. The prosecutor reportedly had been investigating Burisma--a 
Ukrainian energy company notorious for corruption--and Biden's son, 
Hunter, was sitting on Burisma's board.\57\ Unless being son of the 
Vice President counted, Hunter had no apparent qualifications to merit 
that seat, or to merit being compensated (apparently) more richly than 
board members at Fortune 100 energy giants like ConocoPhillips.\58\ In 
fact, numerous career State Department and NSC employees agreed that 
Hunter Biden's connection with Burisma created, at a minimum, the 
appearance of a conflict of interest,\59\ and The Washington Post 
reported as early as 2014 that ``[t]he appointment of the [V]ice 
[P]resident's son to a Ukrainian oil board looks nepotistic at best, 
nefarious at worst.''\60\ More than one official raised the issue with 
the Vice President's office at the time, but the Vice President took no 
action in response.\61\
    On those facts, it would have been appropriate to raise this 
incident with President Zelensky. Ukraine cannot rid itself of 
corruption if its prosecutors are always stymied. Here, public reports 
suggested that Vice President Biden played a role in derailing a 
legitimate inquiry while under a monumental conflict of interest. If 
Biden were not running for President, House Democrats would not argue 
that merely raising the incident would have been improper. But former 
Vice President Biden did not immunize his past conduct (or his son's) 
from all scrutiny simply by declaring his candidacy for the presidency.
    Importantly, even under House Democrats' theory, mentioning the 
matter to President Zelensky would have been entirely justified as long 
as there was a basis to think that would advance the public interest. 
To defend merely asking a question, the President would not have to 
show that Vice President Biden (or his son) actually committed any 
wrongdoing. By contrast, under their own theory of the case, to show 
``abuse of power,'' the House Managers would have to prove that the 
inquiry could have no public purpose whatsoever. They have no such 
evidence. The record shows it would have been legitimate to mention the 
Biden-Burisma affair.
IV. The articles are structurally deficient and can only result in 
        acquittal
    The articles are also defective because each charges multiple 
different acts as possible grounds for conviction. The problem with 
offering such a menu of options is that, for a valid conviction, the 
Constitution requires two-thirds of Senators present to agree on the 
specific basis for conviction. A vote on these articles, however, 
cannot ensure that a two-thirds majority agreed on a particular ground 
for conviction. Instead, such a vote could reflect an amalgamation of 
votes resting on several different theories, no single one of which 
would have garnered two-thirds support if it had been presented 
separately. This structural deficiency cannot be remedied by dividing 
the different allegations within each article for voting, because that 
is prohibited under Senate rules.\62\ The only constitutional option is 
for the Senate to reject the articles as framed and acquit the 
President.
    The Framers foresaw that the House might at times fall prey to 
tempestuous partisan tempers. Alexander Hamilton recognized that ``the 
persecution of an intemperate or designing majority in the House of 
Representatives'' was a real danger in impeachments,\63\ and Jefferson 
acknowledged that impeachment provided ``the most formidable weapon for 
the purposes of dominant faction that ever was contrived.''\64\ That is 
why the Framers entrusted the trial of impeachments to the Senate. As 
Justice Story explained, the Framers saw the Senate as a tribunal 
``removed from popular power and passions . . . and from the more 
dangerous influence of mere party spirit,'' and guided by ``a deep 
responsibility to future times.''\65\ Now, perhaps as never before, it 
is essential for the Senate to fulfill the role Hamilton envisioned for 
it as a ``guard[] against the danger of persecution, from the 
prevalency of a factious spirit'' in the House.\66\
    The Senate should speedily reject these deficient Articles of 
Impeachment and acquit the President. The only threat to the 
Constitution that House Democrats have brought to light is their own 
degradation of the impeachment process and trampling of the separation 
of powers. Their fixation on damaging the President has trivialized the 
momentous act of impeachment, debased the standards of impeachable 
conduct, and perverted the power of impeachment by turning it into a 
partisan, election-year political tool. The consequences of accepting 
House Democrats' diluted standards for impeachment would reverberate 
far beyond this election year and do lasting damage to our Republic. As 
Senator Lyman Trumbull, one of the seven Republican Senators who 
crossed the aisle to vote against wrongfully convicting President 
Andrew Johnson, explained: ``Once [we] set the example of impeaching a 
President for what, when the excitement of the hour shall have 
subsided, will be regarded as insufficient causes . . . no future 
President will be safe . . . . [A]nd what then becomes of the checks 
and balances of the Constitution, so carefully devised and so vital to 
its perpetuity? They are all gone.''\67\ It is the solemn duty of this 
body to be the bulwark of the Constitution protecting against exactly 
this result.
    Enough of the Nation's time and resources have been wasted on House 
Democrats' partisan obsessions. The Senate should bring a decisive end 
to these excesses so that Congress can get back to its real job: 
working together with the President to improve the lives of all 
Americans.
                               standards
    The extraordinary process invoked by House Democrats under Article 
II, Section 4 of the Constitution is not the constitutionally preferred 
means to determine who should lead our country. It is a mechanism of 
last resort, reserved for exceptional circumstances--not present here--
in which a President has engaged in unlawful conduct that strikes at 
the core of our constitutional system of government.
A. The Senate Must Decide All Questions of Law and Fact
    The Constitution makes clear that an impeachment by the House of 
Representatives is nothing more than an accusation. The Articles of 
Impeachment approved by the House come to the Senate with no 
presumption of regularity in their favor. On each of the two prior 
occasions that the House adopted articles of impeachment against a 
President, the Senate refused to convict on them. Indeed, the Framers 
wisely forewarned that the House could impeach for the wrong 
reasons.\68\ That is why the Constitution entrusts the Senate with the 
``sole Power to try all Impeachments.''\69\ Under that charge, it is 
the Senate's constitutional duty to decide for itself all matters of 
law and fact bearing upon this trial.\70\ These decisions include 
whether the accusation presented by House Democrats even rises to the 
level of describing an impeachable offense, the standard of proof that 
House Democrats must meet to prove their case, and whether they have 
met this burden. As Rep. John Logan, a House manager in President 
Johnson's impeachment trial, explained ``all questions of law or of 
fact are to be decided in these proceedings by the final vote''\71\ of 
the Senate, and ``in determining this general issue Senators must 
consider the sufficiency or insufficiency in law or in fact of every 
article of accusation.''\72\
B. An Impeachable Offense Requires a Violation of Established Law that 
        Inflicts Sufficiently Egregious Harm on the Government that It 
        Threatens to Subvert the Constitution
    The President of the United States occupies a unique position in 
the structure of our government. He is chosen directly by the People 
through a national election to be the head of an entire branch of 
government and Commander-in-Chief of the armed forces and is entrusted 
with enormous responsibilities for setting policies for the Nation. 
Whether Congress should supplant the will expressed by tens of millions 
of voters by removing the President from office is a question of 
breathtaking gravity. Approaching that question requires a clear 
understanding of the limits the Constitution places on what counts--and 
what does not count--as an impeachable offense.
         1. Text and Drafting History of the Impeachment Clause
    Fearful that the power of impeachment might be abused, and 
recognizing that constitutional protections were required for the 
Executive, the Framers crafted a limited power of impeachment.\73\ The 
Constitution restricts impeachment to enumerated offenses: ``Treason, 
Bribery, or other high Crimes and Misdemeanors.''\74\ Treason and 
bribery are well defined offenses and are not at issue in this case. 
The operative text here is the more general phrase ``other high Crimes 
and Misdemeanors.'' The structure and language of the clause--the use 
of the adjective ``other'' to describe ``high Crimes and Misdemeanors'' 
in a list immediately following the specific offenses ``Treason'' and 
``Bribery''--calls for applying the ejusdem generis canon of 
interpretation. This canon instructs that ```[w]here general words 
follow specific words in a statutory enumeration, the general words are 
construed to embrace only objects similar in nature to those objects 
enumerated by the preceding specific words.''\75\ Under that principle, 
``other high Crimes and Misdemeanors'' must be understood to have the 
same qualities--in terms of seriousness and their effect on the 
functioning of government--as the crimes of ``Treason'' and 
``Bribery.''\76\
    Treason is defined specifically in the Constitution and 
``consist[s] only in levying War against [the United States], or in 
adhering to their Enemies, giving them Aid and Comfort.''\77\ This 
offense is ``a crime against and undermining the very existence of the 
Government.''\78\ Bribery, like treason, is a serious offense against 
the government that subverts the proper functioning of the state. 
Blackstone, a ``dominant source of authority'' for the Framers,\79\ 
called bribery an ``offense against public justice.''\80\ Professor 
Akhil Amar describes bribery as ``secretly bending laws to favor the 
rich and powerful'' and contends that in this context it ``involves 
official corruption of a highly malignant sort, threatening the very 
soul of a democracy committed to equality under the law.''\81\ 
According to Professor Philip Bobbitt, ``[l]ike treason, the 
impeachable offense of bribery . . . must be an act that actually 
threatens the constitutional stability and security of the State.''\82\ 
The text of the Constitution thus indicates that the ``other'' crimes 
and misdemeanors that qualify as impeachable offenses must be 
sufficiently egregious that, like treason and bribery, they involve a 
fundamental betrayal that threatens to subvert the constitutional order 
of government.
    Treason and bribery are also, of course, offenses defined by law. 
Each of the seven other references in the Constitution to impeachment 
also supports the conclusion that impeachments must be evaluated in 
terms of offenses against settled law: The Constitution refers to 
``Conviction'' for impeachable offenses twice\83\ and ``Judgment in 
Cases of Impeachment.''\84\ It directs the Senate to ``try all 
Impeachments''\85\ and requires the Chief Justice's participation when 
the President is ``tried.''\86\ And it implies impeachable offenses are 
``Crimes'' and ``Offenses'' in the Jury Trial Clause and the Pardon 
Clause, respectively.\87\ These are all words that indicate violations 
of established law.
    The use of the term ``high'' in the Impeachment Clause is also 
significant, and was clearly deliberate. Under English common law, 
``high'' indicated crimes against the state; Blackstone defined ``high 
treason'' to include only offenses against ``the supreme executive 
power, or the king and his government,'' calling it the ``highest civil 
crime.''\88\
    In addition, ``high Crimes and Misdemeanors'' had a technical 
meaning in English law,\89\ and there is evidence that the Framers were 
aware of this ``limited,'' ``technical meaning.''\90\ In England, 
``high Crimes and Misdemeanors'' referred to offenses that could be the 
subject of impeachment in parliament. No less an authority than 
Blackstone, however, made clear that ``an impeachment before the lords 
by the commons of Great Britain, in parliament, is a prosecution of the 
already known and established law.''\91\ As a result, nothing in the 
Constitution's use of the term ``other high Crimes and Misdemeanors'' 
suggests that impeachment under the Constitution could reach anything 
other than a known offense defined in existing law.
    Significantly, the records of the Constitutional Convention also 
make clear that, in important respects, the Framers intended the scope 
of impeachable offenses under the Constitution to be much narrower than 
under English practice. When the draft Constitution had limited the 
grounds for impeachment to ``Treason, or bribery,''\92\ George Mason 
argued that the provision was too narrow because ``[a]ttempts to 
subvert the Constitution may not be Treason'' and that the clause 
``will not reach many great and dangerous offenses.''\93\ He proposed 
the addition of ``maladministration,''\94\ which had been a ground for 
impeachment in English practice. Madison opposed that change on the 
ground that ``[s]o vague a term'' would make the President subject to 
``a tenure during [the] pleasure of the Senate,''\95\ and the 
Convention agreed on adding ``other high crimes & misdemeanors'' 
instead.\96\
    By rejecting ``maladministration,'' the Framers significantly 
narrowed impeachment under the Constitution and made clear that mere 
differences of opinion, unpopular policy decisions, or perceived 
misjudgments cannot constitutionally be used as the basis for 
impeachment. Indeed, at various earlier points during the Convention, 
drafts of the Constitution had included as grounds for impeachment 
``malpractice or neglect of duty''\97\ and ``neglect of duty [and] 
malversation,''\98\ but the Framers rejected all of these formulations. 
The ratification debates confirmed the point that differences of 
opinion or differences over policy could not justify impeachment. James 
Iredell warned delegates to North Carolina's ratifying convention that 
``[a] mere difference of opinion might be interpreted, by the malignity 
of party, into a deliberate, wicked action,''\99\ and thus should not 
provide the basis for impeachment. And Edmund Randolph pointed out in 
the Virginia ratifying convention that ``[n]o man ever thought of 
impeaching a man for an opinion.''\100\
    Taken together, the text, drafting history, and debates surrounding 
the Constitution make several points clear. First, the debates ``make 
quite plain that the Framers, far from proposing to confer illimitable 
power to impeach and convict, intended to confer a limited 
power.''\101\ As Senator Leahy has put it, ``[t]he Framers purposely 
restrained the Congress and carefully circumscribed [its] power to 
remove the head of the co-equal Executive Branch.''\102\
    Second, the terminology of ``high Crimes and Misdemeanors'' makes 
clear that an impeachable offense must be a violation of established 
law. The Impeachment Clause did not confer upon Congress a roving 
license to make up new standards of conduct for government officials 
and to permit removal from office merely on a conclusion that conduct 
was ``bad'' if there was not an existing law that it violated.
    Third, by establishing that ``other'' impeachable offenses must 
fall in the same class as the specific offenses of ``treason'' and 
``bribery,'' the Framers intended to establish a requirement of 
particularly egregious conduct threatening the constitutional order to 
justify impeachment. Justice Story recognized impeachment was 
``intended for occasional and extraordinary cases'' only.\103\ For 
Professor Bobbitt, ``[a]n impeachable offense is one that puts the 
Constitution in jeopardy.''\104\ Removal of the freely elected 
President of the United States based on any lesser standard would 
violate the plan of the Founders, who built our government on the 
principle it would ``deriv[e] [its] just powers from the consent of the 
governed.''\105\
     2. The President's Unique Role in Our Constitutional Structure
    For at least two reasons, the President's unique role in our 
constitutional structure buttresses the conclusion that offenses 
warranting presidential impeachment must involve especially egregious 
conduct that threatens to subvert the constitutional order of 
government.
    First, conviction of a President raises particularly profound 
issues under our constitutional structure because it means overturning 
the democratically expressed will of the people in the only national 
election in which all eligible citizens participate. The impeachment 
power permits the possibility that ``the legislative branch [will] 
essentially cancel[] the results of the most solemn collective act of 
which we as a constitutional democracy are capable: the national 
election of a President.''\106\
    As even the House Managers have acknowledged, ``the issue'' in a 
presidential impeachment trial ``is whether to overturn the results of 
a national election, the free expression of the popular will of the 
American people.''\107\ That step can be justified only by an offense 
crossing an exceptional threshold. As Chairman Nadler has put it, 
``[w]e must not overturn an election and remove a President from office 
except to defend our system of government or our constitutional 
liberties against a dire threat . . . .''\108\ Especially where the 
American people are already starting the process of voting for 
candidates for the next presidential election, removing a President 
from office and taking that decision away from the people requires 
meeting an extraordinarily high standard. As then-Senator Biden 
confirmed during President Clinton's trial, ``to remove a duly elected 
president will unavoidably harm our constitutional structure'' and 
``[r]emoving the President from office without compelling evidence 
would be historically anti-democratic.''\109\
    Any lesser standard would be inconsistent with the unique 
importance of the President's role in the structure of the government, 
the profound disruption and danger of uncertainty that attend to 
removing a president from office, and the grave implications of 
negating the will of the people expressed in a national election.
    Second, because the President himself is vested with the authority 
of an entire branch of the federal government, his removal would cause 
extraordinary disruption to the Nation. Article II, Section 1 declares 
in no uncertain terms that ``[t]he executive Power shall be vested in a 
President of the United States of America.''\110\ As Justice Breyer has 
explained, ``Article II makes a single President responsible for the 
actions of the Executive Branch in much the same way that the entire 
Congress is responsible for the actions of the Legislative Branch, or 
the entire Judiciary for those of the Judicial Branch.''\111\ As a 
result, ``the application of the Impeachment Clause to the President of 
the United States involves the uniquely solemn act of having one branch 
essentially overthrow another.''\112\ It also carries the risk of 
profound disruption for the operation of the federal government.
    As ``the chief constitutional officer of the Executive branch,'' 
the President is ``entrusted with supervisory and policy 
responsibilities of utmost discretion and sensitivity.''\113\ Because 
he is assigned responsibility to ``take Care that the Laws be 
faithfully executed,''\114\ all federal law enforcement depends, 
ultimately, on the direction of the President. In addition, he is the 
Commander-in-Chief of the armed forces\115\ and ``the sole organ of the 
federal government in the field of international relations.''\116\ The 
foreign policy of the Nation is determined primarily by the President. 
His removal would necessarily create uncertainty and pose unique risks 
for U.S. interests around the globe. As OLC put it, removal of the 
President would be ``politically and constitutionally a traumatic 
event,''\117\ and Senator Bob Graham rightly called it ``one of the 
most disruptive acts imaginable in a democracy'' during President 
Clinton's trial.\118\
                3. Practice Under the Impeachment Clause
    The practical application of the Impeachment Clause by Congress 
supports the conclusion that an impeachable offense requires especially 
egregious conduct that threatens the constitutional order and, 
specifically, that it requires a violation of established law. The 
extraordinary threshold required for impeachment is evidenced by the 
fact that, in over two centuries under our Constitution, the House has 
impeached a President only twice. In each case, moreover, the Senate 
found the charges brought by the House insufficient to warrant removal 
from office.
    In addition, until now, even in the articles of impeachment that 
the Senate found insufficient, the House has never impeached a 
President on charges that did not include a violation of established 
law. President Clinton was impeached on charges that included perjury 
and obstruction of justice, both felonies under federal law.\119\ 
Similarly, in the near-impeachment of President Nixon, the articles of 
impeachment approved by the House Judiciary Committee included multiple 
violations of law.\120\ Article I alleged obstruction of justice.\121\ 
And Article II asserted numerous legal breaches.\122\
    The impeachment of Andrew Johnson proves the same point. In 1867, 
the House Judiciary Committee recommended articles of impeachment 
against President Johnson. The articles, however, did not allege any 
violation of law. Largely as a result of that fact, the Committee could 
not secure approval for them from a majority of the House. The minority 
report from the Committee arguing against adoption of the articles of 
impeachment explained that ``[t]he House of Representatives may impeach 
a civil officer, but it must be done according to law. It must be for 
some offence known to the law, and not created by the fancy of the 
members of the House.''\123\ Rep. James F. Wilson argued the position 
of the minority report on the House floor, explaining that ``no civil 
officer of the United States can be lawfully impeached except for a 
crime or misdemeanor known to the law.''\124\ As one historian has 
explained, ``[t]he House had refused to impeach Andrew Johnson . . . at 
least in part because many representatives did not believe he had 
committed a specific violation of law.''\125\ It was only after 
President Johnson violated the Tenure of Office Act, a law passed by 
Congress, that he was successfully impeached.\126\
    Even if judicial impeachments have been based on charges that do 
not involve a criminal offense or violation of statute,\127\ that would 
provide no sound basis for diluting the standards for presidential 
impeachment. Textually, the Constitution's Good Behavior Clause alters 
the standard for the impeachment of judges.\128\ In addition, for all 
the reasons outlined above, the President's unique role in the 
constitutional structure sets him apart and warrants more rigorous 
standards for impeachment. ``When Senators remove one of a thousand 
federal judges (or even one of nine justices), they are not 
transforming an entire branch of government. But that is exactly what 
happens when they oust America's one and only President, in whom all 
executive power is vested by the first sentence of Article II.''\129\ 
Unlike a presidential impeachment inquiry, impeachment of a federal 
judge ``does not paralyze the Nation'' or cast doubt on the direction 
of the country's domestic and foreign policy.\130\ Similarly, ``[t]he 
grounds for the expulsion of the one person elected by the entire 
nation to preside over the executive cannot be the same as those for 
one member of the almost four-thousand-member federal judiciary.''\131\ 
Thus, as then-Senator Biden recognized: ``The constitutional 
scholarship overwhelmingly recognizes that the fundamental structural 
commitment to a separation of powers requires [the Senate] to view the 
President as different than a Federal judge.''\132\ Indeed, ``our 
history establishes that, as applied, the constitutional standard for 
impeaching the President has been distinctive, and properly so.''\133\
 C. The Senate Cannot Convict Unless It Finds that the House Managers 
      Have Proved an Impeachable Offense Beyond a Reasonable Doubt
    Given the profound implications of removing a duly elected 
president from office, an exceptionally demanding standard of proof 
must apply in a presidential impeachment trial.\134\ Senators should 
convict on articles of impeachment against a President only if they 
find that the House Managers have carried their burden of proving that 
the President committed an impeachable offense beyond a reasonable 
doubt.
    As Senator Russ Feingold recognized in the Clinton impeachment, 
``[i]n making a decision of this magnitude, it is best not to err at 
all. If we must err, however, we should err on the side of . . . 
respecting the will of the people.''\135\ Democrat and Republican 
Senators alike applied the beyond a reasonable doubt standard during 
President Clinton's impeachment trial.\136\ As Senator Barbara Mikulski 
put it then: ``The U.S. Senate must not make the decision to remove a 
President based on a hunch that the charges may be true. The strength 
of our Constitution and the strength of our Nation dictate that [the 
Senate] be sure--beyond a reasonable doubt.''\137\
D. The Senate May Not Consider Allegations Not Charged in the Articles 
                             of Impeachment
    Under the Constitution, the House is given the ``sole Power of 
Impeachment'' and the Senate is given the ``sole Power to try all 
Impeachments.''\138\ An impeachment is literally a ``charge'' of 
particular wrongdoing.\139\ Thus, under the division of responsibility 
in the Constitution, the Senate can conduct a trial solely on the 
charges specified in articles of impeachment approved by a vote of the 
House and presented to the Senate. The Senate cannot expand the scope 
of a trial to consider mere assertions appearing in House reports that 
the House did not include in the articles of impeachment submitted to a 
vote. Similarly, House Managers trying the case in the Senate must be 
confined to the specific conduct alleged in the Articles approved by 
the House.
    These restrictions follow both from the plain terms of the 
Constitution limiting the Senate to trying an ``impeachment'' framed by 
the House and from elementary principles of due process. ``[T]he 
senator's role is solely one of acting on the accusations (Articles of 
Impeachment) voted by the House of Representatives. The Senate cannot 
lawfully find the president guilty of something not charged by the 
House, any more than a trial jury can find a defendant guilty of 
something not charged in the indictment.''\140\ ``No principle of 
procedural due process is more clearly established than that notice of 
the specific charge, and a chance to be heard in a trial of the issues 
raised by that charge, if desired, are among the constitutional rights 
of every accused.''\141\ As the Supreme Court has explained, it has 
been the rule for over 130 years that ``a court cannot permit a 
defendant to be tried on charges that are not made in the indictment 
against him.''\142\ Doing so is ``fatal error.''\143\
    Under the same principles of due process, the Senate must similarly 
refuse to consider any uncharged allegations as a basis for conviction.
                           procedural history
    House Democrats have focused these proceedings on a telephone 
conversation between President Trump and President Zelensky of Ukraine 
on July 25, 2019.\144\ At some unknown time shortly after that call, a 
staffer in the Intelligence Community (IC)--who had no first-hand 
knowledge of the call--approached the staff of Chairman Adam Schiff on 
the House Permanent Select Committee on Intelligence (HPSCI) raising 
complaints about the call.\145\ Although it is known that Chairman 
Schiff's staff provided the IC staffer some ``guidance,''\146\ the 
extent of the so-called whistleblower's coordination with Chairman 
Schiff's staff remains unknown to this day.
    The IC staffer retained counsel, including an attorney who had 
announced just days after President Trump took office that he supported 
a ``coup'' and ``rebellion'' to remove the President from office.\147\
    On August 12, 2019, the IC staffer filed a complaint about the July 
25 telephone call with the Inspector General of the IC.\148\ The 
Inspector General found that there was ``some indicia of an arguable 
political bias on the part of [the so-called whistleblower] in favor of 
a rival political candidate.''\149\
    On September 24, 2019, Speaker Nancy Pelosi unilaterally announced 
at a press conference that ``the House of Representatives is moving 
forward with an official impeachment inquiry''\150\ based on the 
anonymous complaint about the July 25 telephone call. There was no vote 
by the House to authorize such an inquiry.
    On September 25, pursuant to a previous announcement,\151\ the 
President declassified and released the complete record of the July 25 
call.\152\
    On September 26, HPSCI held its first hearing regarding the so-
called whistleblower complaint.\153\ And just one week later, on 
October 3, Chairman Schiff began a series of secret, closed-door 
hearings regarding the complaint.\154\ The President and his counsel 
were not permitted to participate in any of these proceedings.
    On October 31, after five weeks of hearings, House Democrats 
finally authorized an impeachment inquiry when the full House voted to 
approve House Resolution 660.\155\ By its terms, the Resolution did not 
purport to retroactively authorize investigative efforts before October 
31.\156\
    On November 13, HPSCI held the first of seven public hearings 
featuring some of the witnesses who had already testified in secret. At 
this stage, too, the President and his counsel were denied any 
opportunity to participate. HPSCI released a report on December 3, 
2019.\157\
    On December 4, the House Judiciary Committee held its first 
hearing, which featured four law professors, three of whom were 
selected by Democrats.\158\
    The next day, December 5, Speaker Pelosi announced the outcome of 
the Judiciary Committee's proceedings and directed Chairman Jerrold 
Nadler to draft articles of impeachment.\159\
    On December 9, four days after Speaker Pelosi announced that 
articles of impeachment would be drafted, the Judiciary Committee held 
its second and last hearing, which featured presentations solely from 
staff members from HPSCI and the Judiciary Committee.\160\ The House 
Judiciary Committee did not hear from any fact witnesses at any time.
    On December 10, Chairman Jerrold Nadler offered two articles of 
impeachment for the Judiciary Committee's consideration,\161\ and the 
Committee approved the articles on December 13 on a party-line 
vote.\162\
    On December 18, a mere 85 days after the press conference 
purportedly launching the inquiry, House Democrats completed the 
fastest presidential impeachment inquiry in history and adopted the 
Articles of Impeachment over bipartisan opposition.\163\
    House Democrats justified their unseemly haste by claiming they had 
to move forward ``without delay'' because the President would allegedly 
``continue to threaten the Nation's security, democracy, and 
constitutional system if he is allowed to remain in office.''\164\ In a 
remarkable reversal, however, as soon as they had voted, they decided 
that there was no urgency at all. House Democrats took a leisurely four 
weeks to complete the ministerial act of transmitting the articles to 
the Senate--more than three times longer than the entire length of 
proceedings before the House Judiciary Committee.
    The Senate now has the ``sole Power to try'' the Articles of 
Impeachment transmitted by the House.\165\
the articles should be rejected and the president should immediately be 
                               acquitted
I. The Articles Fail to State Impeachable Offenses as a Matter Of Law
 A. House Democrats' Novel Theory of ``Abuse of Power'' Does Not State 
an Impeachable Offense and Would Do Lasting Damage to the Separation of 
                                 Powers
    House Democrats' novel conception of ``abuse of power'' as a 
supposedly impeachable offense is constitutionally defective. It 
supplants the Framers' standard of ``high Crimes and 
Misdemeanors''\166\ with a made-up theory that the President can be 
impeached and removed from office under an amorphous and undefined 
standard of ``abuse of power.'' The Framers adopted a standard that 
requires a violation of established law to state an impeachable 
offense. By contrast, in their Articles of Impeachment, House Democrats 
have not even attempted to identify any law that was violated. 
Moreover, House Democrats' theory in this case rests on the radical 
assertion that the President could be impeached and removed from office 
entirely for his subjective motives--that is, for undertaking 
permissible actions for supposedly ``forbidden reasons.''\167\ That 
unprecedented test is so flexible it would vastly expand the 
impeachment power beyond constitutional limits and would permanently 
weaken the Presidency by effectively permitting impeachments based on 
policy disagreements.
    House Democrats cannot salvage their unprecedented ``abuse of 
power'' standard with fuzzy claims that the Framers particularly 
intended impeachment to address ``foreign entanglements'' and 
``corruption of elections.''\168\ Those assertions are makeweights that 
distort history and add no legitimacy to the radical theory of 
impeachment based on subjective motive alone.
    Under the Constitution, impeachable offenses must be defined under 
established law. And they must be based on objective wrongdoing, not 
supposed subjective motives dreamt up by a hostile faction in the House 
and superimposed onto a President's entirely lawful conduct.
     1. House Democrats' Novel Theory of ``Abuse of Power'' as an 
    Impeachable Offense Subverts Constitutional Standards and Would 
                   Permanently Weaken the Presidency
    House Democrats' theory that the President can be impeached and 
removed from office under a vaguely defined concept of ``abuse of 
power'' would vastly expand the impeachment power beyond the limits set 
by the Constitution and should be rejected by the Senate.
(a) House Democrats' made-up ``abuse of power'' standard fails to state 
  an impeachable offense because it does not rest on violation of an 
                            established law
    House Democrats' claim that the Senate can remove a President from 
office for running afoul of some ill-defined conception of ``abuse of 
power'' finds no support in the text or history of the Impeachment 
Clause. As explained above,\169\ by limiting impeachment to cases of 
``Treason, Bribery, or other high Crimes and Misdemeanors,''\170\ the 
Framers restricted impeachment to specific offenses against ``already 
known and established law.''\171\ That was a deliberate choice designed 
to constrain the power of impeachment.\172\ Restricting impeachment to 
offenses established by law provided a crucial protection for the 
independence of the Executive from what James Madison called the 
``impetuous vortex'' of legislative power.\173\ As many constitutional 
scholars have recognized, ``the Framers were far more concerned with 
protecting the presidency from the encroachments of Congress . . . than 
they were with the potential abuse of executive power.''\174\ The 
impeachment power necessarily implicated that concern. If the power 
were too expansive, the Framers feared that the Legislative Branch may 
``hold [impeachments] as a rod over the Executive and by that means 
effectually destroy his independence.''\175\ One key voice at the 
Constitutional Convention, Gouverneur Morris, warned that, as they 
crafted a mechanism to make the President ``amenable to Justice,'' the 
Framers ``should take care to provide some mode that will not make him 
dependent on the Legislature.''\176\ To limit the impeachment power, 
Morris argued that only ``few'' ``offences . . . ought to be 
impeachable,'' and the ``cases ought to be enumerated & defined.''\177\
    Indeed, the debates over the text of the Impeachment Clause 
particularly reveal the Framers' concern that ill-defined standards 
could give free rein to Congress to utilize impeachment to undermine 
the Executive. As explained above,\178\ when ``maladministration'' was 
proposed as a ground for impeachment, it was rejected based on 
Madison's concern that ``[s]o vague a term will be equivalent to a 
tenure during [the] pleasure of the Senate.''\179\ Madison rightly 
feared that a nebulous standard could allow Congress to use impeachment 
against a President based merely on policy differences, making it 
function like a parliamentary no-confidence vote. That would cripple 
the independent Executive the Framers had crafted and recreate the 
Parliamentary system they had expressly rejected. Circumscribing the 
impeachment power to reach only existing, defined offenses guarded 
against such misuse of the authority.\180\
    As Luther Martin, who had been a delegate at the Constitutional 
Convention, summarized the point at the impeachment trial of Justice 
Samuel Chase in 1804, ``[a]dmit that the House of Representatives have 
a right to impeach for acts which are not contrary to law, and that 
thereon the Senate may convict and the officer be removed, you leave 
your judges and all your other officers at the mercy of the prevailing 
party.''\181\ The Framers prevented that dangerous result by limiting 
impeachment to defined offenses under the law.
    House Democrats cannot reconcile their amorphous ``abuse of power'' 
standard with the constitutional text simply by asserting that, ``[t]o 
the founding generation, abuse of power was a specific, well-defined 
offense.''\182\ In fact, they conspicuously fail to provide any 
citation for that assertion. Nowhere have they identified any 
contemporaneous definition delimiting this purportedly ``well-defined'' 
offense.
    Nor can House Democrats shore up their theory by invoking English 
practice.\183\ According to House Democrats, 400 years of parliamentary 
history suggests that the particular offenses charged in English 
impeachments can be abstracted into several categories of offenses, 
including one involving abuse of power.\184\ From there, they jump to 
the conclusion that ``abuse of power'' itself can be treated as an 
offense and that any fact pattern that could be described as showing 
abuse of power can be treated as an impeachable offense. But that 
entire methodology is antithetical to the approach the Framers took in 
defining the impeachment power. The Framers sought to confine 
impeachable offenses within known bounds to protect the Executive from 
arbitrary exercises of power by Congress. Indeed, the Framers expressly 
rejected vague standards such as ``maladministration'' that had been 
used in England in order to constrain the impeachment power within 
defined limits. Deriving general categories from ancient English cases 
and using those categories as the labels for new, more nebulously 
defined purported ``offenses'' is precisely counter to the Framers' 
approach. As the Republican minority on the House Judiciary Committee 
in the Nixon impeachment inquiry explained, ``[t]he whole tenor of the 
Framers' discussions, the whole purpose of their many careful 
departures from English impeachment practice, was in the direction of 
limits and of standards.''\185\
    House Democrats' theory also has no grounding in the history of 
presidential impeachments. Until now, the House of Representatives has 
never impeached a President of the United States without alleging a 
violation of law--indeed, a crime. The articles of impeachment against 
President Clinton specified charges of perjury and obstruction of 
justice, both felonies under federal law.\186\ In the Nixon impeachment 
inquiry, the articles approved by the House Judiciary Committee accused 
the President of obstructing justice, among multiple other violations 
of the law.\187\ And as explained above,\188\ the impeachment of 
President Johnson provides the clearest evidence that a presidential 
impeachment requires alleged violations of existing law. When the House 
Judiciary Committee recommended impeaching Johnson in 1867 based on 
allegations that included no violations of law, the House rejected the 
recommendation.\189\ A majority in the House was persuaded by the 
arguments of the minority on the Judiciary Committee, who argued that 
``[t]he House of Representatives may impeach a civil officer, but it 
must be done according to law. It must be for some offence known to the 
law, and not created by the fancy of the members of the House.''\190\ 
Congress did not impeach President Johnson until the following year, 
when he was impeached for violating the Tenure of Office Act.\191\ The 
history of presidential impeachments provides no support for House 
Democrats' vague ``abuse of power'' charge.
   (b) House Democrats' unprecedented theory of impeachable offenses 
    defined by subjective intent alone would permanently weaken the 
                               presidency
    House Democrats' conception of ``abuse of power'' is especially 
dangerous because it rests on the even more radical claim that a 
President can be impeached and removed from office solely for doing 
something he is allowed to do, if he did it for the ``wrong'' 
subjective reasons. Under this view, impeachment can turn entirely on 
``whether the President's real reasons, the ones actually in his mind 
at the time, were legitimate.''\192\ That standard is so malleable that 
it would permit a partisan House--like this one--to attack virtually 
any presidential decision by questioning a President's motives. By 
eliminating any requirement for wrongful conduct, House Democrats have 
tried to make thinking the wrong thoughts an impeachable offense.
    House Democrats' theory of impeachment based on subjective motive 
alone is unworkable and constitutionally impermissible.
    First, by making impeachment turn on nearly impossible inquiries 
into the subjective intent behind entirely lawful conduct, House 
Democrats' standard would open virtually every presidential decision to 
partisan attack based on questioning a President's motives. As courts 
have repeatedly observed, ``[i]nquiry into the motives of elected 
officials can be both difficult and undesirable, and such inquiry 
should be avoided when possible.''\193\ Thus, for example, courts will 
not invalidate laws within Congress's constitutional authority based on 
allegations about legislators' motives.\194\ As constitutional 
historian Raoul Berger has observed, this principle ``is equally 
applicable to executive action within statutory or constitutional 
limits.''\195\ Even House Democrats' own expert, Professor Michael 
Gerhardt, has previously explained (in defending the Obama 
Administration against charges of abuse of power) that ``the President 
has the ability to . . . strongly push back against any inquiry into 
either the motivations or support for his actions.''\196\
    The Framers did not intend to expand the impeachment power 
infinitely by allowing Congress to attack objectively lawful 
presidential conduct based solely on unwieldy inquiries into subjective 
intent. Under the Framers' plan, impeachment was intended to apply to 
objective wrongdoing as identified by offenses defined under existing 
law. As noted above, the Framers rejected maladministration as a ground 
for impeachment precisely because it was ``[s]o vague a term.''\197\ 
Instead, they settled on ``high Crimes and Misdemeanors,''\198\ as a 
term with a ``limited and technical meaning.''\199\ ``[H]igh Crimes and 
Misdemeanors,'' as well as ``Treason'' and ``Bribery,''\200\ all denote 
objectively wrongful conduct as defined by existing law. Each of the 
seven other references in the Constitution to impeachment also supports 
the conclusion that impeachments must be evaluated in terms of offenses 
against settled law: The Constitution refers to ``Conviction'' for 
impeachable offenses twice\201\ and ``Judgment in Cases of 
Impeachment.''\202\ It directs the Senate to ``try all 
Impeachments''\203\ and requires the Chief Justice's participation when 
the President is ``tried.''\204\ And it implies impeachable offenses 
are ``Crimes'' and ``Offenses'' in the Jury Trial Clause and the Pardon 
Clause, respectively.\205\ These are all words that indicate violations 
of established law. The Framers' words limited the impeachment power 
and, in particular, sought to ensure that impeachment could not be used 
to attack a President based on mere policy differences.
    Given their apprehensions about misuse of the impeachment power, it 
is inconceivable that the Framers crafted a purely intent-based 
impeachment standard. Such a standard would be so vague and malleable 
that entirely permissible actions could lead to impeachment of a 
President (and potentially removal from office) based solely on a 
hostile Congress's assessment of the President's subjective motives. If 
that were the rule, any President's political opponents could take 
virtually any of his actions, mischaracterize his motives after the 
fact, and misuse impeachment as a tool for political opposition instead 
of as a safeguard against egregious presidential misconduct.\206\ As 
Republicans on the House Judiciary Committee during the Nixon 
impeachment inquiry rightly explained, ``[a]n impeachment power 
exercised without extrinsic and objective standards would be tantamount 
to the use of bills of attainder and ex post facto laws, which are 
expressly forbidden by the Constitution and are contrary to the 
American spirit of justice.''\207\
    House Democrats justify their focus on subjective motives based 
largely on a cherry-picked snippet from a statement James Iredell made 
in the North Carolina ratification debates.\208\ Iredell observed that 
``the President would be liable to impeachment [if] . . . he had acted 
from some corrupt motive or other.''\209\ But nothing in that general 
statement suggests that Iredell--let alone the Framers or the hundreds 
of delegates who ratified the Constitution in the states--subscribed to 
House Democrats' current theory treating impeachment as a roving 
license for Congress to attack a President's lawful actions based on 
subjective motive alone. To the contrary, in the very same speech, 
Iredell himself warned against the dangers of allowing impeachment 
based on assessments of subjective motive. He explained that there 
would often be divisions between political parties and that, due to a 
lack of ``charity,'' each might often ``attribute every opposition'' to 
its own views ``to an ill motive.''\210\ In that environment, he 
warned, ``[a] mere difference of opinion might be interpreted, by the 
malignity of party, into a deliberate, wicked action.''\211\ That, he 
argued, should not be a basis for impeachment.\212\
    House Democrats' assertions that past presidential impeachments 
provide support for their made-up impeachment-based-on-subjective-
motives-alone theory are also wrong.\213\ Contrary to their claims, 
neither the Nixon impeachment inquiry nor the impeachment of President 
Johnson supports their assertions.
    In the Nixon impeachment inquiry, none of the articles recommended 
by the House Judiciary Committee was labeled ``abuse of power'' or 
framed the charge in those terms. And it is simply wrong to say that 
the theory underlying the proposed articles was that President Nixon 
had taken permissible actions with the wrong subjective motives. 
Article I alleged President Nixon obstructed justice, a clear violation 
of law.\214\ And Article II asserted numerous breaches of the law. It 
claimed that President Nixon ``violat[ed] the constitutional rights of 
citizens,'' ``contraven[ed] the laws governing agencies of the 
executive branch,'' and ``authorized and permitted to be maintained a 
secret investigative unit within the office of the President . . . 
which unlawfully utilized the resources of the Central Intelligence 
Agency, [and] engaged in covert and unlawful activities.''\215\ Those 
allegations did not turn on describing permissible conduct that had 
simply been done with the wrong subjective motives.\216\ Instead, they 
charged unlawful conduct.\217\
    House Democrats' reliance on the Johnson impeachment fares no 
better. According to House Democrats, the Johnson impeachment supports 
their concocted impeachment-based-on-subjective-motives theory under 
the following tortured logic: The articles of impeachment actually 
adopted by the House charged the violation of the Tenure of Office 
Act.\218\ But that was not the ``real'' reason the House sought to 
remove President Johnson. The real reason was that he had undermined 
Reconstruction. And, in House Democrats' view, his improper desire to 
thwart Reconstruction was actually a better reason to impeach him.\219\ 
For support, House Democrats cite a recent book co-authored by one of 
their own staffers (Joshua Matz) and Laurence Tribe.\220\ This is 
nonsense. Nothing in the Johnson impeachment involved charging the 
President with taking objectively permissible action for the wrong 
subjective reasons. Johnson was impeached for violating a law passed by 
Congress.\221\ Moreover, President Johnson was acquitted, despite 
whatever subjective motives he might have had. House Democrats cannot 
conjure a precedent out of thin air by simply imagining that the 
Johnson impeachment articles said something other than what they 
said.\222\
    If the Johnson impeachment established any precedent relevant here, 
it is that the House refused to impeach the President until he clearly 
violated the letter of the law. As one historian has explained, despite 
widespread anger among Republicans about President Johnson's actions 
undermining Reconstruction, until Johnson violated the Tenure of Office 
Act, ``[t]he House had refused to impeach [him] . . . at least in part 
because many representatives did not believe he had committed a 
specific violation of law.''\223\
    Second, House Democrats' theory raises particular dangers because 
it makes ``personal political benefit'' one of the ``forbidden 
reasons'' for taking government action.\224\ Under that standard, a 
President could potentially be impeached and removed from office for 
taking any action with his political interests in view. In a 
representative democracy, however, elected officials almost always 
consider the effect that their conduct might have on the next election. 
And there is nothing wrong with that.
    By making ``personal political gain'' an illicit motive for 
official action, House Democrats' radical theory of impeachment would 
permit a partisan Congress to remove virtually any President by 
questioning the extent to which his or her action was motivated by 
electoral considerations rather than the ``right'' policy motivation. 
None of this has any basis in the constitutional text, which specifies 
particular offenses as impeachable conduct. Just as importantly, under 
such a rule, impeachments would turn on unanswerable questions that 
ultimately reduce to policy disputes--exactly what the Framers saw as 
an impermissible basis for impeachment. For example, if it is 
impeachable conduct to act with too much of a view toward electoral 
results, how much of a focus on electoral results is too much, even 
assuming that Congress could accurately disaggregate a President's 
actual motives? And how does one measure presidential motives against 
some unknowable standard of the ``right'' policy result uninfluenced by 
considerations of political gain? That question, of course, quickly 
boils down to nothing more than a dispute about the ``right'' policy in 
the first place. None of this provides any permissible basis for 
impeaching a President.
    Third, aptly demonstrating why all of this leads to 
unconstitutional results, House Democrats have invented standards for 
identifying supposedly illicit presidential motives that turn the 
Constitution upside down. According to House Democrats, they can show 
that President Trump acted with illicit motives because, in their view, 
the President supposedly ``disregarded United States foreign policy 
towards Ukraine,''\225\ ignored the ``official policy''\226\ that he 
had been briefed on, and ``ignored, defied, and confounded every agency 
within the Executive Branch'' with his decisions on Ukraine.\227\ These 
assertions are preposterous and dangerous. They fundamentally 
misunderstand the assignment of power under the Constitution.
    Article II of the Constitution states that ``the executive Power 
shall be vested in a President''--not Executive Branch staff.\228\ The 
vesting of the Executive Power in the President makes him ``the sole 
organ of the nation in its external relations, and its sole 
representative with foreign nations.''\229\ He sets foreign policy for 
the Nation, and in ``this vast external realm,'' the ``President alone 
has the power to speak . . . as a representative of the nation.''\230\ 
The Constitution assigns him control over foreign policy precisely to 
ensure that the Nation speaks with one voice.\231\ His decisions are 
authoritative regardless of the judgments of the unelected bureaucrats 
participating in an inter-agency process that exists solely to 
facilitate his decisions, not to make decisions for him. Any theory of 
an impeachable offense that turns on ferreting out supposedly 
``constitutionally improper'' motives by measuring the President's 
policy decisions against a purported ``interagency consensus'' formed 
by unelected staff is a transparent and impermissible inversion of the 
constitutional structure.
    It requires no leap of imagination to see the absurd consequences 
that would follow from House Democrats' theory. Imagine a President 
who, in an election year, determined to withdraw troops from an 
overseas deployment to have them home by Christmas. Should hostile 
lawmakers be able to seek impeachment and claim proof of ``illicit 
motive'' because an alleged ``interagency consensus'' showed that the 
``real'' national security interests of the United States required 
keeping those troops in place? Manufacturing an impeachment out of such 
an assertion ought to be dismissed out of hand.
    House Democrats' abuse-of-power theory is also profoundly anti-
democratic. In assigning the Executive Power to the President, the 
Constitution ensures that power is exercised by a person who is 
democratically responsible to the people through a quadrennial 
election.\232\ This ensures that the people themselves will regularly 
and frequently have a say in the direction of the Nation's policy, 
including foreign policy. As a result, removing a President on the 
ground that his foreign policy decisions were allegedly based on 
``illicit motives''--because they failed to conform to a purported 
``consensus'' of career bureaucrats--would fundamentally subvert the 
democratic principles at the core of our Constitution.
    This very impeachment shows how anti-democratic House Democrats' 
theory really is. Millions of Americans voted for President Trump 
precisely because he promised to disrupt the foreign policy status quo. 
He promised a new, ``America First'' foreign policy that many in the 
Washington establishment derided. And the President has delivered, 
bringing fresh and successful approaches to foreign policy in a host of 
areas, including relations with NATO, China, Israel, and North Korea. 
In particular, with respect to Ukraine and elsewhere, his foreign 
policy has focused on ensuring that America does not shoulder a 
disproportionate burden for various international missions, that other 
countries do their fair share, and that taxpayer dollars are not 
squandered. House Democrats' theory that a purported inter-agency 
``consensus'' among career bureaucrats can be used to show improper 
motive is an affront to the tens of millions of American citizens who 
voted for President Trump's foreign policy and not a continuation of 
the Washington establishment's policy preferences.
 2. House Democrats' assertions that the framers particularly intended 
      impeachment to guard against ``foreign entanglements'' and 
    ``corruption'' of elections are makeweights that distort history
    House Democrats try to shore up their made-up theory of abuse of 
power by pretending that anything related to what they call ``foreign 
entanglements'' or elections strikes at the core of impeachment.\233\ 
This novel accounting of the concerns animating the impeachment power 
conveniently allows House Democrats to claim that their allegations 
just happen to raise the perfect storm of impeachable conduct, as if 
their accusations show that ``President Trump has realized the Framers' 
worst nightmare.''\234\ That is preposterous on its face. The Framers 
were concerned about the possibility of treason and the danger that 
foreign princes with vast treasuries at their disposal might actually 
buy off the Chief Executive of a fledgling, debt-ridden republic 
situated on the seaboard of a vast wilderness continent--most of which 
was still claimed by European powers eager to advance their imperial 
interests. Their worst nightmare was not the President of the United 
States-as-superpower having an innocuous conversation with the leader 
of a comparatively small European republic and disclosing the 
conversation for all Americans to see.
    To peddle their distortion of history, House Democrats cobble 
together snippets from the Framers' discussions on various different 
subjects and try to portray them as if they define the contours of 
impeachable offenses. As explained above, the Framers intended a 
limited impeachment power. But when House Democrats find the Framers 
raising concerns about any risks to the new government, they leap to 
the conclusion that those concerns must identify impeachable offenses. 
Such transparently results-driven historical analysis is baseless and 
provides no support for House Democrats' drive to remove the President.
    First, House Democrats mangle history in offering ``foreign 
entanglements'' as a type of impeachable offense. Their approach 
confuses two different concepts--entangling the country in alliances 
and fears of foreign governments buying influence--to create a false 
impression that there is something insidious about anything involving a 
foreign connection that should make it a particularly ripe ground for 
impeachment.
    When the Framers spoke about foreign ``entanglements'' they had a 
particular danger in mind. That was the danger of the young country 
becoming ensnared in alliances that would draw it into conflicts 
between European powers. When President Washington asserted that 
``history and experience prove that foreign influence is one of the 
most baneful foes of republican government,'' he was not warning about 
Chief Executives meriting removal from office.\235\ He was advocating 
for neutrality in American foreign policy, and in particular, with 
respect to Europe.\236\ One of President Washington's most 
controversial decisions was establishing American neutrality in the 
escalating war between Great Britain and revolutionary France.\237\ He 
then used his Farewell Address to argue against ``entangl[ing] 
[American] peace and prosperity in the toils of European ambition, 
rivalship, interest, humor [and] caprice.''\238\ Again, he was warning 
about the United States being drawn into foreign alliances that would 
trap the young country in disputes between European powers. House 
Democrats' false allegations here have nothing to do with the danger of 
a foreign entanglement as the Founders understood that term, and the 
admonitions from the Founding era they cite are irrelevant.\239\
    The Framers were also concerned about the distinct problem of 
foreign attempts to interfere in the governance of the United 
States.\240\ But on that score, they identified particular concerns 
based on historical examples and addressed them specifically. They were 
concerned about officials being bought off by foreign powers. 
Gouverneur Morris articulated this concern: ``Our Executive . . . may 
be bribed by a greater interest to betray his trust; and no one would 
say that we ought to expose ourselves to the danger of seeing the first 
Magistrate in foreign pay without being able to guard [against] it by 
displacing him.''\241\ He specifically mentioned the bribe King Louis 
XIV of France had paid to King Charles II of England to influence 
English policy.\242\ This is why ``Bribery'' and ``Treason'' were made 
impeachable offenses. The Framers also addressed the danger of foreign 
inducements directed at the President by barring his acceptance of 
``any present, Emolument, Office, or Title'' in the Foreign Emoluments 
Clause.\243\ House Democrats' Articles of Impeachment make no 
allegations under any of these specific offenses identified in the 
Constitution.
    In the end, House Democrats' ahistorical arguments rest on a non 
sequitur. They essentially argue that because the Framers showed 
concern about the Nation being betrayed in these specific provisions, 
any accusations that relate to foreign influence must equally amount to 
impeachable conduct. That simply does not follow. To the contrary, 
since the Framers made specific provisions for the types of foreign 
interference they feared, there is no reason to think that the 
Impeachment Clause must be stretched and contorted to reach other 
conduct simply because it has to do with something foreign. The 
Framers' approach to treason, in particular, suggests that House 
Democrats' logic is wrong. The Framers defined treason in the 
Constitution to limit it.\244\ Nothing about their concern for limiting 
treason suggests that a general concern about foreign betrayal should 
be used as a ratchet to expand the scope of the Impeachment Clause and 
make it infinitely malleable so that all charges cast in the vague 
language of ``foreign entanglements'' should automatically state 
impeachable conduct.
    Second, House Democrats point to the Founders' concerns that a 
President might bribe electors to stay in office.\245\ But that 
specific concern does not mean, as they claim, that anything to do with 
an election was a central concern of impeachment and that impeachment 
is the tool the Framers created to deal with it. The historical 
evidence shows the Framers had a specific concern with presidential 
candidates bribing members of the Electoral College.\246\ That concern 
was addressed by the clear terms of the Constitution, which made 
``Bribery'' a basis for impeachment.\247\ Nothing in House Democrats' 
sources suggests that simply because one grave form of corruption 
related to elections became a basis for impeachment, then any 
accusations of any sort related to elections necessarily must fall 
within the ambit of impeachable conduct. That is simply an invention of 
the House Democrats.
 B. House Democrats' Charge of ``Obstruction'' Fails Because Invoking 
    Constitutionally Based Privileges and Immunities to Protect the 
           Separation of Powers Is Not an Impeachable Offense
    House Democrats' charge of ``obstruction'' is both frivolous and 
dangerous. At the outset, the very suggestion that President Trump has 
somehow ``obstructed'' Congress is preposterous. The President has been 
extraordinarily transparent about his interactions with President 
Zelensky. Immediately after questions arose, President Trump took the 
unprecedented step of declassifying and releasing the full record of 
his July 25 telephone call, and he later released the transcript of an 
April 21, 2019 call as well. It is well settled that the President has 
a virtually absolute right to maintain the confidentiality of his 
diplomatic communications with foreign leaders.\248\ And keeping such 
communications confidential is essential for the effective conduct of 
diplomacy, because it ensures that foreign leaders will be willing to 
talk candidly with the President. Nevertheless, after weighing such 
concerns, the President determined that complete transparency was 
important in this case, and he released both call records so that the 
American people could judge for themselves exactly what he said to the 
President of Ukraine. That should have put an end to this inquiry 
before it began. The President was not ``obstructing'' when he freely 
released the central piece of evidence in this case.
    The President also was not ``obstructing'' when he rightly decided 
to defend established Executive Branch confidentiality interests, 
rooted in the separation of powers, against unauthorized efforts to 
rummage through Executive Branch files and to demand testimony from 
some of the President's closest advisers. As the Supreme Court has 
explained, the privilege protecting the confidentiality of presidential 
communications ``is fundamental to the operation of Government and 
inextricably rooted in the separation of powers under the 
Constitution.''\249\ For future occupants of the Office of President, 
it was essential for the President, like past occupants of the Office, 
to protect Executive Branch confidentiality against House Democrats' 
overreaching intrusions.
    The President's proper concern for requiring the House to proceed 
by lawful measures and for protecting long-settled Executive Branch 
confidentiality interests cannot be twisted into an impeachable 
offense. To the contrary, House Democrats' charge of ``obstruction'' 
comes nowhere close to the constitutional standard. It does not charge 
any violation of established law. More important, it is based on the 
fundamentally mistaken premise that the President can be removed from 
office for invoking established legal defenses and immunities against 
defective subpoenas from House committees.
    The President does not commit ``obstruction'' by asserting legal 
rights and privileges.\250\ And House Democrats turn the law on its 
head with their unprecedented claim that it is ``obstruction'' for 
anyone to assert rights that might require the House to try to 
establish the validity of its subpoenas in court.\251\ House Democrats' 
radical theories are especially misplaced where, as here, the legal 
principles invoked by the President and other Administration officials 
are critical for preserving the separation of powers--and based on 
advice from the Department of Justice's Office of Legal Counsel.
    Treating a disagreement regarding constitutional limits on the 
House's authority to compel documents or testimony as an impeachable 
offense would do permanent damage to the Constitution's separation of 
powers and our structure of government. It would allow the House of 
Representatives to declare itself supreme and turn any disagreement 
with the Executive over informational demands into a purported basis 
for removing the President from office. As Professor Turley has 
explained, ``Basing impeachment on this obstruction theory would itself 
be an abuse of power . . . by Congress.''\252\
1. President Trump acted properly--and upon advice from the Department 
 of Justice--by asserting established legal defenses and immunities to 
 resist legally defective demands for information from House committees
    House Democrats' purported ``obstruction'' charge is based on three 
actions by the President or Executive Branch officials acting under his 
authority, each of which was entirely proper and taken only after 
securing advice from OLC.
(a) Administration officials properly refused to comply with subpoenas 
                that lacked authorization from the House
    It was entirely proper for Administration officials to decline to 
comply with subpoenas issued pursuant to a purported ``impeachment 
inquiry'' before the House of Representatives had authorized any such 
inquiry. No House committee can issue subpoenas pursuant to the House's 
impeachment power without authorization from the House itself. On 
precisely that basis, OLC determined that all subpoenas issued before 
the adoption of House Resolution 660 on October 31, 2019, purportedly 
to advance an ``impeachment inquiry,'' were unauthorized and 
invalid.\253\ Numerous witness subpoenas and all of the document 
subpoenas cited in Article II are invalid for this reason alone. These 
invalid subpoenas imposed no legal obligation on the recipients, and it 
was entirely lawful for the recipients not to comply with them.\254\ 
The belated adoption of House Resolution 660 on October 31 to authorize 
the inquiry essentially conceded that a vote was required and did 
nothing to remedy the inquiry's invalid beginnings.
  (i) A delegation of authority from the House is required before any 
      committee can investigate pursuant to the impeachment power
    No committee can exercise authority assigned by the Constitution to 
the House absent a clear delegation of authority from the House 
itself.\255\ The Constitution assigns the ``sole Power of 
Impeachment''\256\ to the House as a chamber--not to individual Members 
or subordinate units. Assessing the validity of a committee's inquiry 
and subpoenas thus requires ``constru[ing] the scope of the authority 
which the House of Representatives gave to'' the committee.\257\ Where 
a committee cannot demonstrate that its inquiries have been authorized 
by an affirmative vote of the House assigning the committee authority, 
the committee's actions are ultra vires, and its subpoenas have no 
force.\258\
    To pursue an ``impeachment inquiry,'' and to compel testimony and 
the production of documents for such an inquiry, the committee must be 
authorized to conduct an inquiry pursuant to the House's impeachment 
power. That power is distinct from the power to legislate assigned to 
Congress in Article I, Section 1. Congress's power to investigate in 
support of its power to legislate is limited to inquiring into topics 
``on which legislation could be had.''\259\ An impeachment inquiry is 
not subject to the same constraint. An impeachment inquiry does not aid 
Congress in considering legislation, but instead requires 
reconstructing past events to examine the conduct of specific persons. 
That differs from the forward-looking nature of any legislative 
investigation.\260\ Given these differences, a committee seeking to 
investigate pursuant to the impeachment power must show that the House 
has actually authorized the committee to use that specific power.
    The Speaker of the House cannot treat the House's constitutional 
power as her own to distribute to committees based on nothing more than 
her own say-so. That would exacerbate the danger of a minority faction 
invoking the power of impeachment to launch disruptive inquiries 
without any constitutional legitimacy from a majority vote in the 
House. It would also permit a minority to seize the House's formidable 
investigative powers to pursue divisive investigations for partisan 
purposes that a House majority might not be willing to authorize. House 
Democrats have not identified any credible support for their theory of 
authorization by press conference.\261\
(ii) Nothing in existing House rules authorized any committee to pursue 
                         an impeachment inquiry
    Nothing in the House Rules adopted at the beginning of this 
Congress delegated authority to pursue an impeachment inquiry to any 
committee. In particular, Rule X, which defines each committee's 
jurisdiction, makes clear that it addresses only committees' 
``legislative jurisdiction''--not impeachment.\262\ Rule X does not 
assign any committee any authority whatsoever with respect to 
impeachment. It does not even mention impeachment. And that silence is 
not accidental. Rule X devotes more than 2,000 words to describing the 
committees' areas of jurisdiction in detail. The six committees that 
Speaker Pelosi instructed to take part in the purported impeachment 
inquiry here have their jurisdiction defined down to the most obscure 
legislative issues, ranging from the Judiciary Committee's jurisdiction 
over ``[s]tate and territorial boundary lines''\263\ to the Oversight 
Committee's responsibility for ``[h]olidays and celebrations.''\264\ 
But Rule X does not assign any committee authority regarding 
impeachment. Neither does Rule XI's grant of specific investigative 
powers, such as the power to hold hearings and to issue subpoenas. Each 
committee's specific investigative powers under Rule XI are restricted 
to Rule X's jurisdictional limits\265\--which do not include 
impeachment.\266\
    Rule X's history confirms that the absence of any reference to 
``impeachment'' was deliberate. When the House considered a number of 
proposals between 1973 and 1974 to transfer power from the House to 
committees and to remake committee jurisdiction, the House specifically 
rejected an initial proposal that would have added ``impeachments'' to 
the Judiciary Committee's jurisdiction.\267\ Instead, the House amended 
the rules to provide standing authorization for committees to use 
investigatory powers only pursuant to their legislative 
jurisdiction\268\ (previously, for example, a separate House vote was 
required to delegate subpoena authority to a particular committee for a 
particular topic).\269\ Thus, after these amended rules were adopted, 
committees were able to begin investigations within their legislative 
jurisdiction and issue subpoenas without securing House approval, but 
that resolution did not authorize self-initiated impeachment inquiries. 
Indeed, it was precisely because ``impeachment was not specifically 
included within the jurisdiction of the House Judiciary Committee'' 
that then-Chairman Peter Rodino announced that the ``Committee on the 
Judiciary will have to seek subpoena power from the House'' for the 
Nixon impeachment inquiry.\270\ The House majority, minority, and 
Parliamentarian, as well as the Department of Justice, all agreed on 
this point.\271\
(iii) More than 200 years of precedent confirm that the House must vote 
                    to begin an impeachment inquiry
    Historical practice confirms the need for a House vote to launch an 
impeachment inquiry. Since the Founding of the Republic, the House has 
never undertaken the solemn responsibility of a presidential 
impeachment inquiry without first authorizing a particular committee to 
begin the inquiry. That has also been the House's nearly unbroken 
practice for every judicial impeachment for two hundred years.
    In every prior presidential impeachment inquiry, the House adopted 
a resolution explicitly authorizing the committee to conduct the 
investigation before any compulsory process was used.\272\ In President 
Clinton's impeachment, the House Judiciary Committee explained that the 
resolution was a constitutional requirement ``[b]ecause impeachment is 
delegated solely to the House of Representatives by the Constitution'' 
and thus ``the full House of Representatives should be involved in 
critical decision making regarding various stages of 
impeachment.''\273\ As the Judiciary Committee Chairman explained 
during President Nixon's impeachment, an ``authoriz[ation] . . . 
resolution has always been passed by the House'' for an impeachment 
inquiry and ``is a necessary step.''\274\ Thus, he recognized that, 
without authorization from the House, ``the committee's subpoena power 
[did] not now extend to impeachment.''\275\ Indeed, with respect to 
impeachments of judges or lesser officers in the Executive Branch, the 
requirement that the full House pass a resolution authorizing an 
impeachment inquiry traces back to the first impeachments under the 
Constitution.\276\
    That historical practice has continued into the modern era, in 
which there have been only three impeachments that did not begin with a 
House resolution authorizing an inquiry. Each of those three outliers 
involved impeachment of a lower court judge during a short interlude in 
the 1980s.\277\ Those outliers provide no precedent for a presidential 
impeachment. To paraphrase the Supreme Court, ``when considered against 
200 years of settled practice, we regard these few scattered examples 
as anomalies.''\278\ In addition, as explained above,\279\ ``[t]he 
impeachment of a federal judge does not provide the same weighty 
considerations as the impeachment of a president.''\280\ Setting aside 
these three outliers, precedent shows that a House vote is required to 
initiate an impeachment inquiry for judges and subordinate executive 
officials. At least the same level of process must be used to begin the 
far more serious process of inquiring into impeachment of the 
President.
(iv) The Subpoenas Issued Before House Resolution 660 Were Invalid and 
       Remain Invalid Because the Resolution Did Not Ratify Them
    The impeachment inquiry was unauthorized and all the subpoenas 
issued by House committees in pursuit of the inquiry were therefore 
invalid. OLC reached the same conclusion.\281\ The vast bulk of the 
proceedings in the House were thus founded on the use of unlawful 
process to compel testimony. Until now, House Democrats have 
consistently agreed that a vote by the House is required to authorize 
an impeachment inquiry. In 2016, House Democrats on the Judiciary 
Committee agreed that ``[i]n the modern era, the impeachment process 
begins in the House of Representatives only after the House has voted 
to authorize the Judiciary Committee to investigate whether charges are 
warranted.''\282\ As current Judiciary Committee member Rep. Hank 
Johnson said in 2016, ``[t]he impeachment process cannot begin until 
the 435 Members of the House of Representatives adopt a resolution 
authorizing the House Judiciary Committee to conduct an independent 
investigation.''\283\ As Chairman Nadler put it, an impeachment inquiry 
without a House vote is ``an obvious sham'' and a ``fake 
impeachment,''\284\ or as House Manager Rep. Hakeem Jeffries explained, 
it is ``a political charade,'' ``a sham,'' and ``a Hollywood-style 
production.''\285\
    These invalid subpoenas remain invalid today. House Resolution 660 
merely directed the six investigating committees to ``continue their 
ongoing investigations''\286\ and did not even purport to ratify 
retroactively the nearly two dozen invalid subpoenas issued before it 
was adopted,\287\ as OLC has explained.\288\ The House knows how to use 
language effectuating ratification when it wants to--indeed, it used 
such language less than six months ago in a resolution that 
``ratifie[d] . . . all subpoenas previously issued'' by a 
committee.\289\ The omission of anything similar from House Resolution 
660 means that subpoenas issued before House Resolution 660 remain 
invalid, and the entire fact-gathering process pursuant to those 
subpoenas was ultra vires.
    Contrary to false claims from House Democrats, the President did 
not ``declare[] himself above impeachment,'' reject ``any efforts at 
accommodation or compromise,'' or declare ``himself and his entire 
branch of government exempt from subpoenas issued by the House.''\290\ 
The White House simply made clear that Administration officials should 
not participate in House Democrats' inquiry ``under these 
circumstances''--meaning a process that was unauthorized under the 
House's own rules and suffered from the other serious defects.\291\ The 
President's counsel also made it clear that, if the investigating 
committees sought to proceed under their oversight authorities, the 
White House stood ``ready to engage in that process as [it] ha[s] in 
the past, in a manner consistent with well-established bipartisan 
constitutional protections.''\292\ It was Chairman Schiff and his 
colleagues who refused to engage in any accommodation process with the 
White House.
  (b) The President Properly Asserted Immunity of His Senior Advisers 
                 From Compelled Congressional Testimony
    The President also properly directed his senior advisers not to 
testify in response to subpoenas.\293\ Those subpoenas suffered from a 
separate infirmity: they were unenforceable because the President's 
senior advisers are immune from compelled testimony before 
Congress.\294\ Consistent with the longstanding position of the 
Executive Branch, OLC advised the Counsel to the President that those 
senior advisers (the Acting Chief of Staff, the Legal Advisor to the 
National Security Council, and the Deputy National Security Advisor) 
were immune from the subpoenas issued to them.\295\
    Across administrations of both political parties, OLC ``has 
repeatedly provided for nearly five decades'' that ``Congress may not 
constitutionally compel the President's senior advisers to testify 
about their official duties.''\296\ For example, President Obama 
asserted the same immunity for a senior adviser in 2014.\297\ 
Similarly, during the Clinton administration, Attorney General Janet 
Reno opined that ``immediate advisers'' to the President are immune 
from being compelled to testify before Congress, and that the ``the 
immunity such advisers enjoy from testimonial compulsion by a 
congressional committee is absolute and may not be overborne by 
competing congressional interests.''\298\ She explained that 
``compelling one of the President's immediate advisers to testify on a 
matter of executive decision-making would . . . raise serious 
constitutional problems, no matter what the assertion of congressional 
need.''\299\
    This immunity exists because senior advisers ``function as the 
President's alter ego.''\300\ Allowing Congress to summon the 
President's senior advisers would be tantamount to permitting Congress 
to subpoena the President, which would be intolerable under the 
Constitution: ``Congress may no more summon the President to a 
congressional committee room than the President may command Members of 
Congress to appear at the White House.''\301\
    In addition, immunity is essential to protect the President's 
ability to secure candid and confidential advice and have frank 
discussions with his advisers. It thus serves, in part, to protect the 
same interests that underlie Executive Privilege.\302\ As the Supreme 
Court has explained, the protections for confidentiality embodied in 
the doctrine of Executive Privilege are ``fundamental to the operation 
of Government and inextricably rooted in the separation of powers under 
the Constitution.''\303\ The subpoenas issued to the President's senior 
advisers in this inquiry necessarily implicated three core areas of 
Executive Privilege--presidential communications, national security and 
foreign policy information, and deliberative process.
    First, one of the House Democrats' obvious objectives was to find 
out about presidential communications. The document subpoena sent to 
Acting White House Chief of Staff Mulvaney, for instance, sought 
materials reflecting the President's discussions with advisers,\304\ 
and Chairman Schiff's report specifically identified documents that 
House Democrats sought, including ``briefing materials for President 
Trump,'' a ``presidential decision memo,'' and presidential call 
records.\305\
    Courts have long recognized constitutional limits on Congress's 
ability to obtain presidential communications. As the Supreme Court has 
explained, executive decisionmaking requires the candid exchange of 
ideas, and ``[h]uman experience teaches that those who expect public 
dissemination of their remarks may well temper candor with a concern 
for appearances and for their own interests to the detriment of the 
decisionmaking process.''\306\ Protecting the confidentiality of 
communications ensures the President's ability to receive candid 
advice.\307\
    Second, there can be no dispute that the matters at issue here 
implicate national security and foreign policy. As Deputy National 
Security Adviser Kupperman has explained, House Democrats were 
``seeking testimony relating to confidential national security 
communications concerning Ukraine.''\308\ But OLC has established that 
``immunity is particularly justified'' where a senior official's 
``duties concern national security'' or ``relations with a foreign 
government''\309\--subject areas where the President's authority is at 
its zenith under the Constitution.\310\ As the Supreme Court explained 
in United States v. Nixon, the ``courts have traditionally shown the 
utmost deference to Presidential responsibilities'' for foreign policy 
and national security, and claims of privilege in this area thus 
receive a higher degree of deference than invocations of ``a 
President's generalized interest in confidentiality.''\311\
    The House's inquiry involved communications with a foreign leader 
and the development of foreign policy toward a foreign country. There 
are few areas where the President's powers under the Constitution are 
greater and his obligation to protect internal Executive Branch 
deliberations more profound.
    Third, House Democrats were seeking deliberative process 
information. For instance, the committees requested White House 
documents reflecting internal deliberations about foreign aid, the 
delegation to President Zelensky's inauguration, and potential meetings 
with foreign leaders.\312\ Courts have long recognized that the 
``deliberative process privilege'' applies across the Executive Branch 
and protects ``materials that would reveal advisory opinions, 
recommendations and deliberations comprising part of a process by which 
governmental decisions and policies are formulated.''\313\ The 
privilege prevents ``injury to the quality of agency decisions by 
allowing government officials freedom to debate alternative approaches 
in private,''\314\ and the privilege has been consistently recognized 
by administrations of both political parties.\315\
   (c) Administration officials properly instructed employees not to 
   testify before committees that improperly excluded agency counsel
    Subpoenas for testimony from other Executive Branch officials 
suffered from a distinct flaw. They impermissibly demanded that 
officials testify without agency counsel present.\316\ OLC has 
determined that congressional committees ``may not bar agency counsel 
from assisting an executive branch witness without contravening the 
legitimate prerogatives of the Executive Branch,'' and that attempting 
to enforce a subpoena while barring agency counsel ``would be 
unconstitutional.''\317\ As OLC explained, that principle applies in 
the context of the House's purported impeachment inquiry just as it 
applies in more routine congressional oversight requests.\318\
    The requirement for congressional committees to permit agency 
counsel to attend depositions of Executive Branch officials is firmly 
grounded in the President's constitutional authorities ``to protect 
privileged information from disclosure'' and to ``control the 
activities of subordinate officials within the Executive Branch.''\319\ 
As OLC has explained, without the assistance of agency counsel, an 
Executive Branch employee might not be able to determine when a 
question invaded a privileged area.\320\ It is the vital role of agency 
counsel to ensure that constitutionally based confidentiality interests 
are protected. Congressional rules do not override these constitutional 
principles, and there is no legitimate reason for House Democrats to 
seek to deprive these officials of the assistance of appropriate 
counsel.\321\
    The important role of agency counsel in congressional inquiries has 
been recognized by administrations of both political parties. During 
the Obama Administration, for instance, OLC stated that exclusion of 
agency counsel ``could potentially undermine the Executive Branch's 
ability to protect its confidentiality interests in the course of the 
constitutionally mandated accommodation process, as well as the 
President's constitutional authority to consider and assert executive 
privilege where appropriate.''\322\
    Requiring agency counsel to be present when Executive Branch 
employees testify does not raise any insurmountable problems for 
congressional information gathering. To the contrary, as recently as 
April 2019, the House Committee on Oversight and Government Reform and 
the Trump Administration were able to work out an accommodation that 
satisfied both an information request and the need to have agency 
counsel present for an interview. In that case, after initially 
threatening contempt proceedings over a dispute, the late Chairman 
Elijah Cummings allowed White House attorneys to attend a transcribed 
interview of the former Director of the White House Personnel Security 
Office.\323\ House Democrats could have eliminated a significant legal 
defect in their subpoenas simply by following Chairman Cummings' 
example. They did not take this step, so the Administration properly 
accepted the advice of OLC that House Democrats' actions were 
unconstitutional and directed witnesses not to appear without agency 
counsel present.
      2. Asserting legal defenses and immunities grounded in the 
   constitution's separation of powers is not an impeachable offense
    House Democrats' theory that it is ``obstruction'' for the 
President to assert legal rights--especially rights and immunities 
grounded in the separation of powers--turns the law on its head and 
would do permanent damage to the structure of our government.
   (a) Asserting Legal Defenses and Privileges Is Not ``Obstruction''
    Under fundamental principles of our legal system, asserting legal 
defenses cannot be labeled unlawful ``obstruction.'' In a government of 
laws, asserting legal defenses is a fundamental right. As the Supreme 
Court has explained: ``[F]or an agent of the State to pursue a course 
of action whose objective is to penalize a person's reliance on his 
legal rights is `patently unconstitutional.'''\324\ As Harvard Law 
Professor Laurence Tribe correctly explained in 1998, the same basic 
principles apply in impeachment:
    The allegations that invoking privileges and otherwise using the 
judicial system to shield information . . . is an abuse of power that 
should lead to impeachment and removal from office is not only 
frivolous, but also dangerous.\325\
    Similarly, in 1998, now-Chairman Nadler of the House Judiciary 
Committee agreed that a president cannot be impeached for asserting a 
legal privilege. As he put it, ``the use of a legal privilege is not 
illegal or impeachable by itself, a legal privilege, executive 
privilege.''\326\
    House Democrats, however, ran roughshod over these principles. They 
repeatedly threatened Executive Branch officials with obstruction 
charges if the officials dared to assert legal rights against defective 
subpoenas. They claimed that any ``failure or refusal to comply with 
[a] subpoena, including at the direction or behest of the President or 
others at the White House, shall constitute evidence of 
obstruction.''\327\ Even worse, Chairman Schiff made the remarkable 
claim that any action ``that forces us to litigate or have to consider 
litigation, will be considered further evidence of obstruction of 
justice.''\328\ Those assertions turn core principles of the law inside 
out.
 (b) House Democrats' Radical Theory of ``Obstruction'' Would Do Grave 
                   Damage to the Separation of Powers
    More important, in the context of House demands for information 
from the Executive Branch, House Democrats' radical theory that 
asserting legal privileges should be treated immediately as impeachable 
``obstruction'' would do lasting damage to the separation of powers.
    The Legislative and Executive Branches have frequently clashed on 
questions of constitutional interpretation, including on issues 
surrounding congressional demands for information, since the very first 
presidential administration.\329\ Such interbranch conflicts are not 
evidence of an impeachable offense. To the contrary, they are part of 
the constitutional design. The Founders anticipated that the branches 
might have differing interpretations of the Constitution and might come 
into conflict. As Madison explained, ``the Legislative, Executive, and 
Judicial departments . . . must, in the exercise of its functions, be 
guided by the text of the Constitution according to its own 
interpretation of it.''\330\ Friction between the branches on such 
points is part of the separation of powers at work.\331\
    When the Legislative and Executive Branches disagree about their 
constitutional duties with respect to sharing information, the proper 
and historically accepted solution is not an article of impeachment. 
Instead, it is for the branches to engage in a constitutionally 
mandated accommodation process in an effort to resolve the 
disagreement.\332\ As courts have explained, this ``[n]egotiation 
between the two branches'' is ``a dynamic process affirmatively 
furthering the constitutional scheme.''\333\
    Where the accommodation process fails, Congress has other tools at 
its disposal to address a disagreement with the Executive. 
Historically, the House has held Executive Branch officials in 
contempt.\334\ The process of holding a formal vote of the House on a 
contempt resolution ensures that the House itself examines the subpoena 
in question and weighs in on launching a full-blown confrontation with 
the Executive Branch.\335\ In addition, in recent times, the House of 
Representatives has taken the view that it may sue in court to obtain a 
judicial determination of the validity of its subpoenas and an 
injunction to enforce them.\336\
    In this case, if House Democrats had actually been interested in 
securing information (rather than merely adding a phony count to their 
impeachment charge sheet), the proper course would have been to engage 
with the Administration in one or more of these mechanisms for 
resolving the interbranch conflict.\337\ House Democrats rejected any 
effort to pursue any of these avenues. Instead, they simply announced 
that constitutional accommodation, contempt, and litigation were all 
too inconvenient for their politically driven timetable and that they 
must impeach the President immediately.\338\
    Permitting that approach and treating the President's response to 
the subpoenas as an impeachable offense would do grave damage to the 
separation of powers. Suggesting that every congressional demand for 
information must automatically be obeyed on pain of impeachment would 
undermine the foundational premise that the Legislative and Executive 
Branches are coequal branches of the government, neither of which is 
subservient to the other. As Madison explained, where the Executive and 
the Legislative Branches come into conflict ``neither of them, it is 
evident, can pretend to an exclusive or superior right of settling the 
boundaries between their respective powers.''\339\ That is why the 
courts have insisted on an accommodations process by which the two 
branches work to reach a compromise in which the interest of each 
branch is addressed.\340\ House Democrats, by contrast, have declared 
the House supreme not only over the Executive Branch, but also over the 
Judicial Branch, by baldly proclaiming that, whenever a committee 
chairman invokes the possibility of impeachment, the House itself is 
the sole judge of its own powers, because (in their view) ``the 
Constitution gives the House the final word.''\341\
    House Democrats' theory is unprecedented and dangerous for our 
structure of government. There is no reason to believe that the House, 
acting as judge in its own case, will properly acknowledge limits on 
its own powers. That is evident from numerous cases in which courts 
have refused to enforce congressional subpoenas because they are 
invalid or overbroad.\342\ More important, the House Democrats' theory 
means that the House could dangle the threat of impeachment over every 
congressional demand for information. Trivializing impeachment in this 
manner would functionally transform our government into precisely the 
type of parliamentary system the Framers rejected.
    In his testimony before the House Judiciary Committee, Professor 
Turley rightly pointed out that, by ``claiming Congress can demand any 
testimony or documents and then impeach any president who dares to go 
to the courts,'' House Democrats were advancing a position that was 
``entirely untenable and abusive [of] an impeachment.''\343\ Other 
scholars agree. In the Clinton impeachment, for example, Professor 
Susan Low Bloch testified that ``impeaching a president for invoking 
lawful privileges is a dangerous and ominous precedent.''\344\
    In the past, the House itself has agreed and has recognized that a 
President cannot be impeached for asserting a privilege. For example, 
the House Judiciary Committee rejected as a ground for impeachment the 
allegation that President Clinton had ``frivolously and corruptly 
asserted executive privilege'' in connection with a criminal 
investigation.\345\ Although the Committee believed that ``the 
President ha[d] improperly exercised executive privilege,''\346\ it 
nevertheless determined that this was not an ``impeachable 
offense[].''\347\ Similarly, over 175 years ago, the House rejected an 
attempt to impeach President Tyler ``for abusing his powers based on 
his refusals to share with the House inside details on whom he was 
considering to nominate to various confirmable positions and his 
vetoing of a wide range of Whig-sponsored legislation.''\348\
    If House Democrats' unprecedented theory of ``obstruction of 
Congress'' were correct, virtually every President could have been 
impeached. Throughout our history, Presidents have refused to share 
information with Congress. For example, when Congress investigated 
Operation Fast and Furious during the last administration, President 
Obama invoked Executive Privilege with respect to documents responsive 
to a congressional subpoena.\349\ Instead of a rash rush to 
impeachment, House Republicans secured a favorable court ruling on 
President Obama's assertion of privilege.\350\ President Trump's 
actions are entirely consistent with such steps taken by his 
predecessors. As Professor Turley explained, ``[i]f this Committee 
elects to seek impeachment on the failure to yield to congressional 
demands in an oversight or impeachment investigation, it will have to 
distinguish a long line of cases where prior presidents sought . . . 
[judicial] review while withholding witnesses and documents.''\351\
    House Democrats fare no better in claiming that President Trump 
announced a more ``categorical'' refusal to cooperate with House 
demands than any past president.\352\ That claim misunderstands the law 
and misrepresents both the President's conduct and history. On the law, 
there is nothing impermissible about asserting rights consistently and 
``categorically.'' There is no requirement for a President to cede 
Executive Branch confidentiality interests some of the time lest he be 
too ``categorical'' in their defense. On the facts, the President did 
not issue a categorical refusal. As noted above, the Counsel to the 
President made clear to House Democrats that, if they sought to pursue 
regular oversight, the Administration would ``stand ready to engage in 
that process as we have in the past, in a manner consistent with well-
established bipartisan constitutional protections.''\353\ It was House 
Democrats who refused to engage in the accommodation process. And as 
for history, past Presidents--such as Presidents Truman, Coolidge, and 
Jackson--did announce categorical refusals to cooperate at all with 
congressional inquiries.\354\ None was impeached as a result.
    Contrary to House Democrats' assertions, it also makes no 
difference that the subpoenas here were purportedly issued as part of 
an impeachment inquiry.\355\ The defenses and immunities the President 
has asserted are grounded in the separation of powers and protect 
confidentiality interests that are vital for the functioning of the 
Executive Branch. Those defenses and immunities do not disappear the 
instant the House opens an impeachment inquiry. Just as with the 
judicial need for evidence in a criminal trial, the House's interest in 
investigating does not mean Executive Privilege goes away; instead, 
``it is necessary to resolve those competing interests in a manner that 
preserves the essential functions of each branch.''\356\ If anything, 
the interbranch conflict inherent in an impeachment inquiry heightens 
the need for scrupulous adherence to principles preserving each 
branch's mechanisms for protecting its own legitimate sphere of 
authority.
    House Democrats' insistence that the Constitution assigns the House 
the ``sole Power of Impeachment''\357\ does nothing to advance their 
argument. That provision simply makes clear that the power of 
impeachment is assigned to the House and not anywhere else. It does not 
make the power of impeachment a paramount authority that sweeps away 
the constitutionally based privileges of other branches.\358\ The 
fundamental Madisonian principle that each branch must place checks on 
the others--that ``[a]mbition must be made to counteract ambition''--
continues to apply even when the House invokes the power of 
impeachment.\359\ The mere fact that impeachment provides an ultimate 
check on the Executive does not mean the Framers made it a blank check 
for the House to expand its power without limit.
    OLC has determined that Executive Privilege principles continue to 
apply in an impeachment inquiry.\360\ And scholars agree that 
Presidents may assert privileges in response to demands for information 
in an impeachment inquiry, as Executive Privilege is ``essential to the 
. . . dignified conduct of the presidency and to the free flow of 
candid advice to the President.''\361\
    None of the excuses House Democrats have offered justifies their 
unprecedented leap to impeachment while bypassing any effort either to 
seek constitutionally mandated accommodations or to go to court. Their 
claim that there was no time is no justification.\362\ As Professor 
Turley has explained, ``[t]he decision to adopt an abbreviated schedule 
for the investigation and not to seek to compel such testimony [in 
court] is a strategic choice of the House leadership. It is not the 
grounds for an impeachment.''\363\ Nor is their claim about urgency 
credible. The only constraint on timing here came from House Democrats' 
self-imposed deadline to ensure that this impeachment charade would not 
drag on into the Democratic primary season. They also showed no urgency 
when they waited four weeks to send the Articles of Impeachment to the 
Senate. If House Democrats had cared about constitutional precedent, 
they would have adhered to the ordinary timetable for something as 
momentous as a presidential impeachment and would have taken the time 
to work out disputes with the Executive Branch on subpoenas. House 
Democrats arbitrarily decided to skip that step.
    Next, Democrats falsely claim that that ``the House has never 
before relied on litigation to compel witness testimony or the 
production of documents in a Presidential impeachment 
proceeding.''\364\ But the House has filed such lawsuits, including 
just last year. In one case, the House made a court filing asserting 
that its impeachment inquiry entitled it to certain grand jury 
information on the same day the House Judiciary Committee issued its 
report.\365\ And in another case purportedly based on an impeachment 
inquiry, House Democrats recently argued that, when at an impasse, 
disputes with the Executive Branch can ``only be resolved by the 
courts.''\366\ These filings are flatly inconsistent with House 
Democrats' position here, where they claim that any impasse should lead 
to impeachment.
    Lastly, House Democrats also find no support for their theory of 
``obstruction'' in the Clinton and Nixon impeachment proceedings.\367\ 
To the contrary, the Clinton proceedings establish conclusively that 
there is no plausible basis for an article of impeachment based on the 
assertion of rights and privileges. In 1997 and 1998, there had been 
numerous court rulings rejecting various assertions of Executive 
Privilege by President Clinton.\368\ The House Judiciary Committee 
concluded that Clinton's assertions of Executive Privilege were 
frivolous, especially because they related to ``purely private'' 
matters--not official actions.\369\ Nevertheless, the Committee decided 
that the assertions of privilege did not constitute an ``impeachable 
offense[].''\370\
    Nothing from the Nixon impeachment proceedings supports House 
Democrats either. The record there included evidence that, as part of 
efforts to cover up the Watergate break-in, the President had (among 
other things): provided information from the Department of Justice to 
subjects of criminal investigations to help them evade justice; used 
the FBI, Secret Service, and Executive Branch personnel to conduct 
illegal electronic surveillance; and illegally attempted to secure 
access to tax return information in order to influence 
individuals.\371\ Moreover, the Committee had transcripts of tapes on 
which the President discussed asserting privileges, not to protect 
governmental decision making, but solely to stymie the investigation 
into the break-in.\372\ It was only in that context that the House 
Judiciary Committee narrowly recommended an article of impeachment 
asserting that President Nixon had ``failed without lawful cause or 
excuse to produce papers and things'' sought by Congress.\373\ There is 
nothing remotely comparable in this case. Among other things, every 
step the Trump Administration has taken has been well-founded in law 
and supported by the opinion of the Department of Justice. Moreover, 
the subpoenas here attempted to probe into matters involving the 
conduct of foreign relations--matters squarely at the core of Executive 
Privilege where the President's powers and need to preserve 
confidentiality are at their apex.
 (c) The President cannot be removed from office based on a difference 
                            in legal opinion
    House Democrats' reckless ``obstruction'' theory is further flawed 
because it asks the Senate to remove a duly elected President from 
office based on differences of legal opinion in which the President 
acted on the advice of OLC. As explained above, the Framers restricted 
impeachment to remedy solely egregious conduct that endangers the 
constitutional structure of government. No matter how House Democrats 
try to dress up their claim, a difference of legal opinion over an 
assertion of grounds to resist subpoenas does not rise to that level. 
The Framers themselves recognized that differences of opinion could not 
justify impeachment. As Edmund Randolph explained in the Virginia 
ratifying convention, ``[n]o man ever thought of impeaching a man for 
an opinion.''\374\
    Until now, that principle has prevailed, as the House has expressly 
rejected attempts to impeach presidents based on legal disputes over 
assertions of privilege. As noted above, in the Clinton impeachment, 
the House Judiciary Committee rejected a draft article alleging that 
President Clinton had ``frivolously and corruptly asserted executive 
privilege.''\375\ Even though the Committee concluded that ``the 
President ha[d] improperly exercised executive privilege,''\376\ it 
decided that this was not an ``impeachable offense[].''\377\ The 
Committee concluded it did not have ``the ability to second guess the 
rationale behind the President or what was in his mind in asserting 
that executive privilege'' and it ``ought to give . . . the benefit of 
the doubt [to the President] in the assertion of executive 
privilege.''\378\ As the Committee recognized, members of Congress need 
not agree that a President's assertion of a privilege or immunity is 
correct to recognize that making the assertion of legal privileges 
itself an impeachable offense is a dangerous and unwarranted step.
    The House took a similar view in rejecting an attempt to impeach 
President Tyler in 1843 when he refused congressional demands for 
information. As Professor Gerhardt has explained:
    Tyler's attempts to protect and assert what he regarded as the 
prerogatives of his office were a function of his constitutional and 
policy judgments; they might have been wrong-headed or even poorly 
conceived (at least in the view of many Whigs in Congress), but they 
were not malicious efforts to abuse or expand his powers.. . .\379\
    President Trump's resistance to congressional subpoenas here was 
similarly ``a function of his constitutional and policy judgments.'' As 
the House recognized in the cases of President Tyler and President 
Clinton, divergent views on such matters cannot possibly be sufficient 
to remove a duly elected president from office. And that is especially 
the case here, where President Trump's actions were expressly based on 
advice from the Department of Justice.
II. The Articles Resulted from an Impeachment Inquiry that Violated All 
        Precedent and Denied the President Constitutionally Required 
        Due Process
    Three defects make the House's purported impeachment inquiry 
irredeemably flawed. First, as the Department of Justice advised at the 
time, the House's investigating committees compelled testimony and 
documents by issuing subpoenas that were invalid when issued and are 
invalid today. See Parts I.B.1(a), II.A. Second, the impeachment 
inquiry failed to provide due process to the President as required by 
the Constitution. See Part II.B. Contrary to 150 years of precedent, 
the House excluded the President from the process, denying him any 
right to participate or defend himself. House Democrats only pretended 
to provide the President any rights after the entire factual record had 
been compiled in ex parte hearings and after Speaker Pelosi had 
predetermined the result by instructing the Judiciary Committee to 
draft articles of impeachment. Third, the House's factual investigation 
was supervised by an interested fact witness, Chairman Schiff, who--
after falsely denying it--admitted that his staff had been in contact 
with the whistleblower and had given him guidance. See Part II.C. These 
three fundamental errors infected the underpinnings of this trial, and 
the Senate cannot constitutionally rely upon House Democrats' tainted 
record to reach any verdict other than acquittal. See Part II.D. Nor is 
it the Senate's role to give House Democrats a ``do-over'' to develop 
the record anew in the Senate. These errors require rejecting the 
Articles and acquitting the President.
A. The Purported Impeachment Inquiry Was Unauthorized at the Outset and 
    Compelled Testimony Based on Nearly Two Dozen Invalid Subpoenas
    It is emblematic of the rush to judgment throughout the House's 
slap-dash impeachment inquiry that Chairman Schiff's investigating 
committees began issuing subpoenas and compelling testimony when they 
plainly had no authority to do so. The House committees built their 
one-sided record by purporting to compel testimony and documents using 
nearly two dozen subpoenas ``[p]ursuant to the House of 
Representatives' impeachment inquiry.''\380\ But their only authority 
was Speaker Pelosi's announcement at a press conference on September 
24, 2019. As a result, the inquiry and the almost two dozen subpoenas 
issued before October 31, 2019 came before the House delegated any 
authority under its ``sole Power of Impeachment'' to any 
committee.\381\ As OLC summarized:
    The Constitution vests the ``sole Power of Impeachment'' in the 
House of Representatives. U.S. Const. art. I, Sec. 2, cl. 5. For 
precisely that reason, the House itself must authorize an impeachment 
inquiry, as it has done in virtually every prior impeachment 
investigation in our Nation's history, including every one involving a 
President. A congressional committee's ``right to exact testimony and 
to call for the production of documents'' is limited by the 
``controlling charter'' the committee has received from the House. 
United States v. Rumely, 345 U.S. 41, 44 (1953). Yet the House, by its 
rules, has authorized its committees to issue subpoenas only for 
matters within their legislative jurisdiction. Accordingly, no 
committee may undertake the momentous move from legislative oversight 
to impeachment without a delegation by the full House of such 
authority.\382\
    Thus, as explained above, all subpoenas issued before the adoption 
of House Resolution 660 on October 31, 2019, purportedly to advance an 
``impeachment inquiry,'' were unauthorized and invalid.
 B. House Democrats' Impeachment Inquiry Deprived the President of the 
        Fundamentally Fair Process Required by the Constitution
    The next glaring defect in House Democrats' impeachment proceedings 
was the wholly unfair procedures used to conduct the inquiry and 
compile the record. The Constitution requires that something as 
momentous as impeaching the President be done in a fundamentally fair 
way. Both the Due Process Clause and separation of powers principles 
require the House to provide the President with fair process and an 
opportunity to defend himself. Every modern presidential impeachment 
inquiry--and every impeachment investigation for the last 150 years--
has expressly preserved the accused's rights to a fundamentally fair 
process and ensured a balanced development of the evidence. These 
included the rights to cross-examine witnesses, to call witnesses, to 
be represented by counsel at all hearings, to make objections relating 
to the examination of witnesses or the admissibility of evidence, and 
to respond to evidence and testimony received. There is no reason to 
think that the Framers designed a mechanism for the profoundly 
disruptive act of impeaching the President that could be accomplished 
through any unfair and arbitrary means that the House might 
invent.\383\
  1. The Text and Structure of the Constitution Demand that the House 
     Ensure Fundamentally Fair Procedures in an Impeachment Inquiry
            (a) The Due Process Clause Requires Fair Process
    The federal Due Process Clause broadly states that ``[n]o person 
shall . . . be deprived of life, liberty, or property, without due 
process of law''\384\ and applies to every part of the federal 
government. In any proceeding that may lead to deprivation of a 
protected interest, it requires fair procedures commensurate with the 
interests at stake.\385\ There is no exemption from the clause for 
Congress. Thus, for example, the Supreme Court has held that due 
process protections apply to congressional investigations and provide 
witnesses in such investigations certain rights.\386\ Congress's 
``power to investigate, broad as it may be, is also subject to 
recognized limitations''--including those ``found in the specific 
individual guarantees of the Bill of Rights.''\387\ It would be 
anomalous if the Due Process Clause applied to investigations conducted 
under Congress's legislative power--which aim merely to gather 
information for legislation--but somehow did not apply to impeachment 
investigations aimed at stripping individuals of their government 
positions. An impeachment investigation against the President 
potentially seeks to charge the President with ``Treason, Bribery, or 
other high Crimes and Misdemeanors,''\388\ and to strip the President 
of both (1) his constitutionally granted right to ``hold his Office 
during the Term of Four years,''\389\ and (2) his eligibility to ``hold 
and enjoy any Office of honor, Trust or Profit under the United 
States,''\390\ including to be re-elected as President.\391\
    Those actions plainly involve deprivations of property and liberty 
interests protected by the Due Process Clause.\392\ As a threshold 
matter, it is settled law that even the lowest level ``public employees 
who can be discharged only for cause have a constitutionally protected 
property interest in their tenure and cannot be fired without due 
process.''\393\ Nothing in the Constitution suggests that the 
impeachment process for addressing charges crossing the extraordinarily 
high threshold of ``Treason, Bribery, or other high Crimes and 
Misdemeanors''\394\ should involve less fair process than what the 
Constitution requires for every lower-level federal employee. The 
Constitution also explicitly gives the President (and every individual) 
a protected liberty interest in eligibility for election to the Office 
of President--so long as the individual meets the qualifications 
established by the Constitution.\395\ Finally, every federal officer 
has a protected liberty interest in his reputation that would be 
directly impaired by impeachment charges.\396\ Impeachment by the House 
alone has an impact warranting the protections of due process.\397\ The 
House's efforts to deprive the President of these constitutionally 
protected property and liberty interests necessarily implicate the Due 
Process Clause. The fact that impeachment is a constitutionally 
prescribed mechanism for removing federal officials from office does 
not make it any the less a mechanism affecting rights within the 
ordinary ambit of the clause.
    The gravity of the deprivation at stake in an impeachment--
especially a presidential impeachment--buttresses the conclusion that 
some due process limitations must apply. It would be incompatible with 
the Framers' understanding of the ``delicacy and magnitude of a trust 
which so deeply concerns the political reputation and existence of 
every man engaged in the administration of public affairs''\398\ to 
think that they envisioned a system in which the House was free to 
devise any arbitrary or unfair mechanism it wished for impeaching 
individuals. The Supreme Court has described due process as ``the 
protection of the individual against arbitrary action.''\399\ There is 
no reason to think that protection was not intended to extend to 
impeachments.
    Similarly, the momentous impact of a presidential impeachment on 
the operation of the government suggests that the drafters of the 
Constitution expected the process to be governed by procedures that 
would ensure a fair assessment of evidence. The Bill of Rights 
guarantees due process, not out of an abstract, academic interest in 
process as an end in itself, but rather due to a belief, deeply rooted 
in the Anglo-American system of law, that procedural protections reduce 
the chances of erroneous decision-making.\400\ The Framers surely did 
not intend to approve a process for determining impeachments that would 
be wholly cut loose from all traditional mechanisms deemed essential in 
our legal heritage for discovering the truth.
    The sole judicial opinion to reach the question held that the Due 
Process Clause applies to impeachment proceedings.\401\ In Hastings v 
United States, the district court held that the Due Process Clause 
imposes an independent constitutional constraint on how the Senate 
exercises its ``sole Power to try all Impeachments.''\402\ In 1974, the 
Department of Justice suggested the same view, opining that ``[w]hether 
or not capable of judicial enforcement, due process standards would 
seem to be relevant to the manner of conducting an impeachment 
proceeding'' in the House--including ``the ability of the President to 
be represented at the inquiry of the House Committee, to cross-examine 
witnesses, and to offer witnesses and evidence,'' completely separate 
from the trial in the Senate.\403\
           (b) The Separation of Powers Requires Fair Process
    A proper respect for the head of a co-equal branch of the 
government also requires that the House use procedures that are not 
arbitrary and that are designed to permit the fair development of 
evidence. The Framers intended the impeachment power to be limited to 
``guard[] against the danger of persecution, from the prevalency of a 
factious spirit.''\404\ The Constitution places the power of 
impeachment in the entire House precisely to ensure that a majority of 
the elected representatives of the people decide to move an impeachment 
forward. That design would be undermined if a House vote were shaped by 
an investigatory process so lopsided that it effectively empowered only 
one faction to develop evidence and foreclosed the ability of others--
including the accused--to develop the facts. Rather than promoting 
deliberation by a majority of the people's representatives, that 
approach would foster precisely the factionalism that the Framers 
foresaw as one of the greatest dangers in impeachments. ``By forcing 
the House and Senate to act as tribunals rather than merely as 
legislative bodies, the Framers infused the process with notions of due 
process to prevent impeachment from becoming a common tool of party 
politics.''\405\
    The need for fair process as a reflection of respect for the 
separation of powers is further buttressed by the unique role of the 
President in the constitutional structure. As explained above,\406\ 
``presidential impeachments are qualitatively different from all 
others'' because they overturn a national election and risk grave 
disruption of the government.\407\ It is unthinkable that a process 
carrying such grave risks for the Nation should not be regulated by any 
constitutional limits. And the need for fair process is even more 
critical where, as here, impeachment turns on how the President has 
exercised authorities within his exclusive constitutional sphere. The 
President is ``the constitutional representative of the United States 
in its dealings with foreign nations.''\408\ Preserving the President's 
ability to carry out this constitutional function requires that he be 
provided fair process and an opportunity to defend himself in any 
investigation into how he has exercised his authority to conduct 
foreign affairs. Otherwise, a partisan faction could smear the 
President with one-sided allegations with no opportunity for the 
President to respond. That would threaten to ``undermine the 
President's capacity'' for ``effective diplomacy'' and ``compromise the 
very capacity of the President to speak for the Nation with one voice 
in dealing with other governments.''\409\
(c) The House's Sole Power of Impeachment and Power to Determine Rules 
of Its Own Proceedings Do Not Eliminate the Constitutional Requirement 
                             of Due Process
    Nothing in the House's ``sole Power of Impeachment''\410\ and power 
to ``determine the Rules of its Proceedings''\411\ undermines the 
House's obligation to use fundamentally fair procedures in impeachment. 
Those provisions simply mean that the House, and no other entity, has 
these powers. The Supreme Court has made clear that independent 
constitutional constraints limit otherwise plenary powers committed to 
one of the political branches.\412\ For example, even though ``[t]he 
[C]onstitution empowers each house to determine its rules of 
proceedings,'' each House ``may not by its rules ignore constitutional 
restraints or violate fundamental rights.''\413\ Similarly, the 
doctrine of Executive Privilege, which is rooted in the separation of 
powers, constrains Congress's exercise of its constitutionally assigned 
powers. A congressional committee cannot simply demand access to 
information protected by Executive Privilege. Instead, if it can get 
access to such information at all, it must show that the information 
``is demonstrably critical to the responsible fulfillment of the 
Committee's functions.''\414\ The House could not evade that constraint 
by invoking its plenary authority to ``determine the Rules of its 
Proceedings''\415\ and adopting a rule allowing its committees to 
override Executive Privilege.\416\ Executive Privilege, which is itself 
grounded in the Constitution, similarly constrains the House's ability 
to demand information pursuant to its ``sole Power of 
Impeachment.''\417\
    Nixon v. United States, in any case, does not suggest 
otherwise.\418\ Nixon addressed whether the use of a committee to take 
evidence in a Senate impeachment trial violated the direction in the 
Constitution that the Senate shall have ``sole Power to try all 
Impeachments.''\419\ The Court held that the challenge presented a non-
justiciable political question\420\--specifically, that ``[i]n the case 
before us, there is no separate provision of the Constitution that 
could be defeated by allowing the Senate final authority to determine 
the meaning of the word `try' in the Impeachment Trial Clause.''\421\ 
But Nixon did not hold that all questions related to impeachment are 
non-justiciable\422\ or that there are no constitutional constraints on 
impeachment. To the contrary, the Court ``agree[d] with Nixon that 
courts possess power to review either legislative or for executive 
action that transgresses identifiable textual limits,'' but merely 
concluded ``that the word `try' in the Impeachment Trial Clause does 
not provide an identifiable textual limit on the authority which is 
committed to the Senate.''\423\ More importantly, the justiciability of 
such questions is irrelevant. Constitutional obligations need not be 
enforceable by the judiciary to exist and constrain the political 
branches. As Madison explained, ``as the Legislative, Executive, and 
Judicial departments of the United States are co-ordinate, and each 
equally bound to support the Constitution, it follows that each must in 
the exercise of its functions, be guided by the text of the 
Constitution according to its own interpretation of it.''\424\ 
Particularly in the impeachment context, ``we have to divest ourselves 
of the common misconception that constitutionality is discussable or 
determinable only in the courts, and that anything is constitutional 
which a court cannot or will not overturn. . . . Congress's 
responsibility to preserve the forms and the precepts of the 
Constitution is greater, rather than less, when the judicial forum is 
unavailable, as it sometimes must be.''\425\ A holding that a 
particular question is a non-justiciable political question leaves that 
question to the political branches to use ``nonjudicial methods of 
working out their differences''\426\ and does not relieve the House of 
its constitutional obligation.
    2. The House's Consistent Practice of Providing Due Process in 
  Impeachment Investigations for the Last 150 Years Confirms that the 
                   Constitution Requires Due Process
    Historical practice provides a gloss on the requirements of the 
Constitution and strongly confirms that House impeachment 
investigations must adhere to basic forms of due process. ``In 
separation-of-powers cases, th[e] [Supreme] Court has often put 
significant weight upon historical practice.''\427\ As James Madison 
explained, it ``was foreseen at the birth of the Constitution, that 
difficulties and differences of opinion might occasionally arise in 
expounding terms [and] phrases necessarily used in such a charter . . . 
and that it might require a regular course of practice to liquidate 
[and] settle the meaning of some of them.''\428\ The Constitution 
``contemplates that practice will integrate the dispersed powers [of 
the federal government] into a workable government.''\429\ The Supreme 
Court has thus explained that historical practice reflects ``an 
admissible view of the Constitution,''\430\ and ``consistent 
congressional practice requires our respect.''\431\ Although 
constitutional requirements governing House impeachment proceedings may 
have been unsettled when the Constitution was adopted, by the 1870s 
consistent practice in the House (unbroken since then) gave meaning to 
the Constitution and settled the minimum procedures that must be 
afforded for a fair impeachment inquiry.
    The Framers, who debated impeachment with reference to the 
contemporaneous English impeachment of Warren Hastings,\432\ knew that 
``the House of Commons did hear the accused, and did permit him to 
produce testimony, before they voted an impeachment against him.''\433\ 
And practice in the United States rapidly established that the accused 
in an impeachment must be allowed fair process. Although a few early 
impeachment investigations were ex parte,\434\ the House provided the 
accused with notice and an opportunity to be heard in the majority of 
cases starting as early as 1818.\435\
    By Judge Peck's impeachment in 1830, House Members, explicitly 
acknowledging that ``it was obvious that it had not yet been settled by 
precedent,'' had an extensive debate to ``settle[]'' ``[t]he practice 
in cases of impeachments, so far as regards the proceedings in this 
House.''\436\ Judge Peck had asked for the House to give him the 
ability to submit a ``written exposition of the whole case, embracing 
both the facts and the law, and give him, also, process to call his 
witnesses from Missouri in support of his statements.''\437\ The 
Judiciary Committee Chairman, James Buchanan, pointed out that ``in the 
case of Warren Hastings'' in England, ``the House of Commons did hear 
the accused, and did permit him to produce testimony, before they voted 
an impeachment against him.''\438\ Mr. Ingersoll explained that, in a 
prior impeachment inquiry against Vice President Calhoun, ``a friend of 
the Vice President had been permitted to appear, and represent him 
throughout the whole investigation,'' that ``[w]itnesses, also, had 
been examined on the part of the accused,'' and that ``witnesses in 
favor of the Vice President had been examined, as well as against him, 
and that his representative had been allowed to present before the 
committee through every stage of the examination.''\439\ He noted that 
``[t]he committee at that time took some pains to ascertain what was 
the proper mode of proceeding, and they became satisfied that the party 
accused had, in these preliminary proceedings, a right to be thus 
heard.''\440\ Mr. Pettis similarly concluded that ``[t]he request of 
the Judge is supported by the whole train of English decisions in cases 
of a like kind'' and that he should be given those rights here as 
well.\441\ The debate was thus settled in favor of due process rights 
for Judge Peck.\442\
    By at least the 1870s, despite some unsettled practice in the 
interim, the House Judiciary Committee concluded that an opportunity 
for the ``accused by himself and his counsel [to] be heard'' had 
``become the established practice of the [Judiciary Committee] in cases 
of impeachment'' and thus ``deemed it due to the accused that he should 
have'' due process.\443\ That ``established practice'' has been 
followed in every House impeachment investigation for the past 150 
years\444\ and has provided a fixed meaning for the constitutional 
requirements governing House impeachment proceedings.\445\ The fact 
that the House has not followed a perfectly consistent practice dating 
all the way back to 1789, or that there were early outliers, is 
irrelevant.\446\
    The House's Parliamentarian acknowledges that while ``the committee 
sometimes made its inquiry ex parte'' in ``earlier practice'' before 
the 1870s, the practice dating to the 1870s ``is to permit the accused 
to testify, present witnesses, cross-examine witnesses, and be 
represented by counsel.''\447\ Current House Democrats are already on 
record agreeing that due process protections apply in the House's 
impeachment inquiries. Chairman Nadler has admitted that ``[t]he power 
of impeachment is a solemn responsibility, assigned to the House by the 
Constitution,'' and ``[t]hat responsibility demands a rigorous level of 
due process.''\448\ He has rightly acknowledged, expressly in the 
context of impeachment, that ``[t]he Constitution guarantees the right 
of anyone who is accused of any wrongdoing, and fundamental fairness 
guarantees the right of anyone, to have the right to confront the 
witness against him.''\449\ Rep. Hank Johnson--a current Judiciary 
Committee member--has similarly recognized that ``[t]here is a reason 
for a careful process when it comes to the most drastic action of 
impeachment; it is called due process.''\450\
    The two modern presidential impeachment inquiries also abundantly 
confirm the due process protections that apply to the accused in an 
impeachment inquiry. In fact, every President who has asked to 
participate in an impeachment investigation has been afforded extensive 
rights to do so.\451\ The House Judiciary Committee adopted explicit 
procedures to provide Presidents Clinton and Nixon with robust 
opportunities to defend themselves, including the rights ``to attend 
all hearings, including any held in executive session''; ``respond to 
evidence received and testimony adduced by the Committee''; ``submit 
written requests'' for ``the Committee to receive additional testimony 
or other evidence'';\452\ ``question any witness called before the 
Committee''; and raise ``[o]bjections relating to the examination of 
witnesses, or to the admissibility of testimony and evidence.''\453\ 
President Clinton was given access to the grand-jury evidence that 
underpinned the Starr report.\454\ The Committee also ensured that the 
minority could fully participate in the investigation and hearings, 
including by submitting evidence, objecting to witness examination for 
and evidence, and exercising co-equal subpoena authority to issue a 
subpoena subject to overruling by the full Committee.\455\ Both 
Presidents were thus able to present robust defenses before the 
Committee.\456\ Indeed, President Clinton's counsel gave an opening 
statement, the President called 14 expert witnesses over two days, and 
the President's counsel also gave a closing statement\457\ and cross-
examined the witnesses, including ``question[ing] Judge Starr for an 
hour.''\458\ In this impeachment inquiry, the House Intelligence 
Committee fulfilled the investigatory role that the House Judiciary 
Committee filled in prior impeachments, and thus, these rights should 
have been available in the proceedings before the Intelligence 
Committee.
 3. The President's Counsel Must Be Allowed To Be Present at Hearings, 
       See and Present Evidence, and Cross-Examine All Witnesses
    The exact contours of the procedural protections required during an 
impeachment investigation must, of course, be adapted to the nature of 
that proceeding. The hallmarks of a full blown trial are not required, 
but procedures must reflect, at a minimum, basic protections that are 
essential for ensuring a fair process that is designed to get at the 
truth.
    The Supreme Court's ``precedents establish the general rule that 
individuals must receive notice and an opportunity to be heard before 
the Government deprives them'' of a constitutionally protected 
interest.\459\ That means, at a minimum, that the evidence must be 
disclosed to the accused, and the accused must be permitted an 
opportunity to test and respond to the evidence--particularly through 
``[t]he rights to confront and cross-examine witnesses,'' which ``have 
long been recognized as essential to due process.''\460\ For 250 years, 
``the policy of the Anglo-American system of evidence has been to 
regard the necessity of testing by cross-examination as a vital feature 
of the law.''\461\ Cross-examination is ``the greatest legal engine 
ever invented for the discovery of truth,''\462\ ``shed[ding] light on 
the witness' perception, memory and narration''\463\ and ``expos[ing] 
inconsistencies, incompleteness, and inaccuracies in his 
testimony.''\464\ Thus, ``[i]n almost every setting where important 
decisions turn on questions of fact, due process requires an 
opportunity to confront and cross-examine adverse witnesses.''\465\ It 
is unthinkable that the Framers, steeped in the history of Anglo-
American jurisprudence, would create a system that would allow the 
Chief Executive and Commander-in-Chief of the armed forces to be 
impeached based on a process that developed evidence without providing 
any of the elementary procedures that the common law developed over 
centuries for ensuring the proper testing of evidence in an adversarial 
process.
    The most persuasive source indicating what the Constitution 
requires in an impeachment investigation is the record of the House's 
own past practice, as explained above.\466\ The due process rights 
consistently afforded by the House to the accused for the past 150 
years have generally included the right to appear and to be represented 
by counsel at all hearings, to have access to and respond to the 
evidence, to submit evidence and testimony, to question witnesses and 
object to evidence, and to make opening statements and closing 
arguments.\467\ Chairman Nadler, Chairman Schiff, other House 
Democrats, and then-Representative Schumer have repeatedly confirmed 
these procedural requirements.\468\
  4. The House Impeachment Inquiry Failed to Provide the Due Process 
   Demanded by the Constitution and Generated a Fundamentally Skewed 
            Record That Cannot Be Relied Upon in the Senate
    Despite clear precedent mandating due process for the accused in 
any impeachment inquiry--and especially in a presidential impeachment 
inquiry--House Democrats concocted a wholly unprecedented three-stage 
process in this case that denied the President fair process at every 
step of the way. Indeed, because the process started without any actual 
authorization from the House, committees initially made up the process 
as they went along. In the end, all three phases of the House's inquiry 
failed to afford the President even the most rudimentary procedures 
demanded by the Constitution, fundamental fairness, and over 150 years 
of precedent.
          (a) Phase I: Secret Hearings in the Basement Bunker
    The first phase involved secret proceedings in a basement bunker 
where the President was not given any rights at all. This phase 
consisted of depositions taken by joint hearings of the House Permanent 
Select Committee on Intelligence (HPSCI), the House Committee on 
Foreign Affairs, and the House Committee on Oversight and Reform. To 
ensure there would be no transparency for the President or the American 
people, depositions were conducted in a facility designed for securing 
highly classified information--even though all of the depositions were 
``conducted entirely at the unclassified level.''\469\ The President 
was denied any opportunity to participate. He was denied the right to 
have counsel present. He was denied the right to cross-examine 
witnesses, call witnesses, and present evidence. He was even denied the 
right to have Executive Branch counsel present during depositions of 
Executive Branch officials, thereby undermining any ability for the 
President to protect longstanding constitutional privileges over 
Executive Branch information.\470\ Members in the Republican minority 
on the investigating committees could not provide a counterweight to 
remedy the lack of process for the President. They were denied subpoena 
authority to call witnesses, and they were blocked even from asking 
questions that would ensure a balanced development of the facts. For 
example, Chairman Schiff repeatedly shut down any line of questioning 
that would have exposed personal self-interest, prejudice, or bias of 
the whistleblower.\471\
    Finally, House Democrats made clear that the proceedings' secrecy 
was just a partisan stratagem. Daily leaks describing purported 
testimony of witnesses were calculated to present the public with a 
distorted view of what was taking place behind closed doors and further 
the narrative that the President had done something wrong.\472\
    House Democrats' assertions that the basement Star Chamber hearings 
were justified because the House ``serves in a role analogous to a 
grand jury and prosecutor''\473\ are baseless. The House's unbroken 
practice of providing due process over the last 150 years confirms that 
the House is not merely a grand jury.\474\ Chairman Nadler, other House 
Democrats, and then-Representative Schumer rejected such analogies as a 
``cramped view of the appropriate role of the House [that] finds no 
support in the Constitution and is completely contrary to the great 
weight of historical precedent.''\475\ The Judiciary Committee's own 
impeachment consultant and staff have rejected ``[g]rand jury 
analogies'' as ``badly misplaced when it comes to impeachment.''\476\
    More importantly, the narrow rationales that justify limiting 
procedural protections in grand juries simply do not apply here.\477\ 
For example, it is primarily grand jury secrecy--not the preliminary 
nature of grand jury proceedings in developing the basis for a charge--
that ``justif[ies] the limited procedural safeguards available to . . . 
persons under investigation.''\478\ That secrecy, in turn, promotes two 
primary objectives. It allows an investigation to proceed without 
notice to those under suspicion and thus may further the 
investigation.\479\ In addition, a ``cornerstone'' of grand jury 
secrecy is the policy of protecting the public reputations of those who 
may be investigated but never charged.\480\
    Neither rationale applied to Chairman Schiff's proceedings for a 
straightforward reason: in relevant respects, the proceedings were 
entirely public. Chairman Schiff made no secret that the target of his 
investigation was President Trump. He and his colleagues held news 
conferences to announce that fact, and they leaked information intended 
to damage the President from their otherwise secret hearings.\481\ In 
addition, the exact witness list with the dates, times, and places of 
witness testimony were announced to the world long in advance of each 
hearing. And witnesses' opening statements, as well as slanted 
summaries of their testimony, were selectively leaked to the press in 
real time. The entire direction of the investigation, as well as 
specific testimony, was thus telegraphed to the world. These acts would 
have violated federal criminal law if grand jury rules had 
applied.\482\
    It is also well settled that the one-sided procedures employed by 
Chairman Schiff were not designed to be the best mechanism for getting 
at the truth. Grand jury procedures have never been justified on the 
theory that they are well adapted for uncovering ultimate facts. To the 
contrary, as explained above, the Anglo-American legal system has long 
recognized that ``adversarial testing,'' particularly cross-
examination, ``will ultimately advance the public interest in truth and 
fairness.''\483\ Those essential procedural rights are no less 
necessary in impeachment proceedings unless one adopts the 
counterintuitive assumption that the Framers did not intend an 
impeachment inquiry to use any of the familiar mechanisms developed 
over centuries in the common law to get at the truth.
       (b) Phase II: The Public, Ex Parte Show Trial Before HPSCI
    After four weeks of secret--and wholly unauthorized--hearings, 
House Democrats finally introduced a resolution to have the House 
authorize an impeachment inquiry and to set procedures for it. House 
Resolution 660, however, merely compounded the fundamentally unfair 
procedures from the secret cellar hearings by subjecting the President 
to a second round of ex parte hearings before Chairman Schiff's 
committee. The only difference was that this second round took place in 
public.\484\ Thus, after screening witnesses' testimony behind closed 
doors, Chairman Schiff moved on to a true show trial--a stage-managed 
inquisition in front of the cameras, choreographed with pre-screened 
testimony to build a narrative aiming at a pre-determined result. The 
President was still denied any opportunity to participate, to cross-
examine witnesses, to present witnesses or evidence, or to protect 
constitutionally privileged Executive Branch information by having 
agency counsel present. All of this was directly contrary to the rules 
that had governed the Nixon and Clinton impeachment inquiries. There, 
the President had been allowed to cross-examine any fact witnesses 
called by the committee.\485\ In addition, the President had been 
permitted to call witnesses, and the ranking member on the 
investigating committee had been permitted co-equal subpoena 
authority.\486\
    (c) Phase III: The Ignominious Rubber Stamp from the Judiciary 
                               Committee
    The House Committee on the Judiciary simply rubber-stamped the ex 
parte record compiled by Chairman Schiff and, per the Speaker's 
direction, relied on it to draft articles of impeachment. Under House 
Resolution 660, it was only during this third phase that the President 
was even nominally allowed a chance to participate and some rudimentary 
elements of process.\487\ With fact-finding already over, there was no 
meaningful way to allow the President to use those rights for a 
balanced factual inquiry. Instead, the Judiciary Committee doubled down 
on using the skewed, one-sided record developed by Chairman Schiff. 
Thus, the only procedural protections that House Resolution 660 
provided the President were inadequate from the outset because they 
came far too late in the proceedings to be effective. Procedural 
protections such as cross-examination are essential as the factual 
record is being developed. Providing process only after the record has 
been compiled and after charges are being drafted can do little to 
remedy the distortions built into the record. Here, most witnesses 
testified twice under oath on the same topics--once in a secret 
rehearsal to preview their testimony, and again in public--without any 
cross-examination by the President's counsel. Locking witnesses into 
their stories by having them testify twice vastly reduces the benefit 
of cross-examination. Any deviation from prior testimony potentially 
exposes a witness to a double perjury charge, and, worse, the prior ex 
parte testimony becomes fixed in each witness's mind in place of actual 
memory.
    While it would have been next to impossible for a proceeding before 
the Judiciary Committee to remedy the defects in the prior two rounds 
of hearings, Chairman Nadler had no interest in even attempting to do 
that. His only interest was following marching orders to report 
articles of impeachment to the House so they could be voted on before 
Christmas. Thus, he repeatedly provided vague and inadequate notice 
about what proceedings were planned until he ultimately informed the 
President that he had no plans for any evidentiary hearings at all.
    For example, on November 26, 2019--two days before Thanksgiving--
Chairman Nadler informed the President and the Ranking Member that the 
Judiciary Committee would hold a hearing on December 4 vaguely limited 
to ``the historical and constitutional basis of impeachment.''\488\ The 
Chairman provided no further information about the hearing, including 
the identities of the witnesses, but nonetheless required the President 
to indicate whether he wished to participate by Sunday, December 1. 
Every aspect of the planning for this hearing departed from the Clinton 
and Nixon precedents. The Committee afforded the President no 
scheduling input, no meaningful information about the hearing, and so 
little time to prepare that it effectively denied the Administration a 
fair opportunity to participate. The Committee ultimately announced the 
identities of the witnesses less than two days before the hearing.\489\ 
For a similar hearing with scholars in the Clinton impeachment, the 
Committee provided two-and-a-half weeks' notice to prepare and 
scheduled the hearing on a date suggested by the President's 
attorneys.\490\ President Trump understandably declined to participate 
in that biased constitutional law seminar because he could not ``fairly 
be expected to participate in a hearing while the witnesses are yet to 
be named and while it remains unclear whether the Judiciary Committee 
will afford the President a fair process through additional 
hearings.''\491\
    Meanwhile, in a separate letter on November 29, 2019, Chairman 
Nadler asked the President to specify, by December 6, how he would 
participate in future undefined ``proceedings'' and which 
``privileges'' in the Judiciary Committee's Impeachment Procedures the 
President's counsel would seek to exercise.\492\ At the same time, he 
gave no indication as to what these ``proceedings'' would involve, what 
subjects they would address, whether witnesses would be heard (or who 
they would be), or when any hearings would be held.\493\ To inform the 
President's decision, the President's counsel asked Chairman Nadler for 
information about the ``scope and nature of the proceedings'' he 
planned, including topics of hearings, whether he intended ``to allow 
for fact witnesses to be called,'' and whether he would allow ``the 
President's counsel the right to cross examine fact witnesses.''\494\ 
The President's counsel even offered to meet with Chairman Nadler to 
discuss a plan for upcoming hearings.\495\ All to no avail--Chairman 
Nadler did not even bother to respond.
    And the Judiciary Committee continued to hide the ball. Throughout 
the week of December 2, the President's counsel were in contact with 
Committee counsel trying to get answers concerning what hearings were 
planned, so that the President could determine whether and how to 
participate. But all that Committee staff were authorized to convey 
was: (i) a hearing on an unknown topic had been publicly announced for 
December 9; (ii) before that hearing, the Committee might be issuing 
two additional reports (one based on the December 4 constitutional law 
seminar and one dredging up unspecified aspects of Special Counsel 
Mueller's report); and (iii) they would not have an answer to any other 
questions about the subjects of the December 9 hearing or whether any 
other hearings would be scheduled until after the close of business on 
Thursday, December 5.
    On the morning of December 5, Speaker Pelosi instructed the 
Judiciary Committee to begin drafting articles of impeachment before 
the Committee had received any presentation on the HPSCI report, heard 
any fact witness, or heard a single word from the President in his 
defense.\496\ Later that day, Committee counsel informed the 
President's counsel that--other than a report addressing the meaning of 
``high Crimes and Misdemeanors'' based on the December 4 constitutional 
law seminar and other than a hearing on December 9 involving a 
presentation of the HPSCI majority and minority reports solely by 
staff--there were no immediate plans to issue any other reports or have 
any other hearings.
    Meanwhile, Chairman Nadler was also playing hide-the-ball with the 
minority members of his own Committee. The Committee's Ranking Member, 
Doug Collins, sent at least seven letters to Chairman Nadler trying to 
find out about the process the Committee would follow and requesting 
specific rights to ensure a balanced presentation of the law and facts, 
including requesting witnesses.\497\ Chairman Nadler simply ignored 
them. He offered only an after-the-fact response\498\ that denied his 
request for witnesses in part on the misleading claim that ``the 
President is not requesting any witnesses,'' when it was Chairman 
Nadler who had refused to commit to allowing the President to call 
witnesses in the first place.\499\
    As a backdrop to all of this, Chairman Nadler had threatened to 
invoke the unprecedented provision of the Committee's Impeachment 
Inquiry Procedures Pursuant to House Resolution 660 that allowed him to 
deny the President any due process rights if the President continued to 
assert longstanding privileges and immunities to protect Executive 
Branch information and to challenge the validity of the investigating 
committees' subpoenas.\500\ This approach also departed from all 
precedent in the Clinton and Nixon proceedings.\501\ Even though both 
Presidents had asserted numerous privileges, the Judiciary Committee 
never contemplated that offering the opportunity to present a defense 
and to have a fair hearing should be conditioned on forcing the 
President to abandon the longstanding constitutional rights and 
privileges of the Executive Branch. The Supreme Court has already 
addressed such Catch-22 choices and has made clear that it is 
``intolerable that one constitutional right should have to be 
surrendered in order to assert another.''\502\ Conditioning access to 
basic procedural rights on an agreement to waive other fundamental 
rights is the same as denying procedural rights altogether.
    As a result, by the December 6 deadline, the President had been 
left with no meaningful choice at all. The Committee was already under 
instructions to draft articles of impeachment before hearing any 
evidence; Chairman Nadler had kept the President in the dark until the 
last minute about how and when the Committee would proceed; and 
Committee counsel had finally confirmed that the Committee's plan was 
to hear solely a staff presentation of the HPSCI report and not to hold 
any other hearings. It was abundantly clear that, if the President 
asked to present or cross examine any witnesses, any future hearings 
would merely be window-dressing designed to place a veneer of fair 
process on a stage-managed show trial already hurtling toward a 
preordained result. The President would not be given any meaningful 
opportunity to question fact witnesses or otherwise respond to the one-
sided factual record transmitted by HPSCI. The Judiciary Committee's 
assertion that the President ``could have had his counsel make a 
presentation of evidence or request that other witnesses be 
called''\503\ is thus entirely disingenuous. Under those circumstances, 
the President determined that he would not condone House Democrats' 
violations of due process--and that he would not lend legitimacy to 
their unprecedented procedures--by participating in their show trial.
    Chairman Nadler ultimately refused to allow the Committee to hear 
from a single fact witness or hear any evidence first-hand. He also 
blatantly violated House Rules by refusing to allow the minority to 
have a minority hearing day.\504\ Instead, the Judiciary Committee 
simply relied on the ex parte evidence gathered by Chairman Schiff's 
show trial with no procedural protections at all. And there could be no 
clearer admission that the evidence simply did not matter than Speaker 
Pelosi's instruction to begin drafting articles of impeachment before 
the Committee had even heard any evidence whatsoever.\505\
    All of this conduct highlights rank hypocrisy by Chairman Nadler, 
who, during the Clinton impeachment, decried the fact that there had 
been ``no witness called in front of this committee against the 
President'' and declared it ``a failure of the Chairman of this 
committee that we are going to consider voting impeachment, having 
heard no witnesses whatsoever against the President.''\506\ Then, 
Chairman Nadler argued that the Judiciary Committee cannot simply 
receive a report compiled by another entity (there, the Independent 
Counsel) and proceed to judgment. That, in his words, ``would be to say 
that the role of this committee of the House is a mere transmission 
belt or rubber stamp,''\507\ and would ``conclude the inquiry 
expeditiously, but not fairly, and not without trashing the 
Constitution and every principle of due process and fundamental 
fairness that we have held sacred since the Magna Carta.''\508\ House 
Democrats on the Judiciary Committee made the same point just a few 
years ago in 2016: ``[i]n all modern cases, the Committee has conducted 
an independent, formal investigation into the charges underlying a 
resolution of impeachment--again, even when other authorities and other 
congressional committees have already investigated the underlying 
issue.''\509\
    The House's constitutionally deficient proceedings have so 
distorted the factual record compiled in the House that it cannot 
constitutionally be relied upon for the Senate to reach any verdict 
other than acquittal.
   C. The House's Inquiry Was Irredeemably Defective Because It Was 
Presided Over by an Interested Fact Witness Who Lied About Contact with 
            the Whistleblower Before the Complaint Was Filed
    The House's entire factual investigation was carefully 
orchestrated--and restricted--by an interested fact witness: Chairman 
Schiff. His repeated falsehoods about the President leave him with no 
credibility whatsoever. In March 2017, Chairman Schiff lied, announcing 
that he already had evidence that the Trump campaign colluded with 
Russia.\510\ That was proved false when the Mueller Report was released 
and the entire Russian hoax Chairman Schiff had been peddling was 
disproved.
    In this proceeding, Chairman Schiff violated basic fairness by 
overseeing and prosecuting the proceedings while secretly being a 
witness in the case. Before public release of the whistleblower 
complaint, when asked whether he had ``heard from the whistleblower,'' 
Chairman Schiff falsely denied having ``heard from the whistleblower,'' 
saying: ``We have not spoken directly with the whistleblower. We would 
like to . . . But yes, we would love to talk directly with the 
whistleblower.''\511\ As multiple media outlets concluded, that 
statement was ``flat-out false''\512\--a ``[w]hopper'' of a lie that 
earned ``four Pinnochios'' from The Washington Post\513\--because it 
``wrongly implied the committee had not been contacted'' by the 
whistleblower before the complaint was filed.\514\ Subsequent reporting 
showed that Chairman Schiff's staff had not only had contact with the 
whistleblower, but apparently played some still-unverified role in 
advising the whistleblower before the complaint was filed.\515\ And 
Chairman Schiff began the hearings in this matter by lying once again 
and reading a fabricated version of the President's telephone 
conversation with President Zelensky to the American people.\516\
    Given the role that Chairman Schiff and his staff apparently played 
in advising the whistleblower, Chairman Schiff made himself a fact 
witness in these proceedings. The American people understand that 
Chairman Schiff cannot covertly assist with the submission of a 
complaint, mislead the public about his involvement, and then pretend 
to be a neutral ``investigator.'' No wonder Chairman Schiff repeatedly 
denied requests to subpoena the whistleblower and shut down any 
questions that he feared might identify the whistleblower. Questioning 
the whistleblower would have exposed before the American people the 
role Chairman Schiff and his staff had in concocting the very complaint 
they purported to be investigating.
     D. The Senate May Not Rely on a Factual Record Derived from a 
            Procedurally Deficient House Impeachment Inquiry
    The Senate may not rely on a corrupted factual record derived from 
constitutionally deficient proceedings to support a conviction of the 
President of the United States. Nor is it the Senate's role to attempt 
to remedy the House's errors by providing a ``do-over'' to develop the 
record anew in the Senate. In the courts, comparable fundamental errors 
underpinning the foundations of a case would require throwing the case 
out. The denial of ``basic protections'' of due process ``necessarily 
render[s]'' a proceeding ``fundamentally unfair,'' precluding it from 
``reliably serv[ing] its function as a vehicle for determination of 
guilt or innocence.''\517\ A ``proceeding infected with fundamental 
procedural error, like a void judicial judgment, is a legal 
nullity.''\518\ That is why, for example, criminal indictments may not 
proceed to trial when they result from ``fundamental'' errors that 
cause ``the structural protections of the grand jury [to] have been so 
compromised as to render the proceedings fundamentally unfair.''\519\ 
The same principles should apply in the impeachment trial context. The 
Senate cannot rely on a record developed in a hopelessly defective 
House proceeding to convict the President.
  E. House Democrats Used an Unprecedented and Unfair Process Because 
 Their Goal to Impeach at Any Cost Had Nothing To Do with Finding the 
                                 Truth
    House Democrats' impeachment inquiry was never a quest for the 
truth. Instead it was an inquisition in pursuit of an offense to 
justify a pre-ordained outcome--impeaching President Trump by any means 
necessary. The procedural protections that the House has afforded to 
the accused in every impeachment for the last 150 years were 
incompatible with that agenda. Ensuring a fair process that uses time-
tested methods for getting at the truth--like adversarial cross 
examination of witnesses by counsel for the accused--takes time and it 
also risks undermining the accusers' preferred version of the facts. 
But House Democrats had no time. By September 2019, when the President 
released the transcript of his telephone call with President Zelensky, 
the 2020 campaign for the presidency was already well underway, and 
they needed a fast and tightly controlled process that would yield 
their political goal: impeachment by Christmas.
    In fact, House Democrats have been on a crusade to impeach the 
President since the moment he took office three years ago. As Speaker 
Pelosi recently confirmed, her party's quest for impeachment had ``been 
going on for 22 months . . . [t]wo and a half years, actually.''\520\ 
The moment that the President was sworn in, two liberal advocacy groups 
launched a campaign to impeach him.\521\ The current proceedings began 
with a complaint prepared with the assistance of a lawyer who declared 
in 2017 that he was already planning to use ``impeachment'' to effect a 
``coup.''\522\ The first resolution proposing articles of impeachment 
against President Trump was filed before he had been in office for six 
months.\523\ As soon as Democrats gained control of the House in the 
2018 midterm elections, they made clear that they would stop at nothing 
to impeach the President. Rep. Rashida Tlaib, for example, announced in 
January 2019: ``[W]e're going to go in there and we're gonna impeach 
the motherf****r.''\524\
    Over the past three years, House Democrats have filed at least 
eight resolutions to impeach the President, alleging a vast range of 
preposterous purported offenses. They have repeatedly charged the 
President with obstruction of justice in connection with the Mueller 
investigation\525\--an allegation that the Department of Justice 
resoundingly rejected.\526\ One resolution sought to impeach the 
President for protecting national security by restricting U.S. entry by 
nationals of eight countries\527\--an action upheld by the Supreme 
Court.\528\ Another tried to impeach the President for publishing 
disparaging tweets about Democrat House members in response to their 
own attacks on the President.\529\ Still another gathered a hodge-podge 
of absurd charges, including failing to nominate persons to fill 
vacancies and insulting the press.\530\
    In this case, House Democrats ran the fastest presidential 
impeachment fact-finding on record. They raced through their entire 
process in less than three months from the beginning of their fact-
finding investigation on September 24, 2019 to the adoption of articles 
on December 18--meeting their deadline of impeachment by Christmas. 
That rushed three-month process stands apart from every prior 
presidential impeachment--the fastest of which took place after a fact-
finding period nearly four times as long. Independent Counsel Ken Starr 
received authorization to investigate the charges that led to President 
Clinton's impeachment in January 1998,\531\ almost a full year before 
the House impeached President Clinton in December 1998.\532\ Congress 
began investigating President Nixon's conduct in February 1973,\533\ 
more than one year before July 1974, when the House Judiciary Committee 
voted to recommend articles of impeachment.\534\ The investigation into 
President Johnson also exceeded 12 months. Except for a two-month break 
between a vote rejecting articles of impeachment in 1867 and the 
authorization of a second impeachment inquiry,\535\ President Johnson's 
impeachment was investigated over 14 months from January 1867\536\ to 
the adoption of articles of impeachment in March 1868.\537\ The two 
inquiries were closely related,\538\ and one article of impeachment was 
carried over from the first impeachment inquiry.\539\ The Democrats' 
need for speed only underscores that, unlike prior impeachments, these 
proceedings were never about conducting a serious inquiry into the 
truth.
    Although they tried everything, Democrats pinned their impeachment 
dreams primarily on the Mueller investigation and their dogmatic faith 
in the myth that President Trump--or at least his campaign--was somehow 
in league with Russia. After $32 million, 2,800 subpoenas, nearly 500 
search warrants, 230 orders for communications records, and 500 witness 
interviews, that inquisition disproved the myth of collusion between 
the President or his campaign and Russia. As the Mueller Report 
informed the public, Special Counsel Mueller and his team of 
investigators and FBI agents could not find any evidence of collusion 
between the Trump Campaign and the Russian government.\540\ While the 
Mueller investigation was pending, though, Chairman Schiff flatly lied 
to the American people, telling them that he was privy to ```more than 
circumstantial evidence' that the President's associates colluded with 
Russia.''\541\ He played up the Mueller investigation, promising that 
it would show wrongdoing ``of a size and scope probably beyond 
Watergate.''\542\
    The damage caused by Democrats' Russian collusion delusion 
stretches far beyond anything directly attributable to the Mueller 
investigation. The Mueller investigation itself was triggered by an FBI 
investigation, known as Crossfire Hurricane, that involved gross abuses 
of FBI investigative tools--including FISA orders and undercover 
agents. The FBI abused its extraordinary authorities to spy on American 
citizens and a major-party presidential campaign.\543\ According to a 
report from the Inspector General of the Department of Justice, these 
abuses included ``multiple instances'' of factual assertions to the 
FISA court that were knowingly ``inaccurate, incomplete, or unsupported 
by appropriate documentation''\544\--in other words, lies to the FISA 
court. One FBI official, who openly advocated for ``resistance'' 
against the President, even fabricated evidence to persuade the FISA 
court to maintain surveillance on an American citizen connected with 
the Trump Campaign.\545\ Tellingly, the Inspector General could not 
rule out the possibility that Crossfire Hurricane was corrupted by 
political bias, because the FBI could not provide ``satisfactory 
explanations'' for the extraordinary litany of errors and abuses that 
plagued the investigation from its inception--all of which indicated 
bias against the President.\546\
    Despite all of this, House Democrats have refused to accept the 
conclusions of the Mueller Report. They held hearings and issued 
subpoenas hoping to uncover collusion where Mueller had found none. 
Failing that, they tried to keep the impeachment flame alive by 
manufacturing an obstruction charge--even though the Department of 
Justice had already rejected such a claim.\547\ They embarked on new 
fishing expeditions, such as demanding the President's tax returns, 
investigating the routine Executive Branch practice of granting case-
by-case exceptions to the President's voluntarily undertaken ethics 
guidelines, and the costs of the July 4 ``Salute to America'' event--
all in the hope that rummaging through those records might give them 
some new basis for attacking the President.
    Democrats have been fixated on impeachment and Russia for the past 
three years for two reasons. First, they have never accepted the 
results of the 2016 election and have been consumed by an insatiable 
need to justify their continued belief that President Trump could not 
``really'' have won. Long before votes had been cast, Democrats had 
taken it as an article of faith that Hillary Clinton would be the next 
President. House Democrats' impeachment and Russia obsessions thus stem 
from a pair of false beliefs held as dogma: that Donald Trump should 
not be President and that he is President only by virtue of foreign 
interference.
    The second reason for Democrats' fixations is that they desperately 
need an illegitimate boost for their candidate in the 2020 election, 
whoever that may be. Put simply, Democrats have no response to the 
President's record of achievement in restoring growth and prosperity to 
the American economy, rebuilding America's military, and confronting 
America's adversaries abroad. They have no policies and no ideas to 
compete against that. Instead, they are held hostage by a radical left 
wing that has foisted on the party a radical agenda of socialism at 
home and appeasement abroad that Democrat leaders know the American 
people will never accept. For Democrats, President Trump's record of 
success made impeachment an electoral imperative. As Congressman Al 
Green explained it: ``if we don't impeach the [P]resident, he will get 
re-elected.''\548\
    The result of House Democrats' relentless pursuit of their 
obsessions--and their willingness to sacrifice every precedent, every 
principle, and every procedural right standing in their way--is exactly 
what the Framers warned against: a wholly partisan impeachment. The 
Articles of Impeachment now before the Senate were adopted without a 
single Republican vote. Indeed, the only bipartisan aspect of these 
articles was congressional opposition to their adoption.\549\
    Democrats used to recognize that the momentous act of overturning a 
national election by impeaching a President should never take place on 
a partisan basis, and that impeachment should not be used as a partisan 
tool in electoral politics. As Chairman Nadler explained in 1998:
    The effect of impeachment is to overturn the popular will of the 
voters. We must not overturn an election and remove a President from 
office except to defend our system of government or our constitutional 
liberties against a dire threat, and we must not do so without an 
overwhelming consensus of the American people. There must never be a 
narrowly voted impeachment or an impeachment supported by one of our 
major political parties and opposed by another. Such an impeachment 
will produce divisiveness and bitterness in our politics for years to 
come, and will call into question the very legitimacy of our political 
institutions.\550\
    Senator Leahy agreed: ``A partisan impeachment cannot command the 
respect of the American people. It is no more valid than a stolen 
election.''\551\ Chairman Schiff likewise recognized that a partisan 
impeachment would be ``doomed for failure,'' adding that there was 
``little to be gained by putting the country through that kind of 
wrenching experience.''\552\ Earlier last year even Speaker Pelosi 
acknowledged that, ``before I think we should go down any impeachment 
path,'' it ``would have to be so clearly bipartisan in terms of 
acceptance of it.''\553\
    Now, however, House Democrats have completely abandoned those 
principles and placed before the Senate Articles of Impeachment that 
are partisan to their core. In their rush to impeach the President 
before Christmas, Democrats allowed speed and political expediency to 
conquer fairness and truth. As Professor Turley explained, this 
impeachment ``stand[s] out among modern impeachments as the shortest 
proceeding, with the thinnest evidentiary record, and the narrowest 
grounds ever used to impeach a president.''\554\ And as the vote 
closed, House Democrats could not contain their glee. Several Democrats 
clapped; others cheered; and still others raised exclamations of joy on 
the floor of the House of Representatives--until the Speaker shamed 
them into silence.\555\
    The Framers foresaw clearly the possibility of such an improper, 
partisan use of impeachment. As Hamilton recognized, impeachment could 
be a powerful tool in the hands of determined ``pre-existing 
factions.''\556\ The Framers fully recognized that ``the persecution of 
an intemperate or designing majority in the House of Representatives'' 
was a real danger.\557\ That is why they chose the Senate as the 
tribunal for trying impeachments. Further removed from the politics of 
the day than the House, they believed the Senate could mitigate the 
``danger that the decision'' to remove a President would be based on 
the ``comparative strength of parties'' rather ``than by the real 
demonstrations of innocence or guilt.''\558\ The Senate would thus 
``guard[] against the danger of persecution, from the prevalency of a 
factious spirit'' in the House.\559\ It now falls to the Senate to 
fulfill the role of guardian that the Framers envisioned and to reject 
these wholly insubstantial Articles of Impeachment that have been 
propelled forward by nothing other than partisan enmity toward the 
President.
III. Article I Fails Because the Evidence Disproves House Democrats' 
        Claims
    Despite House Democrats' unprecedented, rigged process, the record 
they compiled clearly establishes that the President did nothing wrong.
    This entire impeachment charade centers on a telephone call that 
President Trump had with President Zelensky of Ukraine on July 25, 
2019. There is no mystery about what happened on that call, because the 
President has been completely transparent: he released a transcript of 
the call months ago. And that transcript shows conclusively that the 
call was perfectly appropriate. Indeed, the person on the other end of 
the call, President Zelensky, has confirmed in multiple public 
statements that the call was perfectly normal. Before they had even 
seen the transcript, though, House Democrats concocted all their 
charges based on distortions peddled by a so-called whistleblower who 
had no first-hand knowledge of the call. And contrary to their claims, 
the transcript proves that the President did not seek to use either 
security assistance or a presidential meeting as leverage to pressure 
Ukrainians to announce investigations on two subjects: (i) possible 
Ukrainian interference in the 2016 election; or (ii) an incident in 
which then-Vice President Biden had forced the dismissal of a Ukrainian 
anti-corruption prosecutor who reportedly had been investigating a 
company (Burisma) that paid Biden's son, Hunter, to sit on its 
board.\560\ The President did not even mention the security assistance 
on the call, and he invited President Zelensky to the White House 
without any condition whatsoever. When the President released the 
transcript of the call on September 25, 2019, it cut the legs out from 
under all of House Democrats' phony claims about a quid pro quo. That 
should have ended this entire matter.
    Nevertheless, House Democrats forged ahead, determined to gin up 
some other evidence to prop up their false narrative. But even their 
rigged process failed to yield the evidence they wanted. Instead, the 
record affirmatively refutes House Democrats' claims. In addition to 
the transcript, the central fact in this case is this: there are only 
two people who have made statements on the record who say they spoke 
directly to the President about the heart of this matter--Ambassador 
Gordon Sondland and Senator Ron Johnson. And they both confirmed that 
the President stated unequivocally that he sought nothing and no quid 
pro quo of any kind from Ukraine. House Democrats' claims are built 
entirely on speculation from witnesses who had no direct knowledge 
about anything and who never even spoke to the President about this 
matter.
    House Democrats' charges also rest on the fundamentally mistaken 
premise that it would have been illegitimate for the President to ask 
President Zelensky about either: (i) Ukrainian interference in the 2016 
election or (ii) the Biden-Burisma affair. That is obviously wrong. 
Asking another country to examine potential interference in a past U.S. 
election is always permissible. Similarly, it would not have been 
improper for the President to ask the Ukrainians about an incident in 
which Vice President Biden had threatened withholding U.S. loan 
guarantees to secure the dismissal of a prosecutor when Biden had been 
operating under, at the very least, the appearance of a serious 
conflict of interest.
 A. The Evidence Refutes Any Claim That the President Conditioned the 
Release of Security Assistance on an Announcement of Investigations by 
                                Ukraine
    The evidence squarely refutes the made-up claim that the President 
leveraged security assistance in exchange for Ukraine announcing an 
investigation into either interference in the 2016 election or the 
Biden-Burisma affair.
  1. The July 25 Call Transcript Shows the President Did Nothing Wrong
    The most important piece of evidence demonstrating the President's 
innocence is the transcript of the President's July 25 telephone call 
with President Zelensky. In an unprecedented act of transparency, the 
President made that transcript public months ago.\561\ President Trump 
did not even mention the security assistance on the call, and he 
certainly did not make any connection between the assistance and any 
investigation. Instead, the record shows that he raised two issues that 
are entirely consistent with both his authority to conduct foreign 
relations and his longstanding concerns about how the United States 
spends taxpayers' money on foreign aid: burden-sharing and corruption.
    Burden-sharing has been a consistent theme of the President's 
foreign policy,\562\ and he raised burden-sharing directly with 
President Zelensky, noting that ``Germany does almost nothing for you'' 
and ``[a] lot of the European countries are the same way.''\563\ 
President Zelensky acknowledged that European countries should be 
Ukraine's biggest partner, but they surprisingly were not.\564\
    President Trump also raised concerns about corruption. He first 
raised these concerns in connection with reports of Ukrainian actions 
in the 2016 presidential election. Numerous media outlets have reported 
that Ukrainian officials took steps to influence and interfere in the 
2016 election to undermine then-candidate Trump, and three Senate 
committee chairmen are currently investigating this interference.\565\ 
President Trump raised ``this whole situation'' and noted particularly 
that President Zelensky was ``surrounding [him]self with some of the 
same people.''\566\ President Zelensky responded by noting that he had 
recalled the Ukrainian Ambassador to the United States--an individual 
who had sought to influence the U.S. election by authoring an anti-
Trump op-ed.\567\ As Democrats' witness Dr. Hill testified, many 
officials in the State Department and NSC were similarly concerned 
about individuals surrounding Zelensky.\568\
    The President also mentioned an incident involving then-Vice 
President Joe Biden and a corruption investigation involving 
Burisma.\569\ In that incident, a corruption investigation involving 
Burisma had reportedly been stopped after Vice President Biden threated 
to withhold one billion dollars in U.S. loan guarantees unless the 
Ukrainian government fired a prosecutor.\570\ At the time, Vice 
President Biden's son, Hunter, was sitting on the Burisma's board of 
directors.\571\ The fired prosecutor reportedly had been investigating 
Burisma at the time.\572\ In fact, on July 22, 2019--just days before 
the July 25 call--The Washington Post reported that the prosecutor 
``said he believes his ouster was because of his interest in 
[Burisma]'' and ``[h]ad he remained in his post. . .he would have 
questioned Hunter Biden.''\573\ The incident raised important issues 
for anti-corruption efforts in Ukraine, as it raised at least the 
possibility that a U.S. official may have been involved in derailing a 
legitimate investigation of a foreign sovereign.
    As these examples show, President Trump raised corruption issues 
with President Zelensky. House Democrats' claim that he did not address 
corruption because the incidents he raised were ``not part of any 
official briefing materials or talking points'' is nonsense.\574\ 
President Trump spoke extemporaneously and used specific examples 
rather than following boilerplate talking points proposed by the 
NSC.\575\ That is the President's prerogative. He is not bound to raise 
his concerns with a foreign leader in the terms a staffer placed on a 
briefing card.
    More important, President Zelensky has publicly confirmed that he 
understood President Trump to be talking precisely about corruption. On 
the call, President Zelensky acknowledged that the incidents President 
Trump had raised highlighted ``the issue of making sure to restore the 
honesty.''\576\ As President Zelensky later explained, he understood 
President Trump to be saying ``we are tired of any corruption 
things.''\577\ President Zelensky explained that his response was 
essentially, ``[w]e are not corrupt.''\578\
    In contrast to the explicit discussions about burden-sharing and 
corruption, there was no discussion of the paused security assistance 
on the July 25 call. To fill that gap, House Democrats seize on 
President Zelensky's statement that Ukraine was ``almost ready to buy 
more Javelins,'' and President Trump's subsequent turn of the 
conversation as he said, ``I would like you to do us a favor though 
because our country has been through a lot and Ukraine knows a lot 
about it.''\579\ According to House Democrats, that sequence alone 
somehow linked the security assistance to a ``favor'' for President 
Trump relating to ``his reelection efforts.''\580\ That is nonsense.
    First, President Trump asked President Zelensky to ``do us a 
favor,'' and he made clear that ``us'' referred to ``our country'' as 
he put it, ``because our country has been through a lot.''\581\ Second, 
nothing in the flow of the conversation suggests that the President was 
drawing a connection between the Javelin sales and the next topics he 
turned to.\582\ The President was clearly transitioning to a new 
subject. Third, as Democrats' own witnesses conceded, Javelins are not 
part of the security assistance that had been temporarily paused.\583\ 
Accordingly, House Democrats' assertion that ``President Trump froze'' 
Javelin sales ``without explanation'' is demonstrably false.\584\ 
Fourth, the President frequently uses variations of the phrase ``do us 
a favor'' in the context of international diplomacy, and the ``favors'' 
have nothing to do with the President's personal interests.\585\ The 
President cannot be removed from office because House Democrats 
deliberately misconstrue one of his commonly used phrases.
    Notably, multiple government officials were on the July 25 call, 
and only one of them--NSC Director for European Affairs Alexander 
Vindman--raised any concerns at the time about the substance of 
it.\586\ His concerns were based primarily on policy disagreements and 
a misplaced belief that the President of the United States should have 
deferred to him on matters of foreign relations. Lt. Col. Vindman 
testified that he had ``deep policy concerns''\587\ about Ukraine 
retaining bipartisan support,\588\ but he ultimately conceded that the 
President not a staffer like him sets policy.\589\
    Mr. Morrison, Lt. Col. Vindman's supervisor, affirmed that ``there 
was nothing improper that occurred during the call.''\590\ Similarly, 
National Security Advisor to the Vice President Keith Kellogg said that 
he ``heard nothing wrong or improper on the call.''\591\
 2. President Zelensky and Other Senior Ukrainian Officials Confirmed 
     There Was No -Quid Pro Quo and No Pressure on Them Concerning 
                             Investigations
    The Ukrainian government also made clear that President Trump did 
not connect security assistance and investigations on the call. The 
Ukrainians' official statement did not reflect any such link,\592\ and 
President Zelensky has been crystal clear about this in his public 
statements. He has explained that he ``never talked to the President 
from the position of a quid pro quo''\593\ and stated that they did not 
discuss the security assistance on the call at all.\594\ Indeed, 
President Zelensky has confirmed several separate times that his 
communications with President Trump were ``good'' and ``normal,'' and 
``no one pushed me.''\595\ The day after the call, President Zelensky 
met with Ambassador Volker, Ambassador Sondland, and Ambassador Taylor 
in Kyiv. Ambassador Volker reported that the Ukrainians ``thought [the 
call] went well.''\596\ Likewise, Ambassador Taylor reported that 
President Zelensky stated that he was ``happy with the call.''\597\ And 
Ms. Croft, who met with President Zelensky's chief of staff Andriy 
Bohdan the day after the call, heard from Bohdan that the call ``was a 
very good call, very positive, they had good chemistry.''\598\
    Other high ranking Ukrainian officials confirmed that they never 
perceived a connection between security assistance and investigations. 
Ukrainian Foreign Minister Vadym Prystaiko stated his belief that 
``there was no pressure,''\599\ he has ``never seen a direct link 
between investigations and security assistance,'' and ``there was no 
clear connection between these events.''\600\ Similarly, when President 
Zelensky's adviser, Andriy Yermak, was asked if ``he had ever felt 
there was a connection between the U.S. military aid and the requests 
for investigations,'' he was ``adamant'' that ``[w]e never had that 
feeling'' and ``[w]e did not have the feeling that this aid was 
connected to any one specific issue.''\601\
3. President Zelensky and Other Senior Ukrainian Officials Did Not Even 
           Know That the Security Assistance Had Been Paused
    House Democrats' theory is further disproved because the evidence 
shows that President Zelensky and other senior Ukrainian officials did 
not even know that the aid had been paused until more than a month 
after the July 25, 2019 call, when the pause was reported in Politico 
at the end of August.\602\ The Ukrainians could not have been pressured 
by a pause on the aid they did not even know about.
    The uniform and uncontradicted testimony from American officials 
who actually interacted with President Zelensky and other senior 
Ukrainian officials was that they had no reason to think that Ukraine 
knew of the pause until more than a month after the July 25 call. 
Ambassador Volker testified that he ``believe[s] the Ukrainians became 
aware of the delay on August 29 and not before.''\603\ Ambassador 
Taylor agreed that, to the best of his knowledge, ``nobody in the 
Ukrainian Government became aware of a hold on military aid until . . . 
August 29th.''\604\ Mr. Morrison concurred, testifying that he had ``no 
reason to believe the Ukrainians had any knowledge of the review until 
August 28, 2019.''\605\ Deputy Assistant Secretary Kent and Ambassador 
Sondland agreed.\606\
    Public statements from high-level Ukrainian officials have 
confirmed the same point. For example, adviser to President Zelensky 
Andriy Yermak told Bloomberg that President Zelensky and his key 
advisers learned of the pause only from the Politico article.\607\ And 
then-Foreign Minister Pavlo Klimkin learned of the pause in the aid 
``by reading a news article,'' and Deputy Minister of Defense Oleh 
Shevchuk learned ``through media reports.''\608\
    Further confirmation that the Ukrainians did not know about the 
pause comes from the fact that the Ukrainians did not raise the 
security assistance in any of the numerous high-level meetings held 
over the summer--something Yermak told Bloomberg they would have done 
had they known.\609\ President Zelensky did not raise the issue in 
meetings with Ambassador Taylor on either July 26 or August 27.\610\ 
And Volker--who was in touch with the highest levels of the Ukrainian 
government--explained that Ukrainian officials ``would confide things'' 
in him and ``would have asked'' if they had any questions about the 
aid.\611\ Things changed, however, within hours of the publication of 
the Politico article, when Yermak, a top adviser to President Zelensky, 
texted Ambassador Volker to ask about the report.\612\
    The House Democrats' entire theory falls apart because President 
Zelensky and other officials at the highest levels of the Ukrainian 
government did not even know about the temporary pause until shortly 
before the President released the security assistance. As Ambassador 
Volker said: ``I don't believe . . . they were aware at the time, so 
there was no leverage implied.''\613\ These facts alone vindicate the 
President.
     4. House Democrats Rely Solely on Speculation Built on Hearsay
    House Democrats' charge is further disproved by the straightforward 
fact that not a single witness with actual knowledge ever testified 
that the President suggested any connection between announcing 
investigations and security assistance. Assumptions, presumptions, and 
speculation based on hearsay are all that House Democrats can rely on 
to spin their tale of a quid pro quo.
    House Democrats' claims are refuted first and foremost by the fact 
that there are only two people with statements on record who spoke 
directly with the President about the matter--and both have confirmed 
that the President expressly told them there was no connection 
whatsoever between the security assistance and investigations. 
Ambassador Sondland testified that he asked President Trump directly 
about these issues, and the President explicitly told him that he did 
not want anything from Ukraine:
    I want nothing. I want nothing. I want no quid pro quo. Tell 
Zelensky to do the right thing . . . .\614\
    Similarly, Senator Ron Johnson has said that he asked the President 
``whether there was some kind of arrangement where Ukraine would take 
some action and the hold would be lifted,'' and the answer was clear 
and ``[w]ithout hesitation'': ``(Expletive deleted)--No way. I would 
never do that.''\615\
    Although he did not speak to the President directly, Ambassador 
Volker also explained that President Trump never linked security 
assistance to investigations, and the Ukrainians never indicated that 
they thought there was any connection:
    [Q.] Did the President of the United States ever say to you that he 
was not going to allow aid from the United States to go to [] Ukraine 
unless there were investigations into Burisma, the Bidens, or the 2016 
elections?
    [A.] No, he did not.
    [Q.] Did the Ukrainians ever tell you that they understood that 
they would not get a meeting with the President of the United States, a 
phone call with the President of the United States, military aid or 
foreign aid from the United States unless they undertook investigations 
of Burisma, the Bidens, or the 2016 elections?
    [A.] No, they did not.\616\
    Against all of that unequivocal testimony, House Democrats base 
their case entirely on witnesses who offer nothing but speculation. 
Worse, it is speculation that traces back to one source: Sondland. 
Other witnesses repeatedly invoked things that Ambassador Sondland had 
said in a chain of hearsay that would never be admitted in any court. 
For example, Chairman Schiff's leading witness, Ambassador Taylor, 
acknowledged that, to the extent he thought there was a connection 
between the security assistance and investigations, his information 
came entirely from things that Sondland said--or (worse) second-hand 
accounts of what Morrison told Taylor that Sondland had said.\617\ 
Similarly, Morrison testified that he ``had no reason to believe that 
the release of the security-sector assistance might be conditioned on a 
public statement reopening the Burisma investigation until [his] 
September 1, 2019, conversation with Ambassador Sondland.''\618\
    Sondland, however, testified unequivocally that ``the President did 
not tie aid to investigations.'' Instead, he acknowledged that any link 
that he had suggested was based entirely on his own speculation, 
unconnected to any conversation with the President:
    [Q.] What about the aid? [Ambassador Volker] says that they weren't 
tied, that the aid was not tied --
    [A.] And I didn't say they were conclusively tied either. I said I 
was presuming it.
    [Q.] Okay. And so the President never told you they were tied.
    [A.] That is correct.
    [Q.] So your testimony and [Ambassador Volker's] testimony is 
consistent, and the President did not tie aid to investigations.
    [A.] That is correct.\619\
    Indeed, Sondland testified that he did ``not recall any discussions 
with the White House on withholding U.S. security assistance from 
Ukraine in return for assistance with the President's 2020 reelection 
campaign.''\620\ And he explained that he ``did not know (and still 
do[es] not know) when, why, or by whom the aid was suspended,'' so he 
just ``presumed that the aid suspension had become linked to the 
proposed anti-corruption statement.''\621\ In his public testimony 
alone, Sondland used variations of ``presume,'' ``assume,'' ``guess,'' 
or ``speculate'' over thirty times. When asked if he had any 
``testimony [] that ties President Trump to a scheme to withhold aid 
from Ukraine in exchange for these investigations,'' he stated that he 
has nothing ``[o]ther than [his] own presumption,'' and he conceded 
that ``[n]o one on this planet told [him] that Donald Trump was tying 
aid to investigations.''\622\ House Democrats' assertion that 
``President Trump made it clear to Ambassador Sondland--who conveyed 
this message to Ambassador Taylor--that everything was dependent on 
such an announcement [of investigations],'' simply misrepresents the 
testimony.\623\
      5. The Security Assistance Flowed Without Any Statement or 
                        Investigation by Ukraine
    The made-up narrative that the security assistance was conditioned 
on Ukraine taking some action on investigations is further disproved by 
the straightforward fact that the aid was released on September 11, 
2019, without the Ukrainians taking any action on investigations. 
President Zelensky never made a statement about investigations, nor did 
anyone else in the Ukrainian government. Instead, the evidence confirms 
that the decision to release the aid was based on entirely unrelated 
factors. See infra Part III.B. The paused aid, moreover, was entirely 
distinct from U.S. sales of Javelin missiles and thus had no effect on 
the supply of those arms to Ukraine.\624\
 6. President Trump's Record of Support for Ukraine Is Beyond Reproach
    Part of House Democrats' baseless charge is that the temporary 
pause on security assistance somehow ``compromised the national 
security of the United States'' by leaving Ukraine vulnerable to 
Russian aggression.\625\ The record affirmatively disproves that claim. 
In fact, Chairman Schiff's hearings established beyond a doubt that the 
Trump Administration has been a stronger, more reliable friend to 
Ukraine than the prior administration. Ambassador Yovanovitch testified 
that ``our policy actually got stronger'' under President Trump, 
largely because, unlike the Obama administration, ``this administration 
made the decision to provide lethal weapons to Ukraine'' to help 
Ukraine fend off Russian aggression.\626\ Yovanovitch explained that 
``we all felt [that] was very significant.''\627\ Ambassador Taylor 
similarly explained that the aid package provided by the Trump 
Administration was a ``substantial improvement'' over the policy of the 
prior administration, because ``this administration provided Javelin 
antitank weapons,'' which ``are serious weapons'' that ``will kill 
Russian tanks.''\628\ Deputy Assistant Secretary Kent agreed that 
Javelins ``are incredibly effective weapons at stopping armored 
advance, and the Russians are scared of them,''\629\ and Ambassador 
Volker explained that ``President Trump approved each of the decisions 
made along the way,'' and as a result, ``America's policy towards 
Ukraine strengthened.''\630\ As Senator Johnson has noted, President 
Trump capitalized on a longstanding congressional authorization that 
President Obama did not: ``In 2015, Congress overwhelmingly authorized 
$300 million of security assistance to Ukraine, of which $50 million 
was to be available only for lethal defensive weaponry. The Obama 
administration never supplied the authorized lethal defensive weaponry, 
but President Trump did.''\631\
    Thus, any claim that President Trump put the security of Ukraine at 
risk is flatly incorrect. The pause on security assistance (which was 
entirely distinct from the Javelin sales) was lifted by the end of the 
fiscal year, and the aid flowed to Ukraine without any preconditions. 
Ambassador Volker testified that the brief pause on releasing the aid 
was ``not significant.''\632\ And Under Secretary of State for 
Political Affairs David Hale explained that ``this [was] future 
assistance. . . . not to keep the army going now,'' disproving the 
false claim made by House Democrats that the pause caused any harm to 
Ukraine over the summer.\633\ In fact, according to Oleh Shevchuk, the 
Ukrainian Deputy Minister of Defense who oversaw U.S. aid shipments, 
``the hold came and went so quickly'' that he did not notice any 
change.\634\
   B. The Administration Paused Security Assistance Based on Policy 
       Concerns and Released It After the Concerns Were Satisfied
    What the evidence actually shows is that President Trump had 
legitimate policy concerns about foreign aid. As Under Secretary Hale 
explained, foreign aid to all countries was undergoing a systematic 
review in 2019. As he put it, ``the administration did not want to take 
a, sort of, business-as-usual approach to foreign assistance, a feeling 
that once a country has received a certain assistance package . . . 
it's something that continues forever.''\635\ Dr. Hill confirmed this 
review and explained that ``there had been a directive for whole-scale 
review of our foreign policy, foreign policy assistance, and the ties 
between our foreign policy objectives and the assistance. This had been 
going on actually for many months.''\636\
    With regard to Ukraine, witnesses testified that President Trump 
was concerned about corruption and whether other countries were 
contributing their share.
    1. Witnesses Testified That President Trump Had Concerns About 
                         Corruption in Ukraine
    Contrary to the bald assertion in the House Democrats' trial brief 
that ``[b]efore news of former Vice President Biden's candidacy broke, 
President Trump showed no interest in corruption in Ukraine,''\637\ 
multiple witnesses testified that the President has long had concerns 
about this issue. Dr. Hill, for instance, testified that she ``think[s] 
the President has actually quite publicly said that he was very 
skeptical about corruption in Ukraine. And, in fact, he's not alone, 
because everyone has expressed great concerns about corruption in 
Ukraine.''\638\ Similarly, Ambassador Yovanovitch testified that ``we 
all'' had concerns about corruption in Ukraine and noted that President 
Trump delivered an anti-corruption message to former Ukraine President 
Petro Poroshenko in their first meeting in the White House on June 20, 
2017.\639\ NSC Senior Director Morrison confirmed that he ``was aware 
that the President thought Ukraine had a corruption problem, as did 
many others familiar with Ukraine.''\640\ And Ms. Croft also heard the 
President raise the issue of corruption directly with then-President 
Poroshenko of Ukraine during a bilateral meeting at the United Nations 
General Assembly in September 2017.\641\ She also understood the 
President's concern ``[t]hat Ukraine is corrupt'' because she had been 
``tasked[] and retasked'' by then-National Security Advisor General 
McMaster ``to write [a] paper to help [McMaster] make the case to the 
President'' in connection with prior security assistance.\642\
    Concerns about corruption in Ukraine were also entirely justified. 
As Dr. Hill affirmed, ``eliminating corruption in Ukraine was one of, 
if [not] the central, goals of U.S. foreign policy'' in Ukraine.\643\ 
Virtually every witness agreed that confronting corruption should be at 
the forefront of U.S. policy with respect to Ukraine.\644\
   2. The President Had Legitimate Concerns About Foreign Aid Burden-
               Sharing, Including With Regard to Ukraine
    President Trump also has well-documented concerns regarding 
American taxpayers being forced to cover the cost of foreign aid while 
other countries refuse to pitch in. In fact, ``another factor in the 
foreign affairs review'' discussed by Under Secretary Hale was 
``appropriate burden sharing.''\645\ The President's 2018 Budget 
discussed this precise issue:
    The Budget proposes to reduce or end direct funding for 
international programs and organizations whose missions do not 
substantially advance U.S. foreign policy interests. The Budget also 
renews attention on the appropriate U.S. share of international 
spending at the United Nations, at the World Bank, and for many other 
global issues where the United States currently pays more than its fair 
share.\646\
    Burden-sharing was reemphasized in the President's 2020 budget when 
it advocated for reforms that would ``prioritize the efficient use of 
taxpayer dollars and increased burden-sharing to rebalance U.S. 
contributions to international organizations.''\647\
    House Democrats wrongly claim that ``[i]t was not until September . 
. . that the hold, for the first time, was attributed to the 
President's concern about other countries not contributing more to 
Ukraine''\648\ and that President Trump ``never ordered a review of 
burden-sharing.''\649\ These assertions are demonstrably false.
    Mr. Morrison testified that he was well aware of the President's 
``skeptical view''\650\ on foreign aid generally and Ukrainian aid 
specifically. He affirmed that the President was ``trying to scrutinize 
[aid] to make sure the U.S. taxpayers were getting their money's 
worth'' and explained that the President ``was concerned that the 
United States seemed to--to bear the exclusive brunt of security 
assistance to Ukraine. He wanted to see the Europeans step up and 
contribute more security assistance.''\651\
    There is other evidence as well. In a June 24 email with the 
subject line ``POTUS follow up,'' a Department of Defense official 
relayed several questions from a meeting with the President, including 
``What do other NATO members spend to support Ukraine?''\652\ Moreover, 
as discussed above, President Trump personally raised the issue of 
burden-sharing with President Zelensky on July 25.\653\ Senator Johnson 
similarly related that the President had shared concerns about burden-
sharing with him. He recounted an August 31 conversation in which 
President Trump described discussions he would have with Angela Merkel, 
Chancellor of Germany. According to Senator Johnson, President Trump 
explained: ``Ron, I talk to Angela and ask her, `Why don't you fund 
these things,' and she tells me, `Because we know you will.' We're 
schmucks, Ron. We're schmucks.''\654\ And Ambassador Taylor testified 
that, when the Vice President met with President Zelensky on September 
1, the Vice President reiterated that ``President Trump wanted the 
Europeans to do more to support Ukraine.''\655\
    President Trump's burden-sharing concerns were entirely legitimate. 
The evidence shows that the United States pays more than its fair share 
for Ukrainian assistance. As Deputy Assistant Secretary Cooper 
testified, ``U.S. contributions [to Ukraine] are far more significant 
than any individual country'' and ``EU funds tend to be on the economic 
side,'' rather than for ``defense and security.''\656\ Even President 
Zelensky noted in the July 25 call that the Europeans were not helping 
Ukraine as much as they should and certainly not as much as the United 
States.\657\
      3. Pauses on Foreign Aid Are Often Necessary and Appropriate
    Placing a temporary pause on aid is not unusual. Indeed, the 
President has often paused, re-evaluated, and even canceled foreign aid 
programs. For example:
    In September 2019, the Administration announced that it was 
withholding over $100 million in aid to Afghanistan over concerns about 
government corruption.\658\
    In August 2019, President Trump announced that the Administration 
and Seoul were in talks to ``substantially'' increase South Korea's 
share of the expense of U.S. military support for South Korea.\659\
    In June, President Trump cut or paused over $550 million in foreign 
aid to El Salvador, Honduras, and Guatemala because those countries 
were not fairly sharing the burdens of preventing mass migration to the 
United States.\660\
    In or around June, the Administration temporarily paused $105 
million in military aid to Lebanon. The Administration lifted the hold 
in December, with one official explaining that the Administration 
``continually reviews and thoroughly evaluates the effectiveness of all 
United States foreign assistance to ensure that funds go toward 
activities that further U.S. foreign policy and national security 
interests.''\661\
    In September 2018, the Administration cancelled $300 million in 
military aid to Pakistan because it was not meeting its counter-
terrorism obligations.\662\
    Indeed, Under Secretary Hale agreed that ``aid has been withheld 
from several countries across the globe for various reasons, and, in 
some cases, for reasons that are still unknown just in the past 
year.''\663\ Dr. Hill similarly explained that ``there was a freeze put 
on all kinds of aid and assistance because it was in the process at the 
time of an awful lot of reviews of foreign assistance.''\664\ She added 
that, in her experience, ``stops and starts [are] sometimes common . . 
. with foreign assistance'' and that ``OMB [Office of Management and 
Budget] holds up dollars all the time,'' including in the past for 
dollars going to Ukraine.\665\ Similarly, Ambassador Volker affirmed 
that aid gets ``held up from time-to-time for a whole assortment of 
reasons,'' and explained that ``[i]t's something that had happened in 
[his] career in the past.''\666\
    4. The aid was released after the President's concerns were 
addressed.
    To address President Trump's concerns about corruption and burden-
sharing, a temporary pause was placed on the aid to Ukraine. Mr. 
Morrison testified that ``OMB represented that . . . the President was 
concerned about corruption in Ukraine, and he wanted to make sure that 
Ukraine was doing enough to manage that corruption.''\667\ And OMB 
Deputy Associate Director for National Security Mark Sandy testified 
that he understood the pause to have been a result of the President's 
``concerns about the contribution from other countries to 
Ukraine.''\668\
    Over the course of the summer and early September, two series of 
developments helped address the President's concerns:
    First, President Zelensky secured a majority in the Ukrainian 
parliament and was able to begin reforms under his anti-corruption 
agenda. As Mr. Morrison explained, when Zelensky was first elected, 
there was real ``concern about whether [he] would be a genuine 
reformer'' and ``whether he would genuinely try to root out 
corruption.''\669\ It was also unclear whether President Zelensky's 
party would ``be able to get a workable majority in the Ukrainian 
Parliament'' to implement the corruption reforms he promised.\670\ It 
was only later in the summer that President's Zelensky's party won a 
majority in the Rada--the Ukrainian parliament. As Mr. Morrison 
testified, on ``the opening day of the [new] Rada,'' the Ukrainians 
worked through ``an all-night session'' to move forward with concrete 
reforms.\671\ Indeed, Mr. Morrison and Ambassador Bolton were in Kyiv 
on August 27, and Mr. Morrison ``observed that everybody on the 
Ukrainian side of the table was exhausted, because they had been up for 
days working on . . . reform legislation.''\672\ President Zelensky 
``named a new prosecutor general''--a reform that the NSC was 
``specifically interested in.''\673\ He also ``had his party introduce 
a spate of legislative reforms, one of which was particularly 
significant,'' namely, ``stripping Rada members of their parliamentary 
immunity.''\674\ Additionally, the High Anti-Corruption Court of 
Ukraine commenced its work on September 5, 2019.\675\
    As a result of these developments, Mr. Morrison affirmed that by 
Labor Day there had been ``definitive developments'' to ``demonstrate 
that President Zelensky was committed to the issues he campaigned 
on.\676\
    Second, the President heard from multiple parties about Ukraine, 
including trusted advisers. Senator Johnson has said that he spoke to 
the President on August 31 urging release of the security assistance. 
Senator Johnson has stated that the President told him then that, as to 
releasing the aid, ``[w]e're reviewing it now, and you'll probably like 
my final decision.''\677\ On September 3, 2019, Senators Johnson and 
Portman, along with other members of the Senate's bipartisan Ukraine 
Caucus, wrote to the President concerning the status of the aid,\678\ 
and on September 5 the Chairman and Ranking Member of the House Foreign 
Affairs Committee followed suit with another letter.\679\
    Most significantly, Mr. Morrison testified that the Vice President 
advised the President that the relationship with Zelensky ``is one that 
he could trust.''\680\ The Vice President had met with President 
Zelensky in Warsaw on September 1 and had heard firsthand that the new 
Ukrainian administration was taking concrete steps to address 
corruption and burden-sharing. On corruption reform, President Zelensky 
``stated his strong commitment'' and shared ``some of the things he had 
been doing,'' specifically what his party had done in the ``2 or 3 
days'' since the new parliament had been seated.\681\ Morrison 
testified that, on burden-sharing, ``President Zelensky agreed with 
Vice President Pence that the Europeans should be doing more'' and 
``related to Vice President Pence conversations he'd been having with 
European leaders about getting them to do more.''\682\
    Moreover, on September 11, 2019, the President heard directly from 
Senator Portman.\683\ Mr. Morrison testified that Senator Portman made 
``the case . . . to the President that it was the appropriate and 
prudent thing to do'' to lift the pause on the aid.\684\ He testified 
that the Vice President (who had just returned from Europe on September 
6) and Senator Portman thus ``convinced the President that the aid 
should be disbursed immediately''\685\--and the temporary pause was 
lifted after the meeting.\686\
  C. The Evidence Refutes House Democrats' Claim that President Trump 
    Conditioned a Meeting with President Zelensky on Investigations
    Lacking any evidence to show a connection between releasing the 
security assistance and investigations, House Democrats fall back on 
the alternative theory that President Trump used a bilateral meeting as 
leverage to pressure Ukraine to announce investigations. But no witness 
with any direct knowledge supported that claim either. It is undisputed 
that a bilateral presidential-level meeting was scheduled for September 
1 in Warsaw and then took place in New York City on September 25, 
2019,\687\ without Ukraine saying or doing anything related to 
investigations.
        1. A Presidential Meeting Occurred Without Precondition
    Contrary to House Democrats' claims, the evidence shows that a 
bilateral meeting between President Trump and President Zelensky was 
scheduled without any connection to any statement about investigations.
    Mr. Morrison--whose ``responsibilities'' included ``help[ing] 
arrange head of state visits to the White House or other head of state 
meetings''\688\--testified that he was trying to schedule a meeting 
without any restrictions related to investigations. He testified that 
he understood that arranging ``the White House visit'' was a ``do-out'' 
that ``came from the President'' on the July 25 call,\689\ and he moved 
forward with a scheduling proposal.\690\ He worked with Ambassador 
Taylor and the NSC's Senior Director responsible for visits to 
``determine dates that would be mutually agreeable to President Trump 
and President Zelensky.''\691\ But due to competing scheduling 
requests, ``it became clear that the earliest opportunity for the two 
Presidents to meet would be in Warsaw'' at the beginning of 
September.\692\ In other words, Mr. Morrison made it clear that he was 
trying to schedule the meeting in the ordinary course. He did not say 
that anyone told him to delay scheduling the meeting until President 
Zelensky had made some announcement about investigations. Instead, he 
explained that, after the July 25 call, he understood that it was the 
President's direction to schedule a visit, and he proceeded to execute 
that direction.
    Ultimately, the notion that a bilateral meeting between President 
Trump and President Zelensky was conditioned on a statement about 
investigations is refuted by one straightforward fact: a meeting was 
planned for September 1, 2019 in Warsaw without the Ukrainians saying a 
word about investigations. As Ambassador Volker testified, 
Administration officials were ``working on a bilateral meeting to take 
place in Warsaw on the margins of the commemoration on the beginning of 
World War II.''\693\ Indeed, by mid-August, U.S. officials expected the 
meeting to occur,\694\ and the Ukrainian government was making 
preparations.\695\ As it turned out, President Trump had to stay in the 
U.S. because Hurricane Dorian rapidly intensified to a Category 5 
hurricane, so he sent the Vice President to Warsaw in his place.\696\
    Even that natural disaster did not put off the meeting between the 
Presidents for long. They met at the next earliest possible date--
September 25, 2019, on the sidelines of the United Nations General 
Assembly. President Zelensky confirmed that there were no preconditions 
for this meeting.\697\ Nor was there anything unusual about the meeting 
occurring in New York rather than Washington. As Ambassador Volker 
verified, ``these meetings between countries sometimes take a long time 
to get scheduled'' and ``[i]t sometimes just doesn't happen.''\698\
    House Democrats cannot salvage their claim by arguing that the 
high-profile meeting in New York City did not count and that only an 
Oval Office meeting would do. Dr. Hill explained that what mattered was 
a bilateral presidential meeting, not the location of the meeting:
    [I]t wasn't always a White House meeting per se, but definitely a 
Presidential-level, you know, meeting with Zelensky and the President. 
I mean, it could've taken place in Poland, in Warsaw. It could've been, 
you know, a proper bilateral in some other context. But in other words, 
a White House-level Presidential meeting.\699\
    The Ukrainians had such a meeting scheduled for September 1 in 
Warsaw (until Hurricane Dorian disrupted plans), and the meeting took 
place on September 25 in New York--all without anyone making any 
statement about investigations.
  2. No Witness With Direct Knowledge Testified that President Trump 
          Conditioned a Presidential Meeting on Investigations
    House Democrats' tale of a supposed quid pro quo involving a 
presidential meeting is further undermined by the fact that it rests 
entirely on mere speculation, hearsay, and innuendo. Not a single 
witness provided any first-hand evidence that the President ever linked 
a presidential meeting to announcing investigations.
    Once again, House Democrats' critical witness--Sondland--actually 
destroys their case. He is the only witness who spoke directly to 
President Trump on the subject. And Sondland testified that, when he 
broadly asked the President what he wanted from Ukraine, the President 
answered unequivocally: ``I want nothing. I want no quid pro quo. I 
just want Zelensky to do the right thing, to do what he ran on.''\700\
    Sondland clearly stated that ``the President never discussed'' a 
link between investigations and a White House meeting,\701\ and 
Sondland's mere presumptions about such a link are not evidence. As he 
put it, the most he could do is ``repeat . . . what [he] heard through 
Ambassador Volker from Giuliani,''\702\ who, he ``presumed,'' spoke to 
the President on this issue.\703\ But Ambassador Volker testified 
unequivocally that there was no connection between the meeting and 
investigations:
    Q. Did President Trump ever withhold a meeting with President 
Zelensky or delay a meeting with President Zelensky until the 
Ukrainians committed to investigate the allegations that you just 
described concerning the 2016 Presidential election?
    A. The answer to the question is no, if you want a yes-or-no 
answer. But the reason the answer is no is we did have difficulty 
scheduling a meeting, but there was no linkage like that.
    Q. You said that you were not aware of any linkage between the 
delay in the Oval Office meeting between President Trump and President 
Zelensky and the Ukrainian commitment to investigate the two 
allegations as you described them, correct?
    A. Correct.\704\
    Sondland confirmed the same point. When asked if ``the President 
ever [told him] personally about any preconditions for anything,'' 
Sondland responded, ``No.''\705\ And when asked if the President ever 
``told [him] about any preconditions for a White House meeting,'' he 
again responded, ``[p]ersonally, no.''\706\ No credible testimony has 
been advanced supporting House Democrats' claim of a quid pro quo.
D. House Democrats' Charges Rest on the False Premise That There Could 
    Have Been No Legitimate Purpose To Ask President Zelensky About 
Ukrainian Involvement in the 2016 Election and the Biden-Burisma Affair
    The charges in Article I are further flawed because they rest on 
the transparently erroneous proposition that it would have been 
illegitimate for the President to mention two matters to President 
Zelensky: (i) possible Ukrainian interference in the 2016 election; and 
(ii) an incident in which then-Vice President Biden forced the 
dismissal of a Ukrainian anti-corruption prosecutor who reportedly had 
been investigating Burisma. House Democrats' characterizations of the 
President's conversation are false. Moreover, as House Democrats frame 
their charges, to prove the element of ``corrupt motive'' at the heart 
of Article I, they must establish (in their own words) that the only 
reason for raising those matters would have been ``to obtain an 
improper personal political benefit.''\707\ And as they cast their 
case, any investigation into those matters would have been ``bogus'' or 
a ``sham'' because, according to House Democrats, neither investigation 
would have been ``premised on any legitimate national security or 
foreign policy interest.''\708\ That is obviously incorrect.
    It would have been entirely proper for the President to ask 
President Zelensky to find out about any role that Ukraine played in 
the 2016 presidential election. Uncovering potential foreign 
interference in U.S. elections is always a legitimate goal. Similarly, 
it also would have been proper to ask about an incident in which Vice 
President Biden actually leveraged the threat of withholding one 
billion dollars in U.S. loan guarantees to secure the dismissal of a 
Ukrainian prosecutor who was reportedly investigating Burisma--at a 
time when his son, Hunter, was earning vast sums for sitting on 
Burisma's board.\709\ House Democrats' own witnesses established ample 
justification for asking questions about the Biden-Burisma affair, as 
they acknowledged that Vice President Biden's conduct raises, at the 
very least, the appearance of a conflict of interest.\710\
    1. It Was Entirely Appropriate for President Trump To Ask About 
          Possible Ukrainian Interference in the 2016 Election
    House Democrats' theory that it would have been improper for 
President Trump to ask President Zelensky about any role that Ukraine 
played in interfering with the 2016 election makes no sense. Uncovering 
any form of foreign interference in a U.S. presidential election is 
squarely a matter of national interest. In this case, moreover, there 
is abundant information already in the public domain suggesting that 
Ukrainian officials systematically sought to interfere in the 2016 
election to support one candidate: Hillary Clinton.
    To give just a few examples, a former Democratic National Committee 
(DNC) consultant, Alexandra Chalupa, admitted to a reporter that 
Ukraine's embassy in the United States was ``helpful'' in her efforts 
to collect dirt on President Trump's then-campaign manager, Paul 
Manafort.\711\ As Politico reported, ``Chalupa said the [Ukrainian] 
embassy also worked directly with reporters researching Trump, Manafort 
and Russia to point them in the right directions.''\712\ A former 
political officer in that embassy also claimed the Ukrainian government 
coordinated directly with the DNC to assist the Clinton campaign in 
advance of the 2016 presidential election.\713\ And Nellie Ohr, a 
former researcher for the firm that hired a foreign spy to produce the 
Steele Dossier, testified to Congress that Serhiy Leshchenko, then a 
member of Ukraine's Parliament, also provided her firm with information 
as part of the firm's opposition research on behalf of the DNC and the 
Clinton Campaign.\714\ Even high-ranking Ukrainian government officials 
played a role. For example, Arsen Avakov, Ukraine's Minister of 
Internal Affairs, called then-candidate Trump ``an even bigger danger 
to the US than terrorism.''\715\
    At least two news organizations conducted their own investigations 
and concluded Ukraine's government sought to interfere in the 2016 
election. In January 2017, Politico concluded that ``Ukrainian 
government officials tried to help Hillary Clinton and undermine Trump 
by publicly questioning his fitness for office.''\716\ And on the other 
side of the Atlantic, a separate investigation by The Financial Times 
confirmed Ukrainian election interference. The newspaper found that 
opposition to President Trump led ``Kiev's wider political leadership 
to do something they would never have attempted before: intervene, 
however indirectly, in a US election.''\717\ These efforts were 
designed to undermine Trump's candidacy because, as one member of the 
Ukrainian parliament put it, the majority of Ukrainian politicians were 
``on Hillary Clinton's side.''\718\
    Even one of House Democrats' own witnesses, Dr. Hill, acknowledged 
that some Ukrainian officials ``bet on Hillary Clinton winning the 
election,'' and so it was ``quite evident'' that ``they were trying to 
curry favor with the Clinton campaign,'' including by ``trying to 
collect information . . . on Mr. Manafort and on other people as 
well.''\719\
    If even a fraction of all this is true, Ukrainian interference in 
the 2016 election is squarely a matter of national interest. It is well 
settled that the United States has a ``compelling interest . . . in 
limiting the participation of foreign citizens in activities of 
American democratic self-government, and in thereby preventing foreign 
influence over the U.S. political process.''\720\ Congress has 
forbidden foreigners' involvement in American elections.\721\ And 
President Trump made clear more than a year ago that ``the United 
States will not tolerate any form of foreign meddling in our 
elections'' during his Administration.\722\ Even Chairman Schiff is on 
record agreeing that the Ukrainian efforts to aid the Clinton campaign 
described above would be ``problematic,'' if true.\723\
    A request for Ukraine's assistance in this case also would have 
been particularly appropriate because the Department of Justice had 
already opened a probe on a similar subject matter to examine the 
origins of foreign interference in the 2016 election that led to the 
false Russian-collusion allegations against the Trump Campaign. In May 
of last year, Attorney General Barr publicly announced that he had 
appointed U.S. Attorney John Durham to lead a review of the origins and 
conduct of the Department of Justice's Russia investigation and 
targeting of members of the Trump campaign, including any potential 
wrongdoing.\724\ As of October, it was publicly revealed that aspects 
of the probe had shifted to a criminal investigation.\725\ As the White 
House explained when the President announced measures to ensure 
cooperation across the federal government with Mr. Durham's probe, his 
investigation will ``ensure that all Americans learn the truth about 
the events that occurred, and the actions that were taken, during the 
last Presidential election and will restore confidence in our public 
institutions.''\726\
    Asking for foreign assistance is also routine. Such requests for 
cooperation are common and take many different forms, both formal and 
informal.\727\ Requests can be made pursuant to a Mutual Legal 
Assistance Treaty, and the U.S. has such a treaty with Ukraine that 
specifically authorizes requests for cooperation.\728\ There can also 
be informal requests for assistance.\729\ Because the President is the 
Chief Executive and chief law enforcement officer of the federal 
government--as well as the ``sole organ of the federal government in 
the field of international relations''\730\--requesting foreign 
assistance is well within his ordinary role.
    Given the self-evident national interest at stake in identifying 
any Ukrainian role in the 2016 election, House Democrats resort to 
distorting the President's words. They strain to recast his request to 
uncover historical truth about the last election as if it were 
something relevant only for the President's personal political interest 
in the next election. Putting words in the President's mouth, House 
Democrats pretend that, because the President mentioned a hacked DNC 
server, he must have been pursuing a claim that Ukraine ``rather than 
Russia'' had interfered in the 2016 election\731\--and that assertion, 
they claim, was relevant solely for boosting President Trump's 2020 
presidential campaign. But that convoluted chain of reasoning is 
hopelessly flawed.
    To start, simply asking about any Ukrainian involvement in the 2016 
election--including with respect to hacking a DNC server--does not 
imply that Russia did not attempt to interfere with the 2016 election. 
It is entirely possible that foreign nationals from more than one 
country sought to interfere in our election by different means (or 
coordinated means), and for different reasons. Uncovering all the facts 
about any interference benefits the United States by laying bare all 
foreign attempts to meddle in our elections. And if the facts uncovered 
end up having any influence on the 2020 election, that would not be 
improper. House Democrats cannot place an inquiry into historical facts 
off limits based on fears that the facts might harm their interests in 
the next election.
    In addition, House Democrats have simply misrepresented President 
Trump's words. The President did not ask narrowly about a DNC server 
alone, but rather raised a whole collection of issues related to the 
2016 election. President Trump introduced the topic by noting that 
``our country has been through a lot,''\732\ which referred to the 
entire Mueller investigation and false allegations about the Trump 
Campaign colluding with Russia. He then broadly expressed interest in 
``find[ing] out what happened with this whole situation'' with 
Ukraine.\733\ After mentioning a DNC server, the President made clear 
that he was casting a wider net as he said that ``[t]here are a lot of 
things that went on'' and again indicated that he was interested in 
``the whole situation.''\734\ He then noted his concern that President 
Zelensky was ``surrounding [him]self with some of the same 
people.''\735\ President Zelensky clearly understood this to be a 
reference to Ukrainian officials who had sought to undermine then-
candidate Trump during the campaign, as he responded by immediately 
noting that he ``just recalled our ambassador from [the] United 
States.''\736\ That ambassador, of course, had penned a harsh, 
undiplomatic op-ed criticizing then-candidate Trump, and it had been 
widely reported that a DNC operative met with Ukrainian embassy 
officials during the campaign to dig up information detrimental to 
President Trump's campaign.\737\
    Notably, Democrats have not always believed that asking Ukraine for 
assistance in uncovering foreign election interference constituted a 
threat to the Republic. To the contrary, in 2018, three Democratic 
Senators--Senators Menendez, Leahy, and Durbin--asked Ukraine to 
cooperate with the Mueller investigation and ``strongly encourage[d]'' 
then-Prosecutor General Yuriy Lutsenko to ``halt any efforts to impede 
cooperation.''\738\ Not a single Democrat in either house has called 
for sanctions against them. Nothing that President Trump said went 
further than the senators' request, and efforts to claim that it was 
somehow improper are rank hypocrisy.
2. It Would Have Been Appropriate for President Trump To Ask President 
                Zelensky About the Biden-Burisma Affair
    House Democrats' theory that there could not have been any 
legitimate basis for a President of the United States to raise the 
Biden-Burisma affair with President Zelensky is also wrong. The 
following facts have been publicly reported:
    Burisma is a Ukrainian energy company with a reputation for 
corruption. Lt. Col. Vindman called it a ``corrupt entity.''\739\ It 
was founded by a corrupt oligarch, Mykola Zlochevsky, who has been 
under several investigations for money laundering.\740\
    Deputy Assistant Secretary of State Kent testified that Burisma's 
reputation was so poor that he dissuaded the United States Agency for 
International Development (USAID) from co-sponsoring an event with 
Burisma. He testified that he did not think co-sponsorship with a 
company of Burisma's reputation was ``appropriate for the U.S. 
Government.''\741\
    In April 2014, Hunter Biden was recruited to sit on Burisma's 
board.\742\ At that time, his father had just been made the ``public 
face of the [Obama] administration's handling of Ukraine,''\743\ and 
Britain's Serious Fraud Office (SFO) had just recently frozen $23 
million in accounts linked to Zlochevsky as part of a money-laundering 
investigation.\744\ Zlochesvsky fled Ukraine sometime in 2014.\745\
    Hunter Biden had no known qualifications for serving on Burisma's 
board of directors, and just two months before joining the board, he 
had been discharged from the Navy Reserve for testing positive for 
cocaine on a drug test.\746\ He himself admitted in a televised 
interview that he would not have gotten the board position ``if [his] 
last name wasn't Biden.''\747\
    Nevertheless, Hunter Biden was paid more than board members at 
energy giants like ConocoPhillips.\748\
    Multiple witnesses said it appeared that Burisma hired Hunter Biden 
for improper reasons.\749\
    Hunter's role on the board raised red flags in several quarters. 
Chris Heinz, the step-son of then-Secretary of State John Kerry, 
severed his business relationship with Hunter, citing Hunter's ``lack 
of judgment'' in joining the Burisma board as ``a major 
catalyst.''\750\
    Contemporaneous press reports openly speculated that Hunter's role 
with Burisma might undermine U.S. efforts--led by his father--to 
promote an anti-corruption message in Ukraine.\751\ Indeed, The 
Washington Post reported that ``[t]he appointment of the vice 
president's son to a Ukrainian oil board looks nepotistic at best, 
nefarious at worst.''\752\
    Within the Obama Administration, Hunter's position caused the 
special envoy for energy policy, Amos Hochstein, to ``raise[] the 
matter with Biden.''\753\ Deputy Assistant Secretary of State Kent 
testified that he, too, voiced concerns with Vice President Biden's 
office.\754\
    In fact, every witness who was asked agreed that Hunter's role 
created at least the appearance of a conflict of interest for his 
father.\755\
    On February 2, 2016, the Ukrainian Prosecutor General obtained a 
court order to seize Zlochevsky's property.\756\
    According to press reports, Vice President Biden then spoke with 
Ukraine's President Poroshenko three times by telephone on February 11, 
18, and 19, 2016.\757\
    Vice President Biden has openly bragged that, around that time, he 
threatened President Poroshenko that he would withhold one billion 
dollars in U.S. loan guarantees unless the Ukrainians fired the 
Prosecutor General who was investigating Burisma.\758\
    Deputy Assistant Secretary Kent testified that the Prosecutor 
General's removal ``became a condition of the loan guarantee.''\759\
    On March 29, 2016, Ukraine's parliament dismissed the Prosecutor 
General.\760\ In September 2016, a Kiev court cancelled an arrest 
warrant for Zlochevsky.\761\
    In January 2017, Burisma announced that all cases against the 
company and Zlochevsky had been closed.\762\
    On these facts, it would have been wholly appropriate for the 
President to ask President Zelensky about the whole Biden-Burisma 
affair. The Vice President of the United States, while operating under 
an apparent conflict of interest, had possibly used a billion dollars 
in U.S. loan guarantees to force the dismissal of a prosecutor who may 
have been pursuing a legitimate corruption investigation. In fact, on 
July 22, 2019--just days before the July 25 call--The Washington Post 
reported that the fired prosecutor ``said he believes his ouster was 
because of his interest in [Burisma]'' and ``[h]ad he remained in his 
post . . . he would have questioned Hunter Biden.''\763\ Even if the 
Vice President's motives were pure, the possibility that a U.S. 
official used his position to derail a meritorious investigation made 
the Biden-Burisma affair a legitimate subject to raise. Indeed, any 
President would have wanted to make clear both that the United States 
was not placing any inquiry into the incident off limits and that, in 
the future, there would be no efforts by U.S. officials do something as 
``horrible'' as strong-arming Ukraine into dropping corruption 
investigations while operating under an obvious conflict of 
interest.\764\
    As the transcript shows, President Zelensky recognized precisely 
the point. He responded to President Trump by noting that ``[t]he issue 
of the investigation of the case is actually the issue of making sure 
to restore the honesty[.]''\765\
    It is absurd for House Democrats to argue that any reference to the 
Biden-Burisma affair had no purpose other than damaging the President's 
potential political opponent. The two participants on the call--the 
leaders of two sovereign nations--clearly understood the discussion to 
advance the U.S. foreign policy interest in ensuring that Ukraine's new 
President felt free, in President Zelensky's words, to ``restore the 
honesty'' to corruption investigations.\766\
    Moreover, House Democrats' accusations rest on the false and 
dangerous premise that Vice President Biden somehow immunized his 
conduct (and his son's) from any scrutiny by declaring his run for the 
presidency. There is no such rule of law. It certainly was not a rule 
applied when President Trump was a candidate. His political opponents 
called for investigations against him and his children almost 
daily.\767\ Nothing in the law requires the government to turn a blind 
eye to potential wrongdoing based on a person's status as a candidate 
for President of the United States. If anything, the possibility that 
Vice President Biden may ascend to the highest office in the country 
provides a compelling reason for ensuring that, when he forced Ukraine 
to fire its Prosecutor General, his family was not corruptly 
benefitting from his actions.
    Importantly, mentioning the whole Biden-Burisma affair would have 
been entirely justified as long as there was a reasonable basis to 
think that looking into the matter would advance the public interest. 
To defend merely asking a question, the President would not bear any 
burden of showing that Vice President Biden (or his son) actually 
committed any wrongdoing.
    By contrast, under their own theory of the case, for the House 
Managers to carry their burden of proving that merely raising the 
matter was ``illegitimate,'' they would have to prove that raising the 
issue could have no legitimate purpose whatsoever. Their theory is 
obviously false. And especially on this record, the House Managers 
cannot possibly carry that burden, because no such definitive proof 
exists. Nobody, not even House Democrats' own witnesses, could testify 
that the Bidens' conduct did not at least facially raise an appearance 
of a conflict of interest. And while House Democrats repeatedly insist 
that any suggestions that Vice President Biden or his son did anything 
wrong are ``debunked conspiracy theories'' and ``without merit,''\768\ 
they lack any evidence to support those bald assertions, because they 
have steadfastly cut off any real inquiry into the Bidens' conduct. For 
example, they have refused to call Hunter Biden to testify.\769\ 
Instead, they have been adamant that Americans must simply accept the 
diktat that the Bidens' conduct could not possibly have been part of a 
course of conduct in which the Office of the Vice President was misused 
to protect the financial interests of a family member.
    The Senate cannot accept House Democrats' mere say-so as proof. 
Especially in the context of this wholly partisan impeachment, House 
Democrats' assurance of, ``trust us, there's nothing to see here,'' is 
not a permissible foundation for building a case to remove a duly 
elected President from office--especially given Chairman Schiff's track 
record for making false claims in order to damage the President.\770\
IV. The Articles Are Structurally Deficient and Can Only Result in 
        Acquittal
    The Articles also suffer from a fatal structural defect. Put 
simply, the articles are impermissibly duplicitous--that is, each 
article charges multiple different acts as possible grounds for 
sustaining a conviction.\771\ The problem with an article offering such 
a menu of options is that the Constitution requires two-thirds of 
Senators present to agree on the specific basis for conviction. A vote 
on a duplicitous article, however, could never provide certainty that a 
two-thirds majority had actually agreed upon a ground for conviction. 
Instead, such a vote could be the product of an amalgamation of votes 
resting on several different theories, no single one of which would 
have garnered two-thirds support if it had been presented separately. 
Accordingly, duplicitous articles like those exhibited here are 
facially unconstitutional.
  A. The Constitution Requires Two-Thirds of Senators To Agree on the 
   Specific Act that Is the Basis for Conviction and Thus Prohibits 
                          Duplicitous Articles
    In impeachment trials, the Constitution mandates that ``no Person 
shall be convicted without the Concurrence of two thirds of the Members 
present.''\772\ That provision requires two-thirds agreement on the 
specific act that warrants conviction. That is why the Senate has 
repeatedly made clear in prior impeachments that acquittal is required 
when duplicitous articles are presented.
    In the Clinton impeachment,\773\ for example, Senator Carl Levin 
explained his vote to acquit by pointing out that the House had ``made 
a significant and irreparable mistake in the actual drafting of the 
articles.''\774\ Because each article alleged multiple acts of 
wrongdoing, it would be ``impossible'' ever to determine ``whether a 
two-thirds majority of the Senate actually agreed on a particular 
allegation.''\775\ Senator Charles Robb echoed those concerns, 
explaining that ``the unconstitutional bundling of charges'' in these 
articles ``violates this constitutional requirement'' of two-thirds 
agreement to convict.\776\ As he pointed out, because Article II, in 
particular, ``contain[ed] 7 subparts each alleging a separate act of 
obstruction of justice, the bundling of these allegations would allow 
removal of the President if only 10 Senators agreed on each of the 7 
separate subparts.''\777\ Senator Chris Dodd agreed, explaining that 
``[t]his smorgasbord approach to the allegations'' was a threshold 
legal flaw that even called for dismissal outright and pointed to the 
``deeply troubling prospect'' of ``convict[ing] and remov[ing] without 
two-thirds of the Senate agreeing on precisely what [the President] did 
wrong.''\778\
    The Senate similarly rejected a duplicitous article against 
President Andrew Johnson. That article alleged that Johnson had 
declared in a speech that the Thirty-Ninth Congress was not lawful and 
that he committed three different acts in pursuit of that 
declaration.\779\ In opposing the article, Senator John Henderson 
emphasized ``the great difficulty'' presented by the omnibus article in 
ascertaining ``what it really charges.''\780\ Senator Garrett Davis 
similarly complained that the allegations were apparently ``drawn with 
studied looseness, duplicity, and vagueness, as with the purpose to 
mislead'' and should have ``been separately'' and ``distinctly 
stated.''\781\
    The Senate has also rejected unconstitutionally duplicitous 
articles of impeachment against judges. In the impeachment of Judge 
Nixon, for example, Senator Frank Murkowski rejected the ``the omnibus 
nature of article III,'' which charged the judge with making multiple 
different false statements, and he ``agree[d] with the argument that 
the article could easily be used to convict Judge Nixon by less than 
the super majority vote required by the Constitution.''\782\ Senator 
Herbert Kohl explained why this defect was fatal: ``The House is 
telling us that it's OK to convict Judge Nixon on [the article] even if 
we have different visions of what he did wrong. But that's not fair to 
Judge Nixon, to the Senate, or to the American people.''\783\
           B. The Articles Are Unconstitutionally Duplicitous
    Here, each Article is impermissibly duplicitous. Each Article 
presents a smorgasbord of multiple, independent acts as possible bases 
for conviction. Under the umbrella charge of ``abuse of power,'' 
Article I offers Senators a menu of at least four different bases for 
conviction: (1) ``corruptly'' requesting that Ukraine announce an 
investigation into the Biden-Burisma affair; (2) ``corruptly'' 
requesting that Ukraine announce an investigation into alleged 
Ukrainian interference in the 2016 election; (3) ``corrupt[ly]'' 
conditioning the release of Ukraine's security assistance on these 
investigations; and (4) ``corrupt[ly]'' conditioning a White House 
meeting on these investigations.\784\ Article II similarly invites 
Senators to pick and choose among at least 10 different bases for 
obstruction including: (1) directing the White House and agencies, 
``without lawful cause or excuse,'' not to produce documents in 
response to a congressional subpoena; or (2) directing one or more of 
nine different individuals, ``without lawful cause or excuse,'' not to 
testify in response to a congressional subpoena.\785\
    As a result, the Articles invite the danger of an unconstitutional 
conviction if less than two-thirds of Senators agree that any 
particular act was an abuse of power or obstruction. With at least four 
independent bases alleged for abuse of power, Article I invites 
conviction if as few as 18 Senators agree that any one alleged act 
occurred and constituted an abuse of power.
    The deficiency in the articles cannot be remedied by dividing the 
articles, because that is prohibited.\786\ The only constitutional 
option is to reject the articles and acquit the President.
                               conclusion
    The Articles of Impeachment presented by House Democrats are 
constitutionally deficient on their face. The theories underpinning 
them would do lasting damage to the separation of powers under the 
Constitution and to our structure of government. The Articles are also 
the product of an unprecedented and unconstitutional process that 
denied the President every basic right guaranteed by the Due Process 
Clause and fundamental principles of fairness. These Articles reflect 
nothing more than the ``persecution of an intemperate or designing 
majority in the House of Representatives''\787\ that the Framers warned 
against. The Senate should reject the Articles of Impeachment and 
acquit the President immediately.
            Respectfully submitted,
                                   Jay Alan Sekulow,
                                           Counsel to President Donald 
                                               J. Trump, Washington, 
                                               DC.
                                   Pat A. Cipollone,
                                           Counsel to the President, 
                                               The White House.
    January 20, 2020.
                                endnotes
    1. U.S. Const. art. II, Sec. 4.
    2. 4 William Blackstone, Commentaries on the Laws of England *256.
    3. See Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment Before the H.R. 
Comm. on the Judiciary, 116th Cong. (2019) (written statement of 
Professor Jonathan Turley, Geo. Wash. Univ. Law Sch., at 15, https://
perma.cc/QU4H-FZC4); H.R. Res. 611, 106th Cong. (1998); H.R. Comm. on 
the Judiciary, Impeachment of William Jefferson Clinton, President of 
the United States, H.R. Rep. No. 105-830, 105th Cong. 143 (1998) 
(additional views of Rep. Bill McCollum); H.R. Comm. on the Judiciary, 
Impeachment of Richard M. Nixon, President of the United States, H.R. 
Rep. No. 93-1305, 93d Cong. 1-3 (1974).
    4. H.R. Comm. on the Judiciary, Impeachment of Donald J. Trump, 
President of the United States, H.R. Rep. No. 116-346, 116th Cong. 99 
(2019) (HJC Report).
    5. Id.
    6. Id. at 103; see also Trial Mem. of the U.S. House of 
Representatives at 4.
    7. U.S. Const. art. II, Sec. 1.
    8. HJC Report at 101.
    9. See id. at 102.
    10. H.R. Res. 755, 116th Cong. art. II (2019).
    11. This advice was memorialized in a written opinion on January 
19, 2020, which is attached as Appendix C. See Memorandum from Steven 
A. Engel, Assistant Attorney General, Office of Legal Counsel, to Pat 
A. Cipollone, Counsel to the President, Re: House Committees' Authority 
to Investigate for Impeachment, at 1 (Jan. 19, 2020) (Impeachment 
Inquiry Authorization).
    12. Testimonial Immunity Before Congress of the Former Counsel to 
the President, 43 Op. O.L.C. _, *1 (May 20, 2019); see also infra note 
296 (collecting prior opinions).
    13. See Assertion of Executive Privilege with Respect to Clemency 
Decision, 23 Op. O.L.C. 1, 5 (1999) (emphasis added).
    14. Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 Op. O.L.C. _, at *4 (Nov. 1, 2019).
    15. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citations 
omitted); see also, e.g., United States v. Goodwin, 357 U.S. 368, 372 
(1982) (``For while an individual certainly may be penalized for 
violating the law, he just as certainly may not be punished for 
exercising a protected statutory or constitutional right.'').
    16. Harvey Berkman, Top Profs: Not Enough to Impeach, The National 
Law J. (Oct. 5, 1998) (quoting Professor Tribe), reprinted in 144 Cong. 
Rec. H10031 (1998).
    17. H.R. Comm. on the Judiciary, 105th Cong., Ser. No. 18, 
Impeachment Inquiry: William Jefferson Clinton, President of the United 
States, Consideration of Articles of Impeachment 398 (Comm. Print 
1998).
    18. See Transcript of Pelosi Weekly Press Conference Today (Oct. 2, 
2019) (statement of Rep. Adam Schiff), https://perma.cc/RM2N-F2RC.
    19. Turley Written Statement, supra note 3, at 42 (emphasis added) 
(ellipsis in original).
    20. 3 The Debates in the Several State Conventions, on the Adoption 
of the Federal Constitution, as Recommended by the General Convention 
at Philadelphia, in 1787, 401 (J. Elliot ed. 1836).
    21. U.S. Const. art. I, Sec. 2, cl. 5.
    22. Watkins v. United States, 354 U.S. 178, 200-10 (1957); see also 
United States v. Rumely, 345 U.S. 41, 42-43 (1953); Exxon Corp. v. FTC, 
589 F.2d 582, 592 (D.C. Cir. 1978) (``To issue a valid subpoena, . . . 
a committee or subcommittee must conform strictly to the resolution 
establishing its investigatory powers . . . .''); Tobin v. United 
States, 306 F.2d 270, 275 (D.C. Cir. 1962) (``[T]he first issue we must 
decide is whether Congress gave the Judiciary Committee . . . authority 
. . . to conduct the sweeping investigation undertaken in this 
case.'').
    23. Speaker Pelosi Announcement of Impeachment Inquiry, C-SPAN 
(Sept. 24, 2019), https://www.c-span.org/video/?464684-1/speaker-
pelosi-announces-formal-impeachment-inquiry-president-trump.
    24. See Impeachment Inquiry Authorization, infra Appendix C, at 1-
3.
    25. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) (quoting 5 J. 
Wigmore, Evidence Sec. 1367 (J. Chadbourn ed. 1974)).
    26. See, e.g., Andrew Prokop, Why Democrats Are Moving So Fast on 
Impeachment, Vox (Dec. 5, 2019), https://perma.cc/H7BR-HNC4 (``House 
leaders have signaled they hope to wrap up proceedings in their chamber 
before Congress leaves for the December holidays . . . . `Wouldn't that 
be a great Christmas gift for it to all wrap up by Christmas?' Rep. Val 
Demings (D-FL) asked.''); Mary Clare Jalonick, What's Next in 
Impeachment: A Busy December, and on to 2020, AP News (Nov. 23, 2019), 
https://perma.cc/2HJH-QLMR (``Time is running short if the House is to 
vote on impeachment by Christmas, which Democrats privately say is the 
goal.'').
    27. Examining the Allegations of Misconduct Against IRS 
Commissioner John Koskinen (Part II): Hearing Before the H.R. Comm. on 
the Judiciary, 114th Cong. 3 (2016) (statement of Rep. Jerrold Nadler).
    28. Background and History of Impeachment: Hearing Before the 
Subcomm. on the Constitution of the H.R. Comm. on the Judiciary, 105th 
Cong. 17 (1998) (statement of Rep. Jerrold Nadler).
    29. Alex Rogers, Whistleblower Went to Intelligence Committee for 
Guidance Before Filing Complaint, CNN (Oct. 2, 2019), https://perma.cc/
5NVZ-W78H.
    30. Zack Stanton, Pelosi: Unless We Impeach Trump, `Say Hello to a 
President-King', Politico (Dec. 18, 2019), https://perma.cc/XLX5-XE7Z.
    31. Matea Gold, The Campaign to Impeach President Trump Has Begun, 
Wash. Post (Jan. 20, 2017), https://perma.cc/2376-PS6U.
    32. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017 6:54 PM), 
https://perma.cc/BFV6-MKRE.
    33. Katelyn Polantz, Mueller Investigation Cost $32 Million, 
Justice Department Says, CNN (July 24, 2019), https://perma.cc/DX6K-
58Y3; Special Counsel Robert S. Mueller, III, Report on the 
Investigation into Russian Interference in the 2016 Presidential 
Election, vol. I at 13 (Mar. 2019), https://perma.cc/EGB4-WA76.
    34. Rebecca Shabad and Alex Moe, Impeachment Inquiry Ramps up as 
Judiciary Panel Adopts Procedural Guidelines, NBC News (Sept. 12, 
2019), https://perma.cc/4H7N-6ZPD.
    35. See Clerk, H.R., Final Vote Results for Roll Call 695 on 
Agreeing to Article I of the Resolution (Dec. 18, 2019), http://clerk 
house.gov/evs/2019/roll695.xml; Clerk, H.R., Final Vote Results for 
Roll Call 696 on Agreeing to Article II of the Resolution (Dec. 18, 
2019), http://clerk.house.gov/evs/2019/roll696.xml.
    36. 144 Cong. Rec. H11786 (1998) (statement of Rep. Jerrold 
Nadler).
    37. 145 Cong. Rec. S1582 (1999) (statement of Sen. Patrick Leahy).
    38. 144 Cong. Rec. H11786 (1998) (statement of Rep. Jerrold 
Nadler).
    39. Nicole Gaudiano and Eliza Collins, Exclusive: Nancy Pelosi Vows 
`Different World' for Trump, No More `Rubber Stamp' in New Congress, 
USA Today (Jan. 3, 2019), https://perma.cc/55PK-3PZL.
    40. Tierney Sneed, DOJ Declined to Act on Criminal Referral in 
Trump's Ukraine Smear Campaign, Talking Points Memo (Sept. 25, 2019), 
https://perma.cc/HA3M-FBGU (quoting Statement of Kerri Kupec, 
Spokesperson for the Department of Justice).
    41. Impeachment Inquiry: Ambassador Gordon Sondland Before the H.R. 
Permanent Select Comm. on Intelligence, 116th Cong. 148-49 (Nov. 20, 
2019) (Sondland Public Hearing).
    42. Id. at 150-51.
    43. G. Sondland Interview Tr. at 297:22-298:1 (Oct. 17, 2019).
    44. Sondland Public Hearing, supra note 41, at 70.
    45. K. Volker Interview Tr. at 36:1-9 (Oct. 3, 2019).
    46. Id.
    47. Sondland Public Hearing, supra note 41, at 40.
    48. Letter from Sen. Ron Johnson to Jim Jordan, Ranking Member, 
H.R. Comm. on Oversight & Reform, and Devin Nunes, Ranking Member, H.R. 
Permanent Select Comm. on Intelligence, at 6 (Nov. 18, 2019).
    49. Memorandum of Tel. Conversation with President Zelensky of 
Ukraine, at 2 (July 25, 2019) (July 25 Call Mem.). The transcript is 
attached as Appendix A.
    50. M. Yovanovitch Dep. Tr. at 140:24-141:3 (Oct. 11, 2019); see 
also Impeachment Inquiry: Ambassador Marie ``Masha'' Yovanovitch Before 
The H.R. Permanent Select Comm. on Intelligence, 116th Cong. 76-77 
(Nov. 15, 2019) (Yovanovitch Public Hearing).
    51. W. Taylor Dep. Tr. at 155:2-156:6 (Oct. 22, 2016).
    52. Turley Written Statement, supra note 3, at 4.
    53. Trial Mem. of the U.S. House of Representatives at 24; HJC 
Report at 4, 6.
    54. H.R. Res. 755 art. I.
    55. Trial Mem. of the U.S. House of Representatives at 2, 18; HJC 
Report at 10.
    56. Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes Before 
the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 112:2-9 
(Nov. 21, 2019) (Hill-Holmes Public Hearing).
    57. Michael Kranish & David L. Stern, As Vice President, Biden Said 
Ukraine Should Increase Gas Production. Then His Son Got a Job with a 
Ukrainian Gas Company, Wash. Post (July 22, 2019), https://perma.cc/
6JD2-KFCN (``In an email interview with The Post, Shokin [the fired 
prosecutor] said he believes his ouster was because of his interest in 
[Burisma] . . . . Had he remained in his post, Shokin said, he would 
have questioned Hunter Biden.'').
    58. Compare Tobias Hoonhout, Hunter Biden Served as `Ceremonial 
Figure' on Burisma Board for $80,000 Per Month, National Rev. (Oct. 18, 
2019), https://perma.cc/7WBU-XHCJ (reporting Hunter Biden's monthly 
compensation to be $83,333 monthly, or nearly $1 million per year), 
with 2019 Proxy Statement, ConocoPhillips, at 30 (Apr. 1, 2019), 
https://perma.cc/8HK2-XJTL (showing director compensation averaging 
approximately $302,000), and ConocoPhillips, Fortune 500, https://
fortune.com/fortune500/2019/conocophillips/ (listing ConocoPhillips as 
#86).
    59. See, e.g., Hill-Holmes Public Hearing, supra note 56, at 89-90; 
Impeachment Inquiry: Ms. Jennifer Williams & Lt. Col. Alexander 
Vindman, 116th Cong. 129 (Nov. 19, 2019); Yovanovitch Public Hearing, 
supra note 50, at 135-36; Taylor Dep. Tr. at 90:3-5; G. Kent Interview 
Tr. at 227:3-8 (Oct. 15, 2019); Impeachment Inquiry: Ambassador William 
B. Taylor & Mr. George Kent Before the H.R. Permanent Select Comm. on 
Intelligence, 116th Cong. 148:23-25 (Nov. 13, 2019); see also Sondland 
Public Hearing, supra note 41, at 171.
    60. Adam Taylor, Hunter Biden's New Job at a Ukrainian Gas Company 
is a Problem for U.S. Soft Power, Wash. Post (May 14, 2014), https://
perma.cc/7DNH-GPF4.
    61. Kent Interview Tr. at 227:1-23; Adam Entous, Will Hunter Biden 
Jeopardize His Father's Campaign?, The New Yorker (July 1, 2019), 
https://perma.cc/WB24-FTJG.
    62. Rules of Procedure and Practice in the Senate when Sitting on 
Impeachment Trials, Rule XXIII (1986), in Senate Manual Containing the 
Standing Rules, Orders, Laws and Resolutions Affecting the Business of 
the United States Senate, S. Doc. 113-1, 113th Cong. 228 (2014).
    63. The Federalist No. 65, at 400 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    64. Letter from Thomas Jefferson to James Madison (Feb. 15, 1798), 
in 3 Memoir, Correspondence, and Miscellanies, from the Papers of 
Thomas Jefferson 373 (Thomas Jefferson Randolph ed., 1830).
    65. 2 Joseph Story, Commentaries on the Constitution Sec. 743 
(1833).
    66. The Federalist No. 66, at 402 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    67. Trial of Andrew Johnson, President of the United States, Before 
the Senate of the United States on Impeachment by the House of 
Representatives for High Crimes and Misdemeanors, 40th Cong., vol. III, 
at 328 (1868) (opinion of Sen. Lyman Trumbull).
    68. The Federalist No. 65, at 400 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    69. U.S. Const. art. I, Sec. 3, cl. 6.
    70. Michael J. Gerhardt, The Lessons of Impeachment History, 67 
Geo. Wash. L. Rev. 603, 617 (1999) (noting that, ``[g]iven the division 
of impeachment authority between the House and the Senate, the Senate 
has . . . the opportunity to review House decisions on what constitutes 
an impeachable offense'' and has rejected House judgments in the past).
    71. Proceedings in the Trial of Andrew Johnson, President of the 
United States, Before the U.S. Senate on Articles of Impeachment, 40th 
Cong. 524 (1868).
    72. Id.
    73. See, e.g., Raoul Berger, Impeachment: The Constitutional 
Problems 86 (1973).
    74. U.S. Const. art. II, Sec. 4.
    75. Circuit City Stores v. Adams, 532 U.S. 105, 114-15 (2001) 
(quoting 2A N. Singer, Sutherland on Statutes and Statutory 
Construction Sec. 47.17 (1991)).
    76. Background and History of Impeachment: Hearing Before the 
Subcomm. on the Constitution of the H.R. Comm. on the Judiciary, 105th 
Cong. 69 (1998) (Clinton Judiciary Comm. Hearing on Background of 
Impeachment) (statement of Professor Matthew Holden, Jr., Univ. of Va., 
Dept. of Gov't and Foreign Affairs) (``[I]t seems that this late-added 
provision refers to such `other high Crimes and Misdemeanors,' as would 
be comparable in their significance to `treason' and `bribery.'''); 
Arthur M. Schlesinger, Jr., Reflections on Impeachment, 67 Geo. Wash. 
L. Rev. 693, 693 (1999) (``According to the legal rule of construction 
ejusdem generis, the other high crimes and misdemeanors must be on the 
same level and of the same quality as treason and bribery.'').
    77. U.S. Const. art. III, Sec. 3, cl. 1. This definition is 
repeated in the United States criminal code: ``Whoever, owing 
allegiance to the United States, levies war against them or adheres to 
their enemies, giving them aid and comfort within the United States or 
elsewhere, is guilty of treason . . . .'' 18 U.S.C. Sec. 2381 (2018).
    78. Proceedings of the U.S. Senate in the Impeachment Trial of 
President William Jefferson Clinton, Vol. IV: Statements of Senators 
Regarding the Impeachment Trial of William Jefferson Clinton, S. Doc. 
106-4 at 2861 (1999) (Clinton Senate Trial) (statement of Sen. Patrick 
J. Leahy).
    79. See Clinton Judiciary Comm. Hearing on Background of 
Impeachment, supra note 76, at 40 (statement of Gary L. McDowell, 
Director, Inst. for U.S. Studies, Univ. of London) (``[T]he most 
dominant source of authority on the common law for those who wrote and 
ratified the Constitution was Sir William Blackstone and his justly 
celebrated Commentaries on the Laws of England (1765-69). That was a 
work that was described by Madison in the Virginia ratifying convention 
as nothing less than `a book which is in every man's hand.''').
    80. 4 William Blackstone, Commentaries on the Laws of England *139.
    81. Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 
291, 302 (1999).
    82. Charles L. Black, Jr. & Philip Bobbitt, Impeachment: A Handbook 
110 (2018). Gouverneur Morris's comments at the Constitutional 
Convention indicate the paradigm of bribery that the Framers had in 
mind as he cited King Louis XIV of France's bribe of England's King 
Charles II and argued, ``no one would say that we ought to expose 
ourselves to the danger of seeing the first Magistrate in foreign pay 
without being able to guard [against] it by displacing him.'' 2 The 
Records of the Federal Convention of 1787, at 68-69 (Max Farrand ed., 
1911).
    83. U.S. Const. art. I, Sec. 3, cl. 6; art. II, Sec. 4.
    84. U.S. Const. art. I, Sec. 3, cl. 7 (emphasis added).
    85. U.S. Const. art. I, Sec. 3, cl. 6 (emphasis added).
    86. Id.
    87. U.S. Const. art. III, Sec. 2, cl. 3 (``The Trial of all Crimes, 
except in Cases of Impeachment, shall be by Jury . . . .''); U.S. 
Const. art. II, Sec. 2, cl. 1 (``[H]e shall have Power to grant 
Reprieves and Pardons for Offenses against the United States, except in 
Cases of Impeachment.'').
    88. See 4 Blackstone, Commentaries *74-75.
    89. See Berger, supra note 73, at 71.
    90. Id. at 86-87. Shortly before the Convention agreed to the 
``high Crimes and Misdemeanors'' standard, delegates rejected the use 
of ``high misdemeanor'' in the Extradition Clause because ``high 
misdemeanor'' was thought to have ``a technical meaning too limited.'' 
2 Records of the Federal Convention, supra note 82, at 443; see also 
Berger, supra note 73, at 74.
    91. 4 Blackstone, Commentaries *256 (emphasis added). Blackstone, 
in fact, listed numerous ``high misdemeanors'' that might subject an 
official to impeachment, including ``maladministration.'' Id. at *121.
    92. 2 Records of the Federal Convention, supra note 82, at 499.
    93. Id. at 550.
    94. Id.
    95. Id.
    96. Id. ``The conscious and deliberate character of [the Framers'] 
rejection [of `maladministration'] is accentuated by the fact that a 
good many state constitutions of the time did have `maladministration' 
as an impeachment ground.'' Black & Bobbitt, supra note 82, at 27.
    97. 2 Records of the Federal Convention, supra note 82, at 64.
    98. Id. at 337.
    99. 4 The Debates in the Several State Conventions on the Adoption 
of the Federal Constitution, at 127 (Jonathan Elliot 2nd ed. 1987).
    100. 3 The Debates in the Several State Conventions on the Adoption 
of the Federal Constitution, at 401 (Jonathan Elliot 2nd ed. 1987).
    101. Berger, supra note 73, at 86.
    102. Clinton Senate Trial, supra note 78, vol. IV at 2842 
(statement of Sen. Patrick J. Leahy); see also id. at 2883 (statement 
of Sen. James M. Jeffords) (``The framers intentionally set this 
standard at an extremely high level to ensure that only the most 
serious offenses would justify overturning a popular election.'').
    103. 2 Joseph Story, Commentaries on the Constitution Sec. 749 
(1833); see also 1 James Bryce, The American Commonwealth 283 (1888) 
(``Impeachment . . . is the heaviest piece of artillery in the 
congressional arsenal, but because it is so heavy it is unfit for 
ordinary use. It is like a hundred-ton gun which needs complex 
machinery to bring it into position, an enormous charge of powder to 
fire it, and a large mark to aim at.'').
    104. Black & Bobbitt, supra note 82, at 111.
    105. The Declaration of Independence para. 2 (U.S. 1776).
    106. Laurence H. Tribe, Defining ``High Crimes and Misdemeanors'': 
Basic Principles, 67 Geo. Wash. L. Rev. 712, 723 (1999).
    107. 144 Cong. Rec. H10018 (1998) (statement of Rep. Jerrold 
Nadler).
    108. Id. at H11786 (statement of Rep. Jerrold Nadler).
    109. Clinton Senate Trial, supra note 78, vol. IV at 2578, 2580 
(statement of Sen. Joseph R. Biden, Jr.).
    110. U.S. Const. art. II, Sec. 1.
    111. See Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., 
concurring in the judgment).
    112. Tribe, supra note 106, at 723. The unique importance of a 
presidential impeachment is reflected in the text of the Constitution 
as it requires, in contrast to all other cases of impeachment, that the 
Chief Justice of the United States preside over any Senate trial of a 
President. U.S. Const. art. I, Sec. 3, cl. 6.
    113. Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982).
    114. U.S. Const. art. II, Sec. 3.
    115. U.S. Const. art. II, Sec. 2, cl. 1.
    116. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
320 (1936).
    117. Memorandum from Robert G. Dixon, Jr., Assistant Attorney 
General, Office of Legal Counsel, Re: Amenability of the President, 
Vice President and other Civil Officers to Federal Criminal Prosecution 
While in Office, at 32 (Sept. 24, 1973).
    118. Clinton Senate Trial, supra note 78, vol. IV at 2793 
(statement of Sen. Bob Graham).
    119. H.R. Res. 611, 105th Cong. (1998); H.R. Comm. on the 
Judiciary, Impeachment of William Jefferson Clinton, President of the 
United States, H.R. Rep. No. 105-830, 105th Cong. 143 (1998) 
(additional views of Rep. Bill McCollum) (``President Clinton actively 
sought to thwart the due administration of justice by repeatedly 
committing the felony crimes of perjury, witness tampering, and 
obstruction of justice.'').
    120. H.R. Comm. on the Judiciary, Impeachment of Richard M. Nixon, 
President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 1-4 
(1974); see also id. at 3 (alleging that Nixon ``violat[ed] the 
constitutional rights of citizens'' and ``contravene[ed] the laws 
governing agencies of the executive branch.'').
    121. Id. at 34 (asserting that Nixon ``caused action . . . to cover 
up the Watergate break-in. This concealment required perjury, 
destruction of evidence, obstruction of justice--all of which are 
crimes'').
    122. Article II claimed that President Nixon ``violat[ed] the 
rights of citizens,'' ``contraven[ed] the laws governing agencies of 
the executive branch,'' and ``authorized and permitted to be maintained 
a secret investigative unit within the Office of the President . . . 
[that] engaged in covert and unlawful activities.'' Id. at 3. Although 
the House Judiciary Committee's report described Article II generally 
as involving ``abuse of the powers of the office of President,'' id. at 
139, that was not the actual charge included in the articles of 
impeachment. The actual charges in the recommended article of 
impeachment included specific violations of laws.
    123. H.R. Rep. Com. No. 7, 40th Cong. 60 (1867) (emphasis added).
    124. Cong. Globe, 40th Cong., 2d Sess. app. 63 (1867).
    125. Michael Les Benedict, The Impeachment and Trial of Andrew 
Johnson 102 (1973).
    126. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 (1868).
    127. See, e.g., Berger, supra note 73, at 56-57. Some scholars 
dispute the characterization that many judicial impeachments do not 
involve charges that amount to violations of law. See, e.g., Frank 
Thompson, Jr., & Daniel H. Pollitt, Impeachment of Federal Judges: An 
Historical Overview, 49 N.C. L. Rev. 87, 118 (1970) (``Except for a few 
abberations [sic] in the early-1800[s] period of unprecedented 
political upheaval, Congress has refused to impeach a judge for lack of 
`good behaviour' unless the behavior was both job-related and 
criminal.'').
    128. U.S. Const. art. III, 1; see also John R. Labovitz, 
Presidential Impeachment 92-93 (1978) (The Good Behavior Clause ``could 
be interpreted as a separate standard for the impeachment of judges or 
it could be interpreted as an aid in applying the term `high crimes and 
misdemeanors' to judges. Whichever interpretation was adopted, it was 
clear that the clause made a difference in judicial impeachments, 
confounding the application of these cases to presidential 
impeachment.''); Clinton Senate Trial, supra note 78, vol. IV at 2692 
(statement of Sen. Max Cleland) (citing the ``Good Behaviour'' clause 
and explaining ``that there is indeed a different legal standard for 
impeachment of Presidents and Federal judges'').
    129. Amar, supra note 81, at 304.
    130. See Cass R. Sunstein, Impeaching the President, 147 U. Pa. L. 
Rev. 279, 304 (1998).
    131. Black & Bobbitt, supra note 82, at 119.
    132. Clinton Senate Trial, supra note 78, vol. IV at 2575 
(statement of Sen. Joseph R. Biden, Jr.). Numerous other Senators 
distinguished the lower standard for judicial impeachments. See, e.g., 
id. at 2692 (statement of Sen. Max Cleland) (``After review of the 
record, historical precedents, and consideration of the different roles 
of Presidents and Federal judges, I have concluded that there is indeed 
a different legal standard for impeachment of Presidents and Federal 
judges.''); id. at 2811 (statement of Sen. Edward M. Kennedy) 
(``Removal of the President of the United States and removal of a 
Federal judge are vastly different.'').
    133. Sunstein, supra note 130, at 300; see also Clinton Judiciary 
Comm. Hearing on Background of Impeachment, supra note 76, at 350 
(statement of Professors Frank O. Bowman, III, Stephen L. Sepinuck, 
Gonzaga University School of Law) (``[C]omparative analysis suggests 
that Congress has applied a discernibly different standard to the 
removal of judges.'').
    134. To the extent that the Senate voted in the impeachment trial 
of Judge Claiborne not to require all Senators to apply the beyond-a-
reasonable-doubt standard, see 132 Cong. Rec. 29,153 (1986), that 
decision in a judicial impeachment has little relevance here.
    135. Clinton Senate Trial, supra note 78, vol. IV at 3052 
(statement of Sen. Russell D. Feingold); see also id. at 2563 
(statement of Sen. Patty Murray) (``If we are to remove a President for 
the first time in our Nation's history, none of us should have any 
doubts.'').
    136. See, e.g., Proceedings of the U.S. Senate in the Impeachment 
Trial of President William Jefferson Clinton, Volume II: Floor Trial 
Proceedings, S. Doc. 106-4 at 1876 (1999) (statement of Sen. Chris 
Dodd); Clinton Senate Trial, supra note 78, vol. IV at 2548 (statement 
of Sen. Kay Bailey Hutchison); id. at 2559 (statement of Sen. Kent 
Conrad); id. at 2562 (statement of Sen. Tim Hutchinson); id. at 2642 
(statement of Sen. George V. Voinovich).
    137. Id. at 2623 (statement of Sen. Barbara A. Mikulski).
    138. U.S. Const. art. I, Sec. 2, cl. 5; id. at Sec. 3, cl. 6.
    139. 1 John Ash, New and Complete Dictionary of the English 
Language (1775) (definition of ``impeachment'': ``[a] public charge of 
something criminal, an accusation'').
    140. Black & Bobbitt, supra note 82, at 14.
    141 Cole v. Arkansas, 333 U.S. 196, 201 (1948) (emphases added).
    142. Stirone v. United States, 361 U.S. 212, 217 (1960).
    143. Id.
    144. July 25 Call Mem., infra Appendix A.
    145. Julian Barns et al., Schiff Got Early Account of Accusations 
as Whistle-Blower's Concerns Grew, N.Y. Times (Oct. 2, 2019), https://
perma.cc/5KWF-U7ZS.
    146. Ellen Nakashima, Whistleblower Sought Informal Guidance from 
Schiff's Committee Before Filing Complaint Against Trump, Wash. Post 
(Oct. 2, 2019), https://perma.cc/23UT-BGJL.
    147. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017, 6:54 
PM), https://perma.cc/Z9LS-TDM2 (``#coup has started. First of many 
steps. #rebellion. #impeachment will follow ultimately. #lawyers.'').
    148. Letter from IC Staffer to Richard Burr, Chairman, S. Comm. on 
Intelligence, and Adam Schiff, Chairman, H.R. Permanent Select Comm. on 
Intelligence (Aug. 12, 2019), https://perma.cc/MT4D-634A.
    149. Letter from Michael K. Atkinson, Inspector General of the 
Intelligence Community, to Joseph Maguire, Acting Director of National 
Intelligence, at 5 (Aug. 26, 2019), https://perma.cc/2SV7-BUP5.
    150. Speaker Pelosi Announcement of Impeachment Inquiry, C-SPAN 
(Sept. 24, 2019), https://www.c-span.org/video/?464684-1/speaker-
pelosi-announces-formal-impeachment-inquiry-president-trump.
    151. Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 2019, 
11:12 AM), https://perma.cc/UZ4E-D3ST (``I am currently at the United 
Nations representing our Country, but have authorized the release 
tomorrow of the complete, fully declassified and unredacted transcript 
of my phone conversation with President Zelensky of Ukraine.'').
    152. July 25 Call Mem., infra Appendix A.
    153. Whistleblower Disclosure: Hearing Before the H.R. Permanent 
Select Comm. on Intelligence, 116th Cong. (Sept. 26, 2019).
    154. K. Volker Interview Tr. (Oct. 3, 2019).
    155. H.R. Res. 660, 116th Cong. (2019).
    156. Id.
    157. Press Release, H.R. Permanent Select Comm. on Intelligence, 
House Intelligence Committee Releases Draft Report as Part of 
Impeachment Inquiry (Dec. 3, 2019), https://perma.cc/B23P-7NBD.
    158. The Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment: Hearing Before the 
H.R. Comm. on Judiciary, 116th Cong. (Dec. 4, 2019).
    159. Nicholas Fandos, Pelosi Says House Will Draft Impeachment 
Charges Against Trump, N.Y. Times (Dec. 5, 2019), https://perma.cc/
T7SC-W2VX.
    160. The Impeachment Inquiry into President Donald J. Trump: 
Presentations from the House Permanent Select Comm. on Intelligence and 
House Judiciary Comm.: Hearing Before the H.R. Comm. on Judiciary, 
116th Cong. (Dec. 9, 2019).
    161. Press Release, H.R. Comm. on Judiciary, Chairman Nadler 
Announces the Introduction of Articles of Impeachment Against President 
Donald J. Trump (Dec. 10, 2019), https://perma.cc/9ERV-9PZX.
    162. House Judiciary Passes Articles of Impeachment Against 
President Trump, C-SPAN (Dec. 13, 2019), https://www.c-span.org/video/
?467395-1/house-judiciary-committee-approves-articles-impeachment-23-
17.
    163. H.R. Res. 755, 116th Cong. (2019); Clerk, H.R., Final Vote 
Results for Roll Call 695 on Agreeing to Article I of the Resolution 
(Dec. 18, 2019), http://clerk.house.gov/evs/2019/roll695.xml; Clerk, 
H.R., Final Vote Results for Roll Call 696 on Agreeing to Article II of 
the Resolution (Dec. 18, 2019), http://clerk.house.gov/evs/2019/
roll696.xml.
    164. HJC Report at 129-30.
    165. U.S. Const. art. I, Sec. 3, cl. 6.
    166. U.S. Const. art. II, Sec. 4.
    167. HJC Report at 44.
    168. See id. at 48-53; Trial Mem. of U.S. House of Representatives 
at 10-11.
    169. See supra Standards Part B.1.
    170. U.S. Const. art. II, Sec. 4.
    171. 4 William Blackstone, Commentaries on the Laws of England *256 
(emphasis added).
    172. Background and History of Impeachment: Hearing Before the 
Subcomm. on the Constitution of the H.R. Comm. on the Judiciary, 105th 
Cong. 48 (1998) (``Of these distinctive features, the one of greatest 
contemporary concern is the founders' choice of the words--treason, 
bribery, and other high crimes and misdemeanors'--for the purpose of 
narrowing the scope of the federal impeachment process.'') (statement 
of Professor Michael Gerhardt) (Clinton Judiciary Comm. Hearing on 
Background of Impeachment).
    173. The Federalist No. 48, at 309 (James Madison) (Clinton 
Rossiter ed., 1961).
    174. Jack N. Rakove, Statement on the Background and History of 
Impeachment, 67 Geo. Wash. L. Rev. 682, 688 (1999). The Framers' 
``predominant fear'' was ``oppression at the hands of Congress.'' Raoul 
Berger, Impeachment: The Constitutional Problems 4 (1973); see also 
Consumer Energy Council of Am. v. Fed. Energy Regulatory Comm'n, 673 
F.2d 425, 464 (D.C. Cir. 1982) (``Perhaps the greatest fear of the 
Framers was that in a representative democracy the Legislature would be 
capable of using its plenary lawmaking power to swallow up the other 
departments of the Government.''); Ronald C. Kahn, Process and Rights 
Principles in Modern Constitutional Theory: The Supreme Court and 
Constitutional Democracy, 37 Stan. L. Rev. 253, 260 (1984) (``[T]he 
Framers' greatest fear was the unlawful use of legislative power.''). 
The ratification debates also reflected fear of Congress. Berger, 
supra, at 119.
    175. 2 The Records of the Federal Convention of 1787, at 66 (Max 
Farrand ed., 1911) (Records of the Federal Convention) (Charles 
Pinckney).
    176. Id. at 69 (Gouverneur Morris).
    177. Id. at 65.
    178. See supra notes 92-100 and accompanying text.
    179. 2 Records of the Federal Convention, supra note 175, at 550 
(James Madison).
    180. Alexander Hamilton's description in Federalist No. 65 does not 
support House Democrats' theory of a vague abuse-of-power offense. In 
an often-cited passage, Hamilton observed that the subjects of 
impeachment are ``offenses which proceed from the misconduct of public 
men, or, in other words, from the abuse or violation of some public 
trust.'' The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961). Hamilton was merely noting fundamental 
characteristics common to impeachable offenses--that they involve (or 
``proceed from'') misconduct in public office or abuse of public trust. 
He was no more saying that ``abuse or violation of some public trust'' 
provided, in itself, the definition of a chargeable offense than he was 
saying that ``misconduct of public men'' provided such a definition.
    181. III Hinds' Precedents 2361, at 763 (1907) (Hinds' Precedents). 
Justice Chase was acquitted by the Senate. Id. at Sec. 2363, at 770-71. 
He had been charged with purported offenses that turned largely on 
claims that he had misapplied the law in his rulings while sitting as a 
circuit justice. See William H. Rehnquist, Grand Inquests 76-77, 114 
(1992). His acquittal has been credited with having ``a profound effect 
on the American judiciary,'' because the Senate's rejection of the 
charges was widely viewed as ``safeguard[ing] the independence'' of 
federal judges. Id. at 114.
    182. HJC Report at 5.
    183. See, e.g., id. at 38-40.
    184. Id. at 39. House Democrats rely on several secondary sources, 
each of which extracts general categories of impeachment cases from 
specific prosecutions. See, e.g., Berger, supra note 174, at 70 
(asserting that impeachment cases are ``reducible to intelligible 
categories'' including those involving ``abuse of official power''); 
Staff of H.R. Comm. on the Judiciary, 93d Cong., Constitutional Grounds 
for Presidential Impeachment 7 (Comm. Print 1974) (arguing that 
``particular allegations of misconduct'' in English cases suggest 
several general types of damage to the state, including ``abuse of 
official power'').
    185. H.R. Comm. on the Judiciary, Impeachment of Richard M. Nixon, 
President of the United States, H.R. Rep. No. 93-1305, 93d Cong. 371 
(1974) (Minority Views of Messrs. Hutchinson, Smith, Sandman et al.).
    186. See H.R. Comm. on the Judiciary, Impeachment of William 
Jefferson Clinton, President of the United States, H.R. Res. 611, 105th 
Cong. (1998); see also H.R. Rep. No. 105-830, 105th Cong. 143 (1998) 
(additional views of Rep. Bill McCollum) (``President Clinton actively 
sought to thwart the due administration of justice by repeatedly 
committing the felony crimes of perjury, witness tampering, and 
obstruction of justice.'').
    187. H.R. Rep. No. 93-1305, at 1-3; see also id. at 10 (alleging 
that Nixon ``violated the constitutional rights of citizens'' and 
``contravened the laws governing agencies of the executive branch'').
    188. See supra notes 123-126 and accompanying text.
    189. See III Hinds' Precedents Sec. 2407, at 843.
    190. H.R. Rep. Com. No. 7, 40th Cong. 60 (1867) (Minority Views) 
(emphasis added); see also Michael Les Benedict, The Impeachment and 
Trial of Andrew Johnson 102 (1973).
    191. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 (1868); 
see also Charles L. Black & Philip Bobbitt, Impeachment: A Handbook, 
New Edition 114 (2018); HJC Report at 48 (``Rather than directly target 
President Johnson's faithless execution of the laws, and his 
illegitimate motives in wielding power, the House resorted to charges 
based on the Tenure of Office Act.'').
    192. HJC Report at 33 (emphasis in original).
    193. United States v. Marengo Cty. Comm'n, 731 F.2d 1546, 1558 
(11th Cir. 1984).
    194. See Berger, supra note 174, at 294-95.
    195. Id. at 295.
    196. Obama Administration's Abuse of Power: Hearing Before the H.R. 
Comm. on the Judiciary, 112th Cong. 20 (2012) (written statement of 
Professor Michael J. Gerhardt).
    197. 2 Records of the Federal Convention, supra note 175, at 550.
    198. U.S. Const. art. II, Sec. 4.
    199. Berger, supra note 174, at 118 (internal quotation marks 
omitted).
    200. U.S. Const. art. II, Sec. 4.
    201. U.S. Const. art. I, Sec. 3, cl. 6; art. II, Sec. 4.
    202. U.S. Const. art. I, Sec. 3, cl. 7 (emphasis added).
    203. U.S. Const. art. I, Sec. 3, cl. 6 (emphasis added).
    204. Id.
    205. U.S. Const. art. III, Sec. 2, cl. 3 (``The Trial of all 
Crimes, except in Cases of Impeachment, shall be by Jury. . . . ''); 
U.S. Const. art. II, Sec. 2, cl. 1 (``[H]e shall have Power to grant 
Reprieves and Pardons for Offenses against the United States, except in 
Cases of Impeachment.'').
    206. The offense of bribery, of course, involves an element of 
intent, and thus requires some evaluation of the accused's motivations 
and state of mind. See 4 Blackstone, Commentaries *139 (``BRIBERY . . . 
is when a judge, or other person concerned in the administration of 
justice, takes any undue reward to influence his behavior in his 
office.''). There is a wide gulf, however, between proving a specific 
offense such as bribery that involves wrongful conduct along with the 
requisite intent and House Democrats' radical theory that any lawful 
action may be treated as an impeachable offense based on a 
characterization of subjective intent alone.
    207. H.R. Rep. No. 93-1305, at 371 (Minority Views of Messrs. 
Hutchinson, Smith, Sandman et al.).
    208. Trial Mem. of U.S. House of Representatives at 9; HJC Report 
at 31, 46, 70, 78.
    209. 4 Elliot, Debates in the Several State Conventions on the 
Adoption of the Federal Constitution 126 (2d ed. 1888).
    210. Id. at 127.
    211. Id.
    212. Id.
    213. See HJC Report at 45-48.
    214. H.R. Rep. No. 93-1305, at 1 2. ``This report . . . contains 
clear and convincing evidence that the President caused action--not 
only by his own subordinates but by agencies of the United States . . 
.--to cover up the Watergate break-in. This concealment required 
perjury, destruction of evidence, obstruction of justice--all of which 
are crimes.'' Id. at 33-34.
    215. Id. at 3. While the House Judiciary Committee's report 
described Article II generally as involving ``abuse of the powers of 
the office of President,'' id. at 139, it is significant that the 
actual charge the Judiciary Committee specified in the recommended 
article of impeachment was not framed in terms of that amorphous 
concept. To the contrary, the article of impeachment itself charged 
unlawful actions and dropped the vague terminology of ``abuse of 
power.''
    216. The third recommended article charged President Nixon with 
defying congressional subpoenas ``without lawful cause or excuse'' and 
asserted that the President had violated the assignment of the ``sole 
power of impeachment'' to the House by resisting subpoenas. Id. at 4. 
It also provides no precedent for House Democrats' abuse-of-power 
theory.
    217. See, e.g., Debate on Articles of Impeachment: Hearings Before 
the H.R. Comm. on the Judiciary, 93d Cong. 412 (1974) (statement of 
Rep. Don Edwards) (``[A]rticle II charges President Nixon with 
intentional violations of the Constitution, chiefly amendments one, 
four, five, and six.'').
    218. HJC Report at 45.
    219. Id. at 47-48.
    220. Id. at 48 n.244.
    221. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 (1868).
    222. Even the source they cite undermines House Democrats' 
theories. Tribe and Matz explain that one of the most important lessons 
from Johnson's impeachment is ``it really does matter which acts are 
identified in articles of impeachment'' and that impeachment 
proceedings are ``technical and legalistic.'' Laurence Tribe & Joshua 
Matz, To End a Presidency: The Power of Impeachment 54 (2018).
    223. Benedict, supra note 190, at 102. Even if President Johnson's 
impeachment did support House Democrats' novel theory--which it does 
not--it does not provide a model to be emulated. As House Democrats' 
hand-picked expert, Professor Michael Gerhardt, has explained, the 
Johnson impeachment is a ``dubious precedent'' because it is ``widely 
regarded as perhaps the most intensely partisan impeachment rendered by 
the House''--at least until now. Michael J. Gerhardt, The Federal 
Impeachment Process 179 (3d ed. 2019); see also Berger, supra note 174, 
at 295 (``The impeachment and trial of Andrew Johnson, to my mind, 
represent a gross abuse of the impeachment process. . . .''); Jonathan 
Turley, Democrats Repeat Failed History with Mad Dash to Impeach Donald 
Trump, The Hill (Dec. 17, 2019), https://perma.cc/4Y3X-FCBW (``The 
Johnson case has long been widely regarded as the very prototype of an 
abusive impeachment. . . . Some critics have actually cited Johnson as 
precedent to show that impeachment can be done on purely political 
grounds. In other words, the very reason the Johnson impeachment is 
condemned by history is now being used today as a justification to 
dispense with standards and definitions of impeachable acts.'').
    224. HJC Report at 44.
    225. Id. at 99.
    226. Id.
    227. Id. at 103.
    228. U.S. Const. art. II, Sec. 1.
    229. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 
(1936) (citation omitted).
    230. Id.
    231. See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 
2086 (2015).
    232. U.S. Const. art. II, Sec. 1; cf. Joseph Story, Commentaries on 
the Constitution Sec. 1450 (1833) (``One motive, which induced a change 
of the choice of the president from the national legislature, 
unquestionably was, to have the sense of the people operate in the 
choice of the person, to whom so important a trust was confided.''); 
Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion) 
(emphasizing that ``our Constitution recognizes that core strategic 
matters of warmaking belong in the hands of those who are best 
positioned and most politically accountable for making them'').
    233. HJC Report at 48-53, 79-81.
    234. Id. at 131; see also id. at 31 (pretending that House 
Democrats' have presented ``the strongest possible case for impeachment 
and removal from office'').
    235. Trial Mem. of U.S. House of Representatives at 10-11 (quoting 
George Washington Farewell Address (1796), https://perma.cc/6FSA-8HBN 
(Washington Farewell Address)); HJC Report at 31 (quoting Washington 
Farewell Address).
    236. Washington Farewell Address, supra note 235.
    237. William R. Casto, Foreign Affairs and the Constitution in the 
Age of the Fighting Sail, 19-34, 59-82 (2006).
    238. Washington Farewell Address, supra note 235.
    239. If anything, the concerns of the Founding generation would 
suggest here that the U.S. should not be giving aid to Ukraine to halt 
Russian aggression because that is a foreign entanglement. The foreign 
policy needs of the Nation have obviously changed.
    240. See HJC Report at 49-50.
    241. 2 Records of the Federal Convention, supra note 175, at 68.
    242. Id. at 69-70.
    243. U.S. Const. art. I, Sec. 9, cl. 8; 2 Records of the Federal 
Convention, supra note 175, at 389.
    244. Benjamin Franklin explained the Framers adopted a narrow 
definition of treason because ``prosecutions for treason were generally 
virulent; and perjury too easily made use of against innocence.'' 2 
Records of the Federal Convention, supra note 175, at 348. Article III, 
Section 3 not only defines treason in specific terms but it establishes 
a high standard of proof, requiring the testimony of two witnesses or a 
confession.
    245. HJC Report at 52, 80.
    246. 2 Records of the Federal Convention, supra note 175, at 65 
(George Mason) (``One objection agst. Electors was the danger of their 
being corrupted by the Candidates: & this furnished a peculiar reason 
in favor of impeachments whilst in office.''); id. at 69 (Gouverneur 
Morris) (``The Executive ought therefore to be impeachable for . . . 
Corrupting his electors.'').
    247. U.S. Const. art. II, Sec. 4.
    248. United States v. Nixon, 418 U.S. 683, 710-11 (1974) 
(explaining that ``courts have traditionally shown the utmost deference 
to Presidential responsibilities'' for foreign policy and national 
security and emphasizing that claims of privilege in this area would 
receive a higher degree of deference than invocations of ``a 
President's generalized interest in confidentiality''); Assertion of 
Executive Privilege for Documents Concerning Conduct of Foreign Affairs 
with Respect to Haiti, 20 Op. O.L.C. 6, 6 (1996) (citing Nixon, 418 
U.S. at 705-13); see also Department of the Navy v. Egan, 484 U.S. 518, 
529 (1988) (``The Court also has recognized the generally accepted view 
that foreign policy was the province and responsibility of the 
Executive.'') (internal quotation marks and citation omitted).
    249. Nixon, 418 U.S. at 708.
    250. See Prosecution for Contempt of Congress of an Executive 
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. 
O.L.C. 101, 140 (1984) (``[T]he Constitution does not permit Congress 
to make it a crime for an official to assist the President in asserting 
a constitutional privilege that is an integral part of the President's 
responsibilities under the Constitution.'').
    251. Press Release, Transcript of Pelosi Weekly Press Conference 
Today (Oct. 2, 2019), https://perma.cc/YPM4WCNX (Rep. Adam Schiff, 
Chairman of the House Intelligence Committee, stating that ``any action 
like that, that forces us to litigate or have to consider litigation, 
will be considered further evidence of obstruction of justice'').
    252. Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment Before the H.R. 
Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) (written statement 
of Professor Jonathan Turley, George Washington Univ. Law School, at 
42, https://perma.cc/QU4H-FZC4) (emphasis added).
    253. Memorandum from Steven A. Engel, Assistant Attorney General, 
Office of Legal Counsel, to Pat A. Cipollone, Counsel to the President, 
Re: House Committees' Authority to Investigate for Impeachment, at 1-3 
(Jan. 19, 2020) (Impeachment Inquiry Authorization), infra Appendix C.
    254. See Watkins v. United States, 354 U.S. 178, 206, 215 (1957) 
(holding that congressional subpoenas were invalid where they exceeded 
``the mission[] delegated to'' a committee by the House); United States 
v. Rumely, 345 U.S. 41, 44 (1953) (holding that the congressional 
committee was without power to compel the production of certain 
information because the requests exceeded the scope of the authorizing 
resolution); Tobin v. United States, 306 F.2d 270, 276 (D.C. Cir. 1962) 
(reversing a contempt conviction on the basis that the subpoena 
requested documents outside the scope of the Subcommittee's authority 
to investigate).
    255. Watkins, 354 U.S. at 200-10.
    256. U.S. Const. art. I, Sec. 2, cl. 5.
    257. Rumely, 345 U.S. at 42-44; see also Trump v. Mazars USA, LLP, 
940 F.3d 710, 722 (D.C. Cir. 2019); Exxon Corp. v. FTC, 589 F.2d 582, 
592 (D.C. Cir. 1978); Tobin, 306 F.2d at 275.
    258. E.g., Watkins, 354 U.S. at 207 (``[C]ommittees are restricted 
to the missions delegated to them . . . .''); Tobin, 306 F.2d at 276; 
Alissa M. Dolan et al., Cong. Research Serv., RL30240, Congressional 
Oversight Manual 24 (2014).
    259. McGrain v. Daugherty, 273 U.S. 135, 177 (1927).
    260. Senate Select Comm. on Presidential Campaign Activities v. 
Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
    261. Nothing in the recent decision in In re Application of 
Committee on the Judiciary establishes that a committee can pursue an 
investigation pursuant to the impeachment power without authorization 
by a vote from the House. See__F. Supp. 3d__, 2019 WL 5485221, at *26-
28 (D.D.C. Oct. 25, 2019). Any such discussion was dicta. The question 
before the court was whether a particular Judiciary Committee inquiry 
was being conducted ``preliminarily to'' an impeachment trial in the 
Senate, a question that the court viewed as depending on the inquiry's 
``purpose'' and whether it could lead to such a trial--``not the source 
of authority Congress acts under.'' Id. at *28 n.37. In any event, the 
court's analysis was flawed.
    First, the court, like the Committees, misread a House annotation 
to Jefferson's Manual. See, e.g., Letter from Elijah E. Cummings, 
Chairman, House Oversight Committee, et al., to John Michael Mulvaney, 
Acting White House Chief of Staff, at 2 (Oct. 4, 2019). The language 
quoted by the court states that ``various events have been credited 
with setting an impeachment in motion.'' H. Doc. 114-192, 114th Cong. 
Sec. 603 (2017). But that does not mean that any of these ``various 
events'' automatically confers authority on a committee to begin an 
impeachment inquiry. It merely acknowledges the historical fact that 
there is more than one way the House may receive information that may 
prompt the House to then authorize a committee to pursue an impeachment 
investigation.
    Second, the court misread III Hinds' Precedents Sec. 2400 as 
showing that ``a resolution `authoriz[ing]' HJC `to inquire into the 
official conduct of Andrew Johnson' was passed after HJC `was already 
considering the subject.''' Id. at *27. That section discusses two 
House votes on two separate resolutions that occurred weeks apart. The 
House first voted to authorize the Johnson inquiry (which the court 
missed), and it then voted to refer a second matter (the resolution 
cited by the court), which touched upon President Johnson's 
impeachment, ``to the Committee on the Judiciary, which was already 
considering the subject.'' III Hinds' Precedents Sec. 2400. The court 
also misread the Nixon precedent as involving an ``investigation well 
before the House passed a resolution authorizing an impeachment 
inquiry.'' In re Application of the Comm. on the Judiciary, 2019 WL 
5485221, at *27. But that pre-resolution work did not involve any 
exercise of the House's impeachment power and was instead limited to 
preliminary, self-organizing work conducting ``research into the 
constitutional issue of defining the grounds for impeachment'' and 
``collecting and sifting the evidence available in the public domain.'' 
Staff of H.R. Comm. on the Judiciary, Constitutional Grounds for 
Presidential Impeachment, 93d Cong. 1-3 (Comm. Print 1974). The 
Chairman of the Committee himself acknowledged that, to actually launch 
an inquiry, a House resolution ``is a necessary step.'' 120 Cong. Rec. 
2351 (Feb. 6, 1974 statement of Rep. Rodino).
    Third, the court misread House Resolution 430, which was adopted on 
June 11, 2019. The court plucked out language from the resolution 
granting the Judiciary Committee ``any and all necessary authority 
under Article I of the Constitution,'' as if to suggest that the 
Judiciary Committee could, under that grant, initiate an impeachment 
inquiry. In re Application of Comm. on Judiciary, 2019 WL 5485221, at 
*29 (quoting H.R. Res. 430, 116th Cong. (2019)). But House Resolution 
430 is actually much more narrow. After providing certain 
authorizations for filing lawsuits, the resolution simply gave 
committees authority to pursue litigation effectively by providing 
that, ``in connection with any judicial proceeding brought under the 
first or second resolving clauses, the chair of any standing or 
permanent select committee exercising authority thereunder has any and 
all necessary authority under Article I of the Constitution.'' H.R. 
Res. 430 (emphasis added). Simply by providing authority to pursue 
lawsuits, House Resolution 430 did not authorize any committee to 
initiate an impeachment investigation.
    262. Clerk, House of Representatives, Rules of the House of 
Representatives, 116th Cong. (2019) (H.R. Rule).
    263. H.R. Rule X.1(l)(18).
    264. H.R. Rule X.1(n)(5).
    265. H.R. Rule XI.1(b)(1) (limiting the power to conduct 
``investigations and studies'' to those ``necessary or appropriate in 
the exercise of its responsibilities under rule X''); H.R. Rule 
XI.2(m)(1) (limiting the power to hold hearings and issue subpoenas to 
``the purpose of carrying out any of [the committee's] functions and 
duties under this rule and rule X (including any matters referred to it 
under clause 2 of rule XII)'').
    266. The mere referral of an impeachment resolution by itself could 
not authorize a committee to begin an impeachment inquiry. The 
``Speaker's referral authority under Rule XII is . . . limited to 
matters within a committee's Rule X legislative jurisdiction'' and 
``may not expand the jurisdiction of a committee by referring a bill or 
resolution falling outside the committee's Rule X legislative 
authority.'' Impeachment Inquiry Authorization, infra Appendix C, at 
30; see H.R. Rule XII.2(a); 18 Deschler's Precedents of the House of 
Representatives, app. at 578 (1994) (Deschler's Precedents). If a mere 
referral could authorize an impeachment inquiry, then a single House 
member could trigger the delegation of the House's ``sole Power of 
Impeachment'' to a committee and thus, for the House's most serious 
investigations, end-run Rule XI.1(b)(1)'s limitation of committee 
investigations to the committees' jurisdiction under Rule X.
    267. H.R. Res. 988, 93d Cong. 1, 13 (1974), reprinted in H.R. 
Select Comm. on Comms., Committee Reform Amendments of 1974, H.R. Rep. 
No. 93-916, 93d Cong. 367, 379 (1974); see also 120 Cong. Rec. 32, 962 
(1974).
    That language was stripped from the resolution by an amendment, see 
120 Cong. Rec. 32,968-72 (1974), the amended resolution was adopted, 
id. at 34, 469-70, and impeachment has remained outside the scope of 
any standing committee's jurisdiction ever since. Cf. Barenblatt v. 
United States, 360 U.S. 109, 117-18 (1959) (disapproving of ``read[ing] 
[a House rule] in isolation from its long history'' and ignoring the 
``persuasive gloss of legislative history'').
    268. H.R. Res. 988, 93d Cong. (Oct. 8, 1974); Staff of the Select 
Comm. on Comms., Committee Reform Amendments of 1974, 93d Cong. 117 
(Comm. Print 1974).
    269. Certain committees, not relevant here, had authority to issue 
subpoenas. Rules of the House of Representatives of the United States, 
H.R. Doc. No. 114-192, at 584 (2017).
    270. Congressional Quarterly, Impeachment and the U.S. Congress 20 
(Robert A. Diamond ed., 1974).
    271. 3 Deschler's Precedents ch. 14, Sec. 15.2, at 2171 (statements 
of Rep. Peter Rodino and Rep. Hutchinson); id. at 2172 
(Parliamentarian's Note); see also Dep't of Justice, Office of Legal 
Counsel, Legal Aspects of Impeachment: An Overview, at 42 n.21 (1974), 
https://perma.cc/X4HU-WVWS.
    272. H.R. Res. 581, 105th Cong. (1998) (Clinton); H.R. Res. 803, 
93d Cong. (1974) (Nixon); Cong. Globe, 40th Cong., 2d Sess. 784-85, 
1087 (1868) (Johnson); Cong. Globe, 39th Cong., 2d Sess. 320-21 (1867) 
(Johnson); see also III Hinds' Precedents of the House of 
Representatives 2408, at 845 (1907) (Hinds' Precedents) (Johnson); id. 
Sec. 2400, at 823-24 (Johnson).
    273. H.R. Comm. on the Judiciary, Investigatory Powers of the Comm. 
on the Judiciary with Respect to its Impeachment Inquiry, H.R. Rep. No. 
105-795, 105th Cong. 24 (1998).
    274. 3 Deschler's Precedents ch. 14, Sec. 15.2, at 2171 (statement 
of Rep. Rodino) (emphasis added); see also, e.g., 120 Cong. Rec. 2356 
(1974) (statement of Rep. Jordan).
    275. Richard L. Lyons, GOP Picks Jenner as Counsel, Wash. Post 
(Jan. 8, 1974), at A1, A6.
    276. In 1796, the Attorney General advised the House that, to 
proceed with impeachment of a territorial judge, ``a committee of the 
House of Representatives'' must ``be appointed for [the] purpose'' of 
examining evidence. III Hinds' Precedents Sec.  2486, at 982. The House 
accepted and ratified this advice in its first impeachment the next 
year and in each of the next twelve impeachments of judges and 
subordinate executive officers. III Hinds' Precedents Sec. Sec.  2297, 
2300, 2321, 2323, 2342, 2364, 2385, 2444-2445, 2447-2448, 2469, 2504; 
VI Cannon's Precedents of the House of Representatives Sec. Sec. 498, 
513, 544 (1936) (Cannon's Precedents); 3 Deschler's Precedents ch. 14, 
Sec. 18.1. In some cases before 1870, such as the impeachment of Judge 
Pickering, the House relied on information presented directly to the 
House to impeach an official before conducting an inquiry, and then 
authorized a committee to draft specific articles of impeachment and 
exercise investigatory powers. III Hinds' Precedents Sec. 2321. Those 
few cases adhere to the rule that a vote of the full House is necessary 
to authorize any committee to investigate for impeachment purposes.
    277. H.R. Comm. on the Judiciary, Impeachment of Walter L. Nixon, 
Jr., H.R. Rep. No. 101-36, 101st Cong. 12-13 (1989) (Judge Nixon Jr.); 
H.R. Comm. on the Judiciary, Impeachment of Judge Alcee L. Hastings, 
H.R. Rep. No. 100-810, 100th Cong. 7-8, 29-31, 38-39 (1988) (Judge 
Hastings); H.R. Comm. on the Judiciary, Impeachment of Judge Harry E. 
Claiborne, H.R. Rep. No. 99-688, 99th Cong. 18-20 (1986) (Judge 
Claiborne). These aberrations are still distinguishable because the 
House adopted resolutions authorizing subpoenas for depositions during 
the impeachment investigations of Judges Nixon and Hastings, see H.R. 
Res. 562, 100th Cong. (1988); H.R. Res. 320, 100th Cong. (1987), and 
the Judiciary Committee apparently did not issue any subpoenas in Judge 
Claiborne's impeachment inquiry.
    278. NLRB v. Noel Canning, 573 U.S. 513, 538 (2014); see also 
Impeachment Inquiry Authorization, infra Appendix C, at 27.
    279. See supra Standards Part B.3.
    280. H.R. Rep. No. 105-830, at 265 (Minority Views).
    281. See Impeachment Inquiry Authorization, infra Appendix C, at 1-
3. Although the committees also referred to their oversight and 
legislative jurisdiction in issuing these subpoenas, the committees 
cannot ``leverage their oversight jurisdiction to require the 
production of documents and testimony that the committees avowedly 
intended to use for an unauthorized impeachment inquiry.'' Id. at 32-
33. These ``assertion[s] of dual authorities'' were merely ``token 
invocations of `oversight and legislative jurisdiction,''' without 
``any apparent legislative purpose.'' Id. The committees transmitted 
the subpoenas ``[p]ursuant to the House['s] impeachment inquiry,'' 
admitted that documents would ``be collected as part of the House's 
impeachment inquiry,'' and confirmed that they would be ``shared among 
the Committees, as well as with the Committee on the Judiciary as 
appropriate''--all to be used in the impeachment inquiry. E.g., Letter 
from Elijah E. Cummings, Chairman, H.R. Comm. on Oversight & Reform, et 
al., to John M. Mulvaney, Acting White House Chief of Staff, at 1 (Oct. 
4, 2019).
    282. Press Release, Democratic Staff of the H.R. Comm. on the 
Judiciary, Fact Sheet: GOP Attacks on IRS Commissioner are Not 
Impeachment Proceedings (Sept. 21, 2016) (emphasis in original), 
https://perma.cc/6W8E-7KV8.
    283. Impeachment Articles Referred on John Koskinen (Part III): 
Hearing Before the H.R. Comm. on the Judiciary, 114th Cong. 30 (2016) 
(Koskinen Impeachment Hearing: Part III) (statement of Rep. Johnson) 
(emphasis added).
    284. Id. at 16 (statement of Rep. Nadler); Jerry Nadler 
(@RepJerryNadler), Twitter (Sept. 21, 2016, 7:01 AM), https://perma.cc/
A4VY-TFGM.
    285. Koskinen Impeachment Hearing: Part III, supra note 283, at 54 
(statement of Rep. Jeffries).
    286. H.R. Res. 660, 116th Cong. (2019).
    287. See infra Appendix B.
    288. Impeachment Inquiry Authorization, infra Appendix C, at 37.
    289. H.R. Res. 507, 116th Cong. (2019) (expressly ``ratif[ying] and 
affirm[ing] all current and future investigations, as well as all 
subpoenas previously issued or to be issued in the future'') (emphasis 
added).
    290. HJC Report at 134, 137, 157.
    291. See supra Part I.B.1(a); infra Part II; Letter from Pat A. 
Cipollone, Counsel to the President, to Nancy Pelosi, Speaker, House of 
Representatives, et al., at 7 (Oct. 8, 2019).
    292. Oct. 8, 2019 Letter from Pat. A Cipollone, supra note 291, at 
8.
    293. See Letter from Pat A. Cipollone, Counsel to the President, to 
William Pittard, Counsel for Mick Mulvaney (Nov. 8, 2019); Letter from 
Pat A. Cipollone, Counsel to the President, to Bill Burck, Counsel for 
John Eisenberg (Nov. 3, 2019); Letter from Pat A. Cipollone, Counsel to 
the President, to Charles J. Cooper, Counsel for Charles Kupperman 
(Oct. 25, 2019).
    294. See generally Memorandum for John D. Ehrlichman, Assistant to 
the President for Domestic Affairs, from William H. Rehnquist, 
Assistant Attorney General, Office of Legal Counsel, Re: Power of 
Congressional Committee to Compel Appearance or Testimony of ``White 
House Staff,'' at 8 (Feb. 5, 1971) (Rehnquist Memorandum) (``The 
President and his immediate advisers--that is, those who customarily 
meet with the President on a regular or frequent basis--should be 
deemed absolutely immune from testimonial compulsion by a congressional 
committee.'').
    295. Letter from Steven A. Engel, Assistant Attorney General, to 
Pat A. Cipollone, Counsel to the President (Nov. 7, 2019) (regarding 
Acting White House Chief of Staff Mulvaney); Letter from Steven A. 
Engel, Assistant Attorney General, to Pat A. Cipollone, Counsel to the 
President (Nov. 3, 2019) (regarding Legal Advisor to the National 
Security Council Eisenberg); Letter from Steven A. Engel, Assistant 
Attorney General, to Pat A. Cipollone, Counsel to the President 
(October 25, 2019) (regarding Deputy National Security Advisor 
Kupperman). These letters are attached, infra, at Appendix D.
    296. Testimonial Immunity Before Congress of the Former Counsel to 
the President, 43 Op. O.L.C. __, *1 (May 20, 2019) (2019 OLC Immunity 
Opinion); see also Immunity of the Assistant to the President and 
Director of the Office of Political Strategy and Outreach from 
Congressional Subpoena, 38 Op. O.L.C. __(July 15, 2014) (2014 OLC 
Immunity Opinion); Immunity of the Former Counsel to the President from 
Compelled Congressional Testimony, 31 Op. O.L.C. 191, 192 (2007); 
Immunity of the Counsel to the President from Compelled Congressional 
Testimony, 20 Op. O.L.C. 308, 308 (1996); Memorandum for Fred F. 
Fielding, Counsel to the President, from Theodore B. Olson, Assistant 
Attorney General, Office of Legal Counsel, Re: Congressional Testimony 
by Presidential Assistants at 1 (Apr. 14, 1981); Memorandum for All 
Heads of Offices, Divisions, Bureaus and Boards of the Department of 
Justice, from John M. Harmon, Acting Assistant Attorney General, Office 
of Legal Counsel, Re: Executive Privilege, at 5 (May 23, 1977); 
Rehnquist Memorandum, supra note 294.
    297. See 2014 OLC Immunity Opinion, 38 Op. O.L.C. at *3.
    298. See Assertion of Executive Privilege with Respect to Clemency 
Decision, 23 Op. O.L.C. 1, 5 (1999) (emphasis added).
    299. Id. at 5-6 (emphasis added); see also Immunity of the Counsel 
to the President from Compelled Congressional Testimony, 20 Op. O.L.C. 
at 308 (``It is the longstanding position of the executive branch that 
the President and his immediate advisors are absolutely immune from 
testimonial compulsion by a Congressional committee.'' (quotations and 
citations omitted)).
    300. 2014 OLC Immunity Opinion, 38 Op. O.L.C. at *3 (quotations and 
citation omitted); see also Assertion of Executive Privilege with 
Respect to Clemency Decision, 23 Op. O.L.C. at 5 (``[A] senior advisor 
to the President functions as the President's alter ego . . . .'').
    301. 2019 OLC Immunity Opinion, 43 Op. O.L.C. at *5 (citations 
omitted).
    302. Id. at *4 (``Like executive privilege, the immunity protects 
confidentiality within the Executive Branch and the candid advice that 
the Supreme Court has acknowledged is essential to presidential 
decision-making.'' (citing Nixon, 418 U.S. at 705)).
    303. Nixon, 418 U.S. at 708.
    304. Subpoena from the House Committee on Oversight and Reform to 
John Michael Mulvaney, Acting White House Chief of Staff (Oct. 4, 2019) 
(requesting documents concerning a May 23 Oval Office meeting, among 
other presidential communications).
    305. H.R. Permanent Select Comm. on Intelligence, The Trump-Ukraine 
Impeachment Inquiry Report, H.R. Rep. No. 116-335, 116th Cong. 181-82 
(2019) (HPSCI Report).
    306. Nixon, 418 U.S. at 705.
    307. See, e.g., 2014 OLC Immunity Opinion, 38 Op. O.L.C. at *6 
(``[S]ubjecting an immediate presidential adviser to Congress's 
subpoena power would threaten the President's autonomy and his ability 
to receive sound and candid advice.'').
    308. See Compl. at 11, Kupperman v. U.S. House of Representatives, 
No. 19-cv-3224 (D.D.C. Oct. 25, 2019), ECF No. 1.
    309. Letter from Steven A. Engel, Assistant Attorney General, to 
Pat A. Cipollone, Counsel to the President, at 3 (Nov. 3, 2019) 
(regarding Legal Advisor to the National Security Council Eisenberg); 
Letter from Steven A. Engel, Assistant Attorney General, to Pat A. 
Cipollone, Counsel to the President, at 2 (Oct. 25, 2019) (regarding 
Deputy National Security Advisor Kupperman). These letters are 
attached, infra, at Appendix D.
    310. See Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 
103, 109 (1948).
    311. 418 U.S. at 710-11; see also Harlow v. Fitzgerald, 457 U.S. 
800, 812 (1982) (``For aides entrusted with discretionary authority in 
such sensitive areas as national security or foreign policy, absolute 
immunity might well be justified to protect the unhesitating 
performance of functions vital to the national interest.''); Committee 
on Judiciary v. Miers, 558 F. Supp. 2d 53, 101 (D.D.C. 2008) (noting 
that ``[s]ensitive matters of `discretionary authority' such as 
`national security or foreign policy' may warrant absolute immunity in 
certain circumstances.'').
    312. Subpoena from the House Committee on Oversight and Reform to 
John Michael Mulvaney, Acting White House Chief of Staff (Oct. 4, 
2019).
    313. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) 
(internal quotation marks and citations omitted).
    314. Id.
    315. See Assertion of Executive Privilege Over Documents Generated 
in Response to Congressional Investigation into Operation Fast and 
Furious, 36 Op. O.L.C. __, at *3 (June 19, 2012) (``The threat of 
compelled disclosure of confidential Executive Branch deliberative 
material can discourage robust and candid deliberations.''); Assertion 
of Executive Privilege Over Communications Regarding EPA's Ozone Air 
Quality Standards and California's Greenhouse Gas Waiver Request, 32 
Op. O.L.C. __, *2 (June 19, 2008) (``Documents generated for the 
purpose of assisting the President in making a decision are protected'' 
and these protections also ``encompass[] Executive Branch deliberative 
communications that do not implicate presidential decisionmaking'').
    316. See, e.g., Letter from Eliot L. Engel, Chairman, H.R. Comm. on 
Foreign Relations, et al., to John Michael Mulvaney, Acting White House 
Chief of Staff, at 4 (Nov. 5, 2019) (explaining that House rules ``do 
not permit agency counsel to participate in depositions'').
    317. Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 Op. O.L.C. __, *4 (Nov. 1, 2019).
    318. Id. at *2; see generally Attempted Exclusion of Agency Counsel 
from Congressional Depositions of Agency Employees, 43 Op. O.L.C. 
__(May 23, 2019) (same, in the oversight context).
    319. Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 Op. O.L.C. at *2.
    320. Attempted Exclusion of Agency Counsel from Congressional 
Depositions of Agency Employees, 43 Op. O.L.C. at *10 (``[I]n many 
cases, agency employees will have only limited experience with 
executive privilege and may not have the necessary legal expertise to 
determine whether a question implicates a protected privilege.'').
    321. See INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (Congress's 
power to ``determin[e] specified internal matters'' is limited because 
the Constitution ``only empowers Congress to bind itself''); United 
States v. Ballin, 144 U.S. 1, 5 (1892) (Congress ``may not by its rules 
ignore constitutional restraints''); HJC Report at 198 (Dissenting 
Views) (``The Constitution's grant of the impeachment power to the 
House of Representatives does not temporarily suspend the rights and 
powers of the other branches established by the Constitution.'').
    322. Authority of the Department of Health and Human Services to 
Pay for Authority of the Department of Health and Human Services to Pay 
for Private Counsel to Represent an Employee Before Congressional 
Committees, 41 Op. O.L.C. __, *5 n.6 (Jan. 18, 2017).
    323. Letter from Rep. Elijah E. Cummings, Chairman, H.R. Comm. on 
Oversight & Reform, to Carl Kline, at 2 (Apr. 27, 2019) (``Both your 
personal counsel and attorneys from the White House Counsel's office 
will be permitted to attend.''); see also Kyle Cheney, Cummings Drops 
Contempt Threat Against Former W.H. Security Chief, Politico (Apr. 27, 
2019), https://perma.cc/F273-EJZW.
    324. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citations 
omitted); see also, e.g., United States v. Goodwin, 357 U.S. 368, 372 
(1982) (``For while an individual certainly may be penalized for 
violating the law, he just as certainly may not be punished for 
exercising a protected statutory or constitutional right.'').
    325. Harvey Berkman, Top Profs: Not Enough to Impeach, The National 
Law J. (Oct. 5, 1998) (quoting Professor Tribe), reprinted in 144 Cong. 
Rec. H10031 (1998).
    326. Impeachment Inquiry: William Jefferson Clinton, President of 
the United States, Consideration of Articles of Impeachment, 105th 
Cong. 398 (1998) (statement of Rep. Jerrold Nadler).
    327. See, e.g., Letter from Rep. Elijah E. Cummings, Chairman, H.R. 
Comm. on Oversight & Reform, et al., to John Michael Mulvaney, Acting 
White House Chief of Staff, at 1 (Oct. 4, 2019).
    328. Transcript of Pelosi Weekly Press Conference, supra note 251 
(statement of Rep. Adam Schiff) (emphasis added).
    329. See History of Refusals by Executive Branch Officials to 
Provide Information Demanded by Congress, Part I--Presidential 
Invocations of Executive Privilege Vis-a-Vis Congress, 6 Op. O.L.C. 
751, 753 (1982) (explaining that in response to a request for documents 
relating to negotiation of the Jay Treaty with Great Britain, President 
Washington sent a letter to the House stating, ``[t]o admit, then, a 
right in the House of Representatives to demand, and to have, as a 
matter of course, all the papers respecting a negotiation with a 
foreign Power, would be to establish a dangerous precedent'' (citation 
omitted)); Jonathan L. Entin, Separation of Powers, the Political 
Branches, and the Limits of Judicial Review, 51 Ohio St. L.J. 175, 186-
209 (1990).
    330. Letter from James Madison to Mr. __ (1834), in 4 Letters and 
other Writings of James Madison 349 (1884) (emphasis added).
    331. Myers v. United States, 272 U.S. 52, 85 (1926) (``The purpose 
was not to avoid friction, but, by means of the inevitable friction 
incident to the distribution of the governmental powers among three 
departments, to save the people from autocracy.''); The Federalist No. 
51, at 320-21 (James Madison) (Clinton Rossiter ed., 1961) (arguing 
that ``liberty'' requires that the government's ``constituent parts . . 
. be the means of keeping each other in their proper places'').
    332. United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. 
Cir. 1977) (when Congress asks for information from the Executive 
Branch, that request triggers the ``implicit constitutional mandate to 
seek optimal accommodation . . . of the needs of the conflicting 
branches.'').
    333. Id. at 130.
    334. Congressional Requests for Confidential Executive Branch 
Information, 13 Op. O.L.C. 153, 162 (1989) (``If after assertion of 
executive privilege the committee remains unsatisfied with the agency's 
response, it may vote to hold the agency head in contempt of 
Congress.'').
    335. As the Minority Views on the House Judiciary Committee's 
Report in the Nixon proceedings pointed out, it is important to have a 
body other than the committee that issued a subpoena evaluate the 
subpoena before there is a move to contempt. ``[I]f the Committee were 
to act as the final arbiter of the legality of its own demand, the 
result would seldom be in doubt. . . . It is for the reason just stated 
that, when a witness before a Congressional Committee refuses to give 
testimony or produce documents, the Committee cannot itself hold the 
witness in contempt. . . . Rather, the established procedure is for the 
witness to be given an opportunity to appear before the full House or 
Senate, as the case may be, and give reasons, if he can, why he should 
not be held in contempt.'' H.R. Rep. No. 93-1305, at 484 (1974) 
(Minority Views); see also id. at 516 (additional views of Rep. William 
Cohen).
    336. As examples of such lawsuits, see Compl., Comm. on Oversight 
and Gov't Reform v. Holder, No. 1:12-cv-1332 (D.D.C. August 13, 2012), 
ECF No. 1 (suing to enforce subpoenas in the Fast and Furious 
investigation during the Obama Administration); Compl., Comm. on the 
Judiciary v. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019), ECF No. 1. 
Additionally, for Senate subpoenas, Congress has affirmatively passed 
legislation creating subject matter jurisdiction in federal court to 
hear such cases. See 28 U.S.C. Sec. 1365 (2018). The Trump 
Administration, like the Obama Administration, has taken the position 
that a suit by a congressional committee attempting to enforce a 
subpoena against an Executive Branch official is not a justiciable 
controversy in an Article III court. See Comm. on Oversight & Gov't 
Reform v. Holder, 979 F. Supp. 2d 1, 9-10 (D.D.C. 2013) (``The 
defendant . . . maintains that Article III of the Constitution actually 
prohibits the Court from exercising jurisdiction over what he 
characterizes as `an inherently political dispute.'''). The House of 
Representatives, however, has taken the opposite view. See Pl.'s Opp'n 
to Def.'s Mot. to Dismiss, Comm. on Oversight & Gov't Reform v. Holder, 
No. 12-cv-1332 (D.D.C. Nov. 21, 2012), ECF No. 17. Unless and until the 
justiciability question is resolved by the Supreme Court, the House 
cannot simultaneously (i) insist that the courts may decide whether any 
particular refusal to comply with a congressional committee's demand 
for information was legally proper and (ii) claim that the House can 
treat resistance to any demand for information from Congress as a 
``high crime and misdemeanor'' justifying impeachment without securing 
any judicial determination that the Executive Branch's action was 
improper.
    337. See Am. Tel. & Tel. Co., 567 F.2d at 127 (``[E]ach branch 
should take cognizance of an implicit constitutional mandate to seek 
optimal accommodation through a realistic evaluation of the needs of 
the conflicting branches in the particular fact situation.'').
    338. See Transcript: Nancy Pelosi's Public and Private Remarks on 
Trump Impeachment, NBC News (Sept. 24, 2019), https://www. nbcnews.com/
politics/trump-impeachment-inquiry/transcript-nancy-pelosi-s-speech- 
trump-impeachment-n1058351 (``[R]ight now, we have to strike while the 
iron is hot. . . . And, we want this to be done expeditiously. 
Expeditiously.''); Ben Kamisar, Schiff Says House Will Move Forward 
with Impeachment Inquiry After `Overwhelming' Evidence from Hearings, 
NBC News (Nov. 24, 2019), https://www.nbcnews.com/politics/meet-the-
press/schiff-says-house-will-move-forward- impeachment-inquiry-after-
overwhelming- n1090221 (``[T]here are still other witnesses, other 
documents that we'd like to obtain. But we are not willing to go the 
months and months and months of rope-a-dope in the courts, which the 
administration would love to do.'').
    339. The Federalist No. 49, at 314 (James Madison) (Clinton 
Rossiter ed., 1961).
    340. Am. Tel. & Tel. Co., 567 F.2d at 127.
    341. HJC Report at 154.
    342. See, e.g., Senate Select Comm. on Presidential Campaign 
Activities v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974) (holding that a 
congressional committee's need for subpoenaed material ``is too 
attenuated and too tangential to its functions to permit a judicial 
judgment that the President is required to comply with the Committee's 
subpoena''); Gojack v. United States, 384 U.S. 702, 716 (1966) 
(reversing Petitioner's contempt of Congress conviction because ``the 
subcommittee was without authority which can be vindicated by criminal 
sanctions''); United States v. Rumely, 345 U.S. 41, 47-48 (1953) 
(holding that a congressional committee subpoena sought materials 
outside the scope of the authorizing resolution); United States v. 
McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972) (reversing a 
congressional contempt conviction and applying Fourth Amendment 
protections to a congressional investigation).
    343. Turley Written Statement, supra note 252, at 39.
    344. Background and History of Impeachment: Hearing Before the 
Subcomm. on the Const. of the H.R. Comm. on Judiciary, 105th Cong. 236 
(1998) (Clinton Judiciary Comm. Hearing on Background of Impeachment) 
(written statement of Professor Susan Low Bloch, Georgetown University 
Law Center); see also Alan Dershowitz, Supreme Court Ruling Pulls Rug 
out from under Article of Impeachment, The Hill (Dec. 16, 2019), 
https://perma.cc/H5BA-TKVX (stating that ``the House Judiciary 
Committee has arrogated to itself the power to decide the validity of 
subpoenas, and the power to determine whether claims of executive 
privilege must be recognized'' and arguing that those authorities 
``properly belong with the judicial branch of our government, not the 
legislative branch'').
    345. H.R. Rep. No. 105-830, at 85.
    346. Id. at 84 (quoting Rep. Bob Goodlatte).
    347. Id.
    348. Clinton Judiciary Comm. Hearing on Background of Impeachment, 
supra note 344, at 54 (written statement of Professor Michael J. 
Gerhardt, The College of William and Mary School of Law).
    349. See Assertion of Executive Privilege Over Documents Generated 
in Response to Congressional Investigation into Operation `Fast and 
Furious, 36 Op. O.L.C. at *1, *8.
    350. See, e.g., Harper Neidig, Judge Rules Against Obama on `Fast 
and Furious', The Hill (Jan. 19, 2016), https://perma.cc/FSA2-YQFT (``A 
federal judge on Tuesday ruled President Obama cannot use executive 
privilege to keep records on the `Fast and Furious' gun-tracking 
program from Congress .  .  . House Republicans launched the suit after 
voting to hold then-Attorney General Eric Holder in contempt for 
refusing to turn over the records.'').
    351. Turley Written Statement, supra note 252, at 42.
    352. See Trial Mem. of the U.S. House of Representatives at 33-34; 
HJC Report at 136-37.
    353. Oct. 8, 2019 Letter from Pat A. Cipollone, supra note 291, at 
8.
    354. History of Refusals, 6 O.L.C. Op. at 771 (``President Truman 
issued a directive providing for the confidentiality of all loyalty 
files and requiring that all requests for such files from sources 
outside the Executive Branch be referred to the Office of the 
President, for such response as the President may determine .  .  . At 
a press conference held on April 22, 1948, President Truman indicated 
that he would not comply with the request to turn the papers over to 
the Committee.'' (citations omitted)); id. at 769 (noting President 
Coolidge refused to provide the Senate ``a list of all companies in 
which the Secretary of the Treasury was interested''' and instead sent 
a letter ``calling the Senate's investigation an `unwarranted 
intrusion,' born of a desire other than to secure information for 
legitimate legislative purposes'' (quoting 65 Cong. Rec. 6087 (1924))); 
id. at 757 (noting President Jackson refused to provide to the Senate a 
paper purportedly read by the President to his Cabinet and instead 
asserted ``the Legislature had no constitutional authority to `require 
of me an account of any communication, either verbally or in writing, 
made to the heads of Departments acting as a Cabinet council .  .  . 
[nor] might I be required to detail to the Senate the free and private 
conversations I have held with those officers on any subject relating 
to their duties and my own.''').
    355. As explained above, many of the subpoenas were not authorized 
as part of any impeachment inquiry because they were issued when the 
House had not voted to authorize any such inquiry. See supra Part 
I.B.1(a).
    356. Nixon, 418 U.S. at 707.
    357. See, e.g., Trial Mem. of the U.S. House of Representatives at 
33-34; HJC Report at 136-37.
    358. House Democrats' reliance on Kilbourn v. Thompson is 
misplaced. Kilbourn merely states that, when conducting an impeachment 
inquiry, the House or Senate may ``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.''' Trial 
Mem. of the U.S. House of Representatives at 32 (quoting Kilbourn, 103 
U.S. 168, 190 (1880)). But constitutionally based privileges apply in 
``courts of justice,'' so Kilbourn does not foreclose the assertion of 
privileges and immunities in impeachment proceedings. Regardless, the 
statement quoted by House Democrats is dictum and, therefore, not 
binding. Additionally, House Democrats point to an 1846 statement by 
President Polk to support the proposition that ``[p]revious Presidents 
have acknowledged their obligation to comply with an impeachment 
investigation.'' Id. at 32-33. OLC has clarified that, when read in 
context, President Polk's statement actually ``acknowledg[es] the 
continued availability of executive privilege'' because President Polk 
explained that ``even in the impeachment context, the Executive branch 
would adopt all wise precautions to prevent the exposure of all such 
matters the publication of which might injuriously affect the public 
interest, except so far as this might be necessary to accomplish the 
great ends of public justice.''' Impeachment Inquiry Authorization, 
infra Appendix C, at 11 n.13 (quoting Memorandum for Elliot Richardson, 
Attorney General, from Robert G. Dixon, Jr., Assistant Attorney 
General, Office of Legal Counsel, Re: Presidential Immunity from 
Coercive Congressional Demands for Information at 22-23 (July 24, 
1973)).
    359. The Federalist No. 51, supra note 331, at 322.
    360. Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 Op. OLC at *2 (discussing how the ``same 
principles apply to a congressional committee's effort to compel the 
testimony of an executive branch official in an impeachment inquiry'' 
as in other contexts).
    361. Black & Bobbitt, supra note 191, at 20; see also Turley 
Written Statement,  note 252, at 40 (``Congress cannot substitute its 
judgment as to what a President can withhold.'').
    362. HJC Report at 129-31.
    363. Turley Written Statement, supra note 252, at 41.
    364. HJC Report at 155 (emphasis in original).
    365. Appellee Br. at 13, In re: Application of the Comm. on the 
Judiciary, No. 19-5288 (D.C. Cir. Dec. 16, 2019) (``If the House 
approves Articles of Impeachment, relevant grand-jury material that the 
Committee obtains in this litigation could be used during the 
subsequent Senate proceedings. And the Committee continues its 
impeachment investigation into Presidential misconduct .  .  .  . 
Material that the Committee obtains in this litigation could be used in 
that investigation as well.'').
    366. Pl.'s Reply in Support of its Mot. for Expedited Partial 
Summary Judgment at 3, Comm. on the Judiciary v. McGahn, No. 19-cv-2379 
(D.D.C. Oct. 16, 2019), ECF No. 38 (``The President has stated that the 
Executive Branch will not participate in' the House's ongoing 
impeachment inquiry, and has declared that McGahn is absolutely immune 
from Congressional process. The parties are currently at an impasse 
that can only be resolved by the courts.'' (emphasis in original)); see 
also Compl. Sec. 1, Comm. on the Judiciary v. McGahn, No. 19-cv-2379 
(D.D.C. Aug. 7, 2019), ECF No. 1 (arguing that witness testimony is 
needed because ``[t]he Judiciary Committee is now determining whether 
to recommend articles of impeachment against the President'').
    367. See HJC Report at 146-48.
    368. See, e.g., Clinton v. Jones, 520 U.S. 681, 692 (1997) (holding 
that a sitting president does not have immunity during his term from 
civil litigation about events occurring prior to entering office); In 
re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C. 1998) (rejecting 
the privilege for information sought from a Deputy White House Counsel 
pertaining to potential presidential criminal misconduct), aff'd in 
part, rev'd in part sub nom. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 
1998).
    369. H.R. Rep. No. 105-830, at 92 (``[I]ndeed, the President 
repeatedly argued that he should not be impeached precisely because 
these matters are purely private in nature.''); id. (quoting Rep. Bill 
McCollum) (``With regard to executive privilege, I don't think that 
there is any question that the President abused executive privilege 
here, because it can only be used to protect official functions.'').
    370. Id. at 84 (quoting Rep. Bob Goodlatte).
    371. H.R. Rep. No. 93-1305, at 1-4.
    372. Id. at 203-04 (quoting President Nixon as saying ``I want you 
all to stonewall it, let them plead the Fifth Amendment, cover-up or 
anything else, if it'll save it--save the plan. That's the whole 
point.'').
    373. Id. at 188 (reflecting a vote of 21-17).
    374. 3 The Debates in the Several State Conventions on the Adoption 
of the Federal Constitution, at 401 (Jonathan Elliot 2nd ed. 1987).
    375. H.R. Rep. No. 105-830, at 85.
    376. Id. at 84 (quoting Rep. Bob Goodlatte).
    377. Id.
    378. Id. at 92 (quoting Rep. George Gekas).
    379. Clinton Judiciary Comm. Hearing on Background of Impeachment, 
supra note 344, at 54 (written statement of Professor Michael J. 
Gerhardt, The College of William & Mary School of Law) (emphasis 
added).
    380. E.g., Oct. 4, 2019 Letter from Elijah E. Cummings, supra note 
281; see infra Appendix B (listing subpoenas). The HPSCI Majority 
Report also relies on several ``[d]ocument [p]roduction[s]'' from AT&T 
and Verizon, reportedly in response to subpoenas issued by Chairman 
Schiff beginning in September before House Resolution 660 was passed. 
See Editorial Bd., Schiff's Surveillance State, Wall St. J. (Dec. 4, 
2019), https://perma.cc/2ZQP-JW5V; HPSCI Report at 31 n.49, 80 n.529.
    381. U.S. Const. art. I, Sec. 2, cl. 5.
    382. Memorandum from Steven A. Engel, Assistant Attorney General, 
Office of Legal Counsel, to Pat A. Cipollone, Counsel to the President, 
Re: House Committees' Authority to Investigate for Impeachment, at 1 
(Jan. 19, 2020) (emphasis in original) (Impeachment Inquiry 
Authorization), infra Appendix C.
    383. Impeachment is not just a political process unconstrained by 
law. ``The subjects of [an impeachment trial] are those offenses which 
proceed from the misconduct of public men, or, in other words, from the 
abuse or violation of some public trust''--that is, ``POLITICAL, as 
they relate chiefly to injuries done immediately to the society 
itself.'' The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961). But ``Hamilton didn't say the process of 
impeachment is entirely political. He said the offense has to be 
political.'' Alan M. Dershowitz, Hamilton Wouldn't Impeach Trump, Wall 
St. J. (Oct. 9, 2019), https://perma.cc/97PH-QPGT (emphasis in 
original). ``Hamilton's description in Federalist 65 should not be 
taken to mean that impeachments have a conventional political nature, 
unmoored from traditional criminal process.'' J. Richard Broughton, 
Conviction, Nullification, and the Limits of Impeachment As Politics, 
68 Case W. Res. L. Rev. 275, 288 (2017). Federalist No. 65 goes to 
``pains to show that the Senate can act in `their judicial character as 
a `court for the trial of impeachments,'' and ``[t]he entire essay is 
an attempt to show that the Senate can overcome its political nature as 
an elected body .  .  . and act as a proper court for the trial of 
impeachments.''' Charles L. Black, Jr. & Philip Bobbitt, Impeachment: A 
Handbook 102 (2018) (emphasis in original). Hamilton emphasized that 
impeachment and removal of ``the accused'' must be based on partially 
legal considerations involving ``real demonstrations of innocence or 
guilt'' rather than purely political factors like ``the comparative 
strength of parties.'' Id. at 102-03 (quoting The Federalist No. 65). 
Thus, ``one should not diminish the significance of impeachment's legal 
aspects, particularly as they relate to the formalities of the criminal 
justice process. It is a hybrid of the political and the legal, a 
political process moderated by legal formalities .  .  .  .'' 
Broughton, supra note 383, at 289.
    384. U.S. Const. amend. V.
    385. See, e.g., Walters v. Nat'l Ass'n of Radiation Survivors, 473 
U.S. 305, 320 (1985) (``[T]he processes required by the Clause with 
respect to the termination of a protected interest will vary depending 
upon the importance attached to the interest and the particular 
circumstances under which the deprivation may occur.''); Mathews v. 
Eldridge, 424 U.S. 319, 334 (1976) (``Due process is flexible and calls 
for such procedural protections as the particular situation demands.'') 
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
    386. See, e.g., Watkins v. United States, 354 U.S. 178, 188 (1957); 
Quinn v. United States, 349 U.S. 155, 161 (1955).
    387. Quinn, 349 U.S. at 161.
    388. U.S. Const. art. II, Sec. 4.
    389. U.S. Const. art. II, Sec. 1, cl. 1.
    390. U.S. Const. art. I, Sec. 3, cl. 7.
    391. See U.S. Const. art. II, Sec. 1, cl. 5.
    392. See generally Board of Regents of State Colleges v. Roth, 408 
U.S. 564, 571-72 (1972) (``The Court has also made clear that the 
property interests protected by procedural due process extend well 
beyond actual ownership of real estate, chattels, or money.''); Bolling 
v. Sharpe, 347 U.S. 497, 499 (1954) (``Although the Court has not 
assumed to define liberty' with any great precision, that term is not 
confined to mere freedom from bodily restraint.'').
    393. Gilbert v. Homar, 520 U.S. 924, 928-29 (1997).
    394. U.S. Const. art. II, Sec. 4.
    395. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 789 
(1995).
    396. See, e.g., Roth, 408 U.S. at 573; see also, e.g., Doe v. Dep't 
of Justice, 753 F.2d 1092, 1106-07 (D.C. Cir. 1985); McGinnis v. D.C., 
65 F. Supp. 3d 203, 213 (D.D.C. 2014).
    397. See, e.g., Message of Protest from Andrew Jackson, President, 
to the U.S. Senate (Apr. 15, 1834) (noting that the Framers were 
``undoubtedly aware'' that impeachment, ``whatever might be its result, 
would in most cases be accompanied by so much of dishonor and reproach, 
solicitude and suffering, as to make the power of preferring it one of 
the highest solemnity and importance.''); 2 Joseph Story, Commentaries 
on the Constitution 686 (1833) (observing the ``notoriety of the 
[impeachment] proceedings'' and ``the deep extent to which they affect 
the reputations of the accused,'' even apart from the ``ignominy of a 
conviction'').
    398. The Federalist No. 65, supra note 383, at 397 (Alexander 
Hamilton).
    399. Ohio Bell Tel. Co. v. Pub. Serv. Comm'n, 301 U.S. 292, 302 
(1937).
    400. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (one 
of the ``central concerns of procedural due process'' is ``the 
prevention of unjustified or mistaken deprivations''); Carey v. Piphus, 
435 U.S. 247, 259-60 (1978) (similar).
    401. See Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 
1992), vacated and remanded on other grounds by Hastings v. United 
States, 988 F.2d 1280 (D.C. Cir. 1993) (per curiam).
    402. Id.; U.S. Const. art. I, Sec. 3, cl. 6.
    403. Dep't of Justice, Office of Legal Counsel, Legal Aspects of 
Impeachment: An Overview, at 45 (1974), https://perma.cc/X4HU-WVWS.
    404. The Federalist No. 66, at 402 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    405. John O. McGinnis, Impeachment: The Structural Nderstanding, 67 
Geo. Wash. L. Rev. 650, 663 (1999).
    406. See supra Standards Part B.2.
    407. Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 
291, 304 (1999).
    408. United States v. Louisiana, 363 U.S. 1, 35 (1960); see also 
United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936) (``The 
President is the sole organ of the nation in its external relations, 
and its sole representative with foreign nations.'') (quoting 10 Annals 
of Cong. 613 (1800) (statement of Rep. John Marshall)); Ex parte 
Hennen, 38 U.S. (13 Pet.) 225, 235 (1839).
    409. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381 
(2000).
    410. U.S. Const. art. I, Sec. 2, cl. 5.
    411. U.S. Const. art. I, Sec. 5, cl. 2.
    412. See, e.g., INS v. Chadha, 462 U.S. 919, 940-41 (1983); Buckley 
v. Valeo, 424 U.S. 1, 132 (1976), superseded on other grounds by 
statute as stated in McConnell v. FEC, 540 U.S. 93 (2003).
    413. United States v. Ballin, 144 U.S. 1, 5 (1892); see also Barry 
v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929); Morgan 
v. United States, 801 F.2d 445, 451 (D.C. Cir. 1986) (Scalia, J.).
    414. Senate Select Comm. on Presidential Campaign Activities v. 
Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974).
    415. U.S. Const. art I, Sec. 5, cl. 2.
    416. See Attempted Exclusion of Agency Counsel from Congressional 
Depositions of Agency Employees, 43 Op. O.L.C. ___, *2 (2019).
    417. See supra Part I.B.2(b).
    418. 506 U.S. 224 (1993).
    419. U.S. Const. art. I, Sec. 3, cl. 6; see Nixon, 506 U.S. at 226.
    420. Nixon, 506 U.S. at 228-29.
    421. Id. at 237 (emphasis added).
    422. In concurrence, Justice Souter explained that some approaches 
by the Senate might be so extreme that they would merit judicial review 
under the Impeachment Trial Clause. As he explained: ``If the Senate 
were to act in a manner seriously threatening the integrity of its 
results, convicting, say, upon a coin toss, or upon a summary 
determination that an officer of the United States was simply `a bad 
guy,' .  .  . judicial interference might well be appropriate.'' Id. at 
253-54 (Souter, J., concurring in judgment) (quoting Nixon, 506 U.S. at 
239 (White, J., concurring in judgment)).
    423. Id. at 237-38. Nixon did not address whether the Due Process 
Clause constrained the conduct of an impeachment trial in the Senate 
because no due process claim was raised by the parties.
    424. Letter from James Madison to Mr. ___ (1834), in 4 Letters and 
Other Writings of James Madison 349, 349 (Philadelphia, J.B. Lippincott 
& Co. 1865); see also William Baude, Constitutional Liquidation, 71 
Stan. L. Rev. 1, 21, 35 (2019).
    425. Charles L. Black & Philip Bobbitt, Impeachment: A Handbook, 
New Edition 22-23 (2018).
    426. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 219 
(2012) (Zivotofsky I) (Breyer, J., dissenting); see also Coleman v. 
Miller, 307 U.S. 433, 454 (1939).
    427. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 
(2015) (Zivotofsky II) (internal quotation marks omitted); see also 
McCulloch v. Maryland, 17 U.S. 316, 401 (1819).
    428. Noel Canning, 573 U.S. at 525 (quoting Letter to Spencer Roane 
(Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 
1908)).
    429. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 
(1952) (Jackson, J., concurring).
    430. Curtiss-Wright Export Corp., 299 U.S. at 329.
    431. Bahlul v. United States, 840 F.3d 757, 765 (D.C. Cir. 2016) 
(Kavanaugh, J., concurring).
    432. 2 Records of the Federal Convention of 1787, at 550 (M. 
Farrand ed. 1966); see, e.g., Richard M. Pious, Impeaching the 
President: The Intersection of Constitutional and Popular Law, 43 St. 
Louis L.J. 859, 872 (1999); see also, e.g., Proceedings of the Senate 
Sitting for the Trial of William W. Belknap, Late Secretary of War, on 
the Articles of Impeachment Exhibited by the House of Representatives, 
44th Cong. 98 (1876) (statement of Sen. Timothy Howe); Scott S. Barker, 
An Overview of Presidential Impeachment, 47 Colo. Lawyer 30, 32 (Sept. 
2018).
    433. 6 Reg. Deb. 737 (1830) (statement of Rep. James Buchanan).
    434. See III Hinds' Precedents Sec. 2319, at 681 (Judge Pickering); 
id. 2343, at 716 (Justice Chase).
    435. See 32 Annals of Cong. 1715, 1715-16 (1818); see, e.g., III 
Hinds' Precedents Sec. 2491, at 988 (Judge Thurston, 1825); id. 
Sec. 1736, at 97-98 (Vice President Calhoun, 1826); id. Sec. Sec. 2365-
2366 (Judge Peck, 1830-1831); id. Sec. 2491, at 989 (Judge Thurston, 
1837); id. Sec. 2495, at 994 & n.4 (Judge Watrous, 1852); Cong. Globe, 
35th Cong., 1st Sess. 2167 (1858) (statement of Rep. Horace Clark) 
(Judge Watrous, 1858); III Hinds' Precedents Sec. 2496, at 999 (Judge 
Watrous, 1858); id. Sec. 2504, at 1008 (Judge Delahay, 1873).
    436. 6 Reg. Deb. 738 (1830) (statement of Rep. Spencer Pettis).
    437. III Hinds' Precedents Sec. 2366, at 776.
    438. 6 Reg. Deb. 737 (1830) (statement of Rep. James Buchanan).
    439. Id. at 737-38 (statement of Rep. Charles Ingersoll).
    440. Id. at 738 (emphasis added).
    441. Id. (statement of Rep. Spencer Pettis).
    442. See III Hinds' Precedents Sec. 2365, at 774.
    443. Cong. Globe, 42d Cong., 3d Sess. 2122 (1873) (emphasis added); 
III Hinds' Precedents Sec. 2506, at 1011 (noting, in Judge Durrell's 
impeachment in 1873, that ``[i]t has been the practice of the Committee 
on the Judiciary to hear the accused in matters of impeachment whenever 
thereto requested, by witnesses or by counsel, or by both'').
    444. E.g., H.R. Rep. No. 111-427, 111th Cong. 11-12 (2010) (Judge 
Porteous); 155 Cong. Rec. H7055, H7056 (2009) (Judge Kent) (statement 
of Rep. Adam Schiff); H.R. Rep. No. 101-36, 101st Cong. 15 (1989) 
(Judge Nixon); Impeachment Inquiry: Hearings Before the Subcomm. on 
Criminal Justice of H.R. Comm. on the Jud., 100th Cong. 10-12; H.R. 
Rep. No. 100-810, 100th Cong. 11-12 (1988) (Judge Hastings); Conduct of 
Harry E. Claiborne, U.S. Dist. Judge, D. Nev.: Hearing Before the 
Subcomm. on Courts, Civil Liberties, & Admin. of Justice of H.R. Comm. 
on the Jud., 99th Cong. 2-3, 6-7, 48-78; H.R. Rep. No. 99-688, 99th 
Cong. 4-5 (1986) (Judge Claiborne); Justice William O. Douglas: First 
Report by the Special Subcomm. on H.R. Res. 920 of H.R. Comm. on the 
Judiciary, 91st Cong. 12 (Comm. Print 1970); Conduct of Albert W. 
Johnson & Albert L. Watson, U.S. Dist. Judges, M.D. Pa.: Hearing Before 
the Subcomm. of H.R. Comm. on the Judiciary, 79th Cong. 3 (1946); 
Conduct of Halsted L. Ritter, U.S. Dist. Judge, S.D. Fla.: Hearing 
Before the Subcomm. of H.R. Comm. on the Judiciary, 73d Cong. 2-3, 12, 
39, 86, 102, 148, 233 (1933); Hearing Before the H.R. Special Comm. 
Appointed to Inquire into the Official Conduct of Judge Harold 
Louderback, 72d Cong. 10-11, 33-34, 92, 109, 131-33, 329-30 (1932); 
Conduct of Hon. Wright Patman Against the Sec'y of the Treasury: 
Hearings on H.R. Res. 92 Before the H.R. Comm. on the Judiciary, 72d 
Cong. 6, 13-14, 53, 62-69, 152-177, 197 (1932) (Sec'y of Treasury 
Andrew W. Mellon); Conduct of Grover M. Moscowitz: Hearing Before H.R. 
Special Comm., 70th Cong. 1-2, 4, 15, 18 (1929); Conduct of Harry B. 
Anderson: Hearing Before H.R. Comm. on Judiciary, 71st Cong. 2, 5-7, 
48-49 (1931); Charges Against Hon. Frank Cooper: Hearing on H.R. Res. 
398 & 415 Before H.R. Comm. on the Judiciary, 69th Cong. 1, 12 (1927); 
Charges of Impeachment Against Frederick A. Fenning: Hearing on H.R. 
Res. 228 Before H.R. Comm. on the Judiciary, 69th Cong. 10, 153, 366, 
520-21, 523, 566-70, 1092-93 (1926); Conduct of George W. English: 
Hearing Before the H. Special Comm., 69th Cong. 5-7, 48-53, 81-84, 95-
96, 106-08, 126-27, 149-55, 212-216, 239-40, 243-45 (1925); Hearing 
Before H.R. Comm. on the Judiciary, 68th Cong. 1, 9-10, 26, 36-37 
(1925) (Judge Baker); VI Cannon's Precedents Sec. 537, at 771 (Att'y 
Gen. Daugherty); Conduct of Judge Kenesaw Mountain Landis: Hearing 
Before H.R. Comm. on Judiciary, 66th Cong. 7 (1921); H.R. Rep. No. 66-
544, 64th Cong. (1916), in 53 Cong. Rec. 6137 (1916) (U.S. Dist. Att'y 
Marshall); Judge Alston G. Dayton: Hearings Before H.R. Comm. on 
Judiciary & Special Subcomm. Thereof, 63d Cong. 210 (1915); Daniel Thew 
Wright: Hearings Before Subcomm. of H.R. Comm. on the Judiciary, 63d 
Cong. 8-9 (1914); Conduct of Emory Speer: Hearings Before Subcomm. of 
H.R. Comm. on the Judiciary, 63d Cong. 23 (1914); 48 Cong. Rec. 8907 
(1912) (Judge Archbald); VI Cannon's Precedents Sec. 526, at 745 (Judge 
Hanford); Hearings Before Subcomm. of H.R. Comm. on the Judiciary upon 
the Articles of Impeachment of Lebbeus R. Wilfley, Judge of U.S. Ct. 
for China, 60th Cong. 3-4 (1908); Impeachment of Judge Charles Swayne: 
Evidence Before the Subcomm. of H.R. Comm. on the Judiciary, 58th Cong. 
III (1904); III Hinds' Precedents Sec. 2520, at 1034 (Judge Ricks); id. 
Sec. 2518, at 1031 (Judge Boarman); id. Sec. 2516, at 1027 (Judge 
Blodgett); id. Sec. 2445, at 904 (Sec'y of War Belknap); id. Sec. 2514, 
at 1024 (Consul-Gen. Seward); H.R. Rep. No. 43-626, 43d Cong. V (1874) 
(Judge W. Story, J.); III Hinds' Precedents Sec. 2507, at 1011 (Judge 
Durell); id. Sec. 2512, at 1021 (Judge Busteed); Cong. Globe, 42d 
Cong., 3d Sess. 2124 (1873) (Judge Sherman); III Hinds Precedents 
Sec. 2504, at 1008 (Judge Delahay).
    445. See, e.g., William Baude, Rethinking the Federal Eminent 
Domain Power, 122 Yale L.J. 1738, 1811 (2013) (explaining that the 
Founders envisioned that ``post-ratification practice can serve to give 
concrete meaning to a constitutional provision even if it was vague as 
an original matter'' and that ``this is consistent with an originalist 
theory of constitutional construction''); Caleb Nelson, Originalism and 
Interpretive Conventions, 70 U. Chi. L. Rev. 519, 521 (2003); see 
generally Baude, Constitutional Liquidation, supra note 424.
    446. See NLRB v. Noel Canning, 573 U.S. 513, 525 (2014) (``These 
precedents show that this Court has treated practice as an important 
interpretive factor even when the nature or longevity of that practice 
is subject to dispute, and even when that practice began after the 
founding era.''); Free Enter. Fund v. Public Co. Accounting Oversight 
Bd., 561 U.S. 477, 505 (2010) (a ``handful of isolated'' examples 
cannot overcome the otherwise settled ``past practice of Congress''); 
see also, e.g., Dames & Moore v. Regan, 453 U.S. 654, 684 (1981).
    447. Charles W. Johnson et al., House Practice: A Guide to the 
Rules, Precedents, and Procedures of the House, 115th Cong., 1st Sess., 
ch. 27, Sec. 7, at 616 (2017), https://perma.cc/RB2S-Q965 (House 
Practice) (citing, as support for this ``modern practice,'' the 1876 
impeachment investigation of William Belknap in III Hinds' Precedents 
Sec. 2445, at 904).
    448. Impeachment Articles Referred on John Koskinen (Part II): 
Hearing Before the H.R. Comm. on the Judiciary, 114th Cong. 3 (2016) 
(statement of Rep. Jerrold Nadler).
    449. Hearing Pursuant to H.R. Res. 581 Before the H.R. Comm. on the 
Judiciary: Appearance of Independent Counsel, 105th Cong. 6 (Nov. 19, 
1998) (Clinton Independent Counsel Hearing) (statement of Rep. Jerrold 
Nadler).
    450. Impeachment Articles Referred on John Koskinen (Part III): 
Hearing Before the H.R. Comm. on the Judiciary, 114th Cong. 30 (2016) 
(statement of Rep. Hank Johnson).
    451. President Johnson was apparently ``notified of what was going 
on, but never asked to appear''--a fact that Judiciary Committee 
members later found significant in discounting President Johnson's 
impeachment as a precedent. Cong. Globe, 42d Cong., 3d Sess., 2122-23 
(1873) (statement of Mr. Butler during impeachment investigation of 
Judge Sherman).
    452. Authorization of an Inquiry into Whether Grounds Exist for the 
Impeachment of William Jefferson Clinton, President of the United 
States: Meeting of the H.R. Comm. on the Judiciary; Presentation by 
Inquiry Staff Consideration of Inquiry Resolution; Adoption of Inquiry 
Procedures, 105th Cong. 220 (Comm. Print 1998) (Clinton Impeachment 
Inquiry Procedures); see also H.R. Rep. No. 105-795, at 25-26; 3 
Deschler's Precedents ch. 14, Sec. 6.5, at 2046 (same); H.R. Comm. on 
the Judiciary, Impeachment of Richard M. Nixon, President of the United 
States, H.R. Rep. No. 93-1305, 93d Cong. 8-9 (1974) (same, Nixon 
impeachment).
    453. Clinton Impeachment Inquiry Procedures, supra note 452, at 
220; 3 Deschler's Precedents ch. 14, Sec. 6.5, at 2045-47 (Nixon 
Impeachment Inquiry Procedures); see also H.R. Rep. No. 93-1305, at 8-9 
(affording the President Nixon's counsel the ``opportunity to .  .  . 
ask such questions of the witnesses as the Committee deemed 
appropriate'').
    454. See Impeachment Inquiry Pursuant to H.R. Res. 581: 
Presentations by Investigative Counsel, 105th Cong. 93 (Dec. 10, 1998); 
Hearing Before the H.R. Comm. on the Judiciary: Impeachment Inquiry 
Pursuant to H.R. Res. 581: Presentation on Behalf of the President, 
105th Cong. 69 (Dec. 8-9, 1998) (Clinton Presentation on Behalf of the 
President).
    455. H.R. Res. 581 Sec. 2(b); 3 Deschler's Precedents ch. 14, 
Sec. 6.5, at 2046; H.R. Res. 803 Sec. 2(b).
    456. President Clinton's counsel gave opening and closing 
statements, called 14 expert witnesses, and cross-examined the 
witnesses. See generally Clinton Presentation on Behalf of the 
President, supra note 454; Submission by Counsel for President Clinton 
to the H.R. Comm. on the Judiciary, H.R. Comm. on the Judiciary, Comm. 
Print, Ser. No. 16, 105th Cong., 2nd Sess. (1998) (Submission by 
Counsel for President Clinton); H.R. Comm. on the Judiciary, 
Impeachment of William Jefferson Clinton, President of the United 
States, H.R. Rep. No. 105-830, 105th Cong. 127 (1998); Clinton 
Judiciary Comm. Hearing Appearance of Independent Counsel, supra note 
449. President Nixon's counsel attended all Committee hearings to hear 
the initial presentation of evidence, submitted an 800-plus page 
response, gave a two-day oral argument, questioned witnesses, objected 
to testimony, submitted a 151-page closing brief, and was given all 
``the time that you want'' to argue. See Statement of Information 
Submitted on Behalf of President Nixon: Hearings Pursuant to H.R. Res. 
803 Before the H.R. Comm. on the Judiciary, 93d Cong. (1974) (Books I-
IV); Hearings Pursuant to H.R. Res. 803 Before the H.R. Comm. on the 
Judiciary, 93d Cong. 1719-1866 (June 27-28, 1974); Testimony of 
Witnesses: Hearings Pursuant to H.R. Res. 803 Before the H.R. Comm. on 
the Judiciary, 93d Cong. (1974); id., Book I at 70-90, 135-42, 232-41; 
id., Book II at 29-55, 160-65, 196-98, 216-17, 257-88; id., Book III at 
107-23, 134, 179-81, 399-45, 517-18, 669-92, 1888; 10 Weekly Comp. 
Pres. Docs. 840 (1974).
    457. See Clinton Presentation on Behalf of the President, supra 
note 454; Submission by Counsel for President Clinton, supra note 456.
    458. H.R. Rep. No. 105-830, at 127; see generally Clinton 
Independent Counsel Hearing, supra note 449.
    459. United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 
(1993) (emphasis added).
    460. Chambers v. Miss., 410 U.S. 284, 294 (1973); see also, e.g., 
Greene v. McElroy, 360 U.S. 474, 496 (1959).
    461. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) (quoting 5 
Wigmore, Evidence Sec. 1367 (Chadbourn rev. 1974)).
    462. Id.
    463. Id. (quoting 4 J. Weinstein, Evidence Sec. 800[01] (1988)).
    464. Id.
    465. Goldberg v. Kelly, 397 U.S. 254, 269 (1970).
    466. See supra Part II.B.2.
    467. See generally supra notes 443-454 and accompanying text.
    468. See, e.g., Background and History of Impeachment: Hearing 
Before the Subcomm. on the Constitution of the H.R. Comm. on the 
Judiciary, 105th Cong. 17 (1998) (statement of Rep. Jerrold Nadler) (in 
the context of a House impeachment investigation, ``due process mean[s] 
.  .  . the right to be informed of the law, of the charges against 
you, the right to confront the witnesses against you, to call your own 
witnesses, and to have the assistance of counsel''); H.R. Rep. No. 111-
427, 111th Cong. 11-12 (2010); H.R. Rep. No. 111-159, 111th Cong. 14 
(2009); H.R. Rep. No. 105-830, at 265-66 (``[I]mpeachment not only 
mandates due process, but [] `due process quadrupled.''').
    469. See, e.g., T. Morrison Dep. Tr. at 8:14-15 (Oct. 31, 2019).
    470. 116th Congress Regulations for Use of Deposition Authority 
Sec. 3, in 165 Cong. Rec. H1216 (2019).
    471. See, e.g., A. Vindman Dep. Tr. at 77-80, 82, 274-75 (Oct. 29, 
2019); Morrison Dep. Tr. at 69:23-70:5.
    472. See David M. Drucker, Impeachment Spin Win: Democrats Killing 
GOP in Testimony Leak Game, Wash. Examiner (Nov. 1, 2019), https://
perma.cc/FC7T-FZ49 (``House Democrats are crushing Republicans with the 
use of testimony to frame the impeachment of President Trump for 
American voters, weaponizing selective leaks from closed-door 
depositions to portray a commander in chief that abused his power.''); 
see also, e.g., The Editorial Bd., Schiff's Secret Bombshells, Wall St. 
J. (Oct. 23, 2019), https://perma.cc/T964-8DMS; Russell Berman & Elaine 
Godfrey, The Closed-Door Impeachment, The Atlantic (Oct. 19, 2019), 
https://perma.cc/JPT8-W7KB.
    473. HJC Report at 37.
    474. See supra Part II.B.2; see supra note 443-454 and accompanying 
text.
    475. H.R. Rep. No. 105-830, at 210-11 (Minority Views).
    476. Laurence Tribe & Joshua Matz, To End a Presidency: The Power 
of Impeachment 78 (2018).
    477. ``[T]he invocation of grand jury interests is not `some 
talisman that dissolves all constitutional protections.''' Butterworth 
v. Smith, 494 U.S. 624, 630 (1990) (quoting United States v. Dionisio, 
410 U.S. 1, 11 (1973)). Grand juries do not ``enjoy blanket exemption 
from the commands of due process.'' United States v. Briggs, 514 F.2d 
794, 804 (5th Cir. 1975); Sara Sun Beale et al., Grand Jury Law and 
Practice Sec. 2:4 n.1 (2d ed. 2019); see, e.g., United States v. 
Calandra, 414 U.S. 338, 346 (1974); Peters v. Kiff, 407 U.S. 493, 504 
(1972) (plurality opinion of Marshall, J.); United States v. Hodge, 496 
F.2d 87, 88 (5th Cir. 1974).
    478. Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 566 n.11 
(1983).
    479. See, e.g., United States v. Procter & Gamble Co., 356 U.S. 
677, 681 n.6 (1958).
    480. In re Am. Historical Ass'n, 62 F. Supp. 2d 1100, 1103 
(S.D.N.Y. 1999); see also, e.g., Procter & Gamble Co., 356 U.S. at 681 
n.6; Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219 
(1979).
    481. See supra note 472 and accompanying text.
    482. See Fed. R. Crim. P. 6(e); 18 U.S.C. Sec. Sec. 401(3), 641, 
1503 (2018); see, e.g., United States v. Jeter, 775 F.2d 670, 675-82 
(6th Cir. 1985); Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 
1097 (7th Cir. 1992); In re Sealed Case No. 99-3091, 192 F.3d 995, 1001 
(D.C. Cir. 1999) (per curiam); Beale et al., supra note 477, Sec. 5:6, 
at 5-28.
    483. Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981); see supra notes 
459-465 and accompanying text.
    484. H.R. Res. 660 Sec. 2(1).
    485. H.R. Rep. No. 105-830, at 126-127; 3 Deschler's Precedents ch. 
14, Sec. 6.5, at 2046-47.
    486. See supra notes 452-458 and accompanying text.
    487. See 165 Cong. Rec. E1357 (2019) (Impeachment Inquiry 
Procedures in the Committee on the Judiciary Pursuant to H.R. Res. 
660).
    488. Letter from Jerrold Nadler, Chairman, H.R. Comm. on Judiciary, 
to President Donald J. Trump, at 1 (Nov. 26, 2019).
    489. See Press Release, House Judiciary Committee, Wednesday: House 
Judiciary to Hold Hearing on Constitutional Grounds for Presidential 
Impeachment (Dec. 2, 2019), https://perma.cc/5PFE-LCS5.
    490. Letter from Charles F.C. Ruff, Counsel to the President, et 
al., to Henry J. Hyde, Chairman, H.R. Comm. on Judiciary, et al. (Oct. 
21, 1998); Guy Gugliotta, House Hearing Set on Impeachment History, 
Wash. Post (Oct. 24, 1998), https://perma.cc/2LDX-XDL2.
    491. Letter from Pat A. Cipollone, Counsel to the President, to 
Jerrold Nadler, Chairman, H.R. Comm. on Judiciary, at 4 (Dec. 1, 2019).
    492. Letter from Jerrold Nadler, Chairman, H.R. Comm. on Judiciary, 
to President Donald J. Trump (Nov. 29, 2019).
    493. See id.
    494. Dec. 1, 2019 Letter from Pat A. Cipollone, supra note 491, at 
4.
    495. Id. (``We stand ready to meet with you to discuss a plan for 
these proceedings at your convenience.'').
    496. Nicholas Fandos, Pelosi Says House Will Draft Impeachment 
Charges Against Trump, N.Y. Times (Dec. 5, 2019), https://perma.cc/
L8PG-23DL (Speaker Pelosi: ``Today, I am asking our Chairman to proceed 
with articles of impeachment.'').
    497. Letter from Doug Collins, Ranking Member, H.R. Comm. on 
Judiciary, et al., to Jerrold Nadler, Chairman, H.R. Comm. on 
Judiciary, at 2 (Nov. 12, 2019); Letter from Doug Collins, Ranking 
Member, H.R. Comm. on Judiciary, to Jerrold Nadler, Chairman, H.R. 
Comm. on Judiciary, at 1-2 (Nov. 14, 2019); Letter from Doug Collins, 
Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, Chairman, 
H.R. Comm. on Judiciary, at 6 (Nov. 18, 2019); Letter from Doug 
Collins, Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
Chairman, H.R. Comm. on Judiciary (Dec. 2, 2019); Letter from Doug 
Collins, Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
Chairman, H.R. Comm. on Judiciary (Dec. 4, 2019); Letter from Doug 
Collins, Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
Chairman, H.R. Comm. on Judiciary (Dec. 5, 2019); Letter from Doug 
Collins, Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
Chairman, H.R. Comm. on Judiciary (Dec. 6, 2019).
    498. Letter from Jerrold Nadler, Chairman, H.R. Comm. on Judiciary, 
to Doug Collins, Ranking Member, H.R. Comm. on Judiciary (Dec. 8, 
2019).
    499. See supra notes 491-495, 497-498 and accompanying text.
    500. Nov. 26, 2019 Letter from Jerrold Nadler, supra note 488.
    501. See 165 Cong. Rec. E1357 (2019) (Impeachment Inquiry 
Procedures in the Committee on the Judiciary Pursuant to H.R. Res. 660 
para.F) (``Should the President unlawfully refuse to make witnesses 
available for testimony to, or to produce documents requested by, the 
investigative committees . . . , the chair shall have the discretion to 
impose appropriate remedies, including by denying specific requests by 
the President or his counsel under these procedures to call or question 
witnesses.''), and H.R. Rep. No. 116-266, 116th Cong. 9-10 (2019).
    502. Simmons v. United States, 390 U.S. 377, 394 (1968); see also 
Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004).
    503. HJC Report at 23-24.
    504. See Rules of the House of Representatives, Rule XI, cl. 
2(j)(1) (``[M]inority members of the committee shall be entitled, upon 
request to the chair by a majority of them before the completion of the 
hearing, to call witnesses selected by the minority to testify with 
respect to that measure or matter during at least one day of hearing 
thereon.'' (emphasis added)).
    505. E.g., Pelosi Says House Will Draft Impeachment Charges Against 
Trump, supra note 496.
    506. Impeachment Inquiry Pursuant to H.R. Res. 581: Consequences of 
Perjury and Related Crimes: Hearing Before the H.R. Comm. on the 
Judiciary, 105th Cong. 18-19 (1998) (Clinton Judiciary Comm. Hearing on 
Perjury) (statement of Rep. Jerrold Nadler).
    507. Id. at 19.
    508. Clinton Judiciary Comm. Hearing on Background of Impeachment, 
supra note 468, at 17 (statement of Rep. Jerrold Nadler).
    509. Press Release, Committee on the Judiciary, U.S. House of 
Representatives, Fact Sheet: GOP Attacks on IRS Commissioner are Not 
Impeachment Proceedings (Sept. 21, 2016) (emphasis added), https://
perma.cc/6VYE-9JQV.
    510. Madeline Conway, Schiff: There Is Now `More Than 
Circumstantial Evidence' of Trump-Russia Collusion, Politico (Mar. 22, 
2017), https://perma.cc/P5SL-BNM6.
    511. Rep. Schiff on MSNBC Morning Joe: Trump Must Come to Congress 
for Any Strike Against Iran, YouTube (Sept. 17, 2019), https://
perma.cc/J7X4-F6N2 (at 0:36-1:07).
    512. Schiff's False Claim His Committee Had Not Spoken to the 
Whistleblower, Wash. Post (Oct. 4, 2019), https://
www.washingtonpost.com/politics/2019/10/04/schiffs-false-claim-his-
committee-had-not-spokenwhistleblower/.
    513. Glenn Kessler, About The Fact Checker (Jan. 21, 2017), https:/
/perma.cc/VCD4-N3NB.
    514. Lori Robertson, Schiff Wrong on Whistleblower Contact, 
FactCheck.org (Oct. 6, 2019), https://perma.cc/BZ8FSWJW.
    515. See, e.g., Julie E. Barnes et al., Schiff Got Early Account of 
Accusations as Whistle-Blower's Concerns Grew, N.Y. Times (Oct. 2, 
2019), https://perma.cc/7ZZ4-BLRC; Ellen Nakashima, Whistleblower 
Sought Informal Guidance from Schiff's Committee Before Filing 
Complaint Against Trump, Wash. Post (Oct. 2, 2019), https://perma.cc/
SM2B-6BJN.
    516. ``Whistleblower Disclosure'': Hearing of the H.R. Permanent 
Select Comm. on Intelligence, 116th Cong. (Sept. 26, 2019) (statement 
of Rep. Adam Schiff); see also, e.g., Daniel Dale, Fact Check: Breaking 
Down Adam Schiff's Account of Trump's Ukraine Call, CNN (Sept. 27, 
2019), https://perma.cc/SM2B-6BJN.
    517. Rose v. Clark, 478 U.S. 570, 577-78 (1986); see also, e.g., 
United States v. Cronic, 466 U.S. 648, 659 (1984) (holding that denial 
of representation by counsel ``makes the adversary process itself 
presumptively unreasonable'').
    518. Winterberger v. Gen. Teamsters Auto Truck Drivers & Helpers 
Local Union 162, 558 F.2d 923, 925 (9th Cir. 1977) (administrative 
law).
    519. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 
(1988); see also, e.g., Beck v. Washington, 369 U.S. 541, 546 (1962); 
United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972) (Friendly, 
J.) (reversing judgment of conviction because the government's argument 
before the grand jury relied upon hearsay).
    520. Zack Stanton, Pelosi: Unless We Impeach Trump, `Say Hello to a 
President-King', Politico (Dec. 18, 2019), https://perma.cc/3R3M-D356.
    521. Matea Gold, The Campaign to Impeach President Trump Has Begun, 
Wash. Post (Jan. 20, 2017), https://perma.cc/HW4U-LBX6.
    522. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017, 6:54 
PM), https://perma.cc/TUF2-NLP3.
    523. H.R. Res. 438, 115th Cong. (2017).
    524. Caitlin Oprysko, Freshman Rep. Tlaib: Dem Majority Will 
`Impeach the Motherf_er', Politico (Jan. 4, 2019), https://perma.cc/
MAW7-WLQY.
    525. H.R. Res. 438, 115th Cong. (2017).
    526. Press Release, Dep't of Justice, Attorney General William P. 
Barr Delivers Remarks on the Release of the Report on the Investigation 
into Russian Interference in the 2016 Presidential Election (Apr. 18, 
2019), https://perma.cc/K5ZJ-2KA2 (``[T]he evidence developed by the 
Special Counsel is not sufficient to establish that the President 
committed an obstruction-of-justice offense.'').
    527. H.R. Res. 705, 115th Cong. (2018).
    528. See Trump v. Hawaii, 138 S. Ct. 2392 (2018).
    529. H.R. Res. 498, 116th Cong. (2019).
    530. H.R. Res. 396, 116th Cong. (2019).
    531. In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1998 WL 
472444, at *1 (D.C. Cir. Special Div. Jan. 16, 1998); see also H.R. 
Doc. No. 105-310, Communication from Kenneth W. Starr, Independent 
Counsel, Transmitting A Referral, 105th Cong., at 3 (1998). The House 
authorized the House Judiciary Committee's review of the Independent 
Counsel's referral two days after receiving it. H.R. Res. 525, 105th 
Cong. (1998).
    532. H.R. Res. 611, 105th Cong. (1998).
    533. The Senate Select Committee on Presidential Campaign 
Activities was established by the U.S. Senate on February 7, 1973 to 
investigate 1972 presidential campaign fundraising practices, the 
Watergate break-in, and the concealment of evidence relating to the 
break-in. H.R. Rep. No. 93-1305, at 116. Prior to the conclusion of 
that Committee's investigation, the House authorized the House 
Judiciary Committee's impeachment inquiry in February 1974. Id. at 6.
    534. Id. at 10-11.
    535. The House voted against President Johnson's impeachment in 
December 1867. III Hinds' Precedents Sec. 2407, at 843. In February 
1868, the House transferred the record from the first impeachment 
inquiry to the Committee on Reconstruction as part of President 
Johnson's second impeachment inquiry. Id. Sec. 2408, at 845.
    536. Id. Sec. 2400, at 823.
    537. Id. Sec. 2416, at 855-56.
    538. Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment: Hearing Before the 
H.R. Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) (written 
statement of Professor Jonathan Turley, George Washington Univ. Law 
School, at 4 n.7, https://perma.cc/QU4H-FZC4); III Hinds' Precedents 
Sec. 2408, at 845 (referring evidence from the first impeachment 
inquiry to committee conducting second impeachment inquiry); cf. HJC 
Report at 47-48.
    539. Raoul Berger, Impeachment: The Constitutional Problems 271-72 
(1973).
    540. Special Counsel Robert S. Mueller, III, Report on the 
Investigation into Russian Interference in the 2016 Presidential 
Election, vol. I at 2 (Mar. 2019), https://perma.cc/EGB4-WA76.
    541. Kailani Koenig, Schiff: `More Than Circumstantial Evidence' 
Trump Associates Colluded With Russia, NBC News (Mar. 22, 2017), 
https://perma.cc/P5KE-6BE4.
    542. Tim Hains, Adam Schiff: Republicans in Congress (Ryan, Gowdy, 
Nunes, Meadows, Jordan) Are Complicit in Trump's Lies, 
RealClearPolitics (May 27, 2018), https://perma.cc/H5JM-RZHK.
    543. See U.S. Dep't of Justice Office of the Inspector General, 
Review of Four FISA Applications and Other Aspects of the FBI's 
Crossfire Hurricane Investigation (Dec. 2019) (OIG FISA Report); id. at 
vii-viii, 95-96, 172, 256 n.400; Order, In re Accuracy Concerns 
Regarding FBI Matters Submitted to the FISC, No. Misc. 19-02 (FISA Ct. 
Dec. 17, 2019).
    544. OIG FISA Report, supra note 543, at viii.
    545. Id. at 160, 256 n.400; see also Jerry Dunleavy, FBI Lawyer 
Under Criminal Investigation Altered Document to Say Carter Page `Was 
Not a Source' for Another Agency, Wash. Exam. (Dec. 9, 2019), https://
perma.cc/3J4Z-WZCJ.
    546. OIG FISA Report, supra note 543, at xiii; Inspector General 
Report on Origins of FBI's Russia Inquiry: Hearing Before S. Comm. on 
the Judiciary, C-SPAN at 1:19:22, 3:49:34 (Dec. 11, 2019), https://
www.cspan.org/video/?466593-1/justice-department-ig-horowitz-defends-
report-highlights-fisa-problems; id. at 4:59:16 (Inspector General 
Horowitz: ``There is such a range of conduct here that is inexplicable. 
And the answers we got were not satisfactory that we're left trying to 
understand how could all these errors have occurred over a nine-month 
period or so, among three teams, hand-picked, one of the highest 
profile, if not the highest profile, case in the FBI, going to the very 
top of the organization, involving a presidential campaign.'').
    547. Press Release, Dep't of Justice, Attorney General William P. 
Barr Delivers Remarks on the Release of the Report on the Investigation 
into Russian Interference in the 2016 Presidential Election (Apr. 18, 
2019), https://perma.cc/K5ZJ-2KA2.elected.''
    548. Rebecca Shabad & Alex Moe, Impeachment Inquiry Ramps Up as 
Judiciary Panel Adopts Procedural Guidelines, NBC News (Sept. 12, 
2019), https://perma.cc/6694-SWXX.
    549. Clerk, H.R., Final Vote Results for Roll Call 695 on Agreeing 
to Article I of the Resolution (Dec. 18, 2019), http://clerk house.gov/
evs/2019/roll695.xml; Clerk, H.R., Final Vote Results for Roll Call 696 
on Agreeing to Article II of the Resolution (Dec. 18, 2019), http://
clerk.house.gov/evs/2019/roll696.xml.
    550. 144 Cong. Rec. H11786 (1998) (statement of Rep. Jerrold 
Nadler).
    551. 145 Cong. Rec. S1582 (1999) (statement of Sen. Patrick Leahy) 
(emphasis added).
    552. Brooke Singman & Guerin Hays, Dem. Rep. Brushes Off Pelosi 
Pushback, Says He'll Pursue Trump Impeachment, Fox News (Mar. 12, 
2019), https://perma.cc/2LK6-W4TR (brackets in original).
    553. Nicole Gaudiano & Eliza Collins, Exclusive: Nancy Pelosi Vows 
`Different World' for Trump, No More `Rubber Stamp' in New Congress, 
USA Today (Jan. 3, 2019), https://perma.cc/LF66-R7NU; see also, e.g., 
Brian Fung, Pelosi Tamps Down Talk of Impeachment, Wash. Post (Jan. 6, 
2019), https://perma.cc/8VQ3-RYZ5 (Pelosi: ``If and when the time comes 
for impeachment, it will have to be something that has such a crescendo 
in a bipartisan way.'').
    554. Impeachment Inquiry into President Donald J. Trump: 
Constitutional Grounds for Presidential Impeachment Before the H.R. 
Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) (written statement 
of Professor Jonathan Turley, Geo. Wash. Univ. Law Sch., at 4, https://
perma.cc/QU4H-FZC4).
    555. Justine Coleman, Pelosi Reaction to Democrats Clapping After 
Impeachment Vote Goes Viral, The Hill (Dec. 19, 2019), https://
perma.cc/LJ5U-E8VA.
    556. The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    557. Id. at 400.
    558. Id. at 396-97.
    559. The Federalist No. 66, at 402 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    560. H.R. Res. 755, 116th Cong. art. I (2019).
    561. July 25 Call Mem., infra Appendix A.
    562. See infra Part III.B.2.
    563. July 25 Call Mem., infra Appendix A, at 2; see also 
Impeachment Inquiry: Amb. Kurt Volker and Mr. Timothy Morrison Before 
the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 64 (Nov. 
19, 2019) (Volker-Morrison Public Hearing) (``The President was 
concerned that the United States seemed to--to bear the exclusive brunt 
of security assistance to Ukraine. He wanted to see the Europeans step 
up and contribute more security assistance.'').
    564. July 25 Call Mem., infra Appendix A, at 2.
    565. See, e.g., Sharyl Attkisson, Timeline of Alleged Ukrainian-
Democrat Meddling in 2016 Presidential Election, Epoch Times (Nov. 27, 
2019), https://perma.cc/9EYP-9RUE; Andrew E. Kramer, Ukraine Court 
Rules Manafort Disclosure Caused `Meddling' in U.S. Election, N.Y. 
Times (Dec. 12, 2018), https://perma.cc/87B2-XYAN; Kenneth P. Vogel & 
David Stern, Ukrainian Efforts to Sabotage Trump Backfire, Politico 
(Jan. 11, 2017), https://perma.cc/5K56-46YG; Roman Olearchyk, Ukraine's 
Leaders Campaign Against `Pro-Putin' Trump, Financial Times (Aug. 28, 
2016), https://www.ft.com/content/c98078d0-6ae7-11e6-a0b1-d87a9fea034f; 
Press Release, Senators Seek Interviews on Reported Coordination 
Between Ukrainian Officials, DNC Consultant to Aid Clinton in 2016 
Elections (Dec. 6, 2019), https://perma.cc/PAE6-RV78?type=image.
    566. July 25 Call Mem., infra Appendix A, at 3.
    567. See infra note 737 and accompanying text; July 25 Call Mem., 
infra Appendix A at 3.
    568. F. Hill Dep. Tr. at 76:20-77:11 (Oct. 14, 2019); see also C. 
Croft Dep. Tr. at 125:12-126:15 (Oct. 30, 2019). Senator Johnson 
recalled similar concerns over ``rumors that [President] Zelensky was 
going to appoint Andriy Bohdan, the lawyer for oligarch Igor 
Kolomoisky, as his chief of staff.'' Letter from Sen. Ron Johnson to 
Rep. Jim Jordan, Ranking Member, H.R. Comm. on Oversight & Reform, and 
Rep. Devin Nunes, Ranking Member, H.R. Permanent Select Comm. on 
Intelligence, at 3 (Nov. 18, 2019). And Ambassadors Taylor and Volker 
even discussed these concerns directly with President Zelensky. See W. 
Taylor Dep. Tr. at 86:13-22 (Oct. 22, 2019); K. Volker Interview Tr. at 
137:15-25 (Oct. 3, 2019).
    569. See July 25 Call Mem., infra Appendix A, at 4 (President 
Zelensky understood President Trump's comments to be referring 
``specifically to the company'').
    570. See Tim Hains, FLASHBACK, 2018: Joe Biden Brags at CFR Meeting 
About Withholding Aid to Ukraine to Force Firing of Prosecutor, 
RealClearPolitics (Sept. 27, 2019), https://www.realclearpolitics.com/
video/2019/09/27/flashback _2018 _joe _biden _brags _at _cfr _meeting 
_about _withholding _aid _to _ukraine _to _force _firing_of _prosecutor 
html.
    571. See Adam Taylor, Hunter Biden's New Job at a Ukrainian Gas 
Company Is a Problem for U.S. Soft Power, Wash. Post (May 14, 2014), 
https://perma.cc/Q4QS-4H3B.
    572. See, e.g., Kenneth P. Vogel & Iuliia Mendel, Biden Faces 
Conflict of Interest Questions That Are Being Promoted by Trump and 
Allies, N.Y. Times (May 1, 2019), https://perma.cc/6A4G-2CRE (``Among 
those who had a stake in the outcome was Hunter Biden, Mr. Biden's 
younger son, who at the time was on the board of an energy company 
owned by a Ukrainian oligarch who had been in the sights of the fired 
prosecutor general.'').
    573. Michael Kranish & David L. Stern, As Vice President, Biden 
Said Ukraine Should Increase Gas Production. Then His Son Got a Job 
with a Ukrainian Gas Company, Wash. Post (July 22, 2019), https://
perma.cc/L24P-367Z (``In an email interview with The Post, Shokin [the 
fired prosecutor] said he believes his ouster was because of his 
interest in [Burisma]. . . . Had he remained in his post, Shokin said, 
he would have questioned Hunter Biden.'').
    574. HJC Report at 121; id. at 101 (``He was given extensive 
talking points about corruption for his April 21 and July 25 calls, yet 
ignored them both times and did not mention corruption on either 
call.'').
    575. See A. Vindman Dep. Tr. at 109, 241 (Oct. 29, 2019) 
(explaining that the NSC talking points discussed ``deliver[ing] on the 
anticorruption agenda'' and ``reinforc[ing] efforts to root out 
corruption'').
    576. July 25 Call Mem., infra Appendix A, at 4.
    577. Kyiv Post, Zelensky Talks Trump, U.S. Elections, Giuliani at 
All-Day Press Marathon, YouTube, at 0:17 (Oct. 10, 2019), https://
youtu.be/iG5kVNm_R5Y?t=17.
    578. Id. at 0:33, https://youtu.be/iG5kVNm_R5Y?t=33.
    579. July 25 Call Mem., infra Appendix A, at 2-3.
    580. HPSCI Report at XI.
    581. July 25 Call Mem., infra Appendix A, at 3 (emphases added).
    582. Id. at 2-3.
    583. M. Yovanovitch Dep. Tr. at 314:15-18 (Oct. 11, 2019) (``[Q.] 
The foreign aid that was has been reported as being held up, it doesn't 
relate to Javelins, does it? [A.] No. At least I'm not aware that it 
does.''); id. at 315:4-7 (``[Q.] But it was actually aid that had been 
appropriated and it had nothing to do with Javelins. Would you agree 
with that? [A.] That's my understanding.''); T. Morrison Dep. Tr. at 
79:25-80:2 (Oct. 31, 2019) (``[Q.] Okay. In your mind, are the Javelins 
separate from the security assistance funds? [A.] Yes.'').
    584. See HPSCI Report at XI.
    585. See, e.g., Remarks By President Trump And Prime Minister Abe 
of Japan Before Bilateral Meeting, New York, NY (Sept. 25, 2019), 
https://perma.cc/6E4V-AYC4 (``So we did [China] a favor. But they're 
doing us a favor. But they're buying a lot of agricultural product and, 
in particular, where you are.''); Remarks by President Trump at the 
2019 White House Business Session With Our Nation's Governors (Feb. 25, 
2019), https://perma.cc/WK7Z-L82N (``And I said to President Xi--I 
said, `President, you have to do me a favor. As part of our trade deal. 
. .'''); Remarks by President Trump at Workforce Development Roundtable 
(July 26, 2018), https://perma.cc/AT2V-U4PQ (``I said to the Europeans, 
I said, `Do me a favor. Would you go out to the farms in Iowa and all 
the different places in the Midwest? Would you buy a lot of soybeans, 
right now?'''); Geoff Brumfiel, Trump Says North Korea Will Destroy 
Missile Site. But Which One?, NPR (June 12, 2018), https://perma.cc/
LKV5-7YAG (``I said, `Do me a favor. You've got this missile engine 
testing site. . . .' I said, `Can you close it up?'''); Transcript: 
Donald Trump's New York Press Conference (Sept. 26, 2018), https://
perma.cc/G6Y9-XHST (``Japan just gave us some numbers that are 
incredible. . . . I said, `You have to do me a favor. We don't want 
these big deficits. You're going to have to buy more.''').
    586. NSC Senior Director Morrison raised concerns ``about a 
potential leak of the [transcript],'' but he had no concern about the 
substance of the call. Morrison Dep. Tr. at 16:4-10.
    587. Vindman Dep. Tr. at 155.
    588. Id. at 18-19.
    589. Impeachment Inquiry: Ms. Jennifer Williams & Lt. Col. 
Alexander Vindman Before the H.R. Permanent Select Comm. on 
Intelligence, 116th Cong. 130-31 (Nov. 19, 2019) (Williams-Vindman 
Public Hearing); Vindman Dep. Tr. at 155.
    590. Morrison Dep. Tr. at 60.
    591. Press Release, The White House, Statement from Lt. Gen. Keith 
Kellogg, National Security Advisor to Vice President Mike Pence (Nov. 
19, 2019), https://perma.cc/7FT8-U3QY.
    592. Press Release, President of Ukraine, Volodymyr Zelensky Had a 
Phone Conversation with President of the United States (July 25, 2019), 
https://perma.cc/DKP3-VKCH.
    593. Simon Shuster, `I Don't Trust Anyone at All.' Ukrainian 
President Volodymyr Zelensky Speaks Out on Trump, Putin, and a Divided 
Europe, Time (Dec. 2, 2019), https://perma.cc/Z65U-FKAR.
    594. Ukraine President Downplays Trump Pressures in All-Day Media 
Marathon, Politico (Oct. 10, 2019), https://perma.cc/QVM-HFNK 
(``Responding to questions from The Associated Press, Zelenskiy said he 
only learned after their July 25 phone call that the U.S. had blocked 
hundreds of millions of dollars in military aid to Ukraine. `We didn't 
speak about this' during the July call, Zelenskiy said. There was no 
blackmail.''').
    595. See President Trump Meeting with Ukrainian President, C-SPAN, 
at 08:10 (Sept. 25, 2019), https://www.c-span.org/video/?464711-1/
president-trump-meets-ukrainian-leader-memo-release (``[W]e had, I 
think, [a] good phone call. It was normal. We spoke about many things. 
And I--so I think, and you read it, that nobody pushed--pushed me.''); 
Meg Wagner et al., Ukraine President Insists ``No One Can Put Pressure 
on Me'' to Investigate Bidens, CNN (Oct. 1, 2019), https://perma.cc/
AAV7-74G4 (``I don't feel pressure. . . . I have lots of people who'd 
like to put pressure on me here and abroad. I'm the president of an 
independent Ukraine--no one can put pressure on me.'').
    596. Volker Interview Tr. at 313:2-9.
    597. Taylor Dep. Tr. at 31:6-8.
    598. Croft Dep. Tr. at 117:7-12.
    599. Matthias Williams, Ukraine Minister Denies Trump Put Pressure 
on Zelenskiy During Call: Report, Reuters (Sept. 21, 2019), https://
perma.cc/J8TF-8SQ3.
    600. Mairead McArdle, Ukrainian Foreign Minister Denies Sondland 
Linked Military Aid Delay to Biden Investigation, National Rev. (Nov. 
14, 2019), https://perma.cc/DPF6-GB5V (citing Interfax-Ukraine); see 
also Matthias Williams, U.S. Envoy Sondland Did Not Link Biden Probe to 
Aid: Ukraine Minister, Reuters (Nov. 14, 2019), https://perma.cc/2URG-
9H5Y (```I have never seen a direct relationship between investigations 
and security assistance,' [Ukraine Foreign Minister Vadym] Prystaiko 
was quoted as saying by Interfax.'').
    601. Simon Shuster, Exclusive: Top Ukraine Official Andriy Yermak 
Casts Doubt on Key Impeachment Testimony, Time (Dec. 10, 2019), https:/
/perma.cc/A93U-KVKF.
    602. See Caitlin Emma & Connor O'Brien, Trump Holds up Ukraine 
Military Aid Meant to Confront Russia, Politico (Aug. 28, 2019), 
https://perma.cc/9FFS-B9WT.
    603. Volker-Morrison Public Hearing, supra note 563, at 22; see 
also id. at 143; Volker Interview Tr. at 125:14-17 (``To my knowledge, 
the news about a hold on security assistance did not get into Ukrainian 
Government circles, as indicated to me by the current foreign minister, 
then diplomatic adviser, until the end of August.'').
    604. Taylor Dep. Tr. at 119:21-24; Impeachment Inquiry: Amb. 
William Taylor & Mr. George Kent Before the H.R. Permanent Select Comm. 
on Intelligence, 116th Cong. 154:10-13 (Nov. 13, 2019) (Taylor-Kent 
Public Hearing) (``[Q.] Ambassador Taylor, earlier you were testifying 
that Ukrainian officials did not become aware of potential U.S. 
assistance being withheld until August 29th. Is that accurate? [A.] 
That's my understanding, Mr. Hurd.'').
    605. Morrison Dep. Tr. at 17:11-12 (``I have no reason to believe 
the Ukrainians had any knowledge of the review until August 28, 
2019.''); see also Volker-Morrison Public Hearing, supra note 563, at 
68 (``[Q.] You mentioned the August 28th Politico article. Was that the 
first time that you believe the Ukrainians may have had a real sense 
that the aid was on hold? [A.] Yes.'').
    606. Taylor-Kent Public Hearing, supra note 604, at 154:19-23 
(``[Q.] Mr. Kent, . . . when was the first time a Ukrainian official 
contacted you, concerned about potential withholding of USAID [sic]? 
[A.] It was after the article in Politico came out, in that first 
intense week of September.''); G. Sondland Interview Tr. at 177:11-17 
(Oct. 17, 2019) (testifying that ``I don't recall exactly when I 
learned that the Ukrainians learned'' but agreeing that ``by the time 
there was a Politico report . . . everyone would have known.'').
    607. Stephanie Baker & Daryna Krasnolutska, Ukraine's Fraught 
Summer Included a Rogue Embassy in Washington, Bloomberg (Nov. 22, 
2019), https://perma.cc/YUB5-E92S.
    608. Andrew E. Kramer, Trump's Hold on Military Aid Blindsided Top 
Ukrainian Officials, N.Y. Times (Sept. 22, 2019), https://perma.cc/
7PR9-DAAS.
    609. Ukraine's Fraught Summer Included a Rogue Embassy in 
Washington, supra note 607 (``Had the top people in Kyiv known about 
the holdup earlier, they said, the matter would have been raised with 
National Security Advisor John Bolton during his visit on Aug. 27.'').
    610. Taylor-Kent Public Hearing, supra note 604, at 108:4-19.
    611. Volker Interview Tr. at 168:10-169:23.
    612. Volker-Morrison Public Hearing, supra note 563, at 68 (``I 
received a text message from one of my Ukrainian counterparts on August 
29th forwarding that article, and that's the first they raised it with 
me.''); Text Message from Andriy Yermak, Adviser to President Zelensky, 
to Kurt Volker, U.S. Special Rep. for Ukraine Negotiations, at 
KV00000020 (Aug. 29, 2019, 3:06:14 AM), https://perma.cc/PV4B-T6HM.
    613. Volker Interview Tr. at 124:11-125:1 (emphasis added).
    614. Impeachment Inquiry: Amb. Gordon Sondland Before the H.R. 
Permanent Select Comm. on Intelligence, 116th Cong. 40 (Nov. 20, 2019) 
(Sondland Public Hearing).
    615. Letter from Sen. Ron Johnson, supra note 568, at 6.
    616. Volker-Morrison Public Hearing, supra note 563, at 106 07.
    617. Taylor-Kent Public Hearing, supra note 604, at 109:18-20 
(testifying that his ``clear understanding'' ``came from Ambassador 
Sondland''); id. at 110:6-8 (``[Q.] You said you got this from 
Ambassador Sondland. [A.] That is correct.''); Taylor Dep. Tr. at 
297:21-298:1 (``[Q.] But if I understand this correctly, you're telling 
us that Tim Morrison told you that Ambassador Sondland told him that 
the President told Ambassador Sondland that Zelensky would have to open 
an investigation into Biden?'' [A.] That's correct.''); see also, e.g., 
id. at 35:20-25, 38:13-16.
    618. Morrison Dep. Tr. at 17:13-16.
    619. Sondland Public Hearing, supra note 614, at 148-49 (emphasis 
added).
    620. Sondland Interview Tr. at 35:8-11.
    621. Declaration of Ambassador Gordon D. Sondland para. 4 (Nov. 4, 
2019) (emphasis added).
    622. Sondland Public Hearing, supra note 614, at 150-51.
    623. HJC Report at 97 (quotations omitted).
    624. M. Yovanovitch Dep. Tr. at 314:15-18 (Oct. 11, 2019) (``[Q.] . 
. . The foreign aid that was--has been reported as being held up, it 
doesn't relate to Javelins, does it? [A.] No. At least I'm not aware 
that it does.''); id. at 315:4-7 (``[Q.] But it was actually aid that 
had been appropriated and it had nothing to do with Javelins. Would you 
agree with that? [A.] That's my understanding.''); Morrison Dep. Tr. at 
79:25-80:2 (Oct. 31, 2019) (``Q. Okay. In your mind, are the Javelins 
separate from the security assistance funds? A. Yes.'').
    625. H.R. Res. 755, 116th Cong. art. I (2019); see also HPSCI 
Report at 24; HJC Report at 76.
    626. Yovanovitch Dep. Tr. at 140:24-141:3 (``And I actually felt 
that in the 3 years that I was there, partly because of my efforts, but 
also the interagency team, and President Trump's decision to provide 
lethal weapons to Ukraine, that our policy actually got stronger over 
the last 3 years.'').
    627. Yovanovitch Dep. Tr. at 144:14-16.
    628. Taylor Dep. Tr. at 155:14-23.
    629. G. Kent Interview Tr. at 294:10-17 (Oct. 15, 2019).
    630. Volker-Morrison Public Hearing, supra note 563, at 58; see 
also id. at 58-59 (``[Q.] And for many years, there had been an 
initiative in the interagency to advocate for lethal defensive weaponry 
for Ukraine. Is that correct? [A.] That is correct. [Q.] And it wasn't 
until President Trump and his administration came in that that went 
through? [A.] That is correct.'').
    631. Nov. 18, 2019 Letter from Sen. Ron Johnson, supra note 568, at 
2.
    632. Volker Interview Tr. at 80:6-7.
    633. D. Hale Dep. Tr. at 85:2-3 (Nov. 6, 2019).
    634. Trump's Hold on Military Aid Blindsided Top Ukrainian 
Officials, supra note 608.
    635. Hale Dep. Tr. at 82:2-6.
    636. Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes 
Before the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 
75:17-19 (Nov. 21, 2019) (Hill-Holmes Public Hearing).
    637. Trial Mem. of the U.S. House of Representatives at 26.
    638. Hill Dep. Tr. at 118:19-22.
    639. Yovanovitch Dep. Tr. at 142:10-16 (``Q. Were you aware of the 
President's deep-rooted skepticism about Ukraine's business 
environment? A. Yes. Q. And what did you know about that? A. That he--I 
mean, he shared that concern directly with President Poroshenko in 
their first meeting in the Oval Office.''); 143:8-10 (Q. The 
administration had concerns about corruption in Ukraine, correct? A. We 
all did.'').
    640. Morrison Dep. Tr. at 16:16-17.
    641. Croft Dep. Tr. at 21:20-22:5; see also The White House, 
President Trump Meets with President Poroshenko of Ukraine (Sept. 22, 
2017), https://perma.cc/A5AC-PNS2 (``The President recommended that 
President Poroshenko continue working to eliminate corruption and 
improve Ukraine's business climate.'').
    642. Croft Dep. Tr. at 32:16-25.
    643. Hill Dep. Tr. at 34:7-13.
    644. See, e.g., Yovanovitch Dep. Tr. at 17:9-12; Taylor Dep. Tr. at 
87:20-25; Kent Interview Tr. at 105:15-18, 151:2122.
    645. Hale Dep. Tr. at 82:18-22.
    646. Office of Mgmt. & Budget, Budget of the U.S. Government Fiscal 
Year 2018, at 13 (May 23, 2017), https://perma.cc/GE2U-MPMU.
    647. Office of Mgmt. & Budget, Budget of the U.S. Government Fiscal 
Year 2020, at 71 (Mar. 11, 2019), https://perma.cc/5ER6-7A3Q.
    648. Trial Mem. of the U.S. House of Representatives at 28.
    649. Id.
    650. Volker-Morrison Public Hearing, supra note 563, at 63.
    651. Id. at 64.
    652. Email from Eric Chewning, Chief of Staff, Office of the 
Secretary of Defense, to John Rood, Under Secretary of Defense for 
Policy, and Elaine McCusker, Under Secretary of Defense (Comptroller) 
(June 24, 2019), available at https://publicintegrity.org/national-
security/trump-administration-officials-worried-ukraine- aid-halt-
violated-spending-law (page 11); L. Cooper Dep. Tr. at 33 (Oct. 23, 
2019) (summarizing follow-up questions from ``a meeting with the 
President'').
    653. See supra Part III.A.1.
    654. Nov. 18, 2019 Letter from Sen. Johnson, supra note 568, at 5.
    655. Taylor Dep. Tr. at 35:8-19; see also J. Williams Dep. Tr. at 
81:7-11 (Nov. 7, 2019) (the Vice President wanted to ``hear if there 
was more that European countries could do to support Ukraine''); 
Morrison Dep. Tr. at 224:19-225:6 (``[T]he President believed that the 
Europeans should be contributing more in security-sector 
assistance.'').
    656. Cooper Dep. Tr. at 14.
    657. July 25 Call Mem., infra Appendix A, at 2.
    658. Karen DeYoung, U.S. Withdrawing $100 Million in Aid to 
Afghanistan Amid Corruption Concerns, Wash. Post (Sept. 19, 2019), 
https://perma.cc/TK8K-4332.
    659. Rachel Frazin, Trump: South Korea Should Pay `Substantially 
More' for Defense Costs, The Hill (Aug. 7. 2019), https://perma.cc/
T672-JNN3.
    660. Camilo Montoya-Galvez, U.S. Cuts Millions in Aid to Central 
America, Fulfilling Trump's Vow, CBS News (June 18, 2019), https://
perma.cc/2K6V-337X.
    661. Ben Gittleson & Conor Finnegan, Trump Administration Releases 
Lebanon Military Aid After It Was Held Up for Months, ABC News (Dec. 2, 
2019), https://perma.cc/ B4YJ-Z77C.
    662. Saphora Smith and Reuters, Trump Admin Cancels $300m Aid to 
Pakistan over Terror Record, NBC News (Sept. 2, 2018), https://
perma.cc/U32X-8N69.
    663. Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale 
Before the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 22 
(Cooper-Hale Public Hearing).
    664. Hill Dep. Tr. at 225:9-12.
    665. Id. at 254:20-24, 352:14-20.
    666. Volker-Morrison Public Hearing, supra note 563, at 59-60.
    667. Morrison Dep. Tr. at 165:6-11.
    668. M. Sandy Dep. Tr. at 133:10-13 (Nov. 16, 2019).
    669. Morrison Dep. Tr. at 127:10-16.
    670. Hill Dep. Tr. at 76:6-8 (``There was, you know, speculation in 
all analytical circles, both in Ukraine and outside, that he might not 
be able to get a workable majority in the Ukrainian Parliament.'').
    671. Morrison Dep. Tr. at 129:14-17.
    672. Id. at 129:4-8.
    673. Id. at 128:18-20.
    674. Id. at 128:20-24.
    675. High Anti-Corruption Court Starts Work in Ukraine (Video), 
Ukrainian Independent Information Agency of News (UNIAN) (Sept. 5, 
2019), https://perma.cc/2XNC-F8YF.
    676. Morrison Dep. Tr. at 129:18-24.
    677. Letter from Sen. Ron Johnson, supra note 568, at 6.
    678. Letter from Sen. Rob Portman et al., to Mick Mulvaney, 
Director, Office of Management & Budget, at 1 (Sept. 3, 2019).
    679. Letter from Eliot L. Engel, Chairman, H.R. Comm. on Foreign 
Affairs, and Michael T. McCaul, Ranking Member, H.R. Comm. on Foreign 
Affairs, to Mick Mulvaney, Director, Office of Management & Budget, and 
Russell Vought, Acting Director, Office of Management & Budget, at 1--2 
(Sept. 5, 2019).
    680. Morrison Dep. Tr. at 209:10-210:4; see also id. at 210:24 
211:2.
    681. Id. at 225:12-16; see also Press Release, Office of the 
President of Ukraine, Volodymyr Zelensky Discussed Military-Technical 
Assistance for Ukraine and Cooperation in the Energy Sphere with the 
U.S. Vice President (Sept. 1, 2019), https://perma.cc/4KKX-E9QL 
(explaining that ``[t]he U.S. Vice President raised the issue of 
reforms and fight against corruption that will be carried out by the 
new government'' and President Zelensky ``noted that Ukraine was 
determined to transform and emphasized that over 70 draft laws had been 
registered on the first day of work of the new parliament, including 
those aimed to overcome corruption.'').
    682. Morrison Dep. Tr. at 225:8-11.
    683. Id. at 242:12-243:7.
    684. Id. at 243:2-7, 244:7-12.
    685. Id. at 243:6-7.
    686. Id. at 242:22-24.
    687. See President Trump Meeting with Ukrainian President, supra 
note 595.
    688. Morrison Dep. Tr. at 115:10-12.
    689. Id. at 106:10-15, 107:2-6.
    690. Id. at 106:10 107:4, 107:10-16.
    691. Id. at 106:10-15.
    692. Id. at 108:20-21.
    693. Volker Interview Tr. at 127:12-14.
    694. Morrison Dep. Tr. at 266:8-10 (``We were expecting the 
President to meet with President Zelensky on 1 September. It's the 
middle of August; it's about 2 weeks.'').
    695. See Foreign Ministry, Presidential Office Prepares Zelensky-
Trump Meeting in Warsaw, National News Agency of Ukraine (Aug. 22, 
2019), https://perma.cc/EK2G-5RSZ.
    696. Hale Dep. Tr. at 72:24 73:1; Volker Interview Tr. at 130:17-23 
(``This was the President's trip to Warsaw as part of that World War II 
commemoration. That was when he cancelled because of the hurricane 
watch.''); Isabel Togoh, Hurricane Dorian: Trump Cancels Poland Trip to 
Focus on Storm in Last-Minute Move, Forbes (Aug. 30, 2019), https://
perma.cc/TQ83-6QKD.
    697. See Ukraine President Downplays Trump Pressures in All-Day 
Media Marathon, supra note 594.
    698. Volker Interview Tr. at 78:5-9, 78:17-25; see also Kent 
Interview Tr. at 202:14-16 (``The time on a President's schedule is 
always subject to competing priorities.'').
    699. Hill Dep. Tr. at 145:6-12.
    700. Sondland Public Hearing, supra note 614, at 74.
    701. Sondland Interview Tr. at 216:6-7.
    702. Id. at 216:4-7.
    703. Sondland Public Hearing, supra note 614, at 36.
    704. Volker Interview Tr. at 36:1-9; 40:11-16.
    705. Sondland Public Hearing, supra note 614, at 70.
    706. Id.
    707. H.R. Res. 755, 116th Cong. art. I.
    708. HJC Report at 4-6.
    709. See Hunter Biden `Was Paid $83,333 a Month by Ukrainian Gas 
Company to be a ``Ceremonial Figure'', The Ukrainian Week (Oct. 20, 
2019), https://perma.cc/7WBU-XHCJ; Tobias Hoonhout, Hunter Biden Served 
as `Ceremonial Figure' on Burisma Board for $80,000 Per Month, National 
Rev. (Oct. 18, 2019), https://perma.cc/6RAH-J5GU; FLASHBACK, 2018: Joe 
Biden Brags at CFR Meeting About Withholding Aid to Ukraine to Force 
Firing of Prosecutor, supra note 570; Biden Faces Conflict of Interest 
Questions That Are Being Promoted by Trump and Allies, supra note 572.
    710. See, e.g., Taylor-Kent Public Hearing, supra note 604, at 
25:3-5 (Kent: ``[I]n a briefing call with the national security staff 
of the Office of the Vice President in February of 2015, I raised my 
concern that Hunter Biden's status as a board member could create the 
perception of a conflict of interest.'').
    711. Ukrainian Efforts to Sabotage Trump Backfire, supra note 565 
(``[O]fficials there [at the Ukrainian embassy] became `helpful' in 
Chalupa's efforts, she said, explaining that she traded information and 
leads with them. `If I asked a question, they would provide guidance, 
or if there was someone I needed to follow up with.''').
    712. Id.
    713. Natasha Bertrand & Kyle Cheney, `I'm On A Mission To 
Testify,': Dem Ukraine Activist Eager for Impeachment Cameo, Politico 
(Nov. 12, 2019), https://perma.cc/7RJR-6YQQ.
    714. N. Ohr. Interview Tr., 115th Cong., 113-15 (Oct. 19, 2018), 
https://perma.cc/E3YE-QKYJ.
    715. Ukrainian Efforts to Sabotage Trump Backfire, supra note 565.
    716. Id.
    717. Ukraine's Leaders Campaign Against `Pro-Putin' Trump, supra 
note 565 (``Hillary Clinton, the Democratic nominee, is backed by the 
pro-western government that took power after Mr. Yanukovich was ousted 
by street protests in 2014. . . . If the Republican candidate [Donald 
Trump] loses in November, some observers suggest Kiev's actions may 
have played at least a small role.'').
    718. Id. (internal quotation marks omitted).
    719. Hill-Holmes Public Hearing, supra note 636, at 112:2-9.
    720. United States v. Concord Mgmt. & Consulting LLC, 347 F. Supp. 
3d 38, 56 n.9 (D.D.C. 2018) (ellipsis in original) (quoting Bluman v. 
FEC, 800 F. Supp. 2d 281., 288 (D.D.C. 2011)).
    721. See 52 U.S.C. Sec. 30121 (2018).
    722. President Donald J. Trump, Statement on Signing an Executive 
Order on Imposing Certain Sanctions in the Event of Foreign 
Interference in a United States Election, 2018 Daily Comp. Pres. Doc. 
592 (Sept. 12, 2018), https://perma.cc/ BEQ3-T3T3.
    723. Tim Hains, Rep. Adam Schiff: Democrats Meeting Ukrainians 
``Different Degree Of Involvement'' Than Trump-Russia, Real Clear 
Politics (July 16, 2017), https://perma.cc/D4HC-3ETE.
    724. Adam Goldman et al., Barr Assigns U.S. Attorney in Connecticut 
to Review Origins of Russia Inquiry, N.Y. Times (May 13, 2019), https:/
/perma.cc/VS3E-DWT3. The Department of Justice has acknowledged that 
Mr. Durham's investigation is ``broad in scope and multifaceted'' and 
is ``intended to illuminate open questions regarding the activities of 
U.S. and foreign intelligence services as well as non-governmental 
organizations and individuals.'' See Letter from Stephen Boyd, 
Assistant Attorney General, Dep't of Justice, to Jerrold Nadler, 
Chairman, House Judiciary Comm. (June 10, 2019).
    725. See Katie Benner & Adam Goldman, Justice Dept. Is Said to Open 
Criminal Inquiry Into Its Own Russia Investigation, N.Y. Times (Oct. 
24, 2019), https://perma.cc/ZR3G-SWHE.
    726. Press Release, The White House, Statement from the Press 
Secretary (May 23, 2019), https://perma.cc/S9LT-LPCM.
    727. See U.S. Dep't of Justice, Criminal Resource Manual Sec. 274.
    728. See Treaty on Mutual Legal Assistance in Criminal Matters, 
U.S.-Ukr., July 22, 1998, T.I.A.S. No. 12978.
    729. See U.S. Dep't of Justice, Criminal Resource Manual Sec. 278.
    730. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
320 (1936).
    731. H.R. Res. 755 art. I.
    732. July 25 Call Mem., infra Appendix A, at 3.
    733. Id.
    734. Id.
    735. Id.
    736. Id.
    737. Amb. Valeriy Chaly, Ukraine's Ambassador: Trump's Comments 
Send Wrong Message to World, The Hill (Aug. 4, 2016), https://perma.cc/
872A-Z28Y; Ukrainian Efforts to Sabotage Trump Backfire, supra note 
565.
    738. Letter from Sen. Robert Menendez, et al. to Yuriy Lutsenko, 
Prosecutor General, Office of the Prosecutor General of Ukraine (May 4, 
2019), https://perma.cc/9EH2-LDFG.
    739. Vindman Dep. Tr. at 320; see also Volker Interview Tr. at 
106:9-11 (Burisma ``had a very bad reputation as a company for 
corruption and money laundering''); Kent Interview Tr. at 88:7 
(``Burisma had a poor reputation.'').
    740. Oliver Bullough, The Money Machine: How a High-Profile 
Corruption Investigation Fell Apart, The Guardian (Apr. 12, 2017), 
https://perma.cc/XTF6-DGJ3.
    741. Kent Interview Tr. at 88:8-9.
    742. Press Release, Burisma Holdings, Hunter Biden Joins the Team 
of Burisma Holdings (May 12, 2014), https://perma.cc/U9YS-JL5G; Adam 
Entous, Will Hunter Biden Jeopardize His Father's Campaign?, The New 
Yorker (July 1, 2019), https://perma.cc/UJ8G-GRWT (``Hunter joined .  .  
. the Burisma board in April, 2014.'').
    743. Susan Crabtree, Joe Biden Emerges as Obama's Trusty Sidekick, 
Wash. Examiner (Apr. 25, 2014), https://perma.cc/KVQ6-V2NF.
    744. Approved Judgement of the Central Criminal Court, Serious 
Fraud Office v. Mykola Zlochevskyi, 1, 7 (Jan. 21, 2015), https://
www.justsecurity.org/wp-content/uploads/2019/09/Zlochevsky-SFO-v-MZ-
Final-JudgmentRevised.doc.
    745. Biden Faces Conflict of Interest Questions That Are Being 
Promoted by Trump and Allies, supra note 572.
    746. See The Money Machine: How a High-Profile Corruption 
Investigation Fell Apart, supra note 740 (``The White House insisted 
the position was a private matter for Hunter Biden, and unrelated to 
his father's job, but that is not how anyone I spoke to in Ukraine 
interpreted it. Hunter Biden is an undistinguished corporate lawyer, 
with no previous Ukraine experience.''); Will Hunter Biden Jeopardize 
His Father's Campaign?, supra note 742.
    747. Victoria Thompson, et al., Exclusive: `I'm Here': Hunter Biden 
Hits Back at Trump Taunt in Exclusive ABC News Interview, ABC News 
(Oct. 15, 2019), https://abcnews.go.com/Politics/exclusive-hiding-
plain-sight-hunter-bidendefends-foreign/story?id=66275416.
    748. Biden Faces Conflict of Interest Questions That Are Being 
Promoted by Trump and Allies, supra note 572; Polina Ivanova et al., 
What Hunter Biden Did on the Board of Ukrainian Energy Company Burisma, 
Reuters (Oct. 18, 2019), https://perma.cc/7PL4-JMPY. Compare Hunter 
Biden Served as `Ceremonial Figure' on Burisma Board for $80,000 Per 
Month, supra note 709 (reporting Hunter Biden's monthly compensation to 
be $83,333 monthly, or nearly $1 million per year), with 2019 Proxy 
Statement, ConocoPhillips, at 30 (Apr. 1, 2019), https://perma.cc/4GP8-
9ZWV (disclosing cash and stock awards provided to each active director 
with total compensation for the year ranging from $33,125 to $377,779).
    749. Vindman Dep. Tr. at 334-35 (explaining that ``it doesn't look 
like [Hunter Biden] was'' qualified); Volker Interview Tr. at 106:9-12 
(speculating that Burisma hired Biden because of his connection to his 
politically connected father); see also Paul Sonne et al., The Gas 
Tycoon and the Vice President's Son: The Story of Hunter Biden's Foray 
into Ukraine, Wash. Post (Sept. 28, 2019), https://perma.cc/A8VJ-YUY4 
(the Executive Director of Ukraine's Anti-Corruption Action Center 
asserting that Burisma added ``people with these fancy names'' to its 
board in an effort to ``whitewash[]'' the firm's reputation).
    750. The Gas Tycoon and the Vice President's Son: The Story of 
Hunter Biden's Foray into Ukraine, supra note 749.
    751. The Money Machine: How a High-Profile Corruption Investigation 
Fell Apart, supra note 740 (``The credibility of the United States was 
not helped by the news that .  .  . Hunter had been on the board of 
directors of Burisma''); The Editorial Board, Joe Biden Lectures 
Ukraine, N.Y. Times (Dec. 11, 2015), https://perma.cc/P9JH-YEBP 
(``Sadly, the credibility of Mr. Biden's message may be undermined by 
the association of his son with a Ukrainian natural-gas company, 
Burisma Holdings, which is owned by a former government official 
suspected of corrupt practices.''); Paul Sonne and Laura Mills, 
Ukrainians See Conflict in Biden's Anticorruption Message, Wall St. J. 
(Dec. 7, 2015), https://www.wsj.com/articles/ukrainians-see-conflict-
in-bidens-anticorruption-message-1449523458 (``[A]ctivists here say 
that [Joe Biden's anti-corruption] message is being undermined as his 
son receives money from a former Ukrainian official who is being 
investigated for graft.'').
    752. Hunter Biden's New Job at a Ukrainian Gas Company Is a Problem 
for U.S. Soft Power, supra note 571.
    753. Will Hunter Biden Jeopardize His Father's Campaign?, supra 
note 742.
    754. Kent Interview Tr. at 227:1-8 (``And when I was on a call with 
somebody from the Vice President's staff and I cannot recall who it was 
.  .  . I raised my concerns that I had heard that Hunter Biden was on 
the board of a company owned by somebody that the U.S. Government had 
spent money trying to get tens of millions of dollars back and that 
could create the perception of a conflict of interest.'').
    755. Impeachment Inquiry: Amb. Marie ``Masha'' Yovanovitch Before 
the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 135-36 
(Nov. 15, 2019) (Yovanovitch Public Hearing) (``I think that it could 
raise the appearance of a conflict of interest.''); Taylor-Kent Public 
Hearing, supra note 604, at 25, 94-95 (Kent testifying that ``I raised 
my concern that Hunter Biden's status as a board member could create 
the perception of a conflict of interest .  .  . And my concern was 
that there was the possibility of a perception of a conflict of 
interest.''); Williams-Vindman Public Hearing, supra note 589, at 129 
(Vindman and Williams agreeing ``that Hunter Biden, on the board of 
Burisma, has the potential for the appearance of a conflict of 
interest''); Sondland Public Hearing, supra note 614, at 171 (``Well, 
clearly it's an appearance of a conflict.''); Hill-Holmes Public 
Hearing, supra note 636, at 89:20-90:3 (Hill affirming that ``there are 
perceived conflict of interest troubles when the child of a government 
official is involved with something that that government official has 
an official policy role in''); Taylor Dep. Tr. at 90:3-5 (conceding 
that a reasonable person could say there are perceived conflicts of 
interest in Hunter Biden's position on Burisma's board).
    756. Letter from Lindsey O. Graham, Chairman, S. Comm. on 
Judiciary, to Michael R. Pompeo, Secretary of State, at 1 (Nov. 21, 
2019); see also Interfax-Ukraine, Court Seizes Property of Ex-minister 
Zlochevsky in Ukraine 09 PGO, Kyiv Post (Feb. 4, 2016), https://
perma.cc/P8RA-TKR6.
    757. John Solomon, The Ukraine Scandal Timeline Democrats and Their 
Media Allies Don't Want America to See, John Solomon Reports (Nov. 20, 
2019), https://perma.cc/FC8V-P2AG.
    758. Foreign Affairs Issue Launch with Former Vice President Joe 
Biden, Council on Foreign Relations (Jan. 23, 2018), https://
www.cfr.org/event/foreign-affairs-issue-launch-former-vice-president-
joe-biden (``[Y]ou're not getting the billion .  .  . I looked at them 
and said: I'm leaving in six hours. If the prosecutor is not fired, 
you're not getting the money.'').
    759. Kent Interview Tr. at 94:21-24.
    760. Andrew E. Kramer, Ukraine Ousts Viktor Shokin, Top Prosecutor, 
and Political Stability Hangs in the Balance, N.Y. Times (Mar. 29, 
2016), https://perma.cc/J2XH-JUWH.
    761. The Money Machine: How a High-Profile Corruption Investigation 
Fell Apart, supra note 740.
    762. Attorney John Buretta: In the Case of Burisma and Zlochevskiy 
I Met with Prosecutor General Yury Lutsenko, Burisma (Feb. 1, 2017), 
https://burisma-group.com/eng/media/attorney-john-buretta-in-the-case-
of-burisma-and-zlochevskiy-i-met-with-prosecutor-general-yury-
lutsenko/.
    763. As Vice President, Biden Said Ukraine Should Increase Gas 
Production. Then His Son Got a Job with a Ukrainian Gas Company, supra 
note 573 (``In an email interview with The Post, Shokin [the fired 
prosecutor] said he believes his ouster was because of his interest in 
[Burisma]. .  .  . Had he remained in his post, Shokin said, he would 
have questioned Hunter Biden.'').
    764. July 25 Call Mem., infra Appendix A, at 4.
    765. Id. (emphasis added).
    766. Id.
    767. See, e.g., Louis Nelson, Sen. Boxer Calls for Probe Into Trump 
Model Management, Politico (Sept. 7, 2016), https://perma.cc/8827-CT24; 
Josh Rogin, Democrats Ask the FBI to Investigate Trump Advisers' Russia 
Ties, Wash. Post (Aug. 30, 2016), https://perma.cc/7HAE-Y2NN.
    768. HPSCI Report at 29-30, 38.
    769. See Letter from Devin Nunes, Ranking Member, H.R. Permanent 
Select Comm. on Intelligence, to Adam Schiff, Chairman, House Permanent 
Select Comm. on Intelligence (Nov. 9, 2019); Letter from Doug Collins, 
Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, Chairman, 
H.R. Comm. on Judiciary (Dec. 6, 2019).
    770. See, e.g., Madeline Conway, Schiff: There is Now `More Than 
Circumstantial Evidence' of Trump-Russia Collusion, Politico (Mar. 22, 
2017), https://perma.cc/U9R4-MQVS.
    771. ```Duplicity' is the joining of two or more distinct and 
separate offenses in a single count''; ```[m]ultiplicity' is charging a 
single offense in several counts.'' 1A Charles Alan Wright et al., 
Federal Practice and Procedure Sec. 142 (4th ed. 2019); see, e.g., 
United States v. Root, 585 F.3d 145, 150 (3d Cir. 2009); United States 
v. Chrane, 529 F.2d 1236, 1237 n.3 (5th Cir. 1976).
    772. U.S. Const. art. I, Sec. 3, cl. 6.
    773. President Clinton was charged in one article of providing 
perjurious, false and misleading testimony on any ``one or more'' of 
four topics and in another article of obstruction through ``one or 
more'' of seven discrete ``acts'' that involved different behavior in 
different months with different persons. H.R. Res. 611, 105th Cong. 
(Dec. 19, 1998); see Proceedings of the U.S. Senate in the Impeachment 
Trial of President William Jefferson Clinton, 106th Cong., vol. I at 
472-75 (1999) (Clinton Senate Trial) (Trial Mem. of President Clinton).
    774. Id., vol. IV at 2745 (statement of Sen. Carl Levin).
    775. Id.
    776. Id. at 2655 (statement of Sen. Charles Robb).
    777. Id.
    778. Id., vol. II at 1875-76 (statement of Sen. Chris Dodd).
    779. Proceedings in the Trial of Andrew Johnson, President of the 
United States, Before the U.S. Senate, on Articles of Impeachment, 40th 
Cong. 6 (1868).
    780. Id. at 1073-75 (statement of Sen. John Henderson).
    781. Id. at 912 (statement of Sen. Garrett Davis).
    782. Proceedings of the U.S. Senate in the Impeachment Trial of 
Walter L. Nixon, Jr., a Judge of the U.S. District Court for the 
Southern District of Mississippi, 101st Cong., 1st Sess. 464 (1989) 
(Judge Nixon Senate Trial) (statement of Sen. Frank Murkowski); H.R. 
Rep. No. 101-36, 101st Cong. 656 (1989).
    783. Judge Nixon Senate Trial, supra note 782, at 449 (statement of 
Sen. Herbert Kohl). The Senate similarly refused to convict Judge 
Louderback on an omnibus article. In that case, Senator Josiah Bailey 
asserted that the article ``ought not to have been considered'' at all. 
Proceedings of the U.S. Senate in the Trial of Impeachment of Harold 
Louderback, U.S. District Judge for the Northern District of 
California, 73d Cong., 839-40 (1933) (statement of Sen. Josiah Bailey).
    Although the Senate has convicted a few lower court judges on 
duplicitous articles, those convictions provide no precedent to follow 
here. First, no duplicity objection appears to have been timely raised 
in those cases before the votes on conviction, and thus the Senate 
never squarely faced and decided the issue. See, e.g., 80 Cong. Rec. 
5606 (1936) (parliamentary inquiry based on duplicity raised only by a 
Senator after Judge Ritter was convicted).
    Second, far from being examples to follow, these judges' 
convictions only illustrate the constitutional danger of umbrella 
charges, which allow the form of the articles chosen by the House, 
rather than actual guilt or innocence, to determine conviction. Judge 
Ritter, for example, was charged with discrete impeachable acts in 
separate articles, with a catch-all article combining all of the prior 
articles tacked on. He was acquitted on each separate article, but 
convicted on the catch-all article that amounted to a charge of 
``general misbehavior.'' Id. at 5202-06.
    Third, that the Senate may have convicted a few lower court judges 
on duplicitous articles is hardly precedent to be followed in a 
presidential impeachment. See supra Standards Part B.3.
    784. H.R. Res. 755 art. I.
    785. H.R. Res. 755 art. II.
    786. Rules of Procedure and Practice in the Senate when Sitting on 
Impeachment Trials, Rule XXIII (``An article of impeachment shall not 
be divisible for the purpose of voting thereon at any time during the 
trial.''). The committee report accompanying this rule made clear that 
the ``more familiar'' practice was to ``embod[y] an impeachable offense 
in an individual article'' rather than relying on broad, potentially 
duplicitous articles. Amending the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials, Report of the Comm. on 
Rules and Admin., S. Rep. No. 99-401, 99th Cong., 8 (1986).
    787. The Federalist No. 65, at 400 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).

                               APPENDIX A

 MEMORANDUM OF JULY 25, 2019 TELEPHONE CONVERSATION BETWEEN PRESIDENT 
                     TRUMP AND PRESIDENT ZELENSKYY

                  Memorandum of Telephone Conversation

Subject: Telephone Conversation with President Zelensky of Ukraine.
Participants: President Zelensky of Ukraine. Notetakers: The White 
        House Situation Room.
Date, Time and Place: July 25, 2019, 9:03-9:33 a.m. EDT, Residence.

    The President: Congratulations on a great victory. We all watched 
from the United States and you did a terrific job. The way you came 
from behind, somebody who wasn't given much of a chance, and you ended 
up winning easily. It's a fantastic achievement. Congratulations.
    President Zelensky : You are absolutely right Mr . President. We 
did win big and we worked hard for this. We worked a lot but I would 
like to confess to you that I had an opportunity to learn from you. We 
used quite a few of your skills and knowledge and were able to use it 
as an example for our elections and yes it is true that these were 
unique elections. We were in a unique situation that we were able to 
achieve a unique success. I'm able to tell you the following; the first 
time, you called me to congratulate me when I won my presidential 
election, and the second time you are now calling me when my party won 
the parliamentary election. I think I should run more often so you can 
call me more often and we can talk over the phone more often.
    The President: [laughter] That's a very good idea. I think your 
country is very happy about that.
    President Zelensky: Well yes, to tell you the truth, we are trying 
to work hard because we wanted to drain the swamp here in our country. 
We brought in many many new people. Not the old politicians, not the 
typical politicians, because we want to have a new format and a new 
type of government. You are a great teacher for us and in that.
    The President: Well it's very nice of you to say that. I will say 
that we do a lot for Ukraine. We spend a lot of effort and a lot of 
time. Much more than the European countries are doing and they should 
be helping you more than they are. Germany does almost nothing for you. 
All they do is talk and I think it's something that you should really 
ask them about. When I was speaking to Angela Merkel she talks Ukraine, 
but she doesn't do anything. A lot of the European countries are the 
same way so I think it's something you want to look at but the United 
States has been very very good to Ukraine. I wouldn't say that it's 
reciprocal necessarily because things are happening that are not good 
but the United States has been very very good to Ukrane.
    President Zelensky: Yes you are absolutely right. Not only 100%, 
but actually 1000% and I can tell you the following; I did talk to 
Angela Merkel and I did meet with her. I also met and talked with 
Macron and I told them that they are not doing quite as much as they 
need to be doing on the issues with the sanctions. They are not 
enforcing the sanctions. They are not working as much as they should 
work for Ukraine. It turns out that even though logically, the European 
Union should be our biggest partner but technically the United States 
is a much bigger partner than the European Union and I'm very grateful 
to you for that because the United States is doing quite a lot for 
Ukraine. Much more than the European Union especially when we are 
talking about sanctions against the Russian Federation. I would also 
like to thank you for your great support in the area of defense. We are 
ready to continue to cooperate for the next steps specifically we are 
almost ready to buy more Javelins from the United States for defense 
purposes.
    CAUTION: A Memorandum of a Telephone Conversation (TELCON) is not a 
verbatim transcript of a discussion. The text in this document records 
the notes and recollections of Situation Room Duty Officers and NSC 
policy staff assigned to listen and memorialize the conversation in 
written form as the conversation takes place. A number of factors can 
affect the accuracy of the record, including poor telecommunications 
connections and variations in accent and/or interpretation. The word 
``inaudible'' is used to indicate portions of a conversation that the 
notetaker was unable to hear.
    The President: I would like you to do us a favor though because our 
country has been through a lot and Ukraine knows a lot about it. I 
would like you to find out what happened with this whole situation with 
Ukraine, they say Crowdstrike. . . I guess you have one of your wealthy 
people. . . The server, they say Ukraine has it. There are a lot of 
things that went on, the whole situation. I think you're surrounding 
yourself with some of the same people. I would like to have the 
Attorney General call you or your people and I would like you to get to 
the bottom of it As you saw yesterday, that whole nonsense ended with a 
very poor performance by a man named Robert Mueller, an incompetent 
performance, but they say a lot of it started with Ukraine. Whatever 
you can do, it's very important that you do it if that's possible.
    President Zelensky: Yes it is very important for me and everything 
that you just mentioned earlier. For me as a President, it is very 
important and we are open for any future cooperation. We are ready to 
open a new page on cooperation in relations between the United States 
and Ukraine. For that purpose, I just recalled our ambassador from 
United States and he will be replaced by a very competent and very 
experienced ambassador who will work hard on making sure that our two 
nations are getting closer. I would also like and hope to see him 
having your trust and your confidence and have personal relatives with 
you so we can cooperate even more so. I will personally tell you that 
one of my assistants spoke with Mr. Giuliani just recently and we are 
hoping very much that Mr. Giuliani will be able to travel to Ukraine 
and we will meet once he comes to Ukraine. I just wanted to assure you 
once again that you have nobody but friends around us. I will make sure 
that I surround myself with he best and most experienced people. I also 
wanted to tell you that we are friends. We are great friends and you 
Mr. President have friends in our country so we can continue our 
strategic partnership. I also plan to surround myself with great people 
and in addition to that investigation, I guarantee as the President of 
Ukraine that all the investigations will be done openly and candidly. 
That I can assure you.
    The President: Good because I heard you had a prosecutor who was 
very good and he was shut down and that's really unfair. A lot of 
people are talking about that, the way they shut your very good 
prosecutor down and you had some very bad people involved. Mr. Giuliani 
is a highly respected man. He was the mayor of New York City, a great 
mayor, and I would like him to call you. I will ask him to call you 
along with the Attorney General. Rudy very much knows what's happening 
and he is a very capable guy. If you could speak to him that would be 
great. The former ambassador from the United States, the woman, was bad 
news and the people she was dealing with in the Ukraine were bad news 
so I just want to let you know that. The other thing. There's a lot of 
talk about Biden's son, that Biden stopped the prosecution and a lot of 
people want to find out about that so whatever you can do with the 
Attorney General would be great. Biden went around bragging that he 
stopped the prosecution so if you can look into it. . . It sounds 
horrible to me.
    President Zelensky: I wanted to tell you about the prosecutor. 
First of all I understand and I'm knowledgeable about the situation. 
Since we have won the absolute majority in our Parliament, the next 
prosecutor general will be 100% my person, my candidate, who will be 
approved by the parliament and will start as a new prosecutor in 
September. He or she will look into the situation, specifically to the 
company that you mentioned in this issue. The issue of the 
investigation of the case is actually the issue of making sure to 
restore the honesty so we will take care of that and will work on the 
investigation of the case. On top of that, I would kindly ask you if 
you have any additional information that you can provide to us, it 
would be very helpful for the investigation to make sure that we 
administer justice in our country with regard to the Ambassador to the 
United States from Ukraine as far as I recall her name was Ivanovich. 
It was great that you were the first one who told me that she was a bad 
ambassador because I agree with you 100%. Her attitude towards me was 
far from the best as she admired the previous President and she was on 
his side. She would not accept me as a new President well enough.
    The President: Well, she's going to go through some things. I will 
have Mr. Giuliani give you a call and I am also going to have Attorney 
General Barr call and we will get to the bottom of it. I'm sure you 
will figure it out. I heard the prosecutor was treated very badly and 
he was a very fair prosecutor so good luck with everything. Your 
economy is going to get better and better I predict. You have a lot of 
assets. It's a great country. I have many Ukrainian friends, their 
incredible people.
    President Zelensky: I would like to tell you that I also have quite 
a few Ukrainian friends that live in the United States. Actually last 
time I traveled to the United States, I stayed in New York near Central 
Park and I stayed at the Trump Tower. I will talk to them and I hope to 
see them again in the future. I also wanted to thank you for your 
invitation to visit the United States, specifically Washington DC. On 
the other hand, I also want to ensure you that we will be very serious 
about the case and will work on the investigation. As to the economy, 
there is much potential for our two countries and one of the issues 
that is very important for Ukraine is energy independence. I believe we 
can be very successful and cooperating on energy independence with 
United States. We are already working on cooperation. We are buying 
American oil but I am very hopeful for a future meeting. We will have 
more time and more opportunities to discuss these opportunities and get 
to know each other better. I would like to thank you very much for your 
support.
    The President: Good. Well, thank you very much and I appreciate 
that. I will tell Rudy and Attorney General Barr to call. Thank you. 
Whenever you would like to come to the White House, feel free to call. 
Give us a date and we'll work that out. I look forward to seeing you.
    President Zelensky: Thank you very much. I would be very happy to 
come and would be happy to meet with you personally and get to know you 
better. I am looking forward to our meeting and I also would like to 
invite you to visit Ukraine and come to the city of Kyiv which is a 
beautiful city. We have a beautiful country which would welcome you. On 
the other hand, I believe that on September 1 we will be in Poland and 
we can meet in Poland hopefully. After that, it might be a very good 
idea for you to travel to Ukraine. We can either take my plane and go 
to Ukraine or we can take your plane, which is probably much better 
than mine.
    The President: Okay, we can work that out. I look forward to seeing 
you in Washington and maybe in Poland because I think we are going to 
be there at that time.
    President Zelensky: Thank you very much Mr. President.
    The President: Congratulations on a fantastic job you've done. The 
whole world was watching. I'm not sure it was so much of an upset but 
congratulations.
    President Zelensky: Thank you Mr. President bye-bye.

                               APPENDIX B

   UNAUTHORIZED SUBPOENAS PURPORTEDLY ISSUED PURSUANT TO THE HOUSE'S 
             IMPEACHMENT POWER BEFORE HOUSE RESOLUTION 660

    1. Subpoena from Eliot L. Engel to Michael R. Pompeo, Secretary of 
State (Sept. 27, 2019)
    2. Subpoena from Adam B. Schiff to Rudy Giuliani (Nov. 30, 2019)
    3. Subpoena from Elijah E. Cummings to John Michael Mulvaney, 
Acting White House Chief of Staff (Oct. 4, 2019)
    4. Subpoena from Adam B. Schiff to Mark T. Esper, Secretary of 
Defense (Oct. 7, 2019)
    5. Subpoena from Adam B. Schiff to Russell T. Vought, Acting 
Director of OMB (Oct. 7, 2019)
    6. Subpoena from Adam B. Schiff to Gordon Sondland, U.S. Ambassador 
to the European Union (Oct. 8, 2019)
    7. Subpoena from Adam B. Schiff to Igor Fruman (Oct. 10, 2019)
    8. Subpoena from Adam B. Schiff to Lev Parnas (Oct. 10, 2019)
    9. Subpoena from Adam B. Schiff to James Richard Perry, Secretary 
of Energy (Oct. 10, 2019)
    10. Subpoena from Adam B. Schiff to Marie Yovanovitch, former U.S. 
Ambassador to Ukraine (Oct. 11, 2019)
    11. Subpoena from Adam B. Schiff to Fiona Hill, former Senior 
Director for Russian and European Affairs, National Security Council 
(Oct. 14, 2019)
    12. Subpoena from Adam B. Schiff to George Kent, Deputy Assistant 
Secretary of State for European and Eurasian Affairs (Oct. 15, 2019)
    13. Subpoena from Adam B. Schiff to Dr. Charles Kupperman, former 
Deputy National Security Advisor (Oct. 21, 2019)
    14. Subpoena from Adam B. Schiff to William B. Taylor, Jr., Acting 
U.S. Ambassador to Ukraine (Oct. 21, 2019)
    15. Subpoena from Adam B. Schiff to Laura K. Cooper, Deputy 
Assistant Secretary of Defense for Russia (Oct. 23, 2019)
    16. Subpoena from Adam B. Schiff to Michael Duffey, Associate 
Director of National Security Programs, OMB (Oct. 24, 2019)
    17. Subpoena from Adam B. Schiff to Russell T. Vought, Acting 
Director of OMB (Oct. 24, 2019)
    18. Subpoena from Peter DeFazio to Emily W. Murphy, Administrator 
of General Services Administration (Oct. 24, 2019)
    19. Subpoena from Adam B. Schiff to Ulrich Brechbuhl, Counselor to 
Secretary of State (Oct. 25, 2019)
    20. Subpoena from Adam B. Schiff to Philip Reeker, Acting Assistant 
Secretary of State of European and Eurasian Affairs (Oct. 26, 2019)
    21. Subpoena from Adam B. Schiff to Alexander S. Vindman, Director 
for European Affairs, National Security Council (Oct. 29, 2019)
    22. Subpoena from Adam B. Schiff to Catherine Croft, Special 
Adviser for Ukraine Negotiations, Department of State (Oct. 30, 2019)
    23. Subpoena from Adam B. Schiff to Christopher Anderson, former 
Special Advisor for Ukraine Negotiations, Department of State (Oct. 30, 
2019)

                               APPENDIX C

   OFFICE OF LEGAL COUNSEL, MEMORANDUM OPINION RE: HOUSE COMMITTEES' 
        AUTHORITY TO INVESTIGATE FOR IMPEACHMENT (JAN. 19, 2019)

                        U.S. Department of Justice,
                                   Office of Legal Counsel,
                                  Washington, DC, January 19, 2020.

        MEMORANDUM FOR PAT A. CIPOLLONE COUNSEL TO THE PRESIDENT

Re: House Committees' Authority to Investigate for Impeachment.
    On September 24, 2019, Speaker of the House Nancy Pelosi 
``announc[ed]'' at a press conference that ``the House of 
Representatives is moving forward with an official impeachment 
inquiry'' into the President's actions and that she was ``directing . . 
. six Committees to proceed with'' several previously pending 
``investigations under that umbrella of impeachment inquiry.''\1\ 
Shortly thereafter, the House Committee on Foreign Affairs issued a 
subpoena directing the Secretary of State to produce a series of 
documents related to the recent conduct of diplomacy between the United 
States and Ukraine. See Subpoena of the Committee on Foreign Affairs 
(Sept. 27, 2019). In an accompanying letter, three committee chairmen 
stated that their committees jointly sought these documents, not in 
connection with legislative oversight, but ``[p]ursuant to the House of 
Representatives' impeachment inquiry.''\2\ In the following days, the 
committees issued subpoenas to the Acting White House Chief of Staff, 
the Secretary of Defense, the Secretary of Energy, and several others 
within the Executive Branch.
    Upon the issuance of these subpoenas, you asked whether these 
committees could compel the production of documents and testimony in 
furtherance of an asserted impeachment inquiry. We advised that the 
committees lacked such authority because, at the time the subpoenas 
were issued, the House had not adopted any resolution authorizing the 
committees to conduct an impeachment inquiry. The Constitution vests 
the ``sole Power of Impeachment'' in the House of Representatives. U.S. 
Const. art. I, Sec. 2, cl. 5. For precisely that reason, the House 
itself must authorize an impeachment inquiry, as it has done in 
virtually every prior impeachment investigation in our Nation's 
history, including every one involving a President. A congressional 
committee's ``right to exact testimony and to call for the production 
of documents'' is limited by the ``controlling charter'' the committee 
has received from the House. United States v. Rumely, 345 U.S. 41, 44 
(1953). Yet the House, by its rules, has authorized its committees to 
issue subpoenas only for matters within their legislative jurisdiction. 
Accordingly, no committee may undertake the momentous move from 
legislative oversight to impeachment without a delegation by the full 
House of such authority.
    We are not the first to reach this conclusion. This was the 
position of the House in the impeachments of Presidents Nixon and 
Clinton. In the case of President Nixon, following a preliminary 
inquiry, the House adopted a formal resolution as a ``necessary step'' 
to confer the ``investigative powers'' of the House ``to their full 
extent'' upon the Judiciary Committee. 120 Cong. Rec. 2350-51 (1974) 
(statement of Rep. Rodino); see H.R. Res. 803, 93d Cong. (1974). As the 
House Parliamentarian explained, it had been ``considered necessary for 
the House to specifically vest the Committee on the Judiciary with the 
investigatory and subpena power to conduct the impeachment 
investigation.'' 3 Lewis Deschler, Deschler's Precedents of the United 
States House of Representatives ch. 14, Sec. 5.2, at 2172 (1994) 
(Parliamentarian's Note).\3\ The House followed the same course in the 
impeachment of President Clinton. After reviewing the Independent 
Counsel's referral, the Judiciary Committee ``decided that it must 
receive authorization from the full House before proceeding on any 
further course of action.'' H.R. Rep. No. 105-795, at 24 (1998). The 
House again adopted a resolution authorizing the committee to issue 
compulsory process in support of an impeachment investigation. See H.R. 
Res. 581, 105th Cong. (1998). As Representative John Conyers summarized 
in 2016: ``According to parliamentarians of the House past and present, 
the impeachment process does not begin until the House actually votes 
to authorize [a] Committee to investigate the charges.''\4\
    In marked contrast with these historical precedents, in the weeks 
after the Speaker's announcement, House committees issued subpoenas 
without any House vote authorizing them to exercise the House's 
authority under the Impeachment Clause. The three committees justified 
the subpoenas based upon the Rules of the House, which authorize 
subpoenas for matters within a committee's jurisdiction. But the Rules 
assign only ``legislative jurisdiction[]'' and ``oversight 
responsibilities'' to the committees. H.R. Rules, 116th Cong., Rule X, 
cl. 1 (Jan. 11, 2019) (``Committees and their legislative 
jurisdictions''), cl. 2 (``General oversight responsibilities''); see 
also H.R. Rule X, cls. 3(m), 11. The House's legislative power is 
distinct from its impeachment power. Compare U.S. Const. art. I. 
Sec. 1, with id. art. I, Sec. 2, cl. 5. Although committees had that 
same delegation during the Clinton impeachment and a materially similar 
one during the Nixon impeachment, the House determined on both 
occasions that the Judiciary Committee required a resolution to 
investigate. Speaker Pelosi purported to direct the committees to 
conduct an ``official impeachment inquiry,'' but the House Rules do not 
give the Speaker any authority to delegate investigative power. The 
committees thus had no delegation authorizing them to issue subpoenas 
pursuant to the House's impeachment power.
    In the face of objections to the validity of the committee 
subpoenas that were expressed by the Administration, by ranking 
minority members in the House, and by many Senators, among others, on 
October 31, 2019, the House adopted Resolution 660, which ``directed'' 
six committees ``to continue their ongoing investigations'' as part of 
the ``existing House of Representatives inquiry into whether sufficient 
grounds exist'' to impeach President Trump. H.R. Res. 660, 116th Cong. 
Sec. 1 (2019). Resolution 660's direction, however, was entirely 
prospective. The resolution did not purport to ratify any previously 
issued subpoenas or even make any mention of them. Accordingly, the 
pre-October 31 subpoenas, which had not been authorized by the House, 
continued to lack compulsory force.\5\

                                   I.

    Since the start of the 116th Congress, some members of Congress 
have proposed that the House investigate and impeach President Trump. 
On January 3, 2019, the first day of the new Congress, Representative 
Brad Sherman introduced a resolution to impeach ``Donald John Trump, 
President of the United States, for high crimes and misdemeanors.'' 
H.R. Res. 13, 116th Cong. (2019). The Sherman resolution called for 
impeachment based upon the President's firing of the Director of the 
Federal Bureau of Investigation, James Comey. See id. Consistent with 
settled practice, the resolution was referred to the Judiciary 
Committee. See H.R. Doc. No. 115-177, Jefferson's Manual Sec. 605, at 
324 (2019).
    The Judiciary Committee did not act on the Sherman resolution, but 
it soon began an oversight investigation into related subjects that 
were also the focus of a Department of Justice investigation by Special 
Counsel Robert S. Mueller, III. On March 4, 2019, the committee served 
document requests on the White House and 80 other agencies, entities, 
and individuals, ``unveil[ing] an investigation . . . into the alleged 
obstruction of justice, public corruption, and other abuses of power by 
President Trump, his associates, and members of his 
Administration.''\6\ Those document requests did not mention 
impeachment.
    After the Special Counsel finished his investigation, the Judiciary 
Committee demanded his investigative files, describing its request as 
an exercise of legislative oversight authority. See Letter for William 
P. Barr, Attorney General, from Jerrold Nadler, Chairman, Committee on 
the Judiciary, U.S. House of Representatives at 3 (May 3, 2019) 
(asserting that ``[t]he Committee has ample jurisdiction under House 
Rule X(l) to conduct oversight of the Department [of Justice], 
undertake necessary investigations, and consider legislation regarding 
the federal obstruction of justice statutes, campaign-related crimes, 
and special counsel investigations, among other things''). The 
committee's subsequent letters and public statements likewise described 
its inquiry as serving a ``legislative purpose.'' E.g., Letter for Pat 
Cipollone, White House Counsel, from Jerrold Nadler, Chairman, 
Committee on the Judiciary, U.S. House of Representatives at 3-6 (May 
16, 2019) (describing the ``legislative purpose of the Committee's 
investigation'' (capitalization altered)).
    Over time, the Judiciary Committee expanded the description of its 
investigation to claim that it was considering impeachment. The 
committee first mentioned impeachment in a May 8, 2019 report 
recommending that the Attorney General be held in contempt of Congress. 
In a section entitled ``Authority and Legislative Purpose,'' the 
committee stated that one purpose of the inquiry was to determine 
``whether to approve articles of impeachment with respect to the 
President or any other Administration official.'' H.R. Rep. No. 116-
105, at 12, 13 (2019).\7\
    The committee formally claimed to be investigating impeachment when 
it petitioned the U.S. District Court for the District of Columbia to 
release grand-jury information related to the Special Counsel's 
investigation. See Application at 1-2, In re Application of the Comm. 
on the Judiciary, U.S. House of Reps., No. 19-gj-48 (D.D.C. July 26, 
2019); see also Memorandum for Members of the Committee on the 
Judiciary from Jerrold Nadler, Chairman, Re: Lessons from the Mueller 
Report, Part III: ``Constitutional Processes for Addressing 
Presidential Misconduct'' at 3 (July 11, 2019) (advising that the 
Committee would seek documents and testimony ``to determine whether the 
Committee should recommend articles of impeachment against the 
President or any other Article I remedies, and if so, in what 
form'').\8\ The committee advanced the same contention when asking the 
district court to compel testimony before the committee by former White 
House Counsel Donald McGahn. See Compl. for Declaratory and Injunctive 
Relief 1, Comm. on the Judiciary, U.S. House of Reps. v. McGahn, No. 
19-cv-2379 (D.D.C. Aug. 7, 2019) (contending that the Judiciary 
Committee was ``now determining whether to recommend articles of 
impeachment against the President based on the obstructive conduct 
described by the Special Counsel'').
    In connection with this litigation, Chairman Nadler described the 
committee as conducting ``formal impeachment proceedings.'' David 
Priess & Margaret Taylor, What if the House Held Impeachment 
Proceedings and Nobody Noticed?, Lawfare (Aug. 12, 2019), 
www.lawfareblog.com/what-if-house-held-impeachment-proceedings-and-
nobody-noticed (chronicling the evolution in Chairman Nadler's 
descriptions of the investigation). Those assertions coincided with 
media reports that Chairman Nadler had privately asked Speaker Pelosi 
to support the opening of an impeachment inquiry. See, e.g., Andrew 
Desiderio, Nadler: `This is Formal Impeachment Proceedings,' Politico 
(Aug. 8, 2019), www.politico.com/story/2019/08/ 08/nadler-this-is-
formal-impeachment-proceedings-1454360 (noting that Nadler ``has 
privately pushed Speaker Nancy Pelosi to support a formal inquiry of 
whether to remove the president from office''). On September 12, the 
Judiciary Committee approved a resolution describing its investigation 
as an impeachment inquiry and adopting certain procedures for the 
investigation. See Resolution for Investigative Procedures Offered by 
Chairman Jerrold Nadler, H. Comm. on the Judiciary, 116th Cong. (Sept. 
12, 2019), docs.house.gov/meetings/JU/JU00/20190912/ 109921/BILLS-
116pih- ResolutionforInvestigative Procedures.pdf.
    Speaker Pelosi did not endorse the Judiciary Committee's 
characterization of its investigation during the summer of 2019. But 
she later purported to announce a formal impeachment inquiry in 
connection with a separate matter arising out of a complaint filed with 
the Inspector General of the Intelligence Community. The complaint, 
cast in the form of an unsigned letter to the congressional 
intelligence committees, alleged that, in a July 25, 2019 telephone 
call, the President sought to pressure Ukrainian President Volodymyr 
Zelensky to investigate the prior activities of one of the President's 
potential political rivals. See Letter for Richard Burr, Chairman, 
Select Committee on Intelligence, U.S. Senate, and Adam Schiff, 
Chairman, Permanent Select Committee on Intelligence, U.S. House of 
Representatives at 2-3 (Aug. 12, 2019). After the Inspector General 
reported the existence of the complaint to the intelligence committees, 
the President declassified the official record of the July 25 telephone 
call and the complaint, and they were publicly released on September 25 
and 26, respectively.
    On September 24, the day before the release of the call record, 
Speaker Pelosi ``announc[ed]'' that ``the House of Representatives is 
moving forward with an official impeachment inquiry'' and that she was 
``direct[ing] . . . six [c]ommittees to proceed with their 
investigations under that umbrella of impeachment inquiry.'' Pelosi 
Press Release, supra note 1. In an October 8, 2019 court hearing, the 
House's General Counsel invoked the Speaker's announcement as 
purportedly conclusive proof that the House had opened an impeachment 
inquiry. Tr. of Mot. Hrg. at 23, In re Application of the Comm. on the 
Judiciary (``We are in an impeachment inquiry, an impeachment 
investigation, a formal impeachment investigation because the House 
says it is. The speaker of the House has specifically said that it 
is.'').
    On September 27, Chairman Engel of the Foreign Affairs Committee 
issued a subpoena to Secretary of State Pompeo ``[p]ursuant to the 
House of Representatives' impeachment inquiry.'' Three Chairmen's 
Letter, supra note 2, at 1. That subpoena was the first to rely on the 
newly proclaimed ``impeachment inquiry.'' A number of subpoenas 
followed, each of which was accompanied by a letter signed by the 
chairmen of three committees (Foreign Affairs, Oversight and Reform, 
and the Permanent Select Committee on Intelligence (``HPSCI'')). 
Although the September 27 letter mentioned only the ``impeachment 
inquiry'' as a basis for the accompanying subpoena, subsequent letters 
claimed that other subpoenas were issued both ``[p]ursuant to the House 
of Representatives' impeachment inquiry'' and ``in exercise of'' the 
committees' ``oversight and legislative jurisdiction.''\9\
    Following service of these subpoenas, you and other officials 
within the Executive Branch requested our advice with respect to the 
obligations of the subpoenas' recipients. We advised that the subpoenas 
were invalid because, among other reasons, the committees lacked the 
authority to conduct the purported inquiry and, with respect to several 
testimonial subpoenas, the committees impermissibly sought to exclude 
agency counsel from scheduled depositions. In reliance upon that 
advice, you and other responsible officials directed employees within 
their respective departments and agencies not to provide the documents 
and testimony requested under those subpoenas.
    On October 8, 2019, you sent a letter to Speaker Pelosi and the 
three chairmen advising them that their purported impeachment inquiry 
was ``constitutionally invalid'' because the House had not authorized 
it.\10\ The House Minority Leader, Kevin McCarthy, and the Ranking 
Member of the Judiciary Committee, Doug Collins, had already made the 
same objection.\11\ Senator Lindsey Graham introduced a resolution in 
the Senate, co-sponsored by 49 other Senators, which objected to the 
House's impeachment process because it had not been authorized by the 
full House and did not provide the President with the procedural 
protections enjoyed in past impeachment inquiries. S. Res. 378, 116th 
Cong. (2019).
    On October 25, 2019, the U.S. District Court for the District of 
Columbia granted the Judiciary Committee's request for grand-jury 
information from the Special Counsel's investigation, holding that the 
committee was conducting an impeachment inquiry that was 
``preliminar[y] to . . . a judicial proceeding,'' for purposes of the 
exception to grand-jury secrecy in Rule 6(e)(3)(E)(i) of the Federal 
Rules of Criminal Procedure. See In re Application of the Comm. on the 
Judiciary, U.S. House of Reps., No. 19-gj-48, 2019 WL 5485221 (D.D.C. 
Oct. 25, 2019), stay granted, No. 19-5288 (D.C. Cir. Oct. 29, 2019), 
argued (D.C. Cir. Jan. 3, 2020). In so holding, the court concluded 
that the House need not adopt a resolution before a committee may begin 
an impeachment inquiry. Id. at *26-28. As we discuss below, the 
district court's analysis of this point relied on a misreading of the 
historical record.
    Faced with continuing objections from the Administration and 
members of Congress to the validity of the impeachment-related 
subpoenas, the House decided to take a formal vote to authorize the 
impeachment inquiry. See Letter for Democratic Members of the House 
from Nancy Pelosi, Speaker of the House (Oct. 28, 2019). On October 31, 
the House adopted a resolution ``direct[ing]'' several committees ``to 
continue their ongoing investigations as part of the existing House of 
Representatives inquiry into whether sufficient grounds exist for the 
House of Representatives to exercise its Constitutional power to 
impeach Donald John Trump, President of the United States of America.'' 
Resolution 660, Sec. 1. The resolution also adopted special procedures 
for impeachment proceedings before HPSCI and the Judiciary Committee.

                                  II.

    The Constitution vests in the House of Representatives a share of 
Congress's legislative power and, separately, ``the sole Power of 
Impeachment.'' U.S. Const. art. I, Sec. 1; id. art. I, Sec. 2, cl. 5. 
Both the legislative power and the impeachment power include an implied 
authority to investigate, including by means of compulsory process. But 
those investigative powers are not interchangeable. The House has 
broadly delegated to committees its power to investigate for 
legislative purposes, but it has held impeachment authority more 
closely, granting authority to conduct particular impeachment 
investigations only as the need has arisen. The House has followed that 
approach from the very first impeachment inquiry through dozens more 
that have followed over the past 200 years, including every inquiry 
involving a President.
    In so doing, the House has recognized the fundamental difference 
between a legislative oversight investigation and an impeachment 
investigation. The House does more than simply pick a label when it 
``debate[s] and decide[s] when it wishes to shift from legislating to 
impeaching'' and to authorize a committee to take responsibility for 
``the grave and weighty process of impeachment.'' Trump v. Mazars USA, 
LLP, 940 F.3d 710, 737, 738 (D.C. Cir. 2019), cert. granted, No. 19-715 
(Dec. 13, 2019); see also id. at 757 (Rao, J., dissenting) (recognizing 
that ``the Constitution forces the House to take accountability for its 
actions when investigating the President's misconduct''). Because a 
legislative investigation seeks ``information respecting the conditions 
which the legislation is intended to affect or change,'' McGrain v. 
Daugherty, 273 U.S. 135, 175 (1927), ``legislative judgments normally 
depend more on the predicted consequences of proposed legislative 
actions and their political acceptability, than on precise 
reconstruction of past events,'' Senate Select Comm. on Presidential 
Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en 
banc). By contrast, an impeachment inquiry must evaluate whether a 
civil officer did, or did not, commit treason, bribery, or another high 
crime or misdemeanor, U.S. Const. art. II, Sec. 4, and it is more 
likely than a legislative oversight investigation to call for the 
reconstruction of past events.
    Thus, the House has traditionally marked the shift to an 
impeachment inquiry by adopting a resolution that authorizes a 
committee to investigate through court-like procedures differing 
significantly from those used in routine oversight. See, e.g., 
Jefferson's Manual Sec. 606, at 324 (recognizing that, in modern 
practice, ``the sentiment of committees has been in favor of permitting 
the accused to explain, present witnesses, cross-examine, and be 
represented by counsel'' (citations omitted)); see also Cong. Research 
Serv., R45983, Congressional Access to Information in an Impeachment 
Investigation 15 (Oct. 25, 2019) (``[D]uring both the Nixon and Clinton 
impeachment investigations, the House Judiciary Committee adopted 
resolutions affording the President and his counsel the right to 
respond to evidence gathered by the committee, raise objections to 
testimony, and cross-examine witnesses[.]'').\12\ A House resolution 
authorizing the opening of an impeachment inquiry plays a highly 
significant role in directing the scope and nature of the 
constitutional inquest that follows.
    Such a resolution does not just reflect traditional practice. It is 
a constitutionally required step before a committee may exercise 
compulsory process in aid of the House's ``sole Power of Impeachment.'' 
U.S. Const. art. I, Sec. 2, cl. 5. In this Part, we explain the basis 
for this conclusion. First, we address the constitutional distinction 
between the House's power to investigate for legislative purposes and 
for impeachment purposes. We next explain why an impeachment inquiry 
must be authorized by the House itself. Finally, we review the 
historical record, which confirms, across dozens of examples, that the 
House must specifically authorize committees to conduct impeachment 
investigations and to issue compulsory process.
                                   a.
    The Constitution vests several different powers in the House of 
Representatives. As one half of Congress, the House shares with the 
Senate the ``legislative Powers'' granted in the Constitution (U.S. 
Const. art. I, Sec. 1), which include the ability to pass bills (id. 
art. I, Sec. 7, cl. 2) and to override presidential vetoes (id. art. I, 
Sec. 7, cl. 3) in the process of enacting laws pursuant to Congress's 
enumerated legislative powers (e.g., id. art. I, Sec. 8), including the 
power to appropriate federal funds (id. art. I, Sec. 9, cl. 7). But the 
House has other, non-legislative powers. It is, for instance, ``the 
Judge of the Elections, Returns and Qualifications of its own 
Members.'' Id. art. I, Sec. 5, cl. 1. And it has ``the sole Power of 
Impeachment.'' Id. art. I, Sec. 2, cl. 5.
    The House and Senate do not act in a legislative role in connection 
with impeachment. The Constitution vests the House with the authority 
to accuse civil officers of ``Treason, Bribery, or other high Crimes 
and Misdemeanors'' that warrant removal and disqualification from 
office. U.S. Const. art. I, Sec. 2, cl. 5; id. art. I, Sec. 3, cl. 7; 
id. art. II, Sec. 4. As Alexander Hamilton explained, the members of 
the House act as ``the inquisitors for the nation.'' The Federalist No. 
65, at 440 (Jacob E. Cooke ed., 1961). And Senators, in turn, act ``in 
their judicial character as a court for the trial of impeachments.'' 
Id. at 439; see also The Federalist No. 66, at 445-46 (defending the 
``partial intermixture'' in the impeachment context of usually 
separated powers as ``not only proper, but necessary to the mutual 
defense of the several members of the government, against each other''; 
noting that dividing ``the right of accusing'' from ``the right of 
judging'' between ``the two branches of the legislature . . . avoids 
the inconvenience of making the same persons both accusers and 
judges''). The House's impeachment authority differs fundamentally in 
character from its legislative power.
    With respect to both its legislative and its impeachment powers, 
the House has corresponding powers of investigation, which enable it to 
collect the information necessary for the exercise of those powers. The 
Supreme Court has explained that ``[t]he power of inquiry--with process 
to enforce it--is an essential and appropriate auxiliary to the 
legislative function.'' McGrain, 273 U.S. at 174. Thus, in the 
legislative context, the House's investigative power ``encompasses 
inquiries concerning the administration of existing laws as well as 
proposed or possibly needed statutes.'' Watkins v. United States, 354 
U.S. 178, 187 (1957); see also Scope of Congressional Oversight and 
Investigative Power with Respect to the Executive Branch, 9 Op. O.L.C. 
60, 60 (1985) (``Congress may conduct investigations in order to obtain 
facts pertinent to possible legislation and in order to evaluate the 
effectiveness of current laws.''). The Court has further recognized 
that the House also has implied powers to investigate in support of its 
other powers, including its power of impeachment. See, e.g., Kilbourn 
v. Thompson, 103 U.S. 168, 190 (1880); see also In re Request for 
Access to Grand Jury Materials, 833 F.2d 1438, 1445 (11th Cir. 1987) 
(the House ``holds investigative powers that are ancillary to its 
impeachment power''); Mazars USA, 940 F.3d at 749 (Rao, J., dissenting) 
(``The House . . . has a separate power to investigate pursuant to 
impeachment[.]'').
    Because the House has different investigative powers, establishing 
which authority has been delegated has often been necessary in the 
course of determining the scope of a committee's authority to compel 
witnesses and testimony. In addressing the scope of the House's 
investigative powers, all three branches of the federal government have 
recognized the constitutional distinction between a legislative 
investigation and an impeachment inquiry.
1.
    We begin with the federal courts. In Kilbourn, the Supreme Court 
held that a House committee could not investigate a bankrupt company 
indebted to the United States because its request exceeded the scope of 
the legislative power. According to the Court, the committee had 
employed investigative power to promote the United States' interests as 
a creditor, rather than for any valid legislative purpose. See 103 U.S. 
at 192-95. At the same time, the Court conceded that ``the whole aspect 
of the case would have been changed'' if ``any purpose had been avowed 
to impeach the [S]ecretary'' of the Navy for mishandling the debts of 
the United States. Id. at 193. But, after reviewing the resolution 
authorizing the actions of the committee, the Court confirmed that the 
House had not authorized any impeachment inquiry. Id.
    In a similar vein, the D.C. Circuit distinguished the needs of the 
House Judiciary Committee, which was conducting an impeachment inquiry 
into the actions of President Nixon, from those of the Senate Select 
Committee on Presidential Campaign Activities, whose investigation was 
premised upon legislative oversight. See Senate Select Comm., 498 F.2d 
at 732. The court recognized that the impeachment investigation was 
rooted in ``an express constitutional source'' and that the House 
committee's investigative needs differed in kind from the Senate 
committee's oversight needs. Id. In finding that the Senate committee 
had not demonstrated that President Nixon's audiotapes were ``critical 
to the performance of its legislative functions,'' the court recognized 
``a clear difference between Congress's legislative tasks and the 
responsibility of a grand jury, or any institution engaged in like 
functions,'' such as the House Judiciary Committee, which had ``begun 
an inquiry into presidential impeachment.'' Id. (emphases added).
    More recently, the D.C. Circuit acknowledged this same distinction 
in Mazars USA. As the majority opinion explained, ``the Constitution 
has left to Congress the judgment whether to commence the impeachment 
process'' and to decide whether the conduct in question is ``better 
addressed through oversight and legislation than impeachment.'' 940 
F.3d at 739. Judge Rao's dissent also recognized the distinction 
between a legislative oversight investigation and an impeachment 
inquiry. See id. at 757 (``The Framers established a mechanism for 
Congress to hold even the highest officials accountable, but also 
required the House to take responsibility for invoking this power.''). 
Judge Rao disagreed with the majority insofar as she understood 
Congress's impeachment power to be the sole means for investigating 
past misconduct by impeachable officers. But both the majority and the 
dissent agreed with the fundamental proposition that the Constitution 
distinguishes between investigations pursuant to the House's 
impeachment authority and those that serve its legislative authority 
(including oversight).
2.
    The Executive Branch similarly has long distinguished between 
investigations for legislative and for impeachment purposes. In 1796, 
the House ``[r]esolved'' that President Washington ``be requested to 
lay before th[e] House a copy of the instructions'' given to John Jay 
in preparation for his negotiation of a peace settlement with Great 
Britain. 5 Annals of Cong. 759-62 (1796). Washington refused to comply 
because the Constitution contemplates that only the Senate, not the 
House, must consent to a treaty. See id. at 760-61. ``It d[id] not 
occur'' to Washington ``that the inspection of the papers asked for, 
c[ould] be relative to any purpose under the cognizance of the House of 
Representatives, except that of an impeachment.'' Id. at 760 (emphasis 
added). Because the House's ``resolution ha[d] not expressed'' any 
purpose of pursuing impeachment, Washington concluded that ``a just 
regard to the constitution . . . forb[ade] a compliance with [the 
House's] request'' for documents. Id. at 760, 762.
    In 1832, President Jackson drew the same line. A select committee 
of the House had requested that the Secretary of War ``furnish[]'' it 
``with a copy'' of an unratified 1830 treaty with the Chickasaw Tribe 
and ``the journal of the commissioners'' who negotiated it. H.R. Rep. 
No. 22-488, at 1 (1832). The Secretary conferred with Jackson, who 
refused to comply with the committee's request on the same ground cited 
by President Washington: he ``d[id] not perceive that a copy of any 
part of the incomplete and unratified treaty of 1830, c[ould] be 
relative to any purpose under the cognizance of the House of 
Representatives, except that of an impeachment, which the resolution 
has not expressed.''' Id. at 14 (reprinting Letter for Charles A. 
Wickliffe, Chairman, Committee on Public Lands, U.S. House of 
Representatives, from Lewis Cass, Secretary of War (Mar. 2, 1832)).
    In 1846, another House select committee requested that President 
Polk account for diplomatic expenditures made in previous 
administrations by Secretary of State Daniel Webster. Polk refused to 
disclose information but ``cheerfully admitted'' that the House may 
have been entitled to such information if it had ``institute[d] an 
[impeachment] inquiry into the matter.'' Cong. Globe, 29th Cong., 1st 
Sess. 698 (1846).\13\ Notably, he took this position even though some 
members of Congress had suggested that evidence about the expenditures 
could support an impeachment of Webster.\14\ In these and other 
instances, the Executive Branch has consistently drawn a distinction 
between the power of legislative oversight and the power of 
impeachment. See Mazars USA, 940 F.3d at 761-64 (Rao, J., dissenting) 
(discussing examples from the Buchanan, Grant, Cleveland, Theodore 
Roosevelt, and Coolidge Administrations).
3.
    House members, too, have consistently recognized the difference 
between a legislative oversight investigation and an impeachment 
investigation. See Alissa M. Dolan et al., Cong. Research Serv., 
RL30240, Congressional Oversight Manual 25 (Dec. 19, 2014) (``A 
committee's inquiry must have a legislative purpose or be conducted 
pursuant to some other constitutional power of Congress, such as the 
authority .  .  . to .  .  . conduct impeachment proceedings.'' 
(emphases added)); Cong. Research Serv., Congressional Access to 
Information in an Impeachment Investigation at 1 (distinguishing 
between ``legislative investigation[s]'' and ``[m]uch more rare[]'' 
``impeachment investigation[s]'').
    For instance, in 1793, when debating the House's jurisdiction to 
investigate Secretary of the Treasury Alexander Hamilton, some members 
argued that the House could not adopt a resolution of investigation 
into Hamilton's conduct without adopting the ``solemnities and guards'' 
of an impeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) 
(statement of Rep. Smith); id. at 947-48 (statement of Rep. Boudinot) 
(distinguishing between the House's ``Legislative capacity'' and its 
role as ``the grand inquest of the Nation''); see also Mazars USA, 940 
F.3d at 758 (Rao, J., dissenting) (discussing the episode). In 1796, 
when the House debated whether to request the President's instructions 
for negotiating the Jay Treaty, Representative Murray concluded that 
the House could not meddle in treatymaking, but acknowledged that ``the 
subject would be presented under an aspect very different'' if the 
resolution's supporters had ``stated the object for which they called 
for the papers to be an impeachment.'' 5 Annals of Cong. 429-30 (1796).
    Similarly, in 1846, a House select committee agreed with President 
Polk's decision not to turn over requested information regarding State 
Department expenditures where the House did not act ``with a view to an 
impeachment.'' H.R. Rep. No. 29-684, at 4 (1846) (noting that four of 
the committee's five members ``entirely concur with the President of 
the United States'' in deciding not to ``communicate or make [the 
requested documents] public, except with a view to an impeachment'' and 
that ``[n]o dissent from the views of that message was expressed by the 
House''); see also Mazars USA, 940 F.3d at 761 (Rao, J., dissenting). 
To take another example, in 1879, the House Judiciary Committee 
distinguished ``[i]nvestigations looking to the impeachment of public 
officers'' from ``an ordinary investigation for legislative purposes.'' 
H.R. Rep. No. 45-141, at 2 (1879).
    Most significantly, during the impeachments of Presidents Nixon and 
Clinton, the House Judiciary Committee determined that the House must 
provide express authorization before any committee may exercise 
compulsory powers in an impeachment investigation. See infra Part 
II.C.1. Thus, members of the House, like the other branches of 
government, have squarely recognized the distinction between 
congressional investigations for impeachment purposes and those for 
legislative purposes.
                                   b.
    Although the House of Representatives has ``the sole Power of 
Impeachment,'' U.S. Const. art. I, Sec. 2, cl. 5 (emphasis added), the 
associated power to conduct an investigation for impeachment purposes 
may, like the House's other investigative powers, be delegated. The 
full House may make such a delegation by adopting a resolution in 
exercise of its authority to determine the rules for its proceedings, 
see id. art. I, Sec. 5, cl. 2, and each House has broad discretion in 
determining the conduct of its own proceedings. See, e.g., NLRB v. Noel 
Canning, 573 U.S. 513, 551-52 (2014); United States v. Ballin, 144 U.S. 
1, 5 (1892); see also 1 Deschler's Precedents ch. 5, Sec. 4, at 305-06. 
But the House must actually exercise its discretion by making that 
judgment in the first instance, and its resolution sets the terms of a 
committee's authority. See United States v. Rumely, 345 U.S. 41, 44 
(1953). No committee may exercise the House's investigative powers in 
the absence of such a delegation.
    As the Supreme Court has explained in the context of legislative 
oversight, ``[t]he theory of a committee inquiry is that the committee 
members are serving as the representatives of the parent assembly in 
collecting information for a legislative purpose'' and, in such 
circumstances, committees ``are endowed with the full power of the 
Congress to compel testimony.'' Watkins, 354 U.S. at 200-01. The same 
is true for impeachment investigations.\15\ Thus, Hamilton recognized, 
the impeachment power involves a trust of such ``delicacy and 
magnitude'' that it ``deeply concerns the political reputation and 
existence of every man engaged in the administration of public 
affairs.'' The Federalist No. 65, at 440. The Founders foresaw that an 
impeachment effort would ``[i]n many cases . . . connect itself with 
the pre-existing factions'' and ``inlist all their animosities, 
partialities, influence and interest on one side, or on the other.'' 
Id. at 439. As a result, they placed the solemn authority to initiate 
an impeachment in ``the representatives of the nation themselves.'' Id. 
at 440. In order to entrust one of its committees to investigate for 
purposes of impeachment, the full House must ``spell out that group's 
jurisdiction and purpose.'' Watkins, 354 U.S. at 201. Otherwise, a 
House committee controlled by such a faction could launch open-ended 
and untethered investigations without the sanction of a majority of the 
House.
    Because a committee may exercise the House's investigative powers 
only when authorized, the committee's actions must be within the scope 
of a resolution delegating authority from the House to the committee. 
As the D.C. Circuit recently explained, ``it matters not whether the 
Constitution would give Congress authority to issue a subpoena if 
Congress has given the issuing committee no such authority.'' Mazars 
USA, 940 F.3d at 722; see Dolan, Congressional Oversight Manual at 24 
(``Committees of Congress only have the power to inquire into matters 
within the scope of the authority delegated to them by their parent 
body.''). In evaluating a committee's authority, the House's resolution 
``is the controlling charter of the committee's powers,'' and, 
therefore, the committee's ``right to exact testimony and to call for 
the production of documents must be found in this language.'' Rumely, 
345 U.S. at 44; see also Watkins, 354 U.S. at 201 (``Those instructions 
are embodied in the authorizing resolution. That document is the 
committee's charter.''); id. at 206 (``Plainly [the House's] committees 
are restricted to the missions delegated to them . . . . No witness can 
be compelled to make disclosures on matters outside that area.''); 
Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (``To issue a 
valid subpoena, . . . a committee or subcommittee must conform strictly 
to the resolution establishing its investigatory powers[.]''); United 
States v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (``No 
committee of either the House or Senate, and no Senator and no 
Representative, is free on its or his own to conduct investigations 
unless authorized. Thus it must appear that Congress empowered the 
Committee to act, and further that at the time the witness allegedly 
defied its authority the Committee was acting within the power granted 
to it.''). While a committee may study some matters without exercising 
the investigative powers of the House, a committee's authority to 
compel the production of documents and testimony depends entirely upon 
the jurisdiction provided by the terms of the House's delegation.
    In Watkins, the Supreme Court relied upon those principles to set 
aside a conviction for contempt of Congress because of the authorizing 
resolution's vagueness. The uncertain scope of the House's delegation 
impermissibly created ``a wide gulf between the responsibility for the 
use of investigative power and the actual exercise of that power.'' 354 
U.S. at 205. If the House wished to authorize the exercise of its 
investigative power, then it needed to take responsibility for the use 
of that power, because a congressional subpoena, issued with the threat 
of a criminal contempt citation, necessarily placed ``constitutional 
liberties'' in ``danger.'' Id.
    The concerns expressed by the Court in Watkins apply with equal, if 
not greater, force when considering the authority of a House committee 
to compel the production of documents in connection with investigating 
impeachment. As John Labovitz, a House impeachment attorney during the 
Nixon investigation, explained: ``[I]mpeachment investigations, because 
they involve extraordinary power and (at least where the president is 
being investigated) may have extraordinary consequences, are not to be 
undertaken in the same manner as run-of-the-mill legislative 
investigations. The initiation of a presidential impeachment inquiry 
should itself require a deliberate decision by the House.'' John R. 
Labovitz, Presidential Impeachment 184 (1978). Because a committee 
possesses only the authorities that have been delegated to it, a 
committee may not use compulsory process to investigate impeachment 
without the formal authorization of the House.
                                   c.
    Historical practice confirms that the House must authorize an 
impeachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 
2091 (2015) (recognizing that ``[i]n separation-of-powers cases,'' the 
Court has placed ``significant weight'' on ``accepted understandings 
and practice''); Noel Canning, 573 U.S. at 514 (same). The House has 
expressly authorized every impeachment investigation of a President, 
including by identifying the investigative committee and authorizing 
the use of compulsory process. The same thing has been true for nearly 
all impeachment investigations of other executive officials and judges. 
While committees have sometimes studied a proposed impeachment 
resolution or reviewed available information without conducting a 
formal investigation, in nearly every case in which the committee 
resorted to compulsory process, the House expressly authorized the 
impeachment investigation. That practice was foreseen as early as 1796. 
When Washington asked his Cabinet for opinions about how to respond to 
the House's request for the papers associated with the Jay Treaty, the 
Secretary of the Treasury, Oliver Wolcott Jr., explained that ``the 
House of Representatives has no right to demand papers'' outside its 
legislative function ``[e]xcept when an Impeachment is proposed & a 
formal enquiry instituted.'' Letter for George Washington from Oliver 
Wolcott Jr. (Mar. 26, 1796), reprinted in 19 The Papers of George 
Washington: Presidential Series 611-12 (David R. Hoth ed., 2016) 
(emphasis added).
    From the very first impeachment, the House has recognized that a 
committee would require a delegation to conduct an impeachment inquiry. 
In 1797, when House members considered whether a letter contained 
evidence of criminal misconduct by Senator William Blount, they sought 
to confirm Blount's handwriting but concluded that the Committee of the 
Whole did not have the power of taking evidence. See 7 Annals of Cong. 
456-58 (1797); 3 Asher C. Hinds, Hinds' Precedents of the House of 
Representatives of the United States Sec. 2294, at 644-45 (1907). Thus, 
the committee ``rose,'' and the House itself took testimony. 3 Hinds' 
Precedents Sec. 2294, at 646. Two days later, the House appointed a 
select committee to ``prepare and report articles of impeachment'' and 
vested in that committee the ``power to send for persons, papers, and 
records.'' 7 Annals of Cong. at 463-64, 466; 3 Hinds' Precedents 
Sec. 2297, at 648.\16\ As we discuss in this section, we have 
identified dozens of other instances where the House, in addition to 
referring proposed articles of impeachment, authorized formal 
impeachment investigations.
    Against this weighty historical record, which involves nearly 100 
authorized impeachment investigations, the outliers are few and far 
between.\17\ In 1879, it appears that a House committee, which was 
expressly authorized to conduct an oversight investigation into the 
administration of the U.S. consulate in Shanghai, ultimately 
investigated and recommended that the former consul-general and former 
vice consul-general be impeached. In addition, between 1986 and 1989, 
the Judiciary Committee considered the impeachment of three federal 
judges who had been criminally prosecuted (two of whom had been 
convicted). The Judiciary Committee pursued impeachment before there 
had been any House vote, and issued subpoenas in two of those 
inquiries. Since then, however, the Judiciary Committee reaffirmed 
during the impeachment of President Clinton that, in order to conduct 
an impeachment investigation, it needed an express delegation of 
investigative authority from the House. And in all subsequent cases the 
House has hewed to the well-established practice of authorizing each 
impeachment investigation.
    The U.S. District Court for the District of Columbia recently 
reviewed a handful of historical examples and concluded that House 
committees may conduct impeachment investigations without a vote of the 
full House. See In re Application of the Comm. on the Judiciary, 2019 
WL 5485221, at *26-28. Yet, as the discussion below confirms, the 
district court misread the lessons of history.\18\ The district court 
treated the House Judiciary Committee's preliminary inquiries in the 
Clinton and Nixon impeachments as investigations, without recognizing 
that, in both cases, the committee determined that a full House vote 
was necessary before it could issue subpoenas. The district court also 
treated the 1980s judicial inquiries as if they represented a rule of 
practice, rather than a marked deviation from the dozens of occasions 
where the House recognized the need to adopt a formal resolution to 
delegate its investigative authority. As our survey below confirms, the 
historical practice with respect to Presidents, other executive 
officers, and judges is consistent with the structure of our 
Constitution, which requires the House, as the ``sole'' holder of 
impeachment power, to authorize any impeachment investigation that a 
committee may conduct on its behalf.
1.
    While many Presidents have been the subject of less-formal demands 
for impeachment, at least eleven have faced resolutions introduced in 
the House for the purpose of initiating impeachment proceedings.\19\ In 
some cases, the House formally voted to reject opening a presidential 
impeachment investigation. In 1843, the House rejected a resolution 
calling for an investigation into the impeachment of President Tyler. 
See Cong. Globe, 27th Cong., 3d Sess. 144-46 (1843). In 1932, the House 
voted by a wide margin to table a similar resolution introduced against 
President Hoover. See 76 Cong. Rec. 399-402 (1932). In many other 
cases, the House simply referred impeachment resolutions to the 
Judiciary Committee, which took no further action before the end of the 
Congress. But, in three instances before President Trump, the House 
moved forward with investigating the impeachment of a President.\20\ 
Each of those presidential impeachments advanced to the investigative 
stage only after the House adopted a resolution expressly authorizing a 
committee to conduct the investigation. In no case did the committee 
use compulsory process until the House had expressly authorized the 
impeachment investigation.
    The impeachment investigation of President Andrew Johnson. On 
January 7, 1867, the House adopted a resolution authorizing the 
``Committee on the Judiciary'' to ``inquire into the official conduct 
of Andrew Johnson . . . and to report to this House whether, in their 
opinion,'' the President ``has been guilty of any act, or has conspired 
with others to do acts, which, in contemplation of the Constitution, 
are high crimes or misdemeanors.'' Cong. Globe, 39th Cong., 2d Sess. 
320-21 (1867); see also 3 Hinds' Precedents Sec. 2400, at 824. The 
resolution conferred upon the committee the ``power to send for persons 
and papers and to administer the customary oath to witnesses.'' Cong. 
Globe, 39th Cong., 2d Sess. 320 (1867). The House referred a second 
resolution to the Judiciary Committee on February 4, 1867. Id. at 991; 
3 Hinds' Precedents Sec. 2400, at 824.\21\ Shortly before that Congress 
expired, the committee reported that it had seen ``sufficient testimony 
. . . to justify and demand a further prosecution of the 
investigation.'' H.R. Rep. No. 39-31, at 2 (1867). On March 7, 1867, 
the House in the new Congress adopted a resolution that authorized the 
committee ``to continue the investigation authorized'' in the January 7 
resolution and to ``send for persons and papers'' and administer oaths. 
Cong. Globe, 40th Cong., 1st Sess. 18, 25 (1867); 3 Hinds' Precedents 
Sec. 2401, at 825-26. The committee recommended articles of 
impeachment, but the House rejected those articles on December 7, 1867. 
See Cong. Globe, 40th Cong., 2d Sess. 67-68 (1867). In early 1868, 
however, the House adopted resolutions authorizing another 
investigation, with compulsory powers, by the Committee on 
Reconstruction and transferred to that committee the evidence from the 
Judiciary Committee's earlier investigation. See Cong. Globe, 40th 
Cong., 2d Sess. 784-85, 1087 (1868); 3 Hinds' Precedents Sec. 2408, at 
845.
    On February 21, 1868, the impeachment effort received new impetus 
when Johnson removed the Secretary of War without the Senate's 
approval, contrary to the terms of the Tenure of Office Act, which 
Johnson (correctly) held to be an unconstitutional limit on his 
authority. See Cong. Globe, 40th Cong., 2d Sess. 1326-27 (1868); 3 
Hinds' Precedents Sec. 2408-09, at 845-47; see also Myers v. United 
States, 272 U.S. 52, 176 (1926) (finding that provision of the Tenure 
of Office Act ``was invalid''). That day, the Committee on 
Reconstruction reported an impeachment resolution to the House, which 
was debated on February 22 and passed on February 24. Cong. Globe, 40th 
Cong., 2d Sess. 1400 (1868); 3 Hinds' Precedents Sec. Sec. 2409-12, at 
846-51.
    The impeachment investigation of President Nixon. Although many 
resolutions were introduced in support of President Nixon's impeachment 
earlier in 1973, the House's formal impeachment inquiry arose in the 
months following the ``Saturday Night Massacre,'' during which 
President Nixon caused the termination of Special Prosecutor Archibald 
Cox at the cost of the resignations of his Attorney General and Deputy 
Attorney General. See Letter Directing the Acting Attorney General to 
Discharge the Director of the Office of Watergate Special Prosecution 
Force (Oct. 20, 1973), Pub. Papers of Pres. Richard Nixon 891 (1973). 
Immediately thereafter, House members introduced resolutions calling 
either for the President's impeachment or for the opening of an 
investigation.\22\ The Speaker of the House referred the resolutions 
calling for an investigation to the Rules Committee and those calling 
for impeachment to the Judiciary Committee. See Office of Legal 
Counsel, U.S. Dep't of Justice, Legal Aspects of Impeachment: An 
Overview at 40 (Feb. 1974) (``Legal Aspects of Impeachment''); 3 
Deschler's Precedents ch. 14, Sec. 5, at 2020.
    Following the referrals, the Judiciary Committee ``beg[a]n an 
inquiry into whether President Nixon ha[d] committed any offenses that 
could lead to impeachment,'' an exercise that the committee considered 
``preliminary.'' Richard L. Madden, Democrats Agree on House Inquiry 
into Nixon's Acts, N.Y. Times, Oct. 23, 1973, at 1. The committee 
started collecting publicly available materials, and Chairman Peter 
Rodino Jr. stated that he would ``set up a separate committee staff to 
`collate' investigative files from Senate and House committees that 
have examined a variety of charges against the Nixon Administration.'' 
James M. Naughton, Rodino Vows Fair Impeachment Inquiry, N.Y. Times, 
Oct. 30, 1973, at 32.
    Although the committee ``adopted a resolution permitting Mr. Rodino 
to issue subpoenas without the consent of the full committee,'' James 
M. Naughton, House Panel Starts Inquiry on Impeachment Question, N.Y. 
Times, Oct. 31, 1973, at 1, no subpoenas were ever issued under that 
purported authority. Instead, the committee ``delayed acting'' on the 
impeachment resolutions. James M. Naughton, House Unit Looks to 
Impeachment, N.Y. Times, Dec. 2, 1973, at 54. By late December, the 
committee had hired a specialized impeachment staff. A Hard-Working 
Legal Adviser: John Michael Doar, N.Y. Times, Dec. 21, 1973, at 20. The 
staff continued ```wading through the mass of material already made 
public,''' and the committee's members began considering ``the areas in 
which the inquiry should go.'' Bill Kovach, Vote on Subpoena Could Test 
House on Impeachment, N.Y. Times, Jan. 8, 1974, at 14; see also Staff 
of the H. Comm. on the Judiciary, 93d Cong., Rep. on Work of the 
Impeachment Inquiry Staff as of February 5, 1974, at 2-3 (1974) (noting 
that the staff was ``first collecting and sifting the evidence 
available in the public domain,'' then ``marshaling and digesting the 
evidence available through various governmental investigations''). By 
January 1974, the committee's actions had consisted of digesting 
publicly available documents and prior impeachment precedents. That was 
consistent with the committee's ``only mandate,'' which was to ``study 
more than a dozen impeachment resolutions submitted'' in 1973. James M. 
Naughton, Impeachment Panel Seeks House Mandate for Inquiry, N.Y. 
Times, Jan. 25, 1974, at 1.
    In January, the committee determined that a formal investigation 
was necessary, and it requested ``an official House mandate to conduct 
the inquiry,'' relying upon the ``precedent in each of the earlier 
[impeachment] inquiries.'' Id. at 17. On January 7, Chairman Rodino 
``announced that the Committee's subpoena power does not extend to 
impeachment and that . . . the Committee would seek express 
authorization to subpoena persons and documents with regard to the 
impeachment inquiry.'' Legal Aspects of Impeachment at 43; see also 
Richard L. Lyons, GOP Picks Jenner as Counsel, Wash. Post, Jan. 8, 
1974, at A1, A6 (``Rodino said the committee will ask the House when it 
reconvenes Jan. 21 to give it power to subpoena persons and documents 
for the inquiry. The committee's subpoena power does not now extend to 
impeachment proceedings, he said.''). As the House Parliamentarian 
later explained, the Judiciary Committee's general authority to conduct 
investigations and issue subpoenas ``did not specifically include 
impeachments within the jurisdiction of the Committee on the 
Judiciary,'' and it was therefore ``considered necessary for the House 
to specifically vest the Committee on the Judiciary with the 
investigatory and subpena power to conduct the impeachment 
investigation.'' 3 Deschler's Precedents ch. 14, Sec. 15.2, at 2172 
(Parliamentarian's Note).
    On February 6, 1974, the House approved Resolution 803, which 
``authorized and directed'' the Judiciary Committee ``to investigate 
fully and completely whether sufficient grounds exist for the House of 
Representatives to exercise its constitutional power to impeach Richard 
M. Nixon, President of the United States of America.'' H.R. Res. 803, 
93d Cong. Sec. 1. The resolution specifically authorized the committee 
``to require . . . by subpena or otherwise . . . the attendance and 
testimony of any person'' and ``the production of such things'' as the 
committee ``deem[ed] necessary'' to its investigation. Id. Sec. 2(a).
    Speaking on the House floor, Chairman Rodino described the 
resolution as a ``necessary step'' to confer the House's investigative 
powers on the Judiciary Committee:
    We have reached the point when it is important that the House 
explicitly confirm our responsibility under the Constitution.
    We are asking the House of Representatives, by this resolution, to 
authorize and direct the Committee on the Judiciary to investigate the 
conduct of the President of the United States . . . .
    As part of that resolution, we are asking the House to give the 
Judiciary Committee the power of subpena in its investigations.
    Such a resolution has always been passed by the House. . . . It is 
a necessary step if we are to meet our obligations.
    . . . .
    . . . The sole power of impeachment carries with it the power to 
conduct a full and complete investigation of whether sufficient grounds 
for impeachment exist or do not exist, and by this resolution these 
investigative powers are conferred to their full extent upon the 
Committee on the Judiciary.

120 Cong. Rec. 2350-51 (1974) (emphases added). During the debate, 
others recognized that the resolution would delegate the House's 
investigative powers to the Judiciary Committee. See, e.g., id. at 2361 
(statement of Rep. Rostenkowski) (``By delegating to the Judiciary 
Committee the powers contained in this resolution, we will be providing 
that committee with the resources it needs to inform the whole House of 
the facts of this case.''); id. at 2362 (statement of Rep. Boland) 
(``House Resolution 803 is intended to delegate to the Committee on the 
Judiciary the full extent of the powers of this House in an impeachment 
proceeding[]--both as to the persons and types of things that may be 
subpenaed and the methods for doing so.''). Only after the Judiciary 
Committee had received authorization from the House did it request and 
subpoena tape recordings and documents from President Nixon. See H.R. 
Rep. No. 93-1305, at 187 (1974).\23\
    The impeachment investigation of President Clinton. On September 9, 
1998, Independent Counsel Kenneth W. Starr, acting under 28 U.S.C. 
Sec. 595(c), advised the House of Representatives that he had uncovered 
substantial and credible information that he believed could constitute 
grounds for the impeachment of President Clinton. 18 Deschler's 
Precedents app. at 548-49 (2013). Two days later, the House adopted a 
resolution that referred the matter, along with Starr's report and 36 
boxes of evidence, to the Judiciary Committee. H.R. Res. 525, 105th 
Cong. (1998). The House directed that committee to review the report 
and ``determine whether sufficient grounds exist to recommend to the 
House that an impeachment inquiry be commenced.'' Id. Sec. 1. The Rules 
Committee's Chairman emphasized that the House would need to adopt a 
subsequent resolution if it decided to authorize an impeachment 
inquiry: ``[T]his resolution does not authorize or direct an 
impeachment inquiry. . . . It merely provides the appropriate 
parameters for the Committee on the Judiciary . . . to . . . make a 
recommendation to the House as to whether we should commence an 
impeachment inquiry.'' 144 Cong. Rec. 20021 (1998) (statement of Rep. 
Solomon).
    On October 7, 1998, the Judiciary Committee did recommend that 
there be an investigation for purposes of impeachment. As explained in 
the accompanying report: ``[T]he Committee decided that it must receive 
authorization from the full House before proceeding on any further 
course of action. Because impeachment is delegated solely to the House 
of Representatives by the Constitution, the full House of 
Representatives should be involved in critical decision making 
regarding various stages of impeachment.'' H.R. Rep. No. 105-795, at 24 
(emphasis added). The committee also observed that ``a resolution 
authorizing an impeachment inquiry into the conduct of a president is 
consistent with past practice,'' citing the resolutions for Presidents 
Johnson and Nixon and observing that ``numerous other inquiries were 
authorized by the House directly, or by providing investigative 
authorities, such as deposition authority, to the Committee on the 
Judiciary.'' Id.
    The next day, the House voted to authorize the Judiciary Committee 
to ``investigate fully and completely whether sufficient grounds exist 
for the House of Representatives to exercise its constitutional power 
to impeach William Jefferson Clinton, President of the United States of 
America.'' H.R. Res. 581, 105th Cong. Sec. 1 (1998). The resolution 
authorized the committee ``to require . . . by subpoena or otherwise . 
. . the attendance and testimony of any person'' and ``the production 
of . . . things,'' and to require the furnishing of information ``by 
interrogatory.'' Id. Sec. 2(a). ``On November 5, 1998,'' as part of its 
investigation, ``the Committee presented President Clinton with 81 
requests for admission,'' which the Committee explained that it ``would 
have . . . compelled by subpoena'' had President Clinton not complied. 
H.R. Rep. No. 105-830, at 77, 122 (1998). And the Committee then 
``approved the issuance of subpoenas for depositions and materials'' 
from several witnesses. 144 Cong. Rec. D1210-11 (daily ed. Dec. 17, 
1998).
    In discussing the Clinton precedent, the district court in In re 
Application of the Committee on the Judiciary treated the D.C. 
Circuit's approval of the disclosure of Starr's report and associated 
grand-jury information as evidence that the Judiciary Committee may 
``commence an impeachment investigation'' without a House vote. 2019 WL 
5485221, at *27 & n.36. But the D.C. Circuit did not authorize that 
disclosure because of any pending House investigation. It did so 
because a statutory provision required an independent counsel to 
``advise the House of Representatives of any substantial and credible 
information which such independent counsel receives . . . that may 
constitute grounds for an impeachment.'' 28 U.S.C. Sec. 595(c) 
(emphasis added). And the D.C. Circuit viewed the report as reflecting 
``information of the type described in 28 U.S.C. Sec. 595(c).'' In re 
Madison Guar. Sav. & Loan Ass'n, Div. No. 94-1 (D.C. Cir. Spec. Div. 
July 7, 1998), reprinted in H.R. Doc. No. 105-331, pt. 1, at 10 (1998). 
The order authorizing the transmission of that information to the House 
did not imply that any committee was conducting an impeachment 
investigation. To the contrary, after the House received the 
information, ``no person had access to'' it until after the House 
adopted a resolution referring the matter to the Judiciary Committee. 
H.R. Rep. No. 105-795, at 5. And the House then adopted a second 
resolution (Resolution 581) to authorize a formal investigation. In 
other words, the House voted to authorize the Judiciary Committee both 
to review the Starr evidence and to conduct an impeachment 
investigation. Neither the D.C. Circuit nor the Judiciary Committee 
suggested that any committee could have taken such action on its own.
2.
    The House has historically followed these same procedures in 
considering impeachment resolutions against executive branch officers 
other than the President. In many cases, an initial resolution laying 
out charges of impeachment or authorizing an investigation was referred 
to a select or standing committee.\24\ Following such a referral, the 
designated committee reviewed the matter and considered whether to 
pursue a formal impeachment inquiry--it did not treat the referral as 
stand-alone authorization to conduct an investigation. When a committee 
concluded that the charges warranted investigation, it reported to the 
full House, which then considered whether to adopt a resolution to 
authorize a formal investigation.
    For example, in March 1867, the House approved a resolution 
directing the Committee on Public Expenditures ``to inquire into the 
conduct of Henry A. Smythe, collector of the port of New York.'' Cong. 
Globe, 40th Cong., 1st Sess. 132 (1867); see also id. (noting that the 
resolution had been modified following debate ``so as to leave out that 
part about bringing articles of impeachment''). Weeks later, the House 
voted to authorize an impeachment investigation. Id. at 290 
(authorizing the investigating committee to ``send for persons and 
papers''). The House followed this same procedure in 1916 for U.S. 
Attorney H. Snowden Marshall. H.R. Res. 90, 64th Cong. (1916) (initial 
resolution referred to the Judiciary Committee); H.R. Res. 110, 64th 
Cong. (1916) (resolution approving the investigation contemplated in 
the initial resolution). And the process repeated in 1922 for Attorney 
General Harry Daugherty. H.R. Res. 425, 67th Cong. (1922) (referring 
the initial resolution to the committee); H.R. Res. 461, 67th Cong. 
(1922) (resolution approving the investigation contemplated in the 
initial resolution).
    In a few instances, the House asked committees to draft articles of 
impeachment without calling for any additional impeachment 
investigation. For example, in 1876, after uncovering ``unquestioned 
evidence of the malfeasance in office by General William W. Belknap'' 
(who was then Secretary of War) in the course of another investigation, 
the House approved a resolution charging the Committee on the Judiciary 
with the responsibility to ``prepare and report without unnecessary 
delay suitable articles of impeachment.'' 4 Cong. Rec. 1426, 1433 
(1876). When a key witness left the country, however, the committee 
determined that additional investigation was warranted, and it asked to 
be authorized ``to take further proof'' and ``to send for persons and 
papers'' in its search for alternative evidence. Id. at 1564, 1566; see 
also 3 Hinds' Precedents Sec. Sec. 2444-45, at 902-04.
    In some cases, the House declined to authorize a committee to 
investigate impeachment with the aid of compulsory process. In 1873, 
the House authorized the Judiciary Committee ``to inquire whether 
anything'' in testimony presented to a different committee implicating 
Vice President Schuyler Colfax ``warrants articles of impeachment of 
any officer of the United States not a member of this House, or makes 
it proper that further investigation should be ordered in his case.'' 
Cong. Globe, 42d Cong., 3d Sess. 1545 (1873); see 3 Hinds' Precedents 
Sec. 2510, at 1016-17. No further investigation was authorized. A 
similar sequence occurred in 1917 in the case of an impeachment 
resolution offered against members of the Federal Reserve Board. See 54 
Cong. Rec. 3126-30 (1917) (impeachment resolution); H.R. Rep. No. 64-
1628, at 1 (1917) (noting that following the referral of the 
impeachment resolution, the Committee had reviewed available 
information and determined that no further proceedings were warranted). 
In 1932, the House referred to the Judiciary Committee a resolution 
calling for the investigation of the possible impeachment of Secretary 
of the Treasury Andrew Mellon. H.R. Res. 92, 72d Cong. (1932); see also 
3 Deschler's Precedents ch. 14, Sec. 14.1, at 2134-39. The following 
month, the House approved a resolution discontinuing any investigation 
of the charges. 75 Cong. Rec. 3850 (1932); see also 3 Deschler's 
Precedents ch. 14, Sec. 14.2, at 2139-40.
    Most recently, in the 114th Congress, the House referred to the 
Judiciary Committee resolutions concerning the impeachment of the 
Commissioner of the Internal Revenue Service, John Koskinen. See H.R. 
Res. 494, 114th Cong. (2015); H.R. Res. 828, 114th Cong. (2016). 
Shortly after an attempt to force a floor vote on one of the 
resolutions, Koskinen voluntarily appeared before the committee at a 
hearing. See Impeachment Articles Referred on John Koskinen (Part III): 
Hearing Before the H. Comm. on the Judiciary, 114th Cong. 2 (2016). The 
ranking minority member, Representative John Conyers, observed that, 
despite the title, ``this is not an impeachment hearing'' because, 
``[a]ccording to parliamentarians of the House past and present, the 
impeachment process does not begin until the House actually votes to 
authorize this Committee to investigate the charges.'' Id. at 3; see 
also id. at 30 (similar statement by Rep. Johnson). During the hearing, 
Commissioner Koskinen offered to provide a list of supporting witnesses 
who could be cross-examined ``if the Committee decided it wanted to go 
to a full-scale impeachment process, which I understand this is not.'' 
Id. at 45. Two months later, one of the impeachment resolutions was 
briefly addressed on the floor of the House, and again referred to the 
Judiciary Committee, but without providing any investigative authority. 
See 162 Cong. Rec. H7251-54 (daily ed. Dec. 6, 2016). The committee 
never sought to compel the appearance of Koskinen or any other witness, 
and the committee does not appear to have taken any further action 
before the Congress expired.
    In his 1978 book on presidential impeachment, former House 
impeachment attorney John Labovitz observed that there were a ``few 
exceptions,'' ``mostly in the 1860s and 1870s,'' to the general rule 
that ``past impeachment investigations ha[ve] been authorized by a 
specific resolution conferring subpoena power.'' Labovitz, Presidential 
Impeachment at 182 & n.18. In our review of the history, we have 
identified one case from that era where a House committee commenced a 
legislative oversight investigation and subsequently moved, without 
separate authorization, to consider impeachment.\25\ But the 
overwhelming historical practice to the contrary confirms the Judiciary 
Committee's well-considered conclusions in 1974 and 1998 that a 
committee requires specific authorization from the House before it may 
use compulsory process to investigate for impeachment purposes.
3.
    The House has followed the same practice in connection with nearly 
all impeachment investigations involving federal judges. Committees 
sometimes studied initial referrals, but they waited for authorization 
from the full House before conducting any formal impeachment 
investigation. Three cases from the late 1980s departed from that 
pattern, but the House has returned during the past three decades to 
the historical baseline, repeatedly ensuring that the Judiciary 
Committee had a proper delegation for each impeachment investigation.
    The practice of having the House authorize each specific 
impeachment inquiry is reflected in the earliest impeachment 
investigations involving judges. In 1804, the House considered 
proposals to impeach two judges: Samuel Chase, an associate justice of 
the Supreme Court, and Richard Peters, a district judge. See 3 Hinds' 
Precedents Sec. 2342, at 711-16. There was a ``lengthy debate'' about 
whether the evidence was appropriate to warrant the institution of an 
inquiry. Id. at 712. The House then adopted a resolution appointing a 
select committee ``to inquire into the official conduct'' of Chase and 
Peters ``and to report'' the committee's ``opinion whether'' either of 
the judges had ``so acted, in their judicial capacity, as to require 
the interposition of the constitutional power of this House.'' 13 
Annals of Cong. 850, 875-76 (1804); 3 Hinds' Precedents Sec. 2342, at 
715. A few days later, another resolution ``authorized'' the committee 
``to send for persons, papers, and records.'' 13 Annals of Cong. at 
877; see also 3 Hinds' Precedents Sec. 2342, at 715. At the conclusion 
of its investigation, the committee recommended that Chase, but not 
Peters, be impeached. 3 Hinds' Precedents Sec. 2343, at 716. The House 
thereafter agreed to a resolution impeaching Chase. Id. at 717. 
Congress recessed before the Senate could act, but, during the next 
Congress, the House appointed an almost identical select committee, 
which was ``given no power of investigation.'' Id. Sec. Sec. 2343 0944, 
at 717-18. The committee recommended revised articles of impeachment 
against Chase, which were again adopted by the House. Id. Sec. 2344, at 
718-19. In 1808, the House again separately authorized an investigation 
when it considered whether Peter Bruin, a Mississippi territorial 
judge, should be impeached for ``neglect of duty and drunkenness on the 
bench.'' Id. Sec. 2487, at 983-84. A member of the House objected 
``that it would hardly be dignified for the Congress to proceed to an 
impeachment'' based on the territorial legislature's referral and 
proposed the appointment of a committee ``to inquire into the propriety 
of impeaching.'' Id. at 984; see 18 Annals of Cong. 2069 (1808). The 
House then passed a resolution forming a committee to conduct an 
inquiry, which included the ``power to send for persons, papers, and 
records'' but, like most inquiries to follow, did not result in 
impeachment. 18 Annals of Cong. at 2189; 3 Hinds' Precedents Sec. 2487, 
at 984.
    Over the course of more than two centuries thereafter, members of 
the House introduced resolutions to impeach, or to investigate for 
potential impeachment, dozens more federal judges, and the House 
continued, virtually without exception, to provide an express 
authorization before any committee proceeded to exercise investigative 
powers.\26\ In one 1874 case, the Judiciary Committee realized only 
after witnesses had traveled from Arkansas that it could not find any 
resolution granting it compulsory powers to investigate previously 
referred charges against Judge William Story. See 2 Cong. Rec. 1825, 
3438 (1874); 3 Hinds' Precedents Sec. 2513, at 1023. In order to 
``cure'' that ``defect,'' the committee reported a privileged 
resolution to the floor of the House that would grant the committee 
``power to send for persons and papers'' as part of the impeachment 
investigation. 2 Cong. Rec. at 3438. The House promptly agreed to the 
resolution, enabling the committee to ``examine'' the witnesses that 
day. Id.
    In other cases, however, no full investigation ever materialized. 
In 1803, John Pickering, a district judge, was impeached, but the House 
voted to impeach him without conducting any investigation at all, 
relying instead upon documents supplied by President Jefferson. See 3 
Hinds' Precedents Sec. 2319, at 681-82; see also Lynn W. Turner, The 
Impeachment of John Pickering, 54 Am. Hist. Rev. 485, 491 (1949). 
Sometimes, the House authorized only a preliminary inquiry to determine 
whether an investigation would be warranted. In 1908, for instance, the 
House asked the Judiciary Committee to consider proposed articles 
impeaching Judge Lebbeus Wilfley of the U.S. Court for China. In the 
ensuing hearing, the Representative who had introduced the resolution 
acknowledged that the committee was not ``authorized to subpoena 
witnesses'' and had been authorized to conduct only ``a preliminary 
examination,'' which was ``not like an investigation ordinarily held by 
the House,'' but was instead dedicated solely to determining ``whether 
you believe it is a case that ought to be investigated at all.''\27\ In 
many other cases, it is apparent that--even when impeachment 
resolutions had been referred to them--committees conducted no formal 
investigation.\28\
    In 1970, in a rhetorical departure from well-established practice, 
a subcommittee of the Judiciary Committee described itself as 
investigating the impeachment of Justice William O. Douglas based 
solely upon an impeachment resolution referred to the Judiciary 
Committee. See 116 Cong. Rec. 11920, 11942 (1970); 3 Deschler's 
Precedents ch. 14, Sec. Sec. 14.14-14.16, at 2151-64; see also 
Labovitz, Presidential Impeachment at 182 n.18 (noting that ``[t]he 
Douglas inquiry was the first impeachment investigation in twenty-five 
years, and deviation from the older procedural pattern was not 
surprising''). Yet, the subcommittee did not resort to any compulsory 
process during its inquiry, and it did not recommend impeachment. 3 
Deschler's Precedents ch. 14, Sec. Sec. 14.15-14.16, at 2158-63. 
Accordingly, the committee did not actually exercise any of the 
investigative powers of the House.
    In the late 1980s, the House Judiciary Committee considered the 
impeachment of three district-court judges without any express 
authorization from the House: Walter Nixon, Alcee Hastings, and Harry 
Claiborne. See In re Application of the Comm. on the Judiciary, 2019 WL 
5485221, at *26 (discussing these investigations). All three judges had 
been criminally prosecuted, and two had been convicted. See H.R. Rep. 
No. 101-36, at 12-13 (1989) (describing Nixon's prosecution and 
conviction); H.R. Rep. No. 100-810, at 7-8, 29-31, 38-39 (1988) 
(describing Hastings's indictment and trial and the subsequent decision 
to proceed with a judicial-misconduct proceeding in lieu of another 
prosecution); H.R. Rep. No. 99-688, at 9, 17-20 (1986) (describing 
Claiborne's prosecution and conviction). In the Claiborne inquiry, the 
committee does not appear to have issued any subpoenas. See H.R. Rep. 
No. 99-688, at 4 (noting that the committee sent ``[i]nvitational 
letters to all witnesses,'' who apparently cooperated to the 
Committee's satisfaction). The committee did issue subpoenas in the 
Nixon and Hastings investigations, yet no witness appears to have 
objected on the ground that the committee lacked jurisdiction to issue 
the subpoenas, and at least one witness appears to have requested a 
subpoena.\29\ In those two cases, though, the Judiciary Committee 
effectively compelled production without any express authorization from 
the House.\30\
    In the years after these outliers, the Judiciary Committee returned 
to the practice of seeking specific authorization from the House before 
conducting impeachment investigations. Most notably, as discussed 
above, the Judiciary Committee ``decided that it must receive 
authorization from the full House before proceeding'' with an 
impeachment investigation of President Clinton. H.R. Rep. No. 105-795, 
at 24 (emphasis added). And the House has used the same practice with 
respect to federal judges.\31\ Thus, in 2008, the House adopted a 
resolution authorizing the Judiciary Committee to investigate the 
impeachment of Judge G. Thomas Porteous, Jr., including the grant of 
subpoena authority. See H.R. Rep. No. 111-427, at 7 (2010); H.R. Res. 
1448, 110th Cong. (2008); 154 Cong. Rec. 19502 (2008). After the 
Congress expired, the House in the next Congress adopted a new 
resolution re-authorizing the inquiry, again with subpoena authority. 
See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 571 (2009). 
Several months later, another district judge, Samuel Kent, pleaded 
guilty to obstruction of justice and was sentenced to 35 months of 
incarceration. See H.R. Rep. 111-159, at 9-13 (2009). The House then 
adopted a resolution directing the Judiciary Committee to investigate 
impeachment, again specifically granting subpoena authority. See id. at 
13; H.R. Res. 424, 111th Cong. (2009); 155 Cong. Rec. at 12211-13.
    Thus, the House's long-standing and nearly unvarying practice with 
respect to judicial impeachment inquiries is consistent with the 
conclusion that the power to investigate in support of the House's 
``sole Power of Impeachment,'' U.S. Const. art. I, Sec. 2, cl. 5, may 
not be exercised by a committee without an express delegation from the 
House. In the cases of Judges Nixon and Hastings, the Judiciary 
Committee did exercise compulsory authority despite the absence of any 
delegation from the House. But insofar as no party challenged the 
committee's authority at the time, and no court addressed the matter, 
these historical outliers do not undermine the broader constitutional 
principle. As the Supreme Court observed in Noel Canning, ``when 
considered against 200 years of settled practice,'' a ``few scattered 
examples'' are rightly regarded ``as anomalies.'' 573 U.S. at 538. They 
do not call into question the soundness of the House's otherwise 
consistent historical practice, much less the constitutional 
requirement that a committee exercise the constitutional powers of the 
House only with an express delegation from the House itself.

                                  III.

    Having concluded that a House committee may not conduct an 
impeachment investigation without a delegation of authority, we next 
consider whether the House provided such a delegation to the Foreign 
Affairs Committee or to the other committees that issued subpoenas 
pursuant to the asserted impeachment inquiry. During the five weeks 
between the Speaker's announcement on September 24 and the adoption of 
Resolution 660 on October 31, the committees issued numerous 
impeachment-related subpoenas. See supra note 9. We therefore provided 
advice during that period about whether any of the committees had 
authority to issue those subpoenas. Because the House had not adopted 
an impeachment resolution, the answer to that question turned on 
whether the committees could issue those subpoenas based upon any 
preexisting subpoena authority.
    In justifying the subpoenas, the Foreign Affairs Committee and 
other committees pointed to the resolution adopting the Rules of the 
House of Representatives, which establish the committees and authorize 
investigations for matters within their jurisdiction. The committees 
claimed that Rule XI confers authority to issue subpoenas in connection 
with an impeachment investigation. Although the House has expanded its 
committees' authority in recent decades, the House Rules continue to 
reflect the long-established distinction between legislative and non-
legislative investigative powers. Those rules confer legislative 
oversight jurisdiction on committees and authorize the issuance of 
subpoenas to that end, but they do not grant authority to investigate 
for impeachment purposes. While the House committees could have sought 
some information relating to the same subjects in the exercise of their 
legislative oversight authority, the subpoenas they purported to issue 
``pursuant to the House of Representatives' impeachment inquiry'' were 
not in support of such oversight. We therefore conclude that they were 
unauthorized.
                                   a.
    The standing committees of the House trace their general subpoena 
powers back to the House Rules, which the 116th Congress adopted by 
formal resolution. See H.R. Res. 6, 116th Cong. (2019). The House Rules 
are more than 60,000 words long, but they do not include the word 
``impeachment.'' The Rules' silence on that topic is particularly 
notable when contrasted with the Senate, which has adopted specific 
``Rules of Procedure and Practice'' for impeachment trials. S. Res. 
479, 99th Cong. (1986).\32\ The most obvious conclusion to draw from 
that silence is that the current House, like its predecessors, retained 
impeachment authority at the level of the full House, subject to 
potential delegations in resolutions tailored for that purpose.
    Rule XI of the Rules of the House affirmatively authorizes 
committees to issue subpoenas, but only for matters within their 
legislative jurisdiction. The provision has been a part of the House 
Rules since 1975. See H.R. Res. 988, 93d Cong. Sec. 301 (1974). Clause 
2(m)(1) of Rule XI vests each committee with the authority to issue 
subpoenas ``[f]or the purpose of carrying out any of its functions and 
duties under this rule and rule X (including any matters referred to it 
under clause 2 of rule XII).'' Rule XI, cl. 2(m)(1); see also Rule X, 
cl. 11(d)(1) (making clause 2 of Rule XI applicable to HPSCI). The 
committees therefore have subpoena power to carry out their authorities 
under three rules: Rule X, Rule XI, and clause 2 of Rule XII.
    Rule X does not provide any committee with jurisdiction over 
impeachment. Rule X establishes the ``standing committees'' of the 
House and vests them with ``their legislative jurisdictions.'' Rule X, 
cl. 1. The jurisdiction of each committee varies in subject matter and 
scope. While the Committee on Ethics, for example, has jurisdiction 
over only ``[t]he Code of Official Conduct'' (Rule X, cl. 1(g)), the 
jurisdiction of the Foreign Affairs Committee spans seventeen subjects, 
including ``[r]elations of the United States with foreign nations 
generally,'' ``[i]ntervention abroad and declarations of war,'' and 
``[t]he American National Red Cross'' (Rule X, cl. 1(i)(1), (9), (15)). 
The rule likewise spells out the jurisdiction of the Committee on 
Oversight and Reform (Rule X, cl. 1(n), cl. 3(i)), and the jurisdiction 
of the Judiciary Committee (Rule X, cl. 1(l)). Clause 11 of Rule X 
establishes HPSCI and vests it with jurisdiction over ``[t]he Central 
Intelligence Agency, the Director of National Intelligence, and the 
National Intelligence Program'' and over ``[i]ntelligence and 
intelligence-related activities of all other departments and 
agencies.'' Rule X, cl. 11(a)(1), (b)(1)(A)-(B).
    The text of Rule X confirms that it addresses the legislative 
jurisdiction of the standing committees. After defining each standing 
committee's subject-matter jurisdiction, the Rule provides that ``[t]he 
various standing committees shall have general oversight 
responsibilities'' to assist the House in its analysis of ``the 
application, administration, execution, and effectiveness of Federal 
laws'' and of the ``conditions and circumstances that may indicate the 
necessity or desirability of enacting new or additional legislation,'' 
as well as to assist the House in its ``formulation, consideration, and 
enactment of changes in Federal laws, and of such additional 
legislation as may be necessary or appropriate.'' Rule X, cl. 2(a)(1)-
(2). The committees are to conduct oversight ``on a continuing basis'' 
``to determine whether laws and programs addressing subjects within the 
jurisdiction of a committee'' are implemented as Congress intends ``and 
whether they should be continued, curtailed, or eliminated.'' Rule X, 
cl. 2(b)(1). Those are all functions traditionally associated with 
legislative oversight, not the separate power of impeachment. See supra 
Part II.A. Clause 3 of Rule X further articulates ``[s]pecial oversight 
functions'' with respect to particular subjects for certain committees; 
for example, the Committee on Foreign Affairs ``shall review and study 
on a continuing basis laws, programs, and Government activities 
relating to .  .  . intelligence activities relating to foreign 
policy,'' Rule X, cl. 3(f). And clause 4 addresses ``[a]dditional 
functions of committees,'' including functions related to the review of 
appropriations and the special authorities of the Committee on 
Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But none of the 
``[s]pecial oversight'' or ``[a]dditional'' functions specified in 
clauses 3 and 4 includes any reference to the House's impeachment 
power.
    The powers of HPSCI are addressed in clause 11 of Rule X. Unlike 
the standing committees, HPSCI is not given ``[g]eneral oversight 
responsibilities'' in clause 2. But clause 3 gives it the ``[s]pecial 
oversight functions'' of ``review[ing] and study[ing] on a continuing 
basis laws, programs, and activities of the intelligence community'' 
and of ``review[ing] and study[ing] .  .  . the sources and methods 
of'' specified entities that engage in intelligence activities. Rule X, 
cl. 3(m). And clause 11 further provides that proposed legislation 
about intelligence activities will be referred to HPSCI and that HPSCI 
shall report to the House ``on the nature and extent of the 
intelligence and intelligence-related activities of the various 
departments and agencies of the United States.'' Rule X, cl. 11(b)(1), 
(c)(1); see also H.R. Res. 658, 95th Cong. Sec. 1 (1977) (resolution 
establishing HPSCI, explaining its purpose as ``provid[ing] vigilant 
legislative oversight over the intelligence and intelligence-related 
activities of the United States'' (emphasis added)). Again, those 
powers sound in legislative oversight, and nothing in the Rules 
suggests that HPSCI has any generic delegation of the separate power of 
impeachment.
    Consistent with the foregoing textual analysis, Rule X has been 
seen as conferring legislative oversight authority on the House's 
committees, without any suggestion that impeachment authorities are 
somehow included therein. The Congressional Research Service describes 
Rule X as ``contain[ing] the legislative and oversight jurisdiction of 
each standing committee, several clauses on committee procedures and 
operations, and a clause specifically addressing the jurisdiction and 
operation of the Permanent Select Committee on Intelligence.'' Michael 
L. Koempel & Judy Schneider, Cong. Research Serv., R41605, House 
Standing Committees' Rules on Legislative Activities: Analysis of Rules 
in Effect in the 114th Congress 2 (Oct. 11, 2016); see also Dolan, 
Congressional Oversight Manual at 25 (distinguishing a committee 
inquiry with ``a legislative purpose'' from inquiries conducted under 
``some other constitutional power of Congress, such as the authority'' 
to ``conduct impeachment proceedings''). In the chapter of Deschler's 
Precedents devoted to explaining the ``[i]nvestigations and 
[i]nquiries'' by the House and its committees, the Parliamentarian 
repeatedly notes that impeachment investigations and other non-
legislative powers are discussed elsewhere. See 4 Deschler's Precedents 
ch. 15, Sec. 1, at 2283; id. Sec. 14, at 2385 n.12; id. Sec. 16, at 
2403 & n.4.
    Rule X concerns only legislative oversight, and Rule XI does not 
expand the committees' subpoena authority any further. That rule rests 
upon the jurisdiction granted in Rule X. See Rule XI, cl. 1(b)(1) 
(``Each committee may conduct at any time such investigations and 
studies as it considers necessary or appropriate in the exercise of its 
responsibilities under rule X.''). Nor does Rule XII confer any 
additional jurisdiction. Clause 2(a) states that ``[t]he Speaker shall 
refer each bill, resolution, or other matter that relates to a subject 
listed under a standing committee named in clause 1 of rule X[.]'' Rule 
XII, cl. 2(a). The Speaker's referral authority under Rule XII is thus 
limited to matters within a committee's Rule X legislative 
jurisdiction. See 18 Deschler's Precedents app. at 578 (``All 
committees were empowered by actual language of the Speaker's referral 
to consider only `such provisions of the measure as fall within their 
respective jurisdictions under Rule X.'''). Accordingly, the Speaker 
may not expand the jurisdiction of a committee by referring a bill or 
resolution falling outside the committee's Rule X authority.\33\
    In reporting Resolution 660 to the House, the Rules Committee 
expressed the view that clause 2(m) of Rule XI gave standing committees 
the authority to issue subpoenas in support of impeachment inquiries. 
See H.R. Rep. No. 116-266, at 18 (2019). But the committee did not 
explain which terms of the rule provide such authority. To the 
contrary, the committee simply asserted that the rule granted such 
authority and that the text of Resolution 660 departed from its 
predecessors on account of amendments to clause 2(m) that were adopted 
after the ``Clinton and Nixon impeachment inquiry resolutions.'' Id. 
Yet clause 2(m) of Rule XI was adopted two decades before the Clinton 
inquiry.\34\ Even with that authority in place, the Judiciary Committee 
recognized in 1998 that it ``must receive authorization from the full 
House before proceeding'' to investigate President Clinton for 
impeachment purposes. H.R. Rep. No. 105-795, at 24 (emphasis added). 
And, even before Rule XI was adopted, the House had conferred on the 
Judiciary Committee a materially similar form of investigative 
authority (including subpoena power) in 1973.\35\ The Judiciary 
Committee nevertheless recognized that those subpoena powers did not 
authorize it to conduct an impeachment inquiry about President Nixon. 
In other words, the Rules Committee's recent interpretation of clause 
2(m) (which it did not explain in its report) cannot be reconciled with 
the Judiciary Committee's well-reasoned conclusion, in both 1974 and 
1998, that Rule XI (and its materially similar predecessor) do not 
confer any standing authority to conduct an impeachment investigation.
    In modern practice, the Speaker has referred proposed resolutions 
calling for the impeachment of a civil officer to the Judiciary 
Committee. See Jefferson's Manual Sec. 605, at 324. Consistent with 
this practice, the Speaker referred the Sherman resolution (H.R. Res. 
13, 116th Cong.) to the Judiciary Committee, because it called for the 
impeachment of President Trump. Yet the referral itself did not grant 
authority to conduct an impeachment investigation. House committees 
have regularly received referrals and conducted preliminary inquiries, 
without compulsory process, for the purpose of determining whether to 
recommend that the House open a formal impeachment investigation. See 
supra Part II.C. Should a committee determine that a formal inquiry is 
warranted, then the committee recommends that the House adopt a 
resolution that authorizes such an investigation, confers subpoena 
power, and provides special process to the target of the investigation. 
The Judiciary Committee followed precisely that procedure in connection 
with the impeachment investigations of Presidents Nixon and Clinton, 
among many others. By referring an impeachment resolution to the House 
Judiciary Committee, the Speaker did not expand that committee's 
subpoena authority to cover a formal impeachment investigation. In any 
event, no impeachment resolution was ever referred to the Foreign 
Affairs Committee, HPSCI, or the Committee on Oversight and Reform. 
Rule XII thus could not provide any authority to those committees in 
support of the impeachment-related subpoenas issued before October 31.
    Accordingly, when those subpoenas were issued, the House Rules did 
not provide authority to any of those committees to issue subpoenas in 
connection with potential impeachment. In reaching this conclusion, we 
do not question the broad authority of the House of Representatives to 
determine how and when to conduct its business. See U.S. Const. art. I, 
Sec. 5, cl. 2. As the Supreme Court has recognized, ```all matters of 
method are open to the determination''' of the House, ``as long as 
there is `a reasonable relation between the mode or method of 
proceeding established by the rule and the result which is sought to be 
attained,' and the rule does not `ignore constitutional restraints or 
violate fundamental rights.''' Noel Canning, 573 U.S. at 551 (quoting 
United States v. Ballin, 144 U.S. 1, 5 (1892)). The question, however, 
is not ``what rules Congress may establish for its own governance,'' 
but ``rather what rules the House has established and whether they have 
been followed.'' Christoffel v. United States, 338 U.S. 84, 88-89 
(1949); see also Yellin v. United States, 374 U.S. 109, 121 (1963) 
(stating that a litigant ``is at least entitled to have the Committee 
follow its rules and give him consideration according to the standards 
it has adopted in'' the relevant rule); United States v. Smith, 286 
U.S. 6, 33 (1932) (``As the construction to be given to the rules 
affects persons other than members of the Senate, the question 
presented is of necessity a judicial one.''). Statements by the Speaker 
or by committee chairmen are not statements of the House itself. Cf. 
Noel Canning, 573 U.S. at 552-53 (relying on statements and actions of 
the Senate itself, as reflected in the Journal of the Senate and the 
Congressional Record, to determine when the Senate was ``in session''). 
Our conclusion here turned upon nothing more, and nothing less, than 
the rules and resolutions that had been adopted by a majority vote of 
the full House.\36\
    The text of those provisions determined whether the House had 
delegated the necessary authority. See id. at 552 (``[O]ur deference to 
the Senate cannot be absolute. When the Senate is without the capacity 
to act, under its own rules, it is not in session even if it so 
declares.''). Thus, the Supreme Court has repeatedly made clear that a 
target of the House's compulsory process may question whether a House 
resolution has actually conferred the necessary powers upon a 
committee, because the committee's ``right to exact testimony and to 
call for the production of documents must be found in [the 
resolution's] language.'' Rumely, 345 U.S. at 44; see also Watkins, 354 
U.S. at 201. In Rumely, the Court expressly rejected the argument that 
the House had confirmed the committee's jurisdiction by adopting a 
resolution that merely held the witness in contempt after the fact. As 
the Court explained, what was said ``after the controversy had arisen 
regarding the scope of the resolution .  .  . had the usual infirmity 
of post litem motam, self-serving declarations.'' 345 U.S. at 48. In 
other words, even a vote of the full House could not ``enlarge[]'' a 
committee's authority after the fact for purposes of finding that a 
witness had failed to comply with the obligations imposed by the 
subpoena. Id.
    Here, the House committees claiming to investigate impeachment 
issued subpoenas before they had received any actual delegation of 
impeachment-related authority from the House. Before October 31, the 
committees relied solely upon statements of the Speaker, the committee 
chairmen, and the Judiciary Committee, all of which merely asserted 
that one or more House committees had already been conducting a formal 
impeachment inquiry. There was, however, no House resolution actually 
delegating such authority to any committee, let alone one that did so 
with ``sufficient particularity'' to compel witnesses to respond. 
Watkins, 354 U.S. at 201; cf. Gojack v. United States, 384 U.S. 702, 
716-17 (1966). At the opening of this Congress, the House had not 
chosen to confer investigative authority over impeachment upon any 
committee, and therefore, no House committee had authority to compel 
the production of documents or testimony in furtherance of an 
impeachment inquiry that it was not authorized to conduct.
                                   b.
    Lacking a delegation from the House, the committees could not 
compel the production of documents or the testimony of witnesses for 
purposes of an impeachment inquiry. Because the first impeachment-
related subpoena the September 27 subpoena from the Foreign Affairs 
Committee--rested entirely upon the purported impeachment inquiry, see 
Three Chairmen's Letter, supra note 2, at 1, it was not enforceable. 
See, e.g., Rumely, 345 U.S. at 44. Perhaps recognizing this infirmity, 
the committee chairmen invoked not merely the impeachment inquiry in 
connection with subsequent impeachment-related subpoenas but also the 
committees' ``oversight and legislative jurisdiction.'' See supra note 
9 and accompanying text. That assertion of dual authorities presented 
the question whether the committees could leverage their oversight 
jurisdiction to require the production of documents and testimony that 
the committees avowedly intended to use for an unauthorized impeachment 
inquiry. We advised that, under the circumstances of these subpoenas, 
the committees could not do so.
    Any congressional inquiry ``must be related to, and in furtherance 
of, a legitimate task of the Congress.'' Watkins, 354 U.S. at 187. The 
Executive Branch need not presume that such a purpose exists or accept 
a ``makeweight'' assertion of legislative jurisdiction. Mazars USA, 940 
F.3d at 725-26, 727; see also Shelton v. United States, 404 F.2d 1292, 
1297 (D.C. Cir. 1968) (``In deciding whether the purpose is within the 
legislative function, the mere assertion of a need to consider 
`remedial legislation' may not alone justify an investigation 
accompanied with compulsory process[.]''). Indeed, ``an assertion from 
a committee chairman may not prevent the Executive from confirming the 
legitimacy of an investigative request.'' Congressional Committee's 
Request for the President's Tax Returns Under 26 U.S.C. Sec. 6103(f), 
43 Op. O.L.C. _, at *20 (June 13, 2019). To the contrary, ``a threshold 
inquiry that should be made upon receipt of any congressional request 
for information is whether the request is supported by any legitimate 
legislative purpose.'' Response to Congressional Requests for 
Information Regarding Decisions Made Under the Independent Counsel Act, 
10 Op. O.L.C. 68, 74 (1986); see also Congressional Requests for 
Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 
(1989) (recognizing that the constitutionally mandated accommodation 
process ``requires that each branch explain to the other why it 
believes its needs to be legitimate'').
    Here, the committee chairmen made clear upon issuing the subpoenas 
that the committees were interested in the requested materials to 
support an investigation into the potential impeachment of the 
President, not to uncover information necessary for potential 
legislation within their respective areas of legislative jurisdiction. 
In marked contrast with routine oversight, each of the subpoenas was 
accompanied by a letter signed by the chairs of three different 
committees, who transmitted a subpoena ``[p]ursuant to the House of 
Representatives' impeachment inquiry'' and recited that the documents 
would ``be collected as part of the House's impeachment inquiry,'' and 
that they would be ``shared among the Committees, as well as with the 
Committee on the Judiciary as appropriate.'' See supra note 9 and 
accompanying text. Apart from their token invocations of ``oversight 
and legislative jurisdiction,'' the letters offered no hint of any 
legislative purpose. The committee chairmen were therefore seeking to 
do precisely what they said--compel the production of information to 
further an impeachment inquiry.
    In reaching this conclusion, we do not foreclose the possibility 
that the Foreign Affairs Committee or the other committees could have 
issued similar subpoenas in the bona fide exercise of their legislative 
oversight jurisdiction, in which event the requests would have been 
evaluated consistent with the long-standing confidentiality interests 
of the Executive Branch. See Watkins, 354 U.S. at 187 (recognizing that 
Congress's general investigative authority ``comprehends probes into 
departments of the Federal Government to expose corruption, 
inefficiency or waste''); McGrain, 273 U.S. at 179-80 (observing that 
it is not ``a valid objection to the investigation that it might 
possibly disclose crime or wrongdoing on [the Attorney General's] 
part''). Should the Foreign Affairs Committee, or another committee, 
articulate a legitimate oversight purpose for a future information 
request, the Executive Branch would assess that request as part of the 
constitutionally required accommodation process. But the Executive 
Branch was not confronted with that situation. The committee chairmen 
unequivocally attempted to conduct an impeachment inquiry into the 
President's actions, without the House, which has the ``sole Power of 
Impeachment,'' having authorized such an investigation. Absent such an 
authorization, the committee chairs' passing mention of ``oversight and 
legislative jurisdiction'' did not cure that fundamental defect.
                                   c.
    We next address whether the House ratified any of the previous 
committee subpoenas when it adopted Resolution 660 on October 31, 
2019--after weeks of objections from the Executive Branch and many 
members of Congress to the committees' efforts to conduct an 
unauthorized impeachment inquiry. Resolution 660 provides that six 
committees of the House ``are directed to continue their ongoing 
investigations as part of the existing House of Representatives inquiry 
into whether sufficient grounds exist for the House of Representatives 
to exercise its Constitutional power to impeach Donald John Trump, 
President of the United States of America.'' Resolution 660, Sec. 1. 
The resolution further prescribes certain procedures by which HPSCI and 
the Judiciary Committee may conduct hearings in connection with the 
investigation defined by that resolution.
    Resolution 660 does not speak at all to the committees' past 
actions or seek to ratify any subpoena previously issued by the House 
committees. See Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. 
Cir. 2019) (Rao, J., dissenting from the denial of rehearing en banc); 
see also Exclusion of Agency Counsel from Congressional Depositions in 
the Impeachment Context, 43 Op. O.L.C. _, at *5 (Nov. 1, 2019). The 
resolution ``direct[s]'' HPSCI and other committees to ``continue'' 
their investigations, and the Rules Committee apparently assumed, 
incorrectly in our view, that earlier subpoenas were legally valid. See 
H.R. Rep. No. 116-266, at 3 (``All subpoenas to the Executive Branch 
remain in full force.''). But the resolution's operative language does 
not address any previously issued subpoenas or provide the imprimatur 
of the House to give those subpoenas legal force.
    And the House knows how to ratify existing subpoenas when it 
chooses to do so.\37\ On July 24, 2019, the House adopted a resolution 
that expressly ``ratif[ied] and affirm[ed] all current and future 
investigations, as well as all subpoenas previously issued or to be 
issued in the future,'' related to certain enumerated subjects within 
the jurisdiction of standing or select committees of the House ``as 
established by the Constitution of the United States and rules X and XI 
of the Rules of the House of Representatives.'' H.R. Res. 507, 116th 
Cong. Sec. 1 (2019) (emphasis added). There, as here, the House acted 
in response to questions regarding ``the validity of .  .  . 
[committee] investigations and subpoenas.'' Id. pmbl. Despite that 
recent model, Resolution 660 contains no comparable language seeking to 
ratify previously issued subpoenas. The resolution directs certain 
committees to ``continue'' investigations, and it specifies procedures 
to govern future hearings, but nothing in the resolution looks backward 
to actions previously taken. Accordingly, Resolution 660 did not ratify 
or otherwise authorize the impeachment-related subpoenas issued before 
October 31, which therefore still had no compulsory effect on their 
recipients.

                                  IV.

    Finally, we address some of the consequences that followed from our 
conclusion that the committees' pre-October 31 impeachment-related 
subpoenas were unauthorized. First, because the subpoenas exceeded the 
committees' investigative authority and lacked compulsory effect, the 
committees were mistaken in contending that the recipients' ``failure 
or refusal to comply with the subpoena [would] constitute evidence of 
obstruction of the House's impeachment inquiry.'' Three Chairmen's 
Letter, supra note 2, at 1.\38\ As explained at length above, when the 
subpoenas were issued, there was no valid impeachment inquiry. To the 
extent that the committees' subpoenas sought information in support of 
an unauthorized impeachment inquiry, the failure to comply with those 
subpoenas was no more punishable than were the failures of the 
witnesses in Watkins, Rumely, Kilbourn, and Lamont to answer questions 
that were beyond the scope of those committees' authorized 
jurisdiction. See Watkins, 354 U.S. at 206, 215 (holding that 
conviction for contempt of Congress was invalid because, when the 
witness failed to answer questions, the House had not used sufficient 
``care .  .  . in authorizing the use of compulsory process'' and the 
committee had not shown that the information was pertinent to a subject 
within ``the mission[] delegated to'' it by the House); Rumely, 345 
U.S. at 42-43, 48 (affirming reversal of conviction for contempt of 
Congress because it was not clear at the time of questioning that ``the 
committee was authorized to exact the information which the witness 
withheld''); Kilbourn, 103 U.S. at 196 (sustaining action brought by 
witness for false imprisonment because the committee ``had no lawful 
authority to require Kilbourn to testify as a witness beyond what he 
voluntarily chose to tell''); Lamont, 18 F.R.D. at 37 (dismissing 
indictment for contempt of Congress in part because the indictment did 
not sufficiently allege, among other things, ``that the [Permanent 
Subcommittee on Investigations] . . . was duly empowered by either 
House of Congress to conduct the particular inquiry'' or ``that the 
inquiry was within the scope of the authority granted to the 
[sub]committee''). That alone suffices to prevent noncompliance with 
the subpoenas from constituting ``obstruction of the House's 
impeachment inquiry.''
    Second, we note that whether or not the impeachment inquiry was 
authorized, there were other, independent grounds to support directions 
by the Executive Branch that witnesses not appear in response to the 
committees' subpoenas. We recently advised you that executive privilege 
continues to be available during an impeachment investigation. See 
Exclusion of Agency Counsel from Congressional Depositions in the 
Impeachment Context, 43 Op. O.L.C. __, at *2-5. The mere existence of 
an impeachment investigation does not eliminate the President's need 
for confidentiality in connection with the performance of his duties. 
Just as in the context of a criminal trial, a dispute over a request 
for privileged information in an impeachment investigation must be 
resolved in a manner that ``preserves the essential functions of each 
branch.'' United States v. Nixon, 418 U.S. 683, 707 (1974). Thus, while 
a committee ``may be able to establish an interest justifying its 
requests for information, the Executive Branch also has legitimate 
interests in confidentiality, and the resolution of these competing 
interests requires a careful balancing of each branch's need in the 
context of the particular information sought.'' Exclusion of Agency 
Counsel from Congressional Depositions in the Impeachment Context, 43 
Op. O.L.C. __, at *4.
    Accordingly, we recognized, in connection with HPSCI's impeachment 
investigation after October 31, that the committee may not compel an 
executive branch witness to appear for a deposition without the 
assistance of agency counsel, when that counsel is necessary to assist 
the witness in ensuring the appropriate protection of privileged 
information during the deposition. See id. at *4-5. In addition, we 
have concluded that the testimonial immunity of the President's senior 
advisers ``applies in an impeachment inquiry just as it applies in a 
legislative oversight inquiry.'' Letter for Pat A. Cipollone, Counsel 
to the President, from Steven A. Engel, Assistant Attorney General, 
Office of Legal Counsel at 2 (Nov. 3, 2019).
    Thus, even when the House takes the steps necessary to authorize a 
committee to investigate impeachment and compel the production of 
needed information, the Executive Branch continues to have legitimate 
interests to protect. The Constitution does not oblige either branch of 
government to surrender its legitimate prerogatives, but expects that 
each branch will negotiate in good faith with mutual respect for the 
needs of the other branch. See United States v. Am. Tel. & Tel. Co., 
567 F.2d 121, 127 (D.C. Cir. 1977) (``[E]ach branch should take 
cognizance of an implicit constitutional mandate to seek optimal 
accommodation through a realistic evaluation of the needs of the 
conflicting branches in the particular fact situation.''); see also 
Memorandum for the Heads of Executive Departments and Agencies from 
President Ronald Reagan, Re: Procedures Governing Responses to 
Congressional Requests for Information (Nov. 4, 1982). The two branches 
should work to identify arrangements in the context of the particular 
requests of an investigating committee that accommodate both the 
committee's needs and the Executive Branch's interests.
    For these reasons, the House cannot plausibly claim that any 
executive branch official engaged in ``obstruction'' by failing to 
comply with committee subpoenas, or directing subordinates not to 
comply, in order to protect the Executive Branch's legitimate interests 
in confidentiality and the separation of powers. We explained thirty-
five years ago that ``the Constitution does not permit Congress to make 
it a crime for an official to assist the President in asserting a 
constitutional privilege that is an integral part of the President's 
responsibilities under the Constitution.'' Prosecution for Contempt of 
Congress of an Executive Branch Official Who Has Asserted a Claim of 
Executive Privilege, 8 Op. O.L.C. 101, 140 (1984). Nor may Congress 
``utilize its inherent `civil' contempt powers to arrest, bring to 
trial, and punish an executive official who assert[s] a Presidential 
claim of executive privilege.'' Id. at 140 n.42. We have reaffirmed 
those fundamental conclusions in each of the subsequent decades.\39\
    The constitutionally required accommodation process, of course, is 
a two-way street. In connection with this investigation, the House 
committees took the unprecedented steps of investigating the 
impeachment of a President without any authorization from the full 
House; without the procedural protections provided to Presidents Nixon 
and Clinton, see supra note 12; and with express threats of obstruction 
charges and unconstitutional demands that officials appear and provide 
closed-door testimony about privileged matters without the assistance 
of executive branch counsel. Absent any effort by the House committees 
to accommodate the Executive Branch's legitimate concerns with the 
unprecedented nature of the committees' actions, it was reasonable for 
executive branch officials to decline to comply with the subpoenas 
addressed to them.

                                   V.

    For the reasons set forth above, we conclude that the House must 
expressly authorize a committee to conduct an impeachment investigation 
and to use compulsory process in that investigation before the 
committee may compel the production of documents or testimony in 
support of the House's ``sole Power of Impeachment.'' U.S. Const. art. 
I, Sec. 2, cl. 5. The House had not authorized such an investigation in 
connection with the impeachment-related subpoenas issued before October 
31, 2019, and the subpoenas therefore had no compulsory effect. The 
House's adoption of Resolution 660 did not alter the legal status of 
those subpoenas, because the resolution did not ratify them or 
otherwise address their terms.
    Please let us know if we may be of further assistance.
                                           Steven A. Engel,
                                        Assistant Attorney General.
                                endnotes
    1. Nancy Pelosi, Speaker of the House, Press Release: Pelosi 
Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), 
www.speaker.gov/newsroom/92419-0 (``Pelosi Press Release'').
    2. Letter for Michael R. Pompeo, Secretary of State, from Eliot L. 
Engel, Chairman, Committee on Foreign Affairs, U.S. House of 
Representatives, Adam Schiff, Chairman, Permanent Select Committee on 
Intelligence, U.S. House of Representatives, and Elijah E. Cummings, 
Chairman, Committee on Oversight & Reform, U.S. House of 
Representatives at 1 (Sept. 27, 2019) (``Three Chairmen's Letter'').
    3. Although volume 3 of Deschler's Precedents was published in 
1979, our citations of Deschler's Precedents use the continuously 
paginated version that is available at www.govinfo.gov/collection/
precedents-of-the-house.
    4. Impeachment Articles Referred on John Koskinen (Part III): 
Hearing Before the H. Comm. on the Judiciary, 114th Cong. 3 (2016).
    5. This opinion memorializes the advice we gave about subpoenas 
issued before October 31. We separately addressed some subpoenas issued 
after that date. See, e.g., Letter for Pat A. Cipollone, Counsel to the 
President, from Steven A. Engel, Assistant Attorney General, Office of 
Legal Counsel (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for 
Pat A. Cipollone, Counsel to the President, from Steven A. Engel, 
Assistant Attorney General, Office of Legal Counsel (Nov. 3, 2019) 
(subpoena to John Eisenberg); Exclusion of Agency Counsel from 
Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. _ 
(Nov. 1, 2019).
    6. U.S. House of Representatives Committee on the Judiciary, Press 
Release: House Judiciary Committee Unveils Investigation into Threats 
Against the Rule of Law (Mar. 4, 2019), judiciary.house.gov/news/press-
releases/house-judiciary-committee-unveils-investigation-threats-
against-rule-law; see also Letter for the White House, c/o Pat 
Cipollone, from Jerrold Nadler, Chairman, Committee on the Judiciary, 
U.S. House of Representatives (Mar. 4, 2019).
    7. On June 11, 2019, the full House adopted Resolution 430. Its 
first two clauses authorized the Judiciary Committee to file a lawsuit 
to enforce subpoenas against Attorney General William Barr and former 
White House Counsel Donald McGahn and purported to authorize the 
Bipartisan Legal Advisory Group to approve future litigation. See H.R. 
Res. 430, 116th Cong. (2019). The next clause of the resolution then 
stated that, ``in connection with any judicial proceeding brought under 
the first or second resolving clauses, the chair of any standing or 
permanent select committee exercising authority thereunder has any and 
all necessary authority under Article I of the Constitution.'' Id. The 
resolution did not mention ``impeachment'' and, by its terms, 
authorized actions only in connection with the litigation authorized 
``under the first or second resolving clauses.'' On the same day that 
the House adopted Resolution 430, Speaker Pelosi stated that the 
House's Democratic caucus was ``not even close'' to an impeachment 
inquiry. Rep. Nancy Pelosi (D-CA) Continues Resisting Impeachment 
Inquiry, CNN (June 11, 2019), transcripts.cnn.com/TRANSCRIPTS/1906/11/
cnr.04 html.
    8. While the House has delegated to the Bipartisan Legal Advisory 
Group the ability to ``articulate[] the institutional position of'' the 
House, it has done so only for purposes of ``litigation matters.'' H.R. 
Rule II, cl. 8(b). Therefore, neither the group, nor the House counsel 
implementing that group's directions, could assert the House's 
authority in connection with an impeachment investigation, which is not 
a litigation matter.
    9. E.g., Letter for John Michael Mulvaney, Acting Chief of Staff to 
the President, from Elijah E. Cummings, Chairman, Committee on 
Oversight & Reform, U.S. House of Representatives, Adam B. Schiff, 
Chairman, Permanent Select Committee on Intelligence, U.S. House of 
Representatives, and Eliot L. Engel, Chairman, Committee on Foreign 
Affairs, U.S. House of Representatives at 1 (Oct. 4, 2019); Letter for 
Mark T. Esper, Secretary of Defense, from Adam B. Schiff, Chairman, 
Permanent Select Committee on Intelligence, U.S. House of 
Representatives, Eliot L. Engel, Chairman, Committee on Foreign 
Affairs, U.S. House of Representatives, and Elijah E. Cummings, 
Chairman, Committee on Oversight & Reform, U.S. House of 
Representatives at 1 (Oct. 7, 2019); Letter for Gordon Sondland, U.S. 
Ambassador to the European Union, from Adam B. Schiff, Chairman, 
Permanent Select Committee on Intelligence, U.S. House of 
Representatives, Elijah E. Cummings, Chairman, Committee on Oversight & 
Reform, U.S. House of Representatives, and Eliot L. Engel, Chairman, 
Committee on Foreign Affairs, U.S. House of Representatives at 1 (Oct. 
8, 2019); Letter for James Richard ``Rick'' Perry, Secretary of Energy, 
from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. House 
of Representatives, Adam B. Schiff, Chairman, Permanent Select 
Committee on Intelligence, U.S. House of Representatives, and Elijah E. 
Cummings, Chairman, Committee on Oversight & Reform, U.S. House of 
Representatives at 1 (Oct. 10, 2019).
    10. Letter for Nancy Pelosi, Speaker, U.S. House of 
Representatives, et al., from Pat A. Cipollone, Counsel to the 
President at 2-3 (Oct. 8, 2019).
    11. See Letter for Nancy Pelosi, Speaker, U.S. House of 
Representatives, from Kevin McCarthy, Republican Leader, U.S. House of 
Representatives at 1 & n.1 (Oct. 3, 2019); Mem. Amicus Curiae of 
Ranking Member Doug Collins in Support of Denial at 5-21, In re 
Application of the Comm. on the Judiciary (D.D.C. Oct. 3, 2019).
    12. The House Judiciary Committee permitted President Nixon's 
counsel to submit and respond to evidence, to request to call 
witnesses, to attend hearings and examinations, to object to the 
examination of witnesses and the admissibility of testimony, and to 
question witnesses. See H.R. Rep. No. 93-1305, at 8-9 (1974); 3 
Deschler's Precedents ch. 14, Sec. 6.5, at 2045-47. Later, President 
Clinton and his counsel were similarly ``invited to attend all 
executive session and open committee hearings,'' at which they were 
permitted to ``cross examine witnesses,'' ``make objections regarding 
the pertinency of evidence,'' ``suggest that the Committee receive 
additional evidence,'' and ``respond to the evidence adduced by the 
Committee.'' H.R. Rep. No. 105-795, at 25-26; see also 18 Deschler's 
Precedents app. at 549 (2013) (noting that, during the Clinton 
impeachment investigation, the House made a ``deliberate attempt to 
mirror [the] documented precedents and proceedings'' of the Nixon 
investigation). In a departure from the Nixon and Clinton precedents, 
the House committees did not provide President Trump with any right to 
attend, participate in, or cross-examine witnesses in connection with 
the impeachment-related depositions conducted by the three committees 
before October 31. Resolution 660 similarly did not provide any such 
rights with respect to any of the public hearings conducted by HPSCI, 
limiting the President's opportunity to participate to the Judiciary 
Committee, which did not itself participate in developing the 
investigative record upon which the articles of impeachment were 
premised. See H.R. Res. 660, 116th Cong. Sec. 4(a); 165 Cong. Rec. 
E1357 (daily ed. Oct. 29, 2019) (``Impeachment Inquiry Procedures in 
the Committee on the Judiciary'').
    13. In denying the congressional request before him, President Polk 
suggested, in the equivalent of dictum, that, during an impeachment 
inquiry, ``all the archives and papers of the Executive departments, 
public or private, would be subject to the inspection and control of a 
committee of their body.'' Cong. Globe, 29th Cong., 1st Sess. 698 
(1846). That statement, however, dramatically understates the degree to 
which executive privilege remains available during an impeachment 
investigation to protect confidentiality interests necessary to 
preserve the essential functions of the Executive Branch. See Exclusion 
of Agency Counsel from Congressional Depositions in the Impeachment 
Context, 43 Op. O.L.C. _, at *3 & n.1 (Nov. 1, 2019). In a prior 
opinion, this Office viewed Polk as acknowledging the continued 
availability of executive privilege, because we read Polk's preceding 
sentence as ``indicat[ing]'' that, even in the impeachment context, 
``the Executive branch `would adopt all wise precautions to prevent the 
exposure of all such matters the publication of which might injuriously 
affect the public interest, except so far as this might be necessary to 
accomplish the great ends of public justice.''' Memorandum for Elliot 
Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant 
Attorney General, Office of Legal Counsel, Re: Presidential Immunity 
from Coercive Congressional Demands for Information at 22-23 (July 24, 
1973) (quoting Polk's letter).
    14. See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 (1846) 
(statement of Rep. Ingersoll) (``Whether . . . [Webster's] offences 
will be deemed impeachable misdemeanors in office, conviction for which 
might remove him from the Senate, and disqualify him to hold any office 
of honor, trust, or profit, under the United States, will remain to be 
considered.''); Todd Garvey, The Webster and Ingersoll Investigations, 
in Morton Rosenberg, The Constitution Project, When Congress Comes 
Calling 289 (2017).
    15. When the House first considered impeachment in 1796, Attorney 
General Charles Lee advised that, ``before an impeachment is sent to 
the Senate, witnesses must be examined, in solemn form, respecting the 
charges, before a committee of the House of Representatives, to be 
appointed for that purpose.'' Letter for the House of Representatives 
from Charles Lee, Attorney General, Re: Inquiry into the Official 
Conduct of a Judge of the Supreme Court of the Northwestern Territory 
(May 9, 1796), reprinted in 1 Am. State Papers: Misc. 151 (Walter 
Lowrie & Walter S. Franklin eds., 1834). Because the charges of 
misconduct concerned the actions of George Turner, a territorial judge, 
and the witnesses were located in far-away St. Clair County (modern-day 
Illinois), Lee suggested that the ``most solemn'' mode of prosecution, 
an impeachment trial before the Senate, would be ``very inconvenient, 
if not entirely impracticable.'' Id. Lee informed the House that 
President Washington had directed the territorial governor to arrange 
for a criminal prosecution before the territorial court. See id. The 
House committee considering the petition about Turner agreed with Lee's 
suggestion and recommended that the House take no further action. See 
Inquiry into the Official Conduct of a Judge of the Supreme Court of 
the Northwestern Territory (Feb. 27, 1797), reprinted in 1 Am. State 
Papers: Misc. at 157.
    16. After the House impeached Senator Blount, the Senate voted to 
dismiss the charges on the ground that a Senator is not a civil officer 
subject to impeachment. See 3 Hinds' Precedents Sec. 2318, at 678-80.
    17. A 2007 overview concluded that ``[t]here have been 
approximately 94 identifiable impeachment-related inquiries conducted 
by Congress[.]'' H.R. Doc. No. 109-153, at 115 (2007). Since 2007, two 
more judges have been impeached following authorized investigations.
    18. The district court's erroneous conclusions rested upon the 
arguments offered by the House Judiciary Committee, which relied 
principally upon the judicial outliers from the 1980s, a 
misunderstanding of the Nixon impeachment inquiry, and a misreading of 
the committee's subpoena power under the House Rules. See Application 
at 33-34, In re Application of the Comm. on the Judiciary (D.D.C. July 
26, 2019); Reply of the Committee on the Judiciary, U.S. House of 
Representatives, in Support of Its Application for an Order Authorizing 
the Release of Certain Grand Jury Materials, at 16 n.19, In re 
Application of the Comm. on the Judiciary (D.D.C. Sept. 30, 2019). 
HPSCI and the Judiciary Committee later reiterated these arguments in 
their reports, each contending that executive branch officials had 
``obstructed'' the House's impeachment inquiry by declining to comply 
with the pre-October 31 impeachment-related subpoenas. H.R. Rep. No. 
116-335, at 168-72, 175-77 (2019); H.R. Rep. No. 116-346, at 10, 13-16 
(2019). But those reports asserted that the pre-October 31 subpoenas 
were authorized because the committees misunderstood the historical 
practice concerning the House's impeachment inquiries (as we discuss in 
Part II.C) and they misread the committees' subpoena authority under 
the House Rules (as we discuss in Part III.A).
    19. See, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 (1843) 
(John Tyler); Cong. Globe, 39th Cong., 2d Sess. 320 (1867) (Andrew 
Johnson); 28 Cong. Rec. 5627, 5650 (1896) (Grover Cleveland); 76 Cong. 
Rec. 399-402 (1932) (Herbert Hoover); H.R. Res. 607, 82d Cong. (1952) 
(Harry Truman); H.R. Res. 625, 93d Cong. (1973) (Richard Nixon); H.R. 
Res. 370, 98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong. 
(1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) (Bill 
Clinton); H.R. Res. 1258, 110th Cong. (2008) (George W. Bush); H.R. 
Res. 13, 106th Cong. (2019) (Donald Trump).
    20. In 1860, the House authorized an investigation into the actions 
of President Buchanan, but that investigation was not styled as an 
impeachment investigation. See Cong. Globe, 36th Cong., 1st Sess. 997-
98 (1860) (resolution establishing a committee of five members to 
``investigat[e] whether the President of the United States, or any 
other officer of the government, ha[d], by money, patronage, or other 
improper means, sought to influence the action of Congress'' or ``by 
combination or otherwise, . . . attempted to prevent or defeat, the 
execution of any law''). It appears to have been understood by the 
committee as an oversight investigation. See H.R. Rep. No. 36-648, at 
1-28 (1860). Buchanan in fact objected to the House's use of its 
legislative jurisdiction to circumvent the protections traditionally 
provided in connection with impeachment. See Message for the U.S. House 
of Representatives from James Buchanan (June 22, 1860), reprinted in 5 
A Compilation of the Messages and Papers of the Presidents 625 (James 
D. Richardson ed., 1897) (objecting that if the House suspects 
presidential misconduct, it should ``transfer the question from [its] 
legislative to [its] accusatory jurisdiction, and take care that in all 
the preliminary judicial proceedings preparatory to the vote of 
articles of impeachment the accused should enjoy the benefit of cross-
examining the witnesses and all the other safeguards with which the 
Constitution surrounds every American citizen''); see also Mazars USA, 
940 F.3d at 762 (Rao, J., dissenting) (discussing the episode).
    21. The district court's recent decision in In re Application of 
the Committee on the Judiciary misreads Hinds' Precedents to suggest 
that the House Judiciary Committee (which the court called ``HJC'') 
began investigating President Johnson's impeachment without any 
authorizing resolution. According to the district court, ``a resolution 
authoriz[ing]' HJC to inquire into the official conduct of Andrew 
Johnson' was passed after HJC `was already considering the subject.''' 
2019 WL 5485221, at *27 (quoting 3 Hinds' Precedents Sec. 2400, at 
824). In fact, the committee was ``already considering the subject'' at 
the time of the February 4 resolution described in the quoted sentence 
because, as explained in the text above, the House had previously 
adopted a separate resolution authorizing an impeachment investigation. 
See Cong. Globe, 39th Cong., 2d Sess. 320-21 (1867); 3 Hinds' 
Precedents Sec. 2400, at 824.
    22. See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. (1973) 
(impeachment); H.R. Res. 626, 627, 628, 636, and 637, 93d Cong. (1973) 
(Judiciary Committee or subcommittee investigation).
    23. A New York Times article the following day characterized House 
Resolution 803 as ``formally ratif[ying] the impeachment inquiry begun 
by the committee [the prior] October.'' James M. Naughton, House, 410-
4, Gives Subpoena Power in Nixon Inquiry, N.Y. Times, Feb. 7, 1974, at 
1. But the resolution did not grant after-the-fact authorization for 
any prior action. To the contrary, the resolution ``authorized and 
directed'' a future investigation, including by providing subpoena 
power. In the report recommending adoption of the resolution, the 
committee likewise described its plans in the future tense: ``It is the 
intention of the committee that its investigation will be conducted in 
all respects on a fair, impartial and bipartisan basis.'' H.R. Rep. No. 
93-774, at 3 (1974).
    24. As with Presidents, many of these resolutions remained with the 
committees until they expired at the end of the Congress. Several 
merely articulated allegations of impeachment. See, e.g., H.R. Res. 
1028, 115th Cong. (2018) (Deputy Attorney General Rod Rosenstein); H.R. 
Res. 417, 114th Cong. (2015) (Administrator of the Environmental 
Protection Agency Regina McCarthy); H.R. Res. 411, 113th Cong. (2013) 
(Attorney General Eric Holder); H.R. Res. 333, 110th Cong. (2007) (Vice 
President Richard Cheney); H.R. Res. 629, 108th Cong. (2004) (Secretary 
of Defense Donald Rumsfeld); H.R. Res. 805, 95th Cong. (1977) (United 
Nations Ambassador Andrew Young); H.R. Res. 274, 95th Cong. (1977) 
(Commissioner of the Federal Trade Commission Paul Dixon); H.R. Res. 
881, 94th Cong. (1975) (U.S. Attorney Jonathan Goldstein and Principal 
Assistant U.S. Attorney Bruce Goldstein); H.R. Res. 647, 94th Cong. 
(1975) (Ambassador to Iran Richard Helms); H.R. Res. 547, 94th Cong. 
(1975) (Special Crime Strike Force Prosecutor Liam Coonan). Others 
called for an investigation. See, e.g., H.R. Res. 589, 110th Cong. 
(2007) (Attorney General Alberto Gonzales); H.R. Res. 582, 105th Cong. 
(1998) (Independent Counsel Kenneth Starr); H.R. Res. 102, 99th Cong. 
(1985) (Chairman of the Board of Governors of the Federal Reserve 
System Paul Volcker); H.R. Res. 101, 99th Cong. (1985) (same and 
others); H.R. Res. 1025, 95th Cong. (1978) (Attorney General Griffin 
Bell); H.R. Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d 
Cong. (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. 
(1939) (Secretary of Labor Frances Perkins and others); 28 Cong. Rec. 
114, 126 (1895) (Ambassador to Great Britain Thomas Bayard); 16 Cong. 
Rec. 17-19 (1884) (U.S. Marshal Lot Wright); Cong. Globe, 40th Cong., 
1st Sess. 778-79 (1867) (Minister to Great Britain Charles Francis 
Adams). On occasion, the House voted to table these resolutions instead 
of referring them to a committee. See, e.g., H.R. Res. 545, 105th Cong. 
(1998) (resolution of impeachment for Independent Counsel Kenneth 
Starr); H.R. Res. 1267, 95th Cong. (1978) (resolution of impeachment 
for Ambassador to the United Nations Andrew Young).
    25. In 1878, the Committee on Expenditures in the State Department, 
which was charged with investigative authority for ``the exposing of 
frauds or abuses of any kind,'' 7 Cong. Rec. 287, 290 (1878), was 
referred an investigation into maladministration at the consulate in 
Shanghai during the terms of Consul-General George Seward and Vice 
Consul-General O.B. Bradford, id. at 504, 769. Eventually, the 
committee began to consider Seward's impeachment, serving him with a 
subpoena for testimony and documents, in response to which he asserted 
his privilege against self-incrimination. See 3 Hinds' Precedents 
Sec. 2514, at 1023-24; H.R. Rep. No. 45-141, at 1-3 (1879). The 
committee recommended articles of impeachment, but the House declined 
to act before the end of the Congress. See 8 Cong. Rec. 2350-55 (1879); 
3 Hinds' Precedents Sec. 2514, at 1025. During this same period, the 
Committee on Expenditures reported proposed articles of impeachment 
against Bradford but recommended ``that the whole subject be referred 
to the Committee on the Judiciary'' for further consideration. H.R. 
Rep. No. 45-818, at 7 (1878). The House agreed to the referral, but no 
further action was taken. 7 Cong. Rec. at 3667.
    26. See, e.g., 3 Hinds' Precedents Sec. 2489, at 986 (William Van 
Ness, Mathias Tallmadge, and William Stephens, 1818); id. Sec. 2490, at 
987 (Joseph Smith, 1825); id. Sec. 2364, at 774 (James Peck, 1830); id. 
Sec. 2492, at 990 (Alfred Conkling, 1830); id. Sec. 2491, at 989 
(Buckner Thurston, 1837); id. Sec. 2494, at 993-94 (P.K. Lawrence, 
1839); id. Sec. Sec. 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 
1852-60); id. Sec. 2500, at 1005 (Thomas Irwin, 1859); id. Sec. 2385, 
at 805 (West Humphreys, 1862); id. Sec. 2503, at 1008 (anonymous 
justice of the Supreme Court, 1868); id. Sec. 2504, at 1008-09 (Mark 
Delahay, 1872); id. Sec. 2506, at 1011 (Edward Durell, 1873); id. 
Sec. 2512, at 1021 (Richard Busteed, 1873); id. Sec. 2516, at 1027 
(Henry Blodgett, 1879); id. Sec. Sec. 2517-18, at 1028, 1030-31 (Aleck 
Boarman, 1890-92); id. Sec. 2519, at 1032 (J.G. Jenkins, 1894); id. 
Sec. 2520, at 1033 (Augustus Ricks, 1895); id. Sec. 2469, at 949-50 
(Charles Swayne, 1903); 6 Clarence Cannon, Cannon's Precedents of the 
House of Representatives of the United States Sec. 498, at 685 (1936) 
(Robert Archbald, 1912); id. Sec. 526, at 746-47 (Cornelius H. Hanford, 
1912); id. Sec. 527, at 749 (Emory Speer, 1913); id. Sec. 528, at 753 
(Daniel Wright, 1914); id. Sec. 529, at 756 (Alston Dayton, 1915); id. 
Sec. 543, at 777-78 (William Baker, 1924); id. Sec. 544, at 778-79 
(George English, 1925); id. Sec. 549, at 789-90 (Frank Cooper, 1927); 
id. Sec. 550, at 791-92 (Francis Winslow, 1929); id. Sec. 551, at 793 
(Harry Anderson, 1930); id. Sec. 552, at 794 (Grover Moscowitz, 1930); 
id. Sec. 513, at 709-10 (Harold Louderback, 1932); 3 Deschler's 
Precedents ch. 14, Sec. 14.4, at 2143 (James Lowell, 1933); id. 
Sec. 18.1, at 2205-06 (Halsted Ritter, 1933); id. Sec. 14.10, at 2148 
(Albert Johnson and Albert Watson, 1944); H.R. Res. 1066, 94th Cong. 
(1976) (certain federal judges); H.R. Res. 966, 95th Cong. (1978) 
(Frank Battisti); see also 51 Cong. Rec. 6559-60 (1914) (noting passage 
of authorizing resolution for investigation of Daniel Wright); 68 Cong. 
Rec. 3532 (1927) (same for Frank Cooper).
    27. Articles for the Impeachment of Lebbeus R. Wilfley, Judge of 
the U.S. Court for China: Hearings Before a Subcomm. of the H. Comm. on 
the Judiciary, 60th Cong. 4 (1908) (statement of Rep. Waldo); see also 
id. at 45-46 (statement of Rep. Moon) (``This committee conceives to be 
its duty solely, under the resolution referring this matter to them, to 
examine the charges preferred in the petition . . . and to report 
thereon whether in its judgement the petitioner has made out a prima 
facie case; and also whether . . . Congress should adopt a resolution 
instructing the Judiciary Committee to proceed to an investigation of 
the facts of the case.''); 6 Cannon's Precedents Sec. 525, at 743-45 
(summarizing the Wilfley case, in which the Judiciary Committee 
ultimately reported that no formal investigation was warranted). The 
case of Judge Samuel Alschuler in 1935 similarly involved only a 
preliminary investigation--albeit one with actual investigative powers. 
The House first referred to the Judiciary Committee a resolution that, 
if approved, would authorize an investigation of potential impeachment 
charges. See 79 Cong. Rec. 7086, 7106 (1935). Six days later, it 
adopted a resolution that granted the committee investigative powers in 
support of ``the preliminary examinations deemed necessary'' for the 
committee to make a recommendation about whether a full investigation 
should occur. Id. at 7393-94. The committee ultimately recommended 
against a full investigation. See H.R. Rep. No. 74-1802, at 2 (1935).
    28. See, e.g., 18 Annals of Cong. 1885-86, 2197-98 (1808) (Harry 
Innes, 1808; the House passed a resolution authorizing an impeachment 
investigation, which concluded that the evidence accompanying the 
resolution did not support impeachment); 3 Hinds' Precedents Sec. 2486, 
at 981-83 (George Turner, 1796; no apparent investigation, presumably 
because of the parallel criminal prosecution recommended by Attorney 
General Lee, as discussed above); id. Sec. 2488, at 985 (Harry Toulmin, 
1811; the House ``declined to order a formal investigation''); 40 
Annals of Cong. 463-69, 715-18 (1822-23) (Charles Tait, 1823; no 
apparent investigation beyond examination of documents containing 
charges); 3 Hinds' Precedents Sec. 2493, at 991-92 (Benjamin Johnson, 
1833; no apparent investigation); id. Sec. 2511, at 1019-20 (Charles 
Sherman, 1873; the Judiciary Committee received evidence from the Ways 
and Means Committee, which had been investigating corruption in 
Congress, but the Judiciary Committee conducted no further 
investigation); 6 Cannon's Precedents Sec. 535, at 769 (Kenesaw 
Mountain Landis, 1921; the Judiciary Committee reported that ``charges 
were filed too late in the present session of the Congress'' to enable 
investigation); 3 Deschler's Precedents ch. 14, Sec. 14.6, at 2144-45 
(Joseph Molyneaux, 1934; the Judiciary Committee took no action on the 
referral of a resolution that would have authorized an investigation).
    29. See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, in the 
Hastings investigation, a committee subpoena had been issued for 
William Borders, who challenged the subpoena on First, Fourth, Fifth, 
and Eighth Amendment grounds); H.R. Rep. No. 100-1124, at 130 (1989) 
(noting the issuance of ``subpoenas duces tecum'' in the investigation 
of Judge Nixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. 
Edwards) (explaining the subcommittee's need to depose some witnesses 
pursuant to subpoena in the Nixon investigation); Judge Walter L. 
Nixon, Jr., Impeachment Inquiry: Hearing Before the Subcomm. on Civil & 
Constitutional Rights of the H. Comm. on the Judiciary, 101st Cong. 
530-606 (1988) (reprinting deposition of Magistrate Judge Roper).
    30. The House did pass resolutions authorizing funds for 
investigations with respect to the Hastings impeachment, see H.R. Res. 
134, 100th Cong. (1987); H.R. Res. 388, 100th Cong. (1988), and 
resolutions authorizing the committee to permit its counsel to take 
affidavits and depositions in both the Nixon and Hastings impeachments, 
see H.R. Res. 562, 100th Cong. (1988) (Nixon); H.R. Res. 320, 100th 
Cong. (1987) (Hastings).
    31. In the post-1989 era, as before, most of the impeachment 
resolutions against judges that were referred to the Judiciary 
Committee did not result in any further investigation. See, e.g., H.R. 
Res. 916, 109th Cong. (2006) (Manuel Real); H.R. Res. 207, 103d Cong. 
(1993) (Robert Collins); H.R. Res. 177, 103d Cong. (1993) (Robert 
Aguilar); H.R. Res. 176, 103d Cong. (1993) (Robert Collins).
    32. Unlike the House, ``the Senate treats its rules as remaining in 
effect continuously from one Congress to the next without having to be 
re-adopted.'' Richard S. Beth, Cong. Research Serv., R42929, Procedures 
for Considering Changes in Senate Rules 9 (Jan. 22, 2013). Of course, 
like the House, the Senate may change its rules by simple resolution.
    33. Nor do the Rules otherwise give the Speaker the authority to 
order an investigation or issue a subpoena in connection with 
impeachment. Rule I sets out the powers of the Speaker. She ``shall 
sign . . . all writs, warrants, and subpoenas of, or issued by order 
of, the House.'' Rule I, cl. 4. But that provision applies only when 
the House itself issues an order. See Jefferson's Manual Sec. 626, at 
348.
    34. Clause 2(m) of Rule XI was initially adopted on October 8, 
1974, and took effect on January 3, 1975. See H.R. Res. 988, 93d Cong. 
The rule appears to have remained materially unchanged from 1975 to the 
present (including during the time of the Clinton investigation). See 
H.R. Rule XI, cl. 2(m), 105th Cong. (Jan. 1, 1998) (version in effect 
during the Clinton investigation); Jefferson's Manual Sec. 805, at 586-
89 (reprinting current version and describing the provision's 
evolution).
    35. At the start of the 93rd Congress in 1973, the Judiciary 
Committee was ``authorized to conduct full and complete studies and 
investigations and make inquiries within its jurisdiction as set forth 
in [the relevant provision] of the Rules of the House of 
Representatives'' and was empowered ``to hold such hearings and 
require, by subpena or otherwise, the attendance and testimony of such 
witnesses and the production of such books, records, correspondence, 
memorandums, papers, and documents, as it deems necessary.'' H.R. Res. 
74, 93d Cong. Sec. Sec. 1, 2(a) (1973); see also Cong. Research Serv., 
R45769, The Impeachment Process in the House of Representatives 4 
(updated Nov. 14, 2019) (noting that, before Rule XI vested subpoena 
power in standing committees, the Judiciary Committee and other 
committees had often been given subpoena authority ``through 
resolutions providing blanket investigatory authorities that were 
agreed to at the start of a Congress'').
    36. The Judiciary Committee has also invoked House Resolution 430 
as an independent source of authority for an impeachment inquiry. See 
Tr. of Mot. Hrg. at 91-92, In re Application of the Comm. on the 
Judiciary; see also Majority Staff of H. Comm. on the Judiciary, 116th 
Cong., Constitutional Grounds for Presidential Impeachment 39 (Dec. 
2019). As discussed above, however, that resolution did not confer any 
investigative authority. Rather, it granted ``any and all necessary 
authority under Article I'' only ``in connection with'' certain 
``judicial proceeding[s]'' in federal court. H.R. Res. 430, 116th Cong. 
(2019); see supra note 7. The resolution therefore had no bearing on 
any committee's authority to compel the production of documents or 
testimony in an impeachment investigation.
    37. Even if the House had sought to ratify a previously issued 
subpoena, it could give that subpoena only prospective effect. As 
discussed above, the Supreme Court has recognized that the House may 
not cite a witness for contempt for failure to comply with a subpoena 
unsupported by a valid delegation of authority at the time it was 
issued. See Rumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 
(``To issue a valid subpoena, . . . a committee or subcommittee must 
conform strictly to the resolution establishing its investigatory 
powers[.]'').
    38. The letters accompanying other subpoenas, see supra note 9, 
contained similar threats that the recipients' ``failure or refusal to 
comply with the subpoena, including at the direction or behest of the 
President,'' would constitute ``evidence of obstruction of the House's 
impeachment inquiry.''
    39. See, e.g., Attempted Exclusion of Agency Counsel from 
Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, at *14 
(May 23, 2019) (``[I]t would be unconstitutional to enforce a subpoena 
against an agency employee who declined to appear before Congress, at 
the agency's direction, because the committee would not permit an 
agency representative to accompany him.''); Testimonial Immunity Before 
Congress of the Former Counsel to the President, 43 Op. O.L.C. __, at 
*20 (May 20, 2019) (``The constitutional separation of powers bars 
Congress from exercising its inherent contempt power in the face of a 
presidential assertion of executive privilege.''); Whether the 
Department of Justice May Prosecute White House Officials for Contempt 
of Congress, 32 Op. O.L.C. 65, 65-69 (2008) (concluding that the 
Department cannot take ``prosecutorial action, with respect to current 
or former White House officials who . . . declined to appear to 
testify, in response to subpoenas from a congressional committee, based 
on the President's assertion of executive privilege''); Application of 
28 U.S.C. Sec. 458 to Presidential Appointments of Federal Judges, 19 
Op. O.L.C. 350, 356 (1995) (``[T]he criminal contempt of Congress 
statute does not apply to the President or presidential subordinates 
who assert executive privilege.''); see also Authority of Agency 
Officials to Prohibit Employees from Providing Information to Congress, 
28 Op. O.L.C. 79, 80-82 (2004) (explaining that the Executive Branch 
has the constitutional authority to supervise its employees' disclosure 
of privileged and other information to Congress).

                               APPENDIX D

  LETTER OPINIONS FROM THE OFFICE OF LEGAL COUNSEL TO COUNSEL TO THE 
  PRESIDENT REGARDING ABSOLUTE IMMUNITY OF THE ACTING CHIEF OF STAFF, 
  LEGAL ADVISOR TO THE NATIONAL SECURITY COUNSEL, AND DEPUTY NATIONAL 
                            SECURITY ADVISOR

                        U.S. Department of Justice,
                                   Office of Legal Counsel,
                                  Washington, DC, October 25, 2019.
Pat A. Cipollone,
Counsel to the President, The White House,
Washington, DC.
    Dear Mr. Cipollone: Today, the Permanent Select Committee on 
Intelligence of the House of Representatives issued a subpoena seeking 
to compel Charles Kupperman, former Assistant to the President and 
Deputy National Security Advisor, to testify on Monday, October 28. The 
Committee subpoenaed Mr. Kupperman as part of its purported impeachment 
inquiry into the conduct of the President. The Administration has 
previously explained to the Committee that the House has not authorized 
an impeachment inquiry, and therefore, the Committee may not compel 
testimony in connection with the inquiry. Setting aside the question 
whether the inquiry has been lawfully authorized, you have asked 
whether the Committee may compel Mr. Kupperman to testify even assuming 
an authorized subpoena. We conclude that he is absolutely immune from 
compelled congressional testimony in his capacity as a former senior 
adviser to the President.
    The Committee seeks Mr. Kupperman's testimony about matters related 
to his official duties at the White House. We understand that Committee 
staff informed Mr. Kupperman's private counsel that the Committee 
wishes to question him about the telephone call between President Trump 
and the President of Ukraine that took place on July 25, 2019, during 
Mr. Kupperman's tenure as a presidential adviser, and related matters. 
See ``Urgent Concern'' Determination by the Inspector General of the 
Intelligence Community, 43 Op. O.L.C. __, at *1-3 (Sept. 3, 2019) 
(discussing the July 25 telephone call).
    The Department of Justice has for decades taken the position, and 
this Office recently reaffirmed, that ``Congress may not 
constitutionally compel the President's senior advisers to testify 
about their official duties.'' Testimonial Immunity Before Congress of 
the Former Counsel to the President, 43 Op. O.L.C. ____, at *1 (May 20, 
2019) (``Immunity of the Former Counsel''). This testimonial immunity 
is rooted in the separation of powers and derives from the President's 
status as the head of a separate, co-equal branch of government. See id 
at *3-7. Because the President's closest advisers serve as his alter 
egos, compelling them to testify would undercut the ``independence and 
autonomy'' of the Presidency, id. at *4, and interfere directly with 
the President's ability to faithfully discharge his responsibilities. 
Absent immunity, ``congressional committees could wield their 
compulsory power to attempt to supervise the President's actions, or to 
harass those advisers in an effort to influence their conduct, 
retaliate for actions the committee disliked, or embarrass and weaken 
the President for partisan gain.'' Immunity of the Assistant to the 
President and Director of the Office of Political Strategy and Outreach 
From Congressional Subpoena, 38 Op. O.L.C. __, at *3 (July 15, 2014). 
Congressional questioning of the President's senior advisers would also 
undermine the independence and candor of executive branch 
deliberations. See Immunity of the Former Counsel, 43 Op. O.L.C. at *5-
7. Administrations of both political parties have insisted on the 
immunity of senior presidential advisers, which is critical to protect 
the institution of the Presidency. Assertion of Executive Privilege 
with Respect to Clemency Decision, 23 Op. O.L.C. 1, 5 (1999) (A.G. 
Reno).
    Mr. Kupperman qualifies as a senior presidential adviser entitled 
to immunity. The testimonial immunity applies to the President's 
``immediate advisers--that is, those who customarily meet with the 
President on a regular or frequent basis.'' Memorandum for John D. 
Ehrlichman, Assistant to the President for Domestic Affairs, from 
William H. Rehnquist, Assistant Attorney General, Office of Legal 
Counsel, Re: Power of Congressional Committee to Compel Appearance or 
Testimony of ``White House Staff'' at 7 (Feb. 5, 1971). Your office has 
informed us that Mr. Kupperman served as the sole deputy to National 
Security Advisor John R. Bolton, and briefly served as Acting National 
Security Advisor after Mr. Bolton's departure. As Deputy National 
Security Advisor, Mr. Kupperman generally met with the President 
multiple times per week to advise him on a wide range of national 
security matters, and he met with the President even more often during 
the frequent periods when Mr. Bolton was traveling. Mr. Kupperman 
participated in sensitive internal deliberations with the President and 
other senior advisers, maintained an office in the West Wing of the 
White House, traveled with the President on official trips abroad on 
multiple occasions, and regularly attended the presentation of the 
President's Daily Brief and meetings of the National Security Council 
presided over by the President.
    Mr. Kupperman's immunity from compelled testimony is strengthened 
because his duties concerned national security. The Supreme Court held 
in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that senior presidential 
advisers do not enjoy absolute immunity from civil liability--a holding 
that, as we have previously explained, does not conflict with our 
recognition of absolute immunity from compelled congressional testimony 
for such advisers, see, e.g., Immunity of the Former Counsel, 43 Op. 
O.L.C. at *13-14. Yet the Harlow Court recognized that ``[f]or aides 
entrusted with discretionary authority in such sensitive areas as 
national security or foreign policy,'' even absolute immunity from suit 
``might well be justified to protect the unhesitating performance of 
functions vital to the national interest.'' 457 U.S. at 812; see also 
id. at 812 n.19 (``a derivative claim to Presidential immunity would be 
strongest in such `central' Presidential domains as foreign policy and 
national security, in which the President could not discharge his 
singularly vital mandate without delegating functions nearly as 
sensitive as his own'').
    Immunity is also particularly justified here because the Committee 
apparently seeks Mr. Kupperman' s testimony about the President's 
conduct of relations with a foreign government. The President has the 
constitutional responsibility to conduct diplomatic relations, see 
Assertion of Executive Privilege for Documents Concerning Conduct of 
Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 7 (1996) (A.G. 
Reno), and as a result, the President has the ``exclusive authority to 
determine the time, scope, and objectives of international 
negotiations.'' Unconstitutional Restrictions on Activities of the 
Office of Science and Technology Policy in Section 1340(a) of the 
Department of Defense and Full-Year Continuing Appropriations Act, 
2011, 35 Op. O.L.C. __, at *4 (Sept. 19, 2011) (quotation marks 
omitted). Compelling testimony about these sensitive constitutional 
responsibilities would only deepen the very concerns--about separation 
of powers and confidentiality--that underlie the rationale for 
testimonial immunity. See New York Times Co. v. United States, 403 U.S. 
713, 728 (1971) (Stewart, J., concurring) (``[I]t is elementary that 
the successful conduct of international diplomacy and the maintenance 
of an effective national defense require both confidentiality and 
secrecy.'').
    Finally, it is inconsequential that Mr. Kupperman is now a private 
citizen. In Immunity of the Former Counsel, we reaffirmed that for 
purposes of testimonial immunity, there is ``no material distinction'' 
between ``current and former senior advisers to the President,'' and 
therefore, an adviser's departure from the White House staff ``does not 
alter his immunity from compelled congressional testimony on matters 
related to his service to the President.'' 43 Op. O.L.C. at *16; see 
also Immunity of the Former Counsel to the President from Compelled 
Congressional Testimony, 31 Op. O.L.C. 191, 192-93 (2007). It is 
sufficient that the Committee seeks Mr. Kupperman's testimony on 
matters related to his official duties at the White House.
    Please let us know if we may be of further assistance.
                                           Steven A. Engel,
                                        Assistant Attorney General.
                                 ______
                                 
                        U.S. Department of Justice,
                                   Office of Legal Counsel,
                                  Washington, DC, November 3, 2019.
Pat A. Cipollone,
Counsel to the President, The White House,
Washington, DC.
    Dear Mr. Cipollone: On November 1, 2019, the Permanent Select 
Committee on Intelligence of the House of Representatives issued a 
subpoena seeking to compel John Eisenberg to testify at a deposition on 
Monday, November 4. Mr. Eisenberg serves as Assistant to the President, 
Deputy Counsel to the President for National Security Affairs, and 
Legal Advisor to the National Security Council. The Committee 
subpoenaed Mr. Eisenberg as part of its impeachment inquiry into the 
conduct of the President. See H.R. Res. 660, 116th Cong. (2019). You 
have asked whether the Committee may compel Mr. Eisenberg to testify. 
We conclude that he is absolutely immune from compelled congressional 
testimony in his capacity as a senior adviser to the President.
    The Committee has made clear that it seeks to question Mr. 
Eisenberg about matters related to his official duties at the White 
House. The Committee informed him that it is investigating the 
President's conduct of foreign relations with Ukraine and that it 
believes, ``[b]ased upon public reporting and evidence gathered as part 
of the impeachment inquiry,'' that Mr. Eisenberg has ``information 
relevant to these matters.'' Letter for John Eisenberg from Adam B. 
Schiff, Chairman, House Permanent Select Committee on Intelligence, et 
al. at 1 (Oct. 30, 2019); see also Letter for John Eisenberg from Adam 
B. Schiff, Chairman, House Permanent Select Committee on Intelligence, 
et al. at 1 (Nov. 1, 2019).
    The Executive Branch has taken the position for decades that 
``Congress may not constitutionally compel the President's senior 
advisers to testify about their official duties.'' Testimonial Immunity 
Before Congress of the Former Counsel to the President, 43 Op. O.L.C. 
__, at *1 (May 20, 2019) (``Immunity of the Former Counsel''). This 
testimonial immunity is rooted in the separation of powers and derives 
from the President's status as the head of a separate, co-equal branch 
of government. See id. at *3-7. Because the President's closest 
advisers serve as his alter egos, compelling them to testify would 
undercut the ``independence and autonomy'' of the Presidency, id. at 
*4, and interfere directly with the President's ability to faithfully 
discharge his constitutional responsibilities. Absent immunity, 
``congressional committees could wield their compulsory power to 
attempt to supervise the President's actions, or to harass those 
advisers in an effort to influence their conduct, retaliate for actions 
the committee disliked, or embarrass and weaken the President for 
partisan gain.'' Immunity of the Assistant to the President and 
Director of the Office of Political Strategy and Outreach From 
Congressional Subpoena, 38 Op. O.L.C. __, at *3 (July 15, 2014) 
(``Immunity of the Assistant to the President''). Congressional 
questioning of the President's senior advisers would also undermine the 
independence and candor of executive branch deliberations. See Immunity 
of the Former Counsel, 43 Op. O.L.C. at *5-7. For these reasons, the 
Executive Branch has long recognized the immunity of senior 
presidential advisers to be critical to protecting the institution of 
the Presidency.
    This testimonial immunity applies in an impeachment inquiry just as 
it applies in a legislative oversight inquiry. As our Office recently 
advised you, executive privilege remains available when a congressional 
committee conducts an impeachment investigation. See Letter for Pat A. 
Cipollone, Counsel to the President, from Steven A. Engel, Assistant 
Attorney General, Office of Legal Counsel at 2 & n.l (Nov. 1, 2019). 
The testimonial immunity of senior presidential advisers is ``broader'' 
than executive privilege and exists in part to prevent the inadvertent 
disclosure of privileged information, Immunity of the Former Counsel, 
43 Op. O.L.C. at *4, *6, so it follows that testimonial immunity also 
continues to apply in the impeachment context. More importantly, the 
commencement of an impeachment inquiry only heightens the need to 
safeguard the separation of powers and preserve the ``independence and 
autonomy'' of the Presidency--the principal concerns underlying 
testimonial immunity. Id. at *4. Even when impeachment proceedings are 
underway, the President must remain able to continue to discharge the 
duties of his office. The testimonial immunity of the President's 
senior advisers remains an important limitation to protect the 
independence and autonomy of the President himself.
    We do not doubt that there may be impeachment investigations in 
which the House will have a legitimate need for information possessed 
by the President's senior advisers, but the House may have a legitimate 
need in a legislative oversight inquiry. In both instances, the 
testimonial immunity of the President's senior advisers will not 
prevent the House from obtaining information from other available 
sources. The immunity of those immediate advisers will not itself 
prevent the House from obtaining testimony from others in the Executive 
Branch, including in the White House, or from obtaining pertinent 
documents (although the House may still need to overcome executive 
privilege with respect to testimony and documents to which the 
privilege applies). In addition, the President may choose to authorize 
his senior advisers to provide testimony because ``the benefit of 
providing such testimony as an accommodation to a committee's interests 
outweighs the potential for harassment and harm to Executive Branch 
confidentiality.'' Immunity of the Assistant to the President, 38 Op. 
O.L.C. at *4 n.2. Accordingly, our recognition that the immunity 
applies to an impeachment inquiry does not preclude the House from 
obtaining information from other sources.
    We next consider whether Mr. Eisenberg qualifies as a senior 
presidential adviser. The testimonial immunity applies to the 
President's ``immediate advisers--that is, those who customarily meet 
with the President on a regular or frequent basis.'' Memorandum for 
John D. Ehrlichman, Assistant to the President for Domestic Affairs, 
from William H. Rehnquist, Assistant Attorney General, Office of Legal 
Counsel, Re: Power of Congressional Committee to Compel Appearance or 
Testimony of ``White House Staff'' at 7 (Feb. 5, 1971). We believe that 
Mr. Eisenberg meets that definition. Mr. Eisenberg has served as an 
adviser to the President on sensitive legal and national security 
matters since the first day of the Administration, and his direct 
relationship with the President has grown over time. Your office has 
informed us that he regularly meets with the President multiple times 
each week, frequently in very small groups, and often communicates with 
the President multiple times per day. He is one of a small number of 
advisers who are authorized to contact the President directly, and the 
President directly seeks his advice. Mr. Eisenberg is therefore the 
kind of immediate presidential adviser that the Executive Branch has 
historically considered immune from compelled congressional testimony.
    Mr. Eisenberg's eligibility for immunity is particularly justified 
because his duties concern national security. The Supreme Court held in 
Hurluw v. Fitzgerald, 457 U.S. 800 (1982), that senior presidential 
advisers do not enjoy absolute immunity from civil liability--a holding 
that, as we have previously explained, does not conflict with our 
recognition of absolute immunity from compelled congressional testimony 
for such advisers, see Immunity of the Assistant to the President, 38 
Op. O.L.C. at *5-9. Yet the Harlow Court recognized that ``[f]or aides 
entrusted with discretionary authority in such sensitive areas as 
national security or foreign policy,'' even absolute immunity from suit 
``might well be justified to protect the unhesitating performance of 
functions vital to the national interest.'' 457 U.S. at 812; see also 
id. at 812 n.19 (``a derivative claim to Presidential immunity would be 
strongest in such `central' Presidential domains as foreign policy and 
national security, in which the President could not discharge his 
singularly vital mandate without delegating functions nearly as 
sensitive as his own'').
    Moreover, the Committee seeks Mr. Eisenberg's testimony about the 
President's conduct of relations with a foreign government. The 
President has the constitutional responsibility to conduct diplomatic 
relations, see Assertion of Executive Privilege for Documents 
Concerning Conduct of Foreign Affairs with Respect to Haiti, 20 Op. 
O.L.C. 5, 7 (1996) (A.G. Reno), and as a result, the President has the 
``exclusive authority to determine the time, scope, and objectives of 
international negotiations.'' Unconstitutional Restrictions on 
Activities of the Office of Science and Technology Policy in Section 
1340(a) of the Department of Defense and Full-Year Continuing 
Appropriations Act, 2011, 35 Op. O.L.C. __, at *4 (Sept. 19, 2011) 
(quotation marks omitted). Compelling testimony about these sensitive 
constitutional responsibilities would only deepen the very concerns--
about separation of powers and confidentiality--that underlie the 
rationale for testimonial immunity. See New York Times Co. v. United 
States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring) (``[I]t is 
elementary that the successful conduct of international diplomacy and 
the maintenance of an effective national defense require both 
confidentiality and secrecy.'').
    Please let us know if we may be of further assistance.
                                           Steven A. Engel,
                                        Assistant Attorney General.
                                 ______
                                 
                        U.S. Department of Justice,
                                   Office of Legal Counsel,
                                  Washington, DC, November 7, 2019.
Pat A. Cipollone,
Counsel to the President, The White House,
Washington, DC.
    Dear Mr. Cipollone: On November 7, 2019, the Permanent Select 
Committee on Intelligence of the House of Representatives issued a 
subpoena seeking to compel Mick Mulvaney, Assistant to the President 
and Acting White House Chief of Staff, to testify at a deposition on 
Friday, November 8. The Committee subpoenaed Mr. Mulvaney as part of 
its impeachment inquiry into the conduct of the President. See H.R. 
Res. 660, 116th Cong. (2019). You have asked whether the Committee may 
compel him to testify. We conclude that Mr. Mulvaney is absolutely 
immune from compelled congressional testimony in his capacity as a 
senior adviser to the President.
    The Executive Branch has taken the position for decades that 
``Congress may not constitutionally compel the President's senior 
advisers to testify about their official duties.'' Testimonial Immunity 
Before Congress ofthe Former Counsel to the President, 43 Op. O.L.C. 
__, at *1 (May 20, 2019). The immunity applies to those ``immediate 
advisers .  .  . who customarily meet with the President on a regular 
or frequent basis.'' Memorandum for John D. Ehrlichman, Assistant to 
the President for Domestic Affairs, from William H. Rehnquist, 
Assistant Attorney General, Office of Legal Counsel, Re: Power of 
Congressional Committee to Compel Appearance or Testimony of ``White 
House Staff'' at 7 (Feb. 5, 1971) (``Rehnquist Memorandum''). We 
recently advised you that this immunity applies in an impeachment 
inquiry just as in a legislative oversight inquiry. See Letter for Pat 
A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant 
Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019). ``Even 
when impeachment proceedings are underway,'' we explained, ``the 
President must remain able to continue to discharge the duties of his 
office. The testimonial immunity of the President's senior advisers 
remains an important limitation to protect the independence and 
autonomy ofthe President himself.'' Id.
    This immunity applies in connection with the Committee's subpoena 
for Mr. Mulvaney's testimony. The Committee intends to question Mr. 
Mulvaney about matters related to his official duties at the White 
House--specifically the President's conduct of foreign relations with 
Ukraine. See Letter for Mick Mulvaney from Adam B. Schiff, Chairman, 
House Permanent Select Committee on Intelligence, et al. (Nov. 5, 
2019). And Mr. Mulvaney, as Acting Chief of Staff, is a ``top 
presidential adviser[],'' In re Sealed Case, 121 F.3d 729, 757 (D.C. 
Cir. 1997), who works closely with the President in supervising the 
staff within the Executive Office ofthe President and managing the 
advice the President receives. See David B. Cohen & Charles E. Walcott, 
White House Transition Project, Report 2017-21, The Office of Chief of 
Staff l5-26 (2017). Mr. Mulvaney meets with and advises the President 
on a daily basis about the most sensitive issues confronting the 
government. Thus, he readily qualifies as an ``immediate adviser[]'' 
who may not be compelled to testify before Congress. Rehnquist 
Memorandum at 7.
    This conclusion also follows from this Office's prior recognition 
that certain Deputy White House Chiefs of Staff were immune from 
compelled congressional testimony. See Letter for Pat A. Cipollone, 
Counsel to the President, from Steven A. Engel, Assistant Attorney 
General, Office of Legal Counsel (Sept. 16, 2019) (former Deputy Chief 
of Staff for Policy Implementation Rick Dearborn); Letter for Fred F. 
Fielding, Counsel to the President, from Steven G. Bradbury, Principal 
Deputy Assistant Attorney General, Office of Legal Counsel (Aug. 1, 
2007) (Deputy White House Chief of Staff Karl Rove). In addition, as we 
have noted with respect to other recently issued subpoenas, testimonial 
immunity is particularly justified because the Committee seeks Mr. 
Mulvaney's testimony about the President's conduct of relations with a 
foreign government. See, e.g., Letter for Pat A. Cipollone, Counsel to 
the President, from Steven A. Engel, Assistant Attorney General, Office 
of Legal Counsel at 2-3 (Oct. 25, 2019); see also Harlow v. Fitzgerald, 
457 U.S. 800, 812 n.19 (1982) (``[A] derivative claim to Presidential 
immunity would be strongest in such `central' Presidential domains as 
foreign policy and national security, in which the President could not 
discharge his singularly vital mandate without delegating functions 
nearly as sensitive as his own.'').
    Please let us know if we may be of further assistance.
                                           Steven A. Engel,
                                        Assistant Attorney General.
                                 ______
                                 
            [In Proceedings Before the United States Senate]

             TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP

    January 20, 2020.
                                 ______
                                 
 [In the Senate of the United States Sitting as a Court of Impeachment]
             In re Impeachment of President Donald J. Trump

Replication of the United States House of Representatives to the Answer 
      of President Donald J. Trump to the Articles of Impeachment

    The House of Representatives, through its Managers and counsel, 
replies to the Answer of President Donald J. Trump as follows:
                                preamble
    The House denies each and every allegation and defense in the 
Preamble to the Answer.
    The American people entrusted President Trump with the 
extraordinary powers vested in his Office by the Constitution, powers 
which he swore a sacred Oath to use for the Nation's benefit. President 
Trump broke that promise. He used Presidential powers to pressure a 
vulnerable foreign partner to interfere in our elections for his own 
benefit. In doing so, he jeopardized our national security and our 
democratic self-governance. He then used his Presidential powers to 
orchestrate a cover-up unprecedented in the history of our Republic: a 
complete and relentless blockade of the House's constitutional power to 
investigate high Crimes and Misdemeanors.
    President Trump maintains that the Senate cannot remove him even if 
the House proves every claim in the Articles of impeachment. That is a 
chilling assertion. It is also dead wrong. The Framers deliberately 
drafted a Constitution that allows the Senate to remove Presidents who, 
like President Trump, abuse their power to cheat in elections, betray 
our national security, and ignore checks and balances. That President 
Trump believes otherwise, and insists he is free to engage in such 
conduct again, only highlights the continuing threat he poses to the 
Nation if allowed to remain in office.
    Despite President Trump's stonewalling of the impeachment inquiry, 
the House amassed overwhelming evidence of his guilt. It did so through 
fair procedures rooted firmly in the Constitution and precedent. It 
extended President Trump protections equal to, or greater than, those 
afforded to Presidents in prior impeachment inquiries. To prevent 
President Trump's obstruction from delaying justice until after the 
very election he seeks to corrupt, the House moved decisively to adopt 
the two Articles of impeachment. Still, new evidence continues to 
emerge, all of which confirms these charges.
    Now it is the Senate's duty to conduct a fair trial--fair for 
President Trump, and fair for the American people. Only if the Senate 
sees and hears all relevant evidence--only if it insists upon the whole 
truth--can it render impartial justice. That means the Senate should 
require the President to turn over the documents he is hiding. It 
should hear from witnesses, as it has done in every impeachment trial 
in American history; it especially should hear from witnesses the 
President blocked from testifying in the House. President Trump cannot 
have it both ways. His Answer directly disputes key facts. He must 
either surrender all evidence relevant to the facts he has disputed or 
concede the facts as charged. Otherwise, this impeachment trial will 
fall far short of the American system of justice.
    President Trump asserts that his impeachment is a partisan 
``hoax.'' He is wrong. The House duly approved Articles of impeachment 
because its Members swore Oaths to support and defend the Constitution 
against all threats, foreign and domestic. The House has fulfilled its 
constitutional duty. Now, Senators must honor their own Oaths by 
holding a fair trial with all relevant evidence. The Senate should 
place truth above faction. And it should convict the President on both 
Articles.
                               article i
    The House denies each and every allegation in the Answer to Article 
I that denies the acts, knowledge, intent, or wrongful conduct charged 
against President Trump. The House states that each and every 
allegation in Article I is true, and that any affirmative defenses set 
forth in the Answer to Article I are wholly without merit. The House 
further states that Article I properly alleges an impeachable offense 
under the Constitution, is not subject to a motion to dismiss, and 
should be considered and adjudicated by the Senate sitting as a Court 
of Impeachment.
    Article I charges President Trump with Abuse of Power. The 
President solicited and pressured a foreign nation, Ukraine, to help 
him cheat in the next Presidential election by announcing two 
investigations: the first into an American citizen who was also a 
political opponent of his; the second into a baseless conspiracy theory 
promoted by Russia that Ukraine, not Russia, interfered in the 2016 
election. President Trump sought to coerce Ukraine into making these 
announcements by withholding two official acts: the release of 
desperately needed military aid and a vital White House meeting. There 
is overwhelming evidence of the charges in Article I, as set forth in 
the 111-page brief and statement of material facts that the House 
submitted on January 18, 2020.
    In his Answer, the President describes ``several simple facts'' 
that prove he ``did nothing wrong.'' This is false. President Trump 
cites the record of his July 25, 2019 phone call with President 
Volodymyr Zelensky of Ukraine. But we have read the transcript and it 
confirms his guilt. It shows, first and foremost, that he solicited a 
foreign power to announce two politically motivated investigations that 
would benefit him personally. It also indicates that he linked these 
investigations to the release of military assistance: on the call, he 
responded to President Zelensky's inquiries about U.S. military support 
by pressing him to ``do us a favor though'' and pursue President 
Trump's desired political investigations. Astoundingly, the Answer 
claims that President Trump raised the issue of ``corruption'' during 
the July 25 call, but that word appears nowhere in the record of the 
call, despite the urging of his national security staff. In fact, 
President Trump did not care at all about Ukraine; he only cared about 
the ``big stuff'' that affected him personally, specifically the Biden 
investigation.
    President Trump also points to statements by ``President Zelensky 
and other Ukrainian officials'' denying any impropriety. Yet there is 
clear proof that Ukrainian officials felt pressured by President Trump 
and grasped the corrupt nature of his scheme. For example, a Ukrainian 
national security advisor stated that President Zelensky ``is sensitive 
about Ukraine being taken seriously, not merely as an instrument in 
Washington domestic, reelection politics.'' As experts testified in the 
House, President Zelensky remains critically dependent on continued 
United States military and diplomatic support. He has powerful 
incentives to avoid angering President Trump.
    President Trump places great weight on two of his own statements 
denying a quid pro quo. These are hardly convincing. One denial the 
President blurted out, unprompted, to Ambassador Gordon Sondland, but 
only after the White House had learned about a whistleblower complaint 
and the Washington Post had reported the President's corrupt scheme--in 
other words, after President Trump got caught. President Trump then 
demanded to Ambassador Sondland that Ukraine execute the very this-for-
that corrupt exchange that is alleged in Article I. As to the second 
denial cited in the Answer, President Trump made this statement to 
Senator Ron Johnson also after having learned of the whistleblower 
complaint, while inexplicably refusing the Senator's urgent plea to 
release the military aid. In any event, these self-serving false 
statements are contradicted by all of the other evidence. They show a 
cover-up and consciousness of guilt, not a credible defense for the 
President.
    Lastly, the President notes that he met with President Zelensky at 
the U.N. General Assembly and released the aid without Ukraine 
announcing the investigations. But he did so only after he was caught 
red-handed. And he still has not met with President Zelensky at the 
White House, which Ukraine has long sought to demonstrate United States 
support in the face of Russian aggression.
    The Answer offers an unconvincing and implausible defense against 
the factual allegations in Article I. The ``simple facts'' that it 
recites confirm President Trump's guilt, not his innocence. Moreover, 
fairness demands that if the President wants to put the facts at issue, 
he must end his cover-up and provide the Senate with all of the 
relevant documents and testimony. He cannot deny facts established by 
overwhelming evidence while concealing additional relevant evidence.
    The President also asserts that Article I does not state an 
impeachable offense. In his view, the American people are powerless to 
remove a President for corruptly using his Office to cheat in the next 
election by soliciting and coercing a foreign power to sabotage a rival 
and spread conspiracy theories helpful to the President. This is the 
argument of a monarch, with no basis in the Constitution.
    Abuse of Power is an impeachable offense. The Framers made this 
clear, including Alexander Hamilton, James Madison, James Iredell, and 
Edmund Randolph. The Supreme Court has recognized as much, as did the 
House Judiciary Committee in President Richard Nixon's case.
    When the Framers wrote the Impeachment Clause, they aimed it 
squarely at abuse of office for personal gain, betrayal of the national 
interest through foreign entanglements, and corruption of elections. 
President Trump has engaged in the trifecta of constitutional 
misconduct warranting removal. He is the Framers' worst nightmare come 
to life.
                               article ii
    The House denies each and every allegation in the Answer to Article 
II that denies the acts, knowledge, intent, or wrongful conduct charged 
against President Trump. The House further states that each and every 
allegation in Article II is true, and that any affirmative defenses set 
forth in the Answer to Article II are wholly without merit. The House 
further states that Article II properly alleges an impeachable offense 
under the Constitution, is not subject to a motion to dismiss, and 
should be considered and adjudicated by the Senate sitting as a Court 
of Impeachment.
    Article II charges President Trump with directing the categorical 
and indiscriminate defiance of every single subpoena served by the 
House in its impeachment inquiry. No President or other official in the 
history of the Republic has ever ordered others to defy an impeachment 
subpoena; Presidents Andrew Johnson, Richard Nixon, and Bill Clinton 
all allowed their most senior advisors to give testimony to 
Congressional investigators. Nor has any President or other official 
himself defied such a subpoena--except for President Nixon, who, like 
President Trump, faced an article of impeachment for Obstruction of 
Congress. Instead, Presidents have recognized that Congressional power 
is at its apex in an impeachment. As President James Polk stated: the 
``power of the House'' in cases of impeachment ``would penetrate into 
the most secret recesses of the Executive Departments.''
    President Trump's defenses are wrong. At his personal direction, 
nine officials refused subpoenas to testify and the White House, Office 
of Management and Budget, and Departments of State, Defense, and Energy 
all defied valid subpoenas for documents. The fact that President Trump 
caved to public pressure and released two call transcripts--which, in 
fact, expose his guilt--hardly amounts to ``transparency'' and does not 
mitigate his obstruction.
    Nor is President Trump's Obstruction of Congress excused by his 
incorrect legal arguments.
    First, the impeachment inquiry was properly authorized and 
Congressional subpoenas do not require a vote of the full House.
    Second, President Trump's blanket and categorical defiance of the 
House stemmed from his unilateral decision not to ``participate'' in 
the impeachment investigation, not from any legal assertion.
    Third, President Trump never actually asserted executive privilege, 
a limited doctrine that has never been accepted as a basis for defying 
impeachment subpoenas. The foreign affairs and national security 
setting of this impeachment does not require a different result here; 
it makes the President's obstruction all the more alarming. The Framers 
explicitly stated that betrayal involving foreign powers is a core 
impeachable offense. It follows that the House is empowered to 
investigate such abuses, as all 17 current and former Executive Branch 
officials who testified about these matters recognized.
    Fourth, the President's invocation of ``absolute immunity'' fails 
because this fictional doctrine has been rejected by every court to 
consider it in similar circumstances; President Trump extended it far 
beyond any understanding by prior Presidents; and it offers no 
explanation for his across-the-board refusal to turn over every single 
document subpoenaed.
    Finally, the President's lawyers have argued in court that it is 
constitutionally forbidden for the House to seek judicial enforcement 
of its subpoenas, even as they now argue in the Senate that the House 
is required to seek such enforcement. Again, President Trump would have 
it both ways: he argues simultaneously that the House must use the 
courts and that it is prohibited from using the courts. This duplicity 
is poor camouflage for the weakness of President Trump's legal 
arguments. More significantly, any judicial enforcement effort would 
have taken years to pursue. In granting the House the ``sole Power of 
Impeachment,'' along with the power to investigate grounds for 
impeachment, the Framers did not require the House to exhaust all 
alternative methods of obtaining evidence, especially when those 
alternatives would fail to deal with an immediate threat. To protect 
the Nation, the House had to act swiftly in addressing the clear and 
present danger posed by President Trump's misconduct.
    President Trump engaged in a cover-up that itself establishes his 
consciousness of guilt. Innocent people seek to bring the truth to 
light. In contrast, President Trump has acted in the way that guilty 
people do when they are caught and fear the facts. But the stakes here 
are even higher than that. In completely obstructing an investigation 
into his own misconduct, President Trump asserted the prerogative to 
nullify Congress's impeachment power itself. He placed himself above 
the law and eviscerated the separation of powers. This claim evokes 
monarchy and despotism. It has no place in our democracy, where even 
the highest official must answer to Congress and the Constitution.
                               conclusion
    The House denies each and every allegation and defense in the 
Conclusion to the Answer.
    President Trump did not engage in this corrupt conduct to uphold 
the Presidency or protect the right to vote. He did it to cheat in the 
next election and bury the evidence when he got caught. He has acted in 
ways that prior Presidents expressly disavowed, while injuring our 
national security and democracy. And he will persist in that 
misconduct--which he deems ``perfect''--unless and until he is removed 
from office. The Senate should do so following a fair trial.
            Respectfully submitted,
    United States House of Representatives
                                   Adam B. Schiff,
                                   Jerrold Nadler,
                                   Zoe Lofgren,
                                   Hakeem S. Jeffries,
                                   Val Butler Demings,
                                   Jason Crow,
                                   Sylvia R. Garcia,
                                           U.S. House of 
                                               Representatives 
                                               Managers.
    January 20, 2020.
                                 ______
                                 
 [In the Senate of the United States Sitting as a Court of Impeachment]
             In re Impeachment of President Donald J. Trump

 Reply Memorandum of the United States House of Representatives in the 
             Impeachment Trial of President Donald J. Trump

                              introduction
    President Trump's brief confirms that his misconduct is 
indefensible. To obtain a personal political ``favor'' designed to 
weaken a political rival, President Trump corruptly pressured the newly 
elected Ukrainian President into announcing two sham investigations. As 
leverage against Ukraine in his corrupt scheme, President Trump 
illegally withheld hundreds of millions of dollars in security 
assistance critical to Ukraine's defense against Russian aggression, as 
well as a vital Oval Office meeting. When he got caught, President 
Trump sought to cover up his scheme by ordering his Administration to 
disclose no information to the House of Representatives in its 
impeachment investigation. President Trump's efforts to hide his 
misdeeds continue to this day, as do his efforts to solicit foreign 
interference. President Trump must be removed from office now because 
he is trying to cheat his way to victory in the 2020 Presidential 
election, and thereby undermine the very foundation of our democratic 
system.
    President Trump's lengthy brief to the Senate is heavy on rhetoric 
and procedural grievances, but entirely lacks a legitimate defense of 
his misconduct. It is clear from his response that President Trump 
would rather discuss anything other than what he actually did. Indeed, 
the first 80 pages of his brief do not meaningfully attempt to defend 
his conduct--because there is no defense for a President who seeks 
foreign election interference to retain power and then attempts to 
cover it up by obstructing a Congressional inquiry. The Senate should 
swiftly reject President Trump's bluster and evasion, which amount to 
the frightening assertion that he may commit whatever misconduct he 
wishes, at whatever cost to the Nation, and then hide his actions from 
the representatives of the American people without repercussion.
    First, President Trump's argument that abuse of power is not an 
impeachable offense is wrong--and dangerous. That argument would mean 
that, even accepting that the House's recitation of the facts is 
correct--which it is--the House lacks authority to remove a President 
who sells out our democracy and national security in exchange for a 
personal political favor. The Framers of our Constitution took pains to 
ensure that such egregious abuses of power would be impeachable. They 
specifically rejected a proposal to limit impeachable offenses to 
treason and bribery and included the term ``other high Crimes and 
Misdemeanors.''\1\
    There can be no reasonable dispute that the Framers would have 
considered a President's solicitation of a foreign country's election 
interference in exchange for critical American military and diplomatic 
support to be an impeachable offense. Nor can there be any dispute that 
the Framers would have recognized that allowing a President to prevent 
Congress from investigating his misconduct would nullify the House's 
``sole Power of Impeachment.''\2\ No amount of legal rhetoric can hide 
the fact that President Trump exemplifies why the Framers included the 
impeachment mechanism in the Constitution: to save the American people 
from these kinds of threats to our republic.
    Second, President Trump's assertion that impeachable offenses must 
involve criminal conduct is refuted by two centuries of precedent and, 
if accepted, would have intolerable consequences. But this argument has 
not been accepted in previous impeachment proceedings and should not be 
accepted here. As one member of President Trump's legal team previously 
conceded, President Trump's theory would mean that the President could 
not be impeached even if he allowed an enemy power to invade and 
conquer American territory.\3\ The absurdity of that argument 
demonstrates why every serious constitutional scholar to consider it--
including the House Republicans' own legal expert--has rejected it.\4\ 
The Framers intentionally did not tie ``high Crimes and Misdemeanors'' 
to the federal criminal code--which did not exist at the time of the 
Founding--but instead created impeachment to cover severe abuses of the 
public trust like those of President Trump.
    Third, President Trump now claims that he had virtuous reasons for 
withholding from our ally Ukraine sorely needed security assistance and 
that there was no actual threat or reward as part of his proposed 
corrupt bargain. But the President's after-the-fact justifications for 
his illegal hold on security assistance cannot fool anybody. The reason 
President Trump jeopardized U.S. national security and the integrity of 
our elections is even more pernicious: he wanted leverage over Ukraine 
to obtain a personal, political favor that he hoped would bolster his 
reelection bid.
    If withholding the security assistance to Ukraine had been a 
legitimate foreign policy act, then there is no reason President 
Trump's staff would have gone to such lengths to hide it, and no reason 
President Trump would have tried so hard to deny the obvious when it 
came to light. It is common sense that innocent people do not behave 
like President Trump did here. As his own Acting Chief of Staff Mick 
Mulvaney bluntly confessed and as numerous other witnesses confirmed, 
there was indeed a quid pro quo with Ukraine. The Trump 
Administration's message to the American people was clear: ``We do that 
all the time with foreign policy.''\5\ Instead of embracing what his 
Acting Chief of Staff honestly disclosed, President Trump has tried to 
hide what the evidence plainly reveals: the Emperor has no clothes.
    Fourth, President Trump's assertion that he has acted with 
``transparency'' during this impeachment is yet another falsehood. In 
fact, unlike any of his predecessors, President Trump categorically 
refused to provide the House with any information and demanded that the 
entire Executive Branch coverup his misconduct. President Trump's 
subordinates fell in line.
    Similarly wrong is the argument by President Trump's lawyers that 
his blanket claim of immunity from investigation should now be 
understood as a valid assertion of executive privilege--a privilege he 
never actually invoked. And President Trump's continued attempt to 
justify his obstruction by citing to constitutional separation of 
powers misunderstands the nature of an impeachment. His across-the-
board refusal to provide Congress with information and his assertion 
that his own lawyers are the sole judges of Presidential privilege 
undermines the constitutional authority of the people's representatives 
and shifts power to an imperial President.
    Fifth, President Trump's complaints about the House's impeachment 
procedures are meritless excuses. President Trump was offered an 
eminently fair process by the House and he will receive additional 
process during the Senate proceedings, which, unlike the House 
investigation, constitute an actual trial. As President Trump 
recognizes, the Senate must ``decide for itself all matters of law and 
fact.''\6\
    The House provided President Trump with process that was just as 
substantial--if not more so--than the process afforded other Presidents 
who have been subject to an impeachment inquiry, including the right to 
call witnesses and present evidence. Because he had too much to hide, 
President Trump did not take advantage of what the House offered him 
and instead decided to shout from the sidelines--only to claim that the 
process he obstructed was unfair. President Trump's lengthy trial brief 
does not explain why, even now, he has not offered any documents or 
witnesses in his defense or provided any information in response to the 
House's repeated requests. This is not how an innocent person behaves. 
President Trump's process arguments are simply part of his attempt to 
cover up his wrongdoing and to undermine the House in the exercise of 
its constitutional duty.
    Finally, President Trump's impeachment trial is an effort to 
safeguard our elections, not override them. His unsupported contentions 
to the contrary have it exactly backwards. President Trump has shown 
that he will use the immense powers of his office to manipulate the 
upcoming election to his own advantage. Respect for the integrity of 
this Nation's democratic process requires that President Trump be 
removed before he can corrupt the very election that would hold him 
accountable to the American people.
    In addition, President Trump is wrong to suggest that the 
impeachment trial is an attempt to overturn the prior election. If the 
Senate convicts and removes President Trump from office, then the Vice 
President elected by the American people in 2016 will become the 
President.\7\ The logic of President Trump's argument is that because 
he was elected once and stands for reelection again, he cannot be 
impeached no matter how egregiously he betrays his oath of office. This 
type of argument would not have fooled the Framers of our Constitution, 
who included impeachment as a check on Presidents who would abuse their 
office for personal gain, like President Trump.
    The Framers anticipated that a President might one day seek to 
place his own personal and political interests above those of our 
Nation, and they understood that foreign interference in our elections 
was one of the gravest threats to our democracy. The Framers also knew 
that periodic democratic elections cannot serve as an effective check 
on a President who seeks to manipulate the those elections. The 
ultimate check on Presidential misconduct was provided by the Framers 
through the power to impeach and remove a President--a power that the 
Framers vested in the representatives of the American people.
    Indeed, on the eve of his impeachment trial, President Trump 
continues to insist that he has done nothing wrong. President Trump's 
view that he cannot be held accountable, except in an election he seeks 
to fix in his favor, underscores the need for the Senate to exercise 
its solemn constitutional duty to remove President Trump from office. 
If the Senate does not convict and remove President Trump, he will have 
succeeded in placing himself above the law. Each Senator should set 
aside partisanship and politics and hold President Trump accountable to 
protect our national security and democracy.
                                argument
I. President Trump must be Removed for Abusing his Power
  A. President Trump's Abuse of Power Is a Quintessential Impeachable 
                                Offense
    President Trump contends that he can abuse his power with 
impunity--in his words, ``do whatever I want as President''\8\--
provided he does not technically violate a statute in the process. That 
argument is both wrong and remarkable. History, precedent, and the 
words of the Framers conclusively establish that serious abuses of 
power--offenses, like President Trump's, that threaten our democratic 
system--are impeachable.
    President Trump's own misconduct illustrates the implications of 
his position. In President Trump's view, as long as he does not violate 
a specific statute, then the only check on his corrupt abuse of his 
office for his personal gain is the need to face reelection--even if 
the very goal of his abusive behavior is to cheat in that election. If 
President Trump were to succeed in his scheme and win a second and 
final term, he would face no check on his conduct. The Senate should 
reject that dangerous position.
    1. The Framers Intended Impeachment as a Remedy for Abuse of High 
Office. President Trump appears to reluctantly concede that the fear 
that Presidents would abuse their power was among the key reasons that 
the Framers adopted an impeachment remedy.\9\ But he contends that 
abuse of power was never intended to be an impeachable offense in its 
own right.\10\
    President Trump's focus on the label to be applied to his conduct 
distracts from the fundamental point: His conduct is impeachable 
whether it is called an ``abuse of power'' or something else. The 
Senate is not engaged in an abstract debate about how to categorize the 
particular acts at issue; the question instead is whether President 
Trump's conduct is impeachable because it is a serious threat to our 
republic. For the reasons set forth in the House Manager's opening 
brief, the answer is plainly yes.
    In any event, President Trump is wrong that abuses of power are not 
impeachable. The Framers focused on the toxic combination of corruption 
and foreign interference--what George Washington in his Farewell 
Address called ``one of the most baneful foes of republican 
government.''\11\ James Madison put it simply: The President ``might 
betray his trust to foreign powers.''\12\
    To the Framers, such an abuse of power was the quintessential 
impeachable conduct. They therefore rejected a proposal to limit 
impeachable offenses to only treason and bribery. They recognized the 
peril of setting a rigid standard for impeachment, and adopted 
terminology that would encompass what George Mason termed the many 
``great and dangerous offenses'' that might ``subvert the 
Constitution.''\13\ The Framers considered and rejected as too narrow 
the word ``corruption,'' deciding instead on the term ``high Crimes and 
Misdemeanors'' because it would encompass the type of ``abuse or 
violation of some public trust''--the abuse of power--that President 
Trump committed here.\14\
    2. Impeachable Conduct Need Not Violate Established Law. President 
Trump argues that a President's conduct is impeachable only if it 
violates a ``known offense defined in existing law.''\15\ That 
contention conflicts with constitutional text, Congressional 
precedents, and the overwhelming consensus of constitutional scholars.
    The Framers borrowed the term ``high Crimes and Misdemeanors'' from 
British practice and state constitutions. As that term was applied in 
England, officials had long been impeached for non-statutory offenses, 
such as the failure to spend money allocated by Parliament, disobeying 
an order of Parliament, and appointing unfit subordinates.\16\ The 
British understood impeachable offenses to be ``so various in their 
character, and so indefinable in their actual involutions, that it is 
almost impossible to provide systematically for them by positive 
law.''\17\
    American precedent confirms that the Impeachment Clause is not 
confined to a statutory code. The articles of impeachment against 
President Nixon turned on his abuse of power, rather than on his 
commission of a statutory offense. Many of the specific allegations set 
forth in those three articles did not involve any crimes. Instead, the 
House Judiciary Committee emphasized that President Nixon's conduct was 
``undertaken for his own personal political advantage and not in 
furtherance of any valid national policy objective''\18\--and expressly 
stated that his abuses of power warranted removal regardless whether 
they violated a specific statute.\19\
    Previous impeachments were in accord. In 1912, for example, Judge 
Archibald was impeached and convicted for using his position to 
generate business deals with potential litigants in his court, even 
though this behavior had not been shown to violate any then-existing 
statute or laws regulating judges. The House Manager in the Archibald 
impeachment asserted that ``[t]he decisions of the Senate of the United 
States, of the various State tribunals which have jurisdiction over 
impeachment cases, and of the Parliament of England all agree that an 
offense, in order to be impeachable, need not be indictable either at 
common law or under any statute.''\20\ As early as 1803, Judge 
Pickering was impeached and then removed from office by the Senate for 
refusing to allow an appeal, declining to hear witnesses, and appearing 
on the bench while intoxicated and thereby ``degrading the honor and 
dignity of the United States.''\21\
    President Trump's argument conflicts with a long history of 
scholarly consensus, including among ``some of the most distinguished 
members of the [Constitutional] convention.''\22\ As a leading early 
treatise on the Constitution explained, impeachable offenses ``are not 
necessarily offences against the general laws . . . [for] [i]t is often 
found that offences of a very serious nature by high officers are not 
offences against the criminal code, but consist in abuses or betrayals 
of trust, or inexcusable neglects of duty.''\23\ In his influential 
1833 treatise, Supreme Court Justice Joseph Story similarly explained 
that impeachment encompasses ``misdeeds . . . as peculiarly injure the 
commonwealth by the abuse of high offices of trust,'' whether or not 
those misdeeds violate existing statutes intended for other 
circumstances.\24\ Story observed that the focus was not ``crimes of a 
strictly legal character,'' but instead ``what are aptly termed, 
political offences, growing out of personal misconduct, or gross 
neglect, or usurpation, or habitual disregard of the public interests, 
in the discharge of the duties of political office.''\25\
    The fact that impeachment is not limited to violations of 
``established law'' reflects its basic function as a remedy reserved 
for office-holders who occupy special positions of trust and power. 
Statutes of general applicability do not address the ways in which 
those to whom impeachment applies may abuse their unique positions. 
Limiting impeachment only to those statutes would defeat its basic 
purpose.
    Modern constitutional scholars overwhelmingly agree. That includes 
one of President Trump's own attorneys, who argued during President 
Clinton's impeachment: ``It certainly doesn't have to be a crime, if 
you have somebody who completely corrupts the office of president, and 
who abuses trust and who poses great danger to our liberty.''\26\ More 
recently, that attorney changed positions and now maintains that a 
President cannot be impeached even for allowing a foreign sovereign to 
conquer an American State.\27\ The absurdity of that argument helps 
explain why it has been so uniformly rejected.
    Even if President Trump were correct that the Impeachment Clause 
covers only conduct that violates established law, his argument would 
fail. President Trump concedes that ``high crimes and misdemeanors'' 
encompasses conduct that is akin to the terms that precede it in the 
Constitution--treason and bribery.\28\ And there can be no reasonable 
dispute that his misconduct is closely akin to bribery. ``The corrupt 
exercise of power in exchange for a personal benefit defines 
impeachable bribery.''\29\ Here, President Trump conditioned his 
performance of a required duty (disbursement of Congressionally 
appropriated aid funds to Ukraine) on the receipt of a personal benefit 
(the announcement of investigations designed to skew the upcoming 
election in his favor). This conduct carries all the essential 
qualities of bribery under common law and early American precedents 
familiar to the Framers.\30\ It would be all the more wrong in their 
view because it involves a solicitation to a foreign government to 
manipulate our democratic process. And President Trump did actually 
violate an ``established law'': the Impoundment Control Act.\31\ Thus, 
even under his own standard, President Trump's conduct is impeachable.
    3. Corrupt Intent May Render Conduct an Impeachable Abuse of Power. 
President Trump next contends that the Impeachment Clause does not 
encompass any abuse of power that turns on the President's reasons for 
acting. Thus, according to President Trump, if he could perform an act 
for legitimate reasons, then he necessarily could perform the same act 
for corrupt reasons.\32\ That argument is obviously wrong.
    The Impeachment Clause itself forecloses President Trump's 
argument. The specific offenses enumerated in that Clause--bribery and 
treason--both turn on the subjective intent of the actor. Treason 
requires a ``disloyal mind'' and bribery requires corrupt intent.\33\ 
Thus, a President may form a military alliance with a foreign nation 
because he believes that doing so is in the Nation's strategic 
interests, but if the President forms that same alliance for the 
purpose of taking up arms and overthrowing the Congress, his conduct is 
treasonous. Bribery turns on similar considerations of corrupt intent. 
And, contrary to President Trump's assertion, past impeachments have 
concerned ``permissible conduct that had been simply done with the 
wrong subjective motives.''\34\ The first and second articles of 
impeachment against President Nixon, for example, charged him with 
using the powers of his office with the impermissible goals of 
obstructing justice and targeting his political opponents--in other 
words, for exercising Presidential power based on impermissible 
reasons.\35\
    There are many acts that a President has ``objective'' authority to 
perform that would constitute grave abuses of power if done for corrupt 
reasons. A President may issue a pardon because the applicant 
demonstrates remorse and meets the standards for clemency, but if a 
President issued a pardon in order to prevent a witness from testifying 
against him, or in exchange for campaign donations, or for other 
corrupt motives, his conduct would be impeachable--as our Supreme Court 
unanimously recognized nearly a century ago.\36\ The same principle 
applies here.
   B. The House Has Proven that President Trump Corruptly Pressured 
  Ukraine to Interfere in the Presidential Election for His Personal 
                                Benefit
    President Trump withheld hundreds of millions of dollars in 
military aid and an important Oval Office meeting from Ukraine, a 
vulnerable American ally, in a scheme to extort the Ukrainian 
government into announcing investigations that would help President 
Trump and smear a potential rival in the upcoming U.S. Presidential 
election. He has not come close to justifying that misconduct.
    1. President Trump principally maintains that he did not in fact 
condition the military aid and Oval Office meeting on Ukraine's 
announcement of the investigations--repeatedly asserting that there was 
``no quid pro quo.''\37\ The overwhelming weight of the evidence 
refutes that assertion. And President Trump has effectively muzzled 
witnesses who could shed additional light on the facts.
    Although President Trump argues that he ``did not make any 
connection between the assistance and any investigation,''\38\ his own 
Acting Chief of Staff, Mick Mulvaney, admitted the opposite during a 
press conference--conceding that the investigation into Ukrainian 
election interference was part of ``why we held up the money.''\39\ 
After a reporter inquired about this concession of a quid pro quo, Mr. 
Mulvaney replied, ``[W]e do that all the time with foreign policy,'' 
added, ``get over it,'' and then refused to explain these statements by 
testifying in response to a House subpoena.\40\ The President's brief 
does not even address Mr. Mulvaney's admission. Ambassador Taylor also 
acknowledged the quid pro quo, stating, ``I think it's crazy to 
withhold security assistance for help with a political campaign.''\41\ 
And Ambassador Sondland testified that the existence of a quid pro quo 
regarding the security assistance was as clear as ``two plus two equals 
four.''\42\ President Trump's lawyers also avoid responding to these 
statements.
    The same is true of the long-sought Oval Office meeting. As 
Ambassador Sondland testified: ``I know that members of this committee 
frequently frame these complicated issues in the form of a simple 
question: Was there a quid pro quo?'' He answered that, ``with regard 
to the requested White House call and the White House meeting, the 
answer is yes.''\43\ Ambassador Taylor reaffirmed the existence of a 
quid pro quo regarding the Oval Office meeting, testifying that ``the 
meeting President Zelensky wanted was conditioned on the investigations 
of Burisma and alleged Ukrainian interference in the 2016 U.S. 
elections.''\44\ Other witnesses testified similarly.\45\
    President Trump's principal answer to this evidence is to point to 
two conversations in which he declared to Ambassador Sondland and 
Senator Ron Johnson that there was ``no quid pro quo.''\46\ Both 
conversations occurred after the President had been informed of the 
whistleblower complaint against him, at which point he obviously had a 
strong motive to come up with seemingly innocent cover stories for his 
misconduct.
    In addition, President Trump's brief omits the second half of what 
he told Ambassador Sondland during their call. Immediately after 
declaring that there was ``no quid pro quo,'' the President insisted 
that ``President Zelensky must announce the opening of the 
investigations and he should want to do it.''\47\ President Trump thus 
conveyed that President Zelensky ``must'' announce the sham 
investigations in exchange for American support--the very definition of 
a quid pro quo, notwithstanding President Trump's self-serving, false 
statement to the contrary. Indeed that statement shows his 
consciousness of guilt.
    President Trump also asserts that there cannot have been a quid pro 
quo because President Zelensky and other Ukrainian officials have 
denied that President Trump acted improperly.\48\ But the evidence 
shows that Ukrainian officials understood that they were being used 
``as a pawn in a U.S. reelection campaign.''\49\ It is hardly 
surprising that President Zelensky has publicly denied the existence of 
a quid pro quo given that Ukraine remains critically dependent on 
continued U.S. military and diplomatic support, and given that 
President Zelensky accordingly has a powerful incentive to avoid 
angering an already troubled President Trump.
    President Trump's assertion that the evidence of a quid pro quo 
cannot be trusted because it is ``hearsay'' is incorrect.\50\ The White 
House's readout of the July 25 phone call itself establishes that 
President Trump linked military assistance on President Zelensky's 
willingness to do him a ``favor''--which President Trump made clear was 
to investigate former Vice President Biden and alleged Ukrainian 
election interference.\51\ One of the people who spoke directly to 
President Trump--and whose testimony therefore was not hearsay--was 
Ambassador Sondland, who confirmed the existence of a quid pro quo and 
provided some of the most damning testimony against President 
Trump.\52\ Other witnesses provided compelling corroborating evidence 
of the President's scheme.\53\
    President Trump's denials of the quid pro quo are, therefore, 
plainly false. There is a term for this type of self-serving denial in 
criminal cases--a ``false exculpatory''--which is strong evidence of 
guilt.\54\ When a defendant ``intentionally offers an explanation, or 
makes some statement tending to show his innocence, and this 
explanation or statement is later shown to be false,'' such a false 
statement tends to show the defendant's consciousness of guilt.\55\ 
President Trump's denial of the quid pro quo underscores that he knows 
his scheme to procure the sham investigations was improper, and that he 
is now lying to cover it up.
    2. President Trump next argues that he withheld urgently needed 
support for Ukraine for reasons unrelated to his political 
interest.\56\ But President Trump's asserted reasons for withholding 
the military aid and Oval Office meeting are implausible on their 
face.\57\
    President Trump never attempted to justify the decision to withhold 
the military aid and Oval Office meeting on foreign policy grounds when 
it was underway. To the contrary, President Trump's lawyer Rudy 
Giuliani acknowledged about his Ukraine work that ``this isn't foreign 
policy.''\58\ President Trump sought to hide the scheme from the public 
and refused to give any explanation for it even within the U.S. 
government. He persisted in the scheme after his own Defense Department 
warned--correctly--that withholding military aid appropriated by 
Congress would violate federal law, and after his National Security 
Advisor likened the arrangement to a ``drug deal.''\59\ And he released 
the military aid shortly after Congress announced an 
investigation\60\--in other words, after he got caught. The various 
explanations that President Trump now presses are after-the-fact 
pretexts that cannot be reconciled with his actual conduct.\61\
    The Anti-Corruption Pretext. The evidence shows that President 
Trump was actually indifferent to corruption in Ukraine before Vice 
President Biden became a candidate for President. After Biden's 
candidacy was announced, President Trump remained uninterested in anti-
corruption measures in Ukraine beyond announcements of two sham 
investigations that would help him personally.\62\ In fact, he praised 
a corrupt prosecutor and recalled a U.S. Ambassador known for her anti-
corruption efforts. President Trump did not seek investigations into 
alleged corruption--as one would expect if anti-corruption were his 
goal--but instead sought only announcements of investigations--because 
those announcements are what would help him politically.
    As Ambassador Sondland testified, President Trump ``did not give a 
[expletive] about Ukraine,'' and instead cared only about ``big stuff'' 
that benefitted him personally like ``the Biden investigation.''\63\ 
While President Trump asserts that he released the aid in response to 
Ukraine's actual progress on corruption,\64\ in fact he released the 
aid two days after Congress announced an investigation into his 
misconduct. And President Trump's claim that the removal of the former 
Ukrainian prosecutor general encouraged him to release the aid is 
astonishing.\65\ On the July 25 call with President Zelensky, President 
Trump praised that very same prosecutor--and Mr. Giuliani continues to 
meet with that prosecutor to try to dig up dirt on Vice President Biden 
to this day.\66\
    The Burden-Sharing Pretext. Until his scheme was exposed, President 
Trump never attempted to attribute his hold on military aid to a 
concern about other countries not sharing the burden of supporting 
Ukraine.\67\ One reason he never attempted to justify the hold on these 
grounds is that it is not grounded in reality. Other countries in fact 
contribute substantially to Ukraine. Since 2014, the European Union and 
European financial institutions have committed over $16 billion to 
Ukraine.\68\
    In addition, President Trump never even asked European countries to 
increase their contributions to Ukraine as a condition for releasing 
the assistance. He released the assistance even though European 
countries did not change their contributions. President Trump's 
asserted concern about burden-sharing is impossible to credit given 
that he kept his own Administration in the dark about the issue for 
months, never made any contemporaneous public statements about it, 
never asked Europe to increase its contribution,\69\ and released the 
aid without any change in Europe's contribution only two days after an 
investigation into his scheme commenced.\70\
    The Burisma Pretext. The conspiracy theory regarding Vice President 
Biden and Burisma is baseless. There is no credible evidence to support 
the allegation that Vice President Biden encouraged Ukraine to remove 
one of its prosecutors in an improper effort to protect his son. To the 
contrary, Biden was carrying out official U.S. policy--with bipartisan 
support--when he sought that prosecutor's ouster because the prosecutor 
was known to be corrupt.\71\ In any event, the prosecutor's removal 
made it more likely that Ukraine would investigate Burisma, not less 
likely--a fact that President Trump does not attempt to dispute. The 
allegations against Biden are based on events that occurred in late 
2015 and early 2016--yet President Trump only began to push Ukraine to 
investigate these allegations in 2019, when it appeared likely that 
Vice President Biden would enter the 2020 Presidential race to 
challenge President Trump's reelection.
    The Ukrainian-Election-Interference Pretext. The Intelligence 
Community, Senate Select Committee on Intelligence, and Special Counsel 
Mueller all unanimously found that Russia--not Ukraine--interfered in 
the 2016 election. President Trump's own FBI Director confirmed that 
American law enforcement has ``no information that indicates that 
Ukraine interfered with the 2016 presidential election.''\72\ In fact, 
the theory of Ukrainian interference is Russian propaganda--``a 
fictional narrative that is being perpetrated and propagated by the 
Russian security services themselves'' to drive a wedge between the 
United States and Ukraine.\73\
    Thanks to President Trump, this Russian propaganda effort is 
spreading. In November, President Vladimir Putin said, ``Thank God no 
one is accusing us of interfering in the U.S. elections anymore; now 
they're accusing Ukraine.''\74\ President Trump is correct in asserting 
``that the United States has a compelling interest. . .in limiting the 
participation of foreign citizens in activities of American democratic 
self-government''\75\--and that is exactly why his misconduct is so 
harmful, and warrants removal from Office.
II. President Trump must be removed for obstructing congress
    President Trump has answered the House's constitutional mandate to 
enforce its ``sole power of Impeachment''\76\ with open defiance: 
obstructing this constitutional process wholesale by withholding 
documents, directing witnesses not to appear, threatening those who 
did, and declaring both the courts and Congress powerless to compel his 
compliance. As President Trump flatly stated, ``I have an Article II, 
where I have the right to do whatever I want as president.''\77\ 
President Trump now seeks to excuse his obstruction by falsely claiming 
that he has been transparent and by hiding behind hypothetical 
executive privilege claims that he has never invoked and that do not 
apply.
      A. President Trump's Claim of Transparency Ignores the Facts
    President Trump does not appear to dispute that obstructing 
Congress during an impeachment investigation is itself an impeachable 
offense. He instead falsely insists that he ``has been extraordinarily 
transparent about his interactions with President Zelensky[].''\78\
    President Trump's transparency claim bears no resemblance to the 
facts. In no uncertain terms, President Trump has stated that ``we're 
fighting all the subpoenas [from Congress].''\79\ Later, through his 
White House Counsel, President Trump directed the entire Executive 
Branch to defy the House's subpoenas for documents in the impeachment--
and as a result not a single document from the Executive Branch was 
produced to the House.\80\ He also demanded that his current and former 
aides refuse to testify--and as a result nine Administration officials 
under subpoena refused to appear.\81\ That is a cover-up, and there is 
nothing transparent about it.
    President Trump emphasizes that he publicly released the memorandum 
of the July 25 call with President Zelensky. But President Trump did so 
only after the public had already learned that he had put a hold on 
military aid to Ukraine and after the existence of the Intelligence 
Community whistleblower complaint became public.\82\ The fact that 
President Trump selectively released limited information under public 
pressure, only to obstruct the House's investigation into his corrupt 
scheme, does not support his assertion of transparency.
  B. President Trump Categorically Refused to Comply with the House's 
                          Impeachment Inquiry
    In an impeachment investigation, the House has a constitutional 
entitlement to information concerning the President's misconduct. 
President Trump's categorical obstruction would, if accepted, seriously 
impair the impeachment process the Framers carefully crafted to guard 
against Presidential misconduct.\83\
    President Trump asserts that individualized disputes regarding 
responses to Congressional subpoenas do not rise to the level of an 
impeachable offense.\84\ But this argument distorts the categorical 
nature of his refusal to comply with the House's impeachment 
investigation. President Trump has refused any and all cooperation and 
ordered his Administration to do the same. No President in our history 
has so flagrantly undermined the impeachment process.
    President Nixon ordered ``[a]ll members of the White House Staff 
[to] appear voluntarily when requested by the committee,'' to ``testify 
under oath,'' and to ``answer fully all proper questions.''\85\ Even 
so, the Judiciary Committee voted to impeach him for not fully 
complying with House subpoenas when he withheld complete responses to 
certain subpoenas on executive privilege grounds. The Committee 
emphasized that ``the doctrine of separation of powers cannot justify 
the withholding of information from an impeachment inquiry'' because 
``the very purpose of such an inquiry is to permit the [House], acting 
on behalf of the people, to curb the excesses of another branch, in 
this instance the Executive.''\86\ If President Nixon's obstruction of 
Congress raised a ``slippery slope'' concern, then President Trump's 
complete defiance takes us to the ``bottom of the slope, surveying the 
damage to our Constitution.''\87\
    President Trump's attempt to fault the House for not using ``other 
tools at its disposal'' to secure the withheld information--such as 
seeking judicial enforcement of its subpoenas\88\--is astonishingly 
disingenuous. President Trump cannot tell the House that it must 
litigate the validity of its subpoenas while simultaneously telling the 
courts that they are powerless to enforce them.\89\
 C. President Trump's Assertion of Invented Immunities Does Not Excuse 
                      His Categorical Obstruction
    Having used the power of his office to stonewall the House's 
impeachment inquiry,
    President Trump has now enlisted his lawyers in the White House 
Counsel's Office--and coopted his Department of Justice's Office of 
Legal Counsel--to justify the cover-up.\90\ But his lawyers' attempts 
to excuse his obstruction do not work.
    One fact is essential to recognize: President Trump has never 
actually invoked executive privilege. That is because, under 
longstanding law, invoking executive privilege would require President 
Trump to identify with particularity the documents or communications 
containing sensitive material that he seeks to protect. Executive 
privilege generally cannot be used to shield misconduct, and it does 
not apply here because President Trump and his associates have 
repeatedly and publicly discussed the same matters he claims must be 
kept secret.
    President Trump instead maintains that his advisors should be 
``absolutely immune'' from compelled Congressional testimony.\91\ But 
this claim of absolute immunity--which turns on the theory that certain 
high-level Presidential advisors are ``alter egos'' of the President--
cannot possibly justify the decision to withhold the testimony of the 
lower-level agency officials whom President Trump ordered not to 
testify. Regardless, the so-called absolute immunity theory is an 
invention of the Executive Branch, and every court to consider this 
argument has rejected it--including the Supreme Court in an important 
ruling requiring President Nixon to disclose the Watergate Tapes.\92\ 
In other words, President Trump's defenses depend on arguments that 
disgraced former President Nixon litigated and lost.
    President Trump additionally attempts to justify his obstruction on 
the ground that Executive Branch counsel were barred from attending 
House depositions.\93\ Of course, the absence of counsel at depositions 
does not excuse the President's refusal to disclose documents in 
response to the House's subpoenas. And the decades-old rule excluding 
agency counsel from House depositions--first adopted by a Republican 
House of Representatives majority--exists for good reasons. It prevents 
agency officials implicated in Congressional investigations from 
misleadingly shaping the testimony of agency employees. It also 
protects the rights of witnesses to speak freely and without fear of 
reprisal\94\--a protection indisputably necessary here given that 
President Trump has repeatedly sought to intimidate and silence 
witnesses against him.\95\
    President Trump finally maintains that complying with the 
impeachment inquiry would somehow violate the constitutional separation 
of powers doctrine.96 This argument is exactly backwards. The President 
cannot reserve the right to be the arbiter of his own privilege--
particularly in an impeachment inquiry designed by the Framers of the 
Constitution to uncover Presidential misconduct. The fact that 
President Trump has found lawyers willing to concoct theories on which 
documents or testimony might be withheld is no basis for his refusal to 
comply with an impeachment inquiry. The check of impeachment would be 
little check at all if the law were otherwise.
III. The House conducted a constitutionally valid impeachment process
    As explained in the House Managers' opening brief, the House 
conducted a full and fair impeachment proceeding with robust procedural 
protections for President Trump, which he tellingly chose to ignore. 
The Committees took 100 hours of deposition testimony from 17 witnesses 
with personal knowledge of key events, and all Members of the 
Committees as well as Republican and Democratic staff were permitted to 
attend and given equal opportunity to ask questions. The Committees 
heard an additional 30 hours of public testimony from 12 of those 
witnesses, including three requested by the Republicans.\97\ President 
Trump's lawyers were invited to participate at the public hearings 
before the Judiciary Committee.\98\ Rather than do so, he urged the 
House: ``if you are going to impeach me, do it now, fast, so we can 
have a fair trial in the Senate.''\99\
    But faced with his Senate trial, President Trump now cites a host 
of procedural hurdles that he claims the House failed to satisfy. 
Nobody should be fooled by this obvious gamesmanship.
A. The Constitution Does Not Authorize President Trump to Second Guess 
       the House's Exercise of Its ``Sole Power of Impeachment''
    President Trump's attack on the House's conduct of its impeachment 
proceedings disregards the text of the Constitution, which gives the 
House the ``sole Power of Impeachment,''\100\ and empowers it to 
``determine the Rules of its Proceedings.''\101\ As the Supreme Court 
has observed, ``the word `sole'''--which appears only twice in the 
Constitution--``is of considerable significance.''\102\ In the context 
of the Senate's ``sole'' power over impeachment trials, the Court 
stressed that this term means that authority is ``reposed in the Senate 
and nowhere else''\103\ and that the Senate ``alone shall have 
authority to determine whether an individual should be acquitted or 
convicted.''\104\ The House's ``sole Power of Impeachment'' likewise 
vests it with the independent authority to structure its impeachment 
proceedings in the manner it deems appropriate. The Constitution leaves 
no room for President Trump to object to how the House, in the exercise 
of its ``sole'' power to determine impeachment, conducted its 
proceedings here.
    President Trump has no basis to assert that the impeachment inquiry 
was ``flawed from the start'' because it began before a formal House 
vote was taken.\105\ Neither the Constitution nor the House rules 
requires such a vote.\106\ And notwithstanding President Trump's 
refrain that the House's inquiry ``violated every precedent and every 
principle of fairness followed in impeachment inquiries for more than 
150 years,''\107\ House precedent makes clear that an impeachment 
inquiry does not require a House vote. As even President Trump is 
forced to acknowledge, several impeachment inquiries conducted in the 
House ``did not begin with a House resolution authorizing an 
inquiry.''\108\ In fact, the House has impeached several federal judges 
without ever passing such a resolution\109\--and the Senate then 
convicted and removed them from office.\110\ Here, by contrast, the 
House adopted a resolution confirming the investigating Committees' 
authority to conduct their inquiry into ``whether sufficient grounds 
exist for the House of Representatives to exercise its Constitutional 
power to impeach Donald John Trump, President of the United States of 
America.''\111\
    President Trump is similarly mistaken that a formal ``delegation of 
authority'' to the Committees was needed at the outset.\112\ The House 
adopted its Rules\113\--``a power that the Rulemaking Clause [of the 
Constitution] reserves to each House alone''\114\--but did not specify 
rules that would govern impeachment inquiries. It is thus difficult to 
understand how the House's impeachment inquiry could violate its rules 
or delegation authority. Not only did Speaker Pelosi instruct the 
Committees to proceed with an ``impeachment inquiry,''\115\ but in 
passing H. Res. 660, the full House ``directed'' the Committees to 
``continue their ongoing investigations as part of the existing House 
of Representatives inquiry'' into impeachment.\116\
    President Trump is wrong that the subpoenas were ``unauthorized and 
invalid'' because they were not approved in advance by the House.\117\ 
There is no requirement in either the Constitution or the House Rules 
that the House vote on subpoenas. Indeed, such a requirement would be 
inconsistent with the operations of the House, which in modern times 
largely functions through its Committees.\118\ The absence of specific 
procedures prescribing how the House and its Committees must conduct 
impeachment inquiries allows those extraordinary inquiries to be 
conducted in the manner the House deems most fair, efficient, and 
appropriate. But even assuming a House vote on the subpoenas was 
necessary, there was such a vote here. When it adopted H. Res. 660, the 
House understood that numerous subpoenas had already been issued as 
part of the impeachment inquiry. As the Report accompanying the 
Resolution explained, these ``duly authorized subpoenas'' issued to the 
Executive Branch ``remain in full force.''\119\
                B. President Trump Received Fair Process
    As his lawyers well know, the various criminal trial rights that 
President Trump demands have no place in the House's impeachment 
process.\120\ It is not a trial, much less a criminal trial to which 
Fifth or Sixth Amendment guarantees would attach. The rights President 
Trump has demanded have never been recognized in any prior Presidential 
impeachment investigation, just as they have never been recognized for 
a person under investigation by a grand jury--a more apt analogy to the 
House's proceedings here.
    Although President Trump faults the House for not allowing him to 
participate in depositions and witness interviews, no President has 
ever been permitted to participate during this initial fact-finding 
process. For example, the Judiciary Committee during the Nixon 
impeachment found ``[n]o record . . . of any impeachment inquiry in 
which the official under investigation participated in the 
investigation stage preceding commencement of Committee 
hearings.''\121\ In both the President Nixon and President Clinton 
impeachment inquiries, the President's counsel was not permitted to 
participate in or even attend depositions and interviews of 
witnesses.\122\ And in both cases, the House relied substantially on 
investigative findings by special prosecutors and grand juries, neither 
of which allowed the participation of the target of the 
investigation.\123\ Indeed, the reasons grand jury proceedings are kept 
confidential--``to prevent subornation of perjury or tampering with the 
witnesses who may testify before grand jury'' and ``encourage free and 
untrammeled disclosures by persons who have information,''\124\--apply 
with special force here, given President Trump's chilling pattern of 
witness intimidation.\125\
    In his litany of process complaints, President Trump notably omits 
the fact that his counsel could have participated in the proceedings 
before the Judiciary Committee in multiple ways. The President, through 
his counsel, could have objected during witness examinations, cross-
examined witnesses, and submitted evidence of his own.\126\ President 
Trump simply chose not to have his counsel do so. Having deliberately 
chosen not to avail himself of these procedural protections, President 
Trump cannot now pretend they did not exist.
    Nor is the President entitled to have the charges against him 
proven beyond a reasonable doubt.\127\ That burden of proof is 
applicable in criminal trials, where lives and liberties are at stake, 
not in impeachments. For this reason, the Senate has rejected the 
proof-beyond-a-reasonable-doubt standard in prior impeachments\128\ and 
instead has ``left the choice of the applicable standard of proof to 
each individual Senator.''\129\ Once again, President Trump's lawyers 
well know this fact.
    President Trump's contention that the Articles of Impeachment must 
fail on grounds of ``duplicity'' is wrong. President Trump alleges that 
the Articles are ``structurally deficient'' because they ``charge[] 
multiple different acts as possible grounds for sustaining a 
conviction.''\130\ But this simply repeats the argument from the 
impeachment trial of President Clinton, which differed from President 
Trump's impeachment in this critical respect. Where the articles 
charged President Clinton with engaging in ``one or more'' of several 
acts,\131\ the Articles of Impeachment against President Trump do not. 
This difference distinguishes President Trump's case from President 
Clinton's--where, in any event, the Senate rejected the effort to have 
the articles of impeachment dismissed as duplicitous. The bottom line 
is that the House knew precisely what it was doing when it drafted and 
adopted the Articles of Impeachment against President Trump, and 
deliberately avoided the possible problem raised in the impeachment 
proceedings against President Clinton.
    There was no procedural flaw in the House's impeachment inquiry. 
But even assuming there were, that would be irrelevant to the Senate's 
separate exercise of its ``sole Power to try all Impeachments.''\132\ 
Any imagined defect in the House's previous proceedings could be cured 
when the evidence is presented to the Senate at trial. President Trump, 
after all, touted his desire to ``have a fair trial in the 
Senate.''\133\ And as President Trump admits, it is the Senate's 
``constitutional duty to decide for itself all matters of law and fact 
bearing upon this trial.''\134\ Acquitting President Trump on baseless 
objections to the House's process would be an abdication by the Senate 
of this duty.
            Respectfully submitted,
    United States House of Representatives
                                   Adam B. Schiff,
                                   Jerrold Nadler,
                                   Zoe Lofgren,
                                   Hakeem S. Jeffries
                                   Val Butler Demings
                                   Jason Crow,
                                   Sylvia R. Garcia.
                                           U.S. House of 
                                               Representatives 
                                               Managers.
    January 21, 2020.

    The House Managers wish to acknowledge the assistance of the 
following individuals in preparing this reply memorandum: Douglas N. 
Letter, Megan Barbero, Josephine Morse, Adam A. Grogg, William E. 
Havemann, Jonathan B. Schwartz, Christine L. Coogle, Lily Hsu, and Nate 
King of the House Office of General Counsel; Daniel Noble, Daniel S. 
Goldman, and Maher Bitar of the House Permanent Select Committee on 
Intelligence; Norman L. Eisen, Barry H. Berke, Joshua Matz, and Sophia 
Brill of the House Committee on the Judiciary; the investigative staff 
of the House Committee on Oversight and Reform; and David A. O'Neil, 
Anna A. Moody, David Sarratt, Laura E. O'Neill, and Elizabeth Nielsen.
                                endnotes
    1. U.S. Const., Art. II, Sec. 4.
    2. U.S. Const., Art. I, Sec. 2, cl. 5.
    3. See Alan Dershowitz, The Case Against Impeaching Trump 26-27 
(2018).
    4. See, e.g., Jonathan Turley, Written Statement, The Impeachment 
Inquiry into President Donald J. Trump: The ``Constitutional Basis'' 
for Presidential Impeachment 10-11 (Dec. 4, 2019), https://perma.cc/
92PY-MBVY; Charlie Savage, `Constitutional Nonsense': Trump's 
Impeachment Defense Defies Legal Consensus, N.Y. Times (Jan. 20, 2020), 
https://perma.cc/76TD-94XT.
    5. Statement of Material Facts para.121 (Jan. 18, 2020) (Statement 
of Facts) (filed as an attachment to the House's Trial Memorandum).
    6. Trial Memorandum of President Donald J. Trump at 13 (Jan. 20, 
2020) (Opp.).
    7. As the then-House Managers explained in President Clinton's 
impeachment trial, ``[t]he 25th Amendment to the Constitution ensures 
that impeachment and removal of a President would not overturn an 
election because it is the elected Vice President who would replace the 
President not the losing presidential candidate.'' Reply of the U.S. 
House of Representatives to the Trial Mem. of President Clinton, in 
Proceedings of the United States Senate in the Impeachment Trial of 
President Willian Jefferson Clinton, Volume II: Floor Trial 
Proceedings, S. Doc. No. 106-4, at 1001 (1999).
    8. Statement of Facts para.164.
    9. Opp. at 57 n.383.
    10. Opp. at 1-2.
    11. George Washington, Farewell Address (Sept. 19, 1796), George 
Washington Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, 
April 3, 1793-March 3, 1797, Library of Congress.
    12. 2 The Records of the Federal Convention of 1787, at 66 (Max 
Farrand ed., 1911).
    13. Id. at 550.
    14. The Federalist No. 65 (Alexander Hamilton); see The Federalist 
Nos. 68 (Alexander Hamilton); The Federalist No. 69 (Alexander 
Hamilton).
    15. Opp. at 14-16.
    16. Raoul Berger, Impeachment: The Constitutional Problems 67-69 
(1973).
    17. 2 Joseph Story, Commentaries on the Constitution of the United 
States Sec.  762 (1833). The President's brief selectively quotes 
Blackstone's Commentaries for the proposition that impeachment in 
Britain required a violation of ``known and established law.'' Opp. at 
15. But that reflected the well-known and established nature of the 
parliamentary impeachment process, not some requirement that the 
underlying conduct violate a then-existing law. See also 4 William 
Blackstone, Commentaries on the Law of England *5 n.7 (1836) (``The 
word crime has no technical meaning in the law of England. It seems, 
when it has a reference to positive law, to comprehend those acts which 
subject the offender to punishment. When the words high crimes and 
misdemeanors are used in prosecutions by impeachment, the words high 
crimes have no definite signification, but are used merely to give 
greater solemnity to the charge.'').
    18. Impeachment of Richard M. Nixon, President of the United 
States: Report of the Comm. on the Judiciary, H. of Representatives, H. 
Rep. No. 93-1305, at 139 (1974).
    19. See id. at 136.
    20. Proceedings of the U.S. Senate and the House of Representatives 
in the Trial of Impeachment of Robert W. Archbald, Vol. II, S. Doc. No. 
62-1140, at 1399 (1913).
    21. Extracts from the Journal of the U.S. Senate in All Cases of 
Impeachment Presented by the House of Representatives, 1798-1904, S. 
Doc. No. 62-876, at 20-22 (1912).
    22. S. Doc. No. 62-1140, at 1401 (1913) (citing 15 The American and 
English Encyclopedia of Law 1066 (John Houston Merrill ed., 1891)).
    23. See Thomas M. Cooley, The General Principles of Constitutional 
Law 159 (1880).
    24. 2 Story Sec. 788.
    25. Id. Sec. 762.
    26. James Walker, Alan Dershowitz Said a ``Technical Crime'' Wasn't 
Needed for Impeachment in Resurfaced 1998 Interview, Newsweek (Jan. 20, 
2020), https://perma.cc/6JCG-2GDW (Dershowitz 1998 Interview).
    27. Dershowtiz at 26-27.
    28. Opp. at 14.
    29. Impeachment of Donald J. Trump, President of the United States: 
Report of the Comm. on the Judiciary of the H. of Representatives, 
together with Dissenting Views, to Accompany H. Res. 755, H. Rep. No. 
116-346, at 42 n. 207 (2019) (quotation marks omitted); see 2 Story 
Sec.  794. Notably, President Trump's counsel, Professor Dershowitz, 
indicated in a recent television appearance that he and Professor Tribe 
agree on this point. See Dershowitz 1998 Interview, https://perma.cc/
6JCG-2GDW.
    30. See, e.g., Gilmore v. Lewis, 12 Ohio 281, 286 (1843) (For 
``public officers, .  .  . [i]t is an indictable offence, in them, to 
exact and receive any thing, but what the law allows, for the 
performance of their legal duties,'' because ``at common law, being 
against sound policy, and, quasi, extortion.''); accord Kick v. Merry, 
23 Mo. 72, 75 (1856); United States v. Matthews, 173 U.S. 381, 384-85 
(1899) (collecting cases).
    31. Matter of Office of Mgmt. & Budget--Withholding of Ukraine Sec. 
Assistance, B-331564 (Comp. Gen. Jan. 16, 2020), https://perma.cc/5CDX-
XLX6.
    32. Opp. at 28.
    33. Cramer v. United States, 325 U.S. 1, 30-31 (1945) (Treason); 
United States v. Sun-DiamondGrowers of California, 526 U.S. 398, 404-05 
(1999) (Bribery).
    34. Opp. at 30.
    35. See H. Rep. No. 93-1305 (1974).
    36. Ex Parte Grossman, 267 U.S. 87, 122 (1925) (the President could 
be impeached for using his pardon power in a manner that destroys the 
Judiciary's power to enforce its orders).
    37. Statement of Facts para. 114.
    38. Opp. at 81.
    39. Statement of Facts para.121.
    40. Id.
    41. Id. para.118.
    42. Id. para.101.
    43. Id. para.52.
    44. Transcript, Impeachment Inquiry: Ambassador William B. Taylor 
and George Kent: Hearing Before the H. Permanent Select Comm. on 
Intelligence, 116th Cong. 35 (Nov. 13, 2019) (statement of Ambassador 
Taylor).
    45. Transcript, Impeachment Inquiry: Fiona Hill and David Holmes: 
Hearing Before the H. Permanent Select Comm. on Intelligence, 116th 
Cong. 18-19 (Nov. 21, 2019) (statement of Mr. Holmes) (``[I]t was made 
clear that some action on Burisma/Biden investigation was a 
precondition for an Oval Office visit.'').
    46. See Opp. at 87-88.
    47. Statement of Facts para.114.
    48. Opp. at 84-85.
    49. Statement of Facts para.68.
    50. Opp. at 87.
    51. Statement of Facts para.75-80.
    52. See, e.g., id. para.52.
    53. See, e.g., id. para.49-67.
    54. See, e.g., United States v. Kahan, 415 U.S. 239, 240-41 (1974) 
(per curiam).
    55. United States v. Penn, 974 F.2d 1026, 1029 (8th Cir. 1992).
    56. Opp. at 89.
    57. As the Supreme Court reiterated in rejecting a different 
pretextual Trump Administration scheme, when reviewing the Executive's 
conduct, it is not appropriate ``to exhibit a naivete from which 
ordinary citizens are free.'' Dep't of Commerce v. New York, 139 S. Ct. 
2551, 2575 (2019) (quoting United States v. Stanchich, 550 F.2d 1294, 
1300 (2d Cir. 1977) (Friendly, J.)).
    58. Statement of Facts para.18. President Trump's brief never 
addresses the role of Mr. Giuliani, who served as President Trump's 
principal agent in seeking an announcement of the investigations.
    59. Id. 59.
    60. Id. 131.
    61. After Congress began investigating President Trump's conduct, 
the White House Counsel's Office reportedly conducted an internal 
review of ``hundreds of documents,'' which ``reveal[ed] extensive 
efforts to generate an after-the-fact justification'' for the hold 
ordered by President Trump. Josh Dawsey et al., White House Review 
Turns Up Emails Showing Extensive Effort to Justify Trump's Decision to 
Block Ukraine Military Aid, Wash. Post (Nov. 24, 2019), https://
perma.cc/99TX-5KFE. These documents would be highly relevant in this 
Senate trial.
    62. See Statement of Facts para.88.
    63. Id. para.88.
    64. Opp. at 94-95.
    65. Opp. at 94.
    66. Statement of Facts para.81, 144-45.
    67. See id. para.para.41-48.
    68. See id. para.para.30-32.
    69. See id.
    70. See id. para.131.
    71. Id.
    72. Id. para.13.
    73. Id. para.14.
    74. `Thank God': Putin thrilled U.S. `political battles' over 
Ukraine taking focus off Russia, Associated Press (Nov. 20, 2019), 
https://perma.cc/7ZHY-44CY.
    75. Opp. at 100.
    76. U.S. Const., Art. I, Sec. 2, cl. 5.
    77. Statement of Facts para.164.
    78. Opp. at 35.
    79. Statement of Facts para.164.
    80. Id. para.para.179-83.
    81. Id. para.para.186-87.
    82. See Michael D. Shear & Maggie Haberman, Do Us a Favor'': Call 
Shows Trump's Interest in Using U.S. Power for His Gain, N.Y. Times 
(Sept. 25, 2019), https://perma.cc/B7P9-BPK2; Karoun Demirjian et al., 
Trump Ordered Hold on Military Aid Days Before Calling Ukrainian 
President, Officials Say, Wash. Post (Sept. 23, 2019), https://
perma.cc/N7PQ-K9WB; Letter from Michael K. Atkinson, Inspector Gen. of 
the Intelligence Community, to Chairman Adam Schiff, House Permanent 
Select Comm. on Intelligence, and Ranking Member Devin Nunes, House 
Permanent Select Comm. on Intelligence (Sept. 9, 2019), https://
perma.cc/K78N-SMRR.
    83. See The Federalist No. 69 (Alexander Hamilton).
    84. Opp. at 48-54.
    85. Remarks by President Nixon (Apr. 17, 1973), reprinted in 
Statement of Information: Hearings Before the Comm. on the Judiciary, 
H. of Representatives: Book IV--Part 2, Events Following the Watergate 
Break-in (1974).
    86. H. Rep. No. 93-1305, at 208 (1974).
    87. H. Rep. No. 116-346, at 161. President Trump's new lawyer, 
Kenneth Starr similarly argued that President Clinton's assertion of 
executive privilege in grand jury proceedings, which ``thereby delayed 
any potential congressional proceedings,'' constituted conduct 
``inconsistent with the President's Constitutional duty to faithfully 
execute the laws. Communication from Kenneth W. Starr, Independent 
Counsel, Transmitting a Referral to the United States House of 
Representatives Filed in Conformity with the Requirements of Title 28, 
United States Code, Section 595(c), H. Doc. No. 105-310, at 129, 204 
(1998).
    88. Opp. at 48-49 & n.336.
    89. See Statement of Facts 192; Def.'s Mot. to Dismiss, or in the 
Alternative, for Summ. J. at 20, Kupperman v. U.S. House of 
Representatives, No. 19-3224 (D.D.C. Nov. 14, 2019), ECF No. 40; Defs.' 
and Def.-Intervenors' Mot. to Dismiss at 46-47, Comm. on Ways & Means 
v. U.S. Dep't of the Treasury, No. 19-1974 (D.D.C. Sept. 6, 2019), ECF 
No. 44; see also Brief for Def.-Appellant at 2, 3233, Comm. on the 
Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Dec. 9, 2019).
    90. Opp. app'x C (House Committees' Authority to Investigate for 
Impeachment, 44 Op. O.L.C. (2020)) at 1-2, 37 (opining that the House's 
impeachment investigation was not authorized under the House's ``sole 
Power of Impeachment,'' U.S. Const., Art. I, Sec. 2, cl. 5).
    91. See Opp. at 43-44.
    92. See United States v. Nixon, 418 U.S. 683, 706 (1974) (``neither 
the doctrine of separation of powers, nor the need for confidentiality 
of high-level communications, without more, can sustain an absolute, 
unqualified Presidential privilege of immunity from judicial 
process'').
    93. Opp. at 46-47.
    94. See H. Rep. No. 116-346, at 544.
    95. See, e.g., Statement of Facts para. 190.
    96 Opp. at 36; see id. at 48-54.
    97. See Statement of Facts para.para. 188-89; H. Rep. No. 116-346, 
at 130.
    98. Statement of FactsA6.176.
    99. H. Rep. No. 116-346, at 12 (quoting Letter from Pat A. 
Cipollone, Counsel to the President, to Jerrold Nadler, Chairman, H. 
Comm. on the Judiciary (Dec. 6, 2019)).
    100. U.S. Const., Art. I, Sec. 2, cl. 5.
    101. U.S. Const., Art. I, Sec. 5, cl. 2.
    102. Nixon v. United States, 506 U.S. 224, 230 (1993).
    103. Id. at 229.
    104. Id. at 231.
    105. Opp. at 4.
    106. One district court presented with this same argument recently 
concluded that ``[i]n cases of presidential impeachment, a House 
resolution has never, in fact, been required to begin an impeachment 
inquiry,'' explaining that the argument ``has no textual support in the 
U.S. Constitution [or] the governing rules of the House.'' In re 
Application of Comm. on Judiciary, U.S. House of Representatives, for 
an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 
(BAH), 2019 WL 5485221, at *27 (D.D.C. Oct. 25, 2019). Although both 
President Trump and the Office of Legal Counsel of the Department of 
Justice go to great lengths to criticize the district court's analysis, 
see, e.g., Opp. app'x C at 38 n.261, the Department of Justice 
tellingly has declined to advance these arguments in litigation on the 
appeal of this decision.
    107. Opp. at 1.
    108. Opp. at 41.
    109. See In re Application of Comm. on Judiciary, 2019 WL 5485221, 
at *26 (citing proceedings relating to Judges Walter Nixon, Alcee 
Hastings, and Harry Claiborne).
    110. See Proceedings in the United States Senate in the Impeachment 
Trial of Walter Nixon, Jr., a Judge of the United States District Court 
for the Southern District of Mississippi, S. Doc. No. 101-22, at 439 
(1989); Proceedings of the United States Senate in the Impeachment 
Trial of Alcee L. Hastings, a Judge of the United States District Court 
for the Southern District of Florida, S. Doc. No. 101-18, at 705 
(1989); Proceedings of the United States Senate in the Impeachment 
Trial of Harry E. Claiborne, a Judge of the United States District 
Court for the District of Nevada, S. Doc. No. 99-48, at 298 (1986).
    111. H. Res. 660, 116th Cong. (2019); Statement of Facts para. 162.
    112. See Opp. at 37-38.
    113. See H. Res. 6, 116th Cong. (2019).
    114. Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) 
(quotation marks omitted).
    115. Statement of Facts para. 161.
    116. Id. para. 162; see H. Res. 660.
    117. Opp. at 37; see Opp. at 41.
    118. See, e.g., House Rule XI.1(b)(1) (authorizing standing 
committees of the House to ``conduct at any time such investigations 
and studies as [they] consider[] necessary or appropriate''); see also 
id. X1.2(m)(1)(B) (authorizing committees to ``require, by subpoena or 
otherwise, the attendance and testimony of such witnesses and the 
production of such books, records, correspondence, memoranda, papers, 
and documents as [they] consider[] necessary'').
    119. Directing Certain Committees to Continue Their Ongoing 
Investigations as Part of the Existing House of Representatives Inquiry 
into Whether Sufficient Grounds Exist for the House of Representatives 
to Exercise its Constitutional Power to Impeach Donald John Trump, 
President of the United States of America, and for Other Purposes, H. 
Rep. No. 116-266, at 3 (2019).
    120. Opp. at 57.
    121. H. Rep. No. 116-346, at 19 (quoting Impeachment Inquiry Staff, 
H. Comm. on the Judiciary, Memorandum: Presentation Procedures for the 
Impeachment Inquiry 11, 93d Cong. (1974)).
    122. Id. at 19, 21.
    123. See id. at 17-22.
    124. United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6 
(1958).
    125. Statement of Facts para.para. 177, 190.
    126. Statement of Facts para. 163; 165 Cong. Rec. E1357 (2019) 
(Impeachment Inquiry Procedures in the Committee on the Judiciary 
Pursuant to H. Res. 660); see id. at (A)(3), (B)(2)-(3), (C)(1)-(2), 
(4).
    127. Opp. at 20-21.
    128. See, e.g., 132 Cong. Rec. S29124-94 (daily ed. October 7, 
1986).
    129. Cong. Research Serv., 98-990 A, Standard of Proof in Senate 
Impeachment Proceedings 6 (1999), https://perma.cc/9YKG-TJLH.
    130. Opp. at 107-09.
    131. H. Res. 611, 105th Cong. (1998).
    132. U.S. Const., Art. I, Sec. 3, cl. 6. See also Nixon v. United 
States, 506 U.S. 224, 229-31 (1993).
    133. H. Rep. No. 116-346, at 12 (quoting Letter from Pat A. 
Cipollone, Counsel to the President, to Jerrold Nadler, Chairman, H. 
Comm. on the Judiciary (Dec. 6, 2019)).
    134. Opp. at 13.

    The CHIEF JUSTICE. I note the presence in the Senate 
Chamber of the managers on the part of the House of 
Representatives and counsel for the President of the United 
States.
    The majority leader is recognized.

                        PRIVILEGES OF THE FLOOR

    Mr. McCONNELL. Mr. Chief Justice, I send to the desk a list 
of floor privileges for closed sessions. It has been agreed to 
by both sides. I ask that it be inserted in the Record and 
agreed to by unanimous consent.
    The CHIEF JUSTICE. Without objection, it is so ordered.

                 FLOOR PRIVILEGES DURING CLOSED SESSION

    Sharon Soderstrom, Chief of Staff, Majority Leader
    Scott Raab, Deputy Chief of Staff, Majority Leader
    Andrew Ferguson, Chief Counsel, Majority Leader
    Robert Karem, National Security Advisor, Majority Leader
    Stefanie Muchow, Deputy Chief of Staff, Majority Leader (Cloakroom 
only)
    Nick Rossi, Chief of Staff, Assistant Majority Leader
    Mike Lynch, Chief of Staff, Democratic Leader
    Erin Vaughn, Deputy Chief of Staff, Democratic Leader
    Mark Patterson, Counsel, Democratic Leader
    Reginald Babin, Counsel, Democratic Leader
    Meghan Taira, Legislative Director, Democratic Leader
    Gerry Petrella, Policy Director, Democratic Leader
    Reema Dodin, Deputy Chief of Staff, Democratic Whip
    Dan Schwager, Counsel, Secretary of the Senate
    Mike DiSilvestro, Director, Senate Security
    Pat Bryan, Senate Legal Counsel
    Morgan Frankel, Deputy Senate Legal Counsel
    Krista Beal, ASAA, Capitol Operations, (Bob Shelton will substitute 
for Krista Beal if needed)
    Jennifer Hemingway, Deputy SAA
    Terence Liley, General Counsel
    Robert Shelton, Deputy ASAA, Capitol Operations*
    Brian McGinty, ASAA, Office of Security and Emergency Preparedness
    Robert Duncan, Assistant Majority Secretary
    Tricia Engle, Assistant Minority Secretary
    Leigh Hildebrand, Assistant Parliamentarian
    Christy Amatos, Parliamentary Clerk
    Mary Anne Clarkson, Senior Assistant Legislative Clerk
    Megan Pickel, Senior Assistant Journal Clerk
    Adam Gottlieb, Assistant Journal Clerk
    Dorothy Rull, Chief Reporter
    Carole Darche, Official Reporter
    Diane Dorhamer, Official Reporter
    Chantal Geneus, Official Reporter
    Andrea Huston, Official Reporter
    Catalina Kerr, Official Reporter
    Julia LaCava, Official Reporter
    Michele Melhorn, Official Reporter
    Shannon Taylor-Scott, Official Reporter
    Adrian Swann, Morning Business Coordinator
    Sara Schwartzman, Bill Clerk
    Jeff Minear, Counselor to the Chief Justice

                                PROGRAM

    Mr. McCONNELL. Mr. Chief Justice, for the further 
information of all Senators, I am about to send a resolution to 
the desk that provides for an outline of the next steps in 
these proceedings. It will be debatable by the parties for 2 
hours, equally divided. Senator Schumer will then send an 
amendment to the resolution to the desk. Once that amendment 
has been offered and recorded, we will have a brief recess. 
When we reconvene, Senator Schumer's amendment will be 
debatable by the parties for 2 hours. Upon the use or yielding 
back of time, I intend to move to table Senator Schumer's 
amendment.

PROVIDING FOR RELATED PROCEDURES CONCERNING THE ARTICLES OF IMPEACHMENT 
       AGAINST DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES

    Mr. Chief Justice, I send a resolution to the desk and ask 
that it be read.
    The CHIEF JUSTICE. The clerk will read the resolution.
    The legislative clerk read as follows:

    A resolution (S. Res. 483) to provide for related procedures 
concerning the articles of impeachment against Donald John Trump, 
President of the United States.
    Resolved, That the House of Representatives shall file its record 
with the Secretary of the Senate, which will consist of those publicly 
available materials that have been submitted to or produced by the 
House Judiciary Committee, including transcripts of public hearings or 
markups and any materials printed by the House of Representatives or 
the House Judiciary Committee pursuant to House Resolution 660. 
Materials in this record will be admitted into evidence subject to any 
hearsay, evidentiary, or other objections that the President may make 
after opening presentations are concluded. All materials filed pursuant 
to this paragraph shall be printed and made available to all parties.
    The President and the House of Representatives shall have until 9 
a.m. on Wednesday, January 22, 2020, to file any motions permitted 
under the rules of impeachment with the exception of motions to 
subpoena witnesses or documents or any other evidentiary motions. 
Responses to any such motions shall be filed no later than 11 a.m. on 
Wednesday, January 22, 2020. All materials filed pursuant to this 
paragraph shall be filed with the Secretary and be printed and made 
available to all parties.
    Arguments on such motions shall begin at 1 p.m. on Wednesday, 
January 22, 2020, and each side may determine the number of persons to 
make its presentation, following which the Senate shall deliberate, if 
so ordered under the impeachment rules, and vote on any such motions.
    Following the disposition of such motions, or if no motions are 
made, then the House of Representatives shall make its presentation in 
support of the articles of impeachment for a period of time not to 
exceed 24 hours, over up to 3 session days. Following the House of 
Representatives' presentation, the President shall make his 
presentation for a period not to exceed 24 hours, over up to 3 session 
days. Each side may determine the number of persons to make its 
presentation.
    Upon the conclusion of the President's presentation, Senators may 
question the parties for a period of time not to exceed 16 hours.
    Upon the conclusion of questioning by the Senate, there shall be 4 
hours of argument by the parties, equally divided, followed by 
deliberation by the Senate, if so ordered under the impeachment rules, 
on the question of whether it shall be in order to consider and debate 
under the impeachment rules any motion to subpoena witnesses or 
documents. The Senate, without any intervening action, motion, or 
amendment, shall then decide by the yeas and nays whether it shall be 
in order to consider and debate under the impeachment rules any motion 
to subpoena witnesses or documents.
    Following the disposition of that question, other motions provided 
under the impeachment rules shall be in order.
    If the Senate agrees to allow either the House of Representatives 
or the President to subpoena witnesses, the witnesses shall first be 
deposed and the Senate shall decide after deposition which witnesses 
shall testify, pursuant to the impeachment rules. No testimony shall be 
admissible in the Senate unless the parties have had an opportunity to 
depose such witnesses.
    At the conclusion of the deliberations by the Senate, the Senate 
shall vote on each article of impeachment.

    The CHIEF JUSTICE. The resolution is arguable by the 
parties for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent or an opponent of 
this motion?
    Mr. Manager SCHIFF. Mr. Chief Justice, the House managers 
are in opposition to this resolution.
    The CHIEF JUSTICE. Thank you.
    Mr. Cipollone, are you a proponent or an opponent of the 
motion?
    Mr. Counsel CIPOLLONE. We are a proponent of the motion.
    The CHIEF JUSTICE. Mr. Cipollone, your side may proceed 
first, and we will be able to reserve rebuttal time if you 
wish.
    Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
    Majority Leader McConnell, Democratic Leader Schumer, 
Senators, my name is Pat Cipollone. I am here as counsel to the 
President of the United States. Our team is proud to be here, 
representing President Trump.
    We support this resolution. It is a fair way to proceed 
with this trial. It is modeled on the Clinton resolution, which 
had 100 Senators supporting it the last time this body 
considered impeachment. It requires the House managers to stand 
up and make their opening statement and make their case. They 
have delayed bringing this impeachment to this body for 33 
days, and it is time to start with this trial. It is a fair 
process. They will have the opportunity to stand up and make 
their opening statement. They will get 24 hours to do that. 
Then the President's attorneys will have a chance to respond. 
After that, all of you will have 16 hours to ask whatever 
questions you have of either side. Once that is finished and 
you have all of that information, we will proceed to the 
question of witnesses and some of the more difficult questions 
that will come before this body.
    We are in favor of this. We believe that once you hear 
those initial presentations, the only conclusion will be that 
the President has done absolutely nothing wrong and that these 
Articles of Impeachment do not begin to approach the standard 
required by the Constitution, and, in fact, they themselves 
will establish nothing beyond those articles. You will look at 
those articles alone, and you will determine that there is 
absolutely no case.
    So we respectfully ask you to adopt this resolution so that 
we can begin with this process. It is long past time to start 
this proceeding, and we are here today to do it, and we hope 
that the House managers will agree with us and begin this 
proceeding today.
    We reserve the remainder of our time for rebuttal.
    Mr. Manager SCHIFF. Mr. Chief Justice, Senators, and 
counsel for the President, the House managers, on behalf of the 
House of Representatives, rise in opposition to Leader 
McConnell's resolution.
    Let me begin by summarizing why. Last week we came before 
you to present the Articles of Impeachment against the 
President of the United States for only the third time in our 
history. Those articles charge President Donald John Trump with 
abuse of power and obstruction of Congress. The misconduct set 
out in those articles is the most serious ever charged against 
a President.
    The first article, abuse of power, charges the President 
with soliciting a foreign power to help him cheat in the next 
election. Moreover, it alleges--and we will prove--that he 
sought to coerce Ukraine into helping him cheat by withholding 
official acts--two official acts: a meeting that the new 
President of Ukraine desperately sought with President Trump at 
the White House to show the world and the Russians, in 
particular, that the Ukrainian President had a good 
relationship with his most important patron, the President of 
the United States. And even more perniciously, President Trump 
illegally withheld almost $400 million in taxpayer-funded 
military assistance to Ukraine, a nation at war with our 
Russian adversary, to compel Ukraine to help him cheat in the 
election.
    Astonishingly, the President's trial brief, filed 
yesterday, contends that even if this conduct is proved, that 
there is nothing that the House or this Senate may do about it. 
It is the President's apparent belief that under article II he 
can do anything he wants, no matter how corrupt, outfitted in 
gaudy legal clothing.
    And yet, when the Founders wrote the impeachment clause, 
they had precisely this type of misconduct in mind--conduct 
that abuses the power of his office for personal benefit, that 
undermines our national security, that invites foreign 
interference in our democratic process of an election. It is 
the trifecta of constitutional misconduct justifying 
impeachment.
    In article II the President is charged with other 
misconduct that would likewise have alarmed the Founders--the 
full, complete, and absolute obstruction of a coequal branch of 
government, the Congress, during the course of its impeachment 
investigation into the President's own misconduct. This is 
every bit as destructive to our constitutional order as the 
misconduct charged in the first article.
    If a President can obstruct his own investigation, if he 
can effectively nullify a power the Constitution gives solely 
to Congress--indeed, the ultimate power--the ultimate power the 
Constitution gives to prevent Presidential misconduct, then, 
the President places himself beyond accountability, above the 
law. He cannot be indicted, cannot be impeached. It makes him a 
monarch, the very evil against which our Constitution and the 
balance of powers it carefully laid out was designed to guard 
against.
    Shortly, the trial in these charges will begin, and when it 
has concluded, you will be asked to make several 
determinations. Did the House prove that the President abused 
his power by seeking to coerce a foreign nation to help him 
cheat in the next election; and did he obstruct the Congress in 
its investigation into his own misconduct by ordering his 
agencies and officers to refuse to cooperate in any way--to 
refuse to testify, to refuse to answer subpoenas for documents, 
and through every other means.
    And if the House has proved its case--and we believe the 
evidence will not be seriously contested--you will have to 
answer at least one other critical question: Does the 
commission of these high crimes and misdemeanors require the 
conviction and removal of the President?
    We believe that it does, and that the Constitution requires 
that it be so or the power of impeachment must be deemed 
irrelevant or a casualty to partisan times and the American 
people left unprotected against a President who would abuse his 
power for the very purpose of corrupting the only other method 
of accountability, our elections themselves.
    And so you will vote to find the President guilty or not 
guilty, to find his conduct impeachable or not impeachable. But 
I would submit to you these are not the most important 
decisions you will make.
    How can that be? How can any decision you will make be more 
important than guilt or innocence, than removing the President 
or not removing the President?
    I believe the most important decision in this case is the 
one you will make today. The most important question is the 
question you must answer today. Will the President and the 
American people get a fair trial? Will there be a fair trial?
    I submit that this is an even more important question than 
how you vote on guilt or innocence, because whether we have a 
fair trial will determine whether you have a basis to render a 
fair and impartial verdict. It is foundational--the structure 
upon which every other decision you will make must rest.
    If you only get to see part of the evidence, if you only 
allow one side or the other a chance to present their full 
case, your verdict will be predetermined by the bias in the 
proceeding. If the defendant is not allowed to introduce 
evidence of his innocence, it is not a fair trial. So too for 
the prosecution. If the House cannot call witnesses or 
introduce documents and evidence, it is not a fair trial. It is 
not really a trial at all.
    Americans all over the country are watching us right now, 
and imagine they are on jury duty. Imagine that the judge walks 
into that courtroom and says that she has been talking to the 
defendant, and at the defendant's request, the judge has agreed 
not to let the prosecution call any witnesses or introduce any 
documents. The judge and the defendant have agreed that the 
prosecutor may only read to the jury the dry transcripts of the 
grand jury proceedings. That is it.
    Has anyone on jury duty in this country ever heard a judge 
describe such a proceeding and call it a fair trial? Of course 
not. That is not a fair trial. It is a mockery of a trial.
    Under the Constitution, this proceeding, the one we are in 
right now, is the trial. This is not the appeal from a trial. 
You are not appellate court judges. OK, one of you is. And 
unless this trial is going to be different from any other 
impeachment trial or any other kind of trial, for that matter, 
you must allow the prosecution and defense, the House managers 
and the President's lawyers, to call relevant witnesses. You 
must subpoena documents that the President has blocked but 
which bear on his guilt or innocence. You must impartially do 
justice as your oath requires.
    So what does a fair trial look like in the context of 
impeachment? The short answer is it looks like every other 
trial. First, the resolution should allow the House managers to 
obtain documents that have been withheld--first, not last--
because the documents will inform the decision about which 
witnesses are most important to call. And when the witnesses 
are called, the documentary evidence will be available and must 
be available to question them with. Any other order makes no 
sense.
    Next, the resolution should allow the House managers to 
call their witnesses, and then the President should be allowed 
to do the same, and any rebuttal witnesses. And when the 
evidentiary portion of the trial ends, the parties argue the 
case. You deliberate and render a verdict.
    If there is a dispute as to whether a particular witness is 
relevant or material to the charges brought, under the Senate 
rules, the Chief Justice would rule on the issue of 
materiality.
    Why should this trial be different than any other trial? 
The short answer is it shouldn't. But Leader McConnell's 
resolution would turn the trial process on its head. His 
resolution requires the House to prove its case without 
witnesses, without documents, and only after it is done will 
such questions be entertained, with no guarantee that any 
witnesses or any documents will be allowed even then. That 
process makes no sense.
    So what is the harm of waiting until the end of the trial, 
of kicking the can down the road on the question of documents 
and witnesses? Beside the fact it is completely backwards--
trial first, then evidence--beside the fact that the documents 
would inform the decision on which witnesses and help in their 
questioning, the harm is this: You will not have any of the 
evidence the President continues to conceal throughout most or 
all of the trial.
    And although the evidence against the President is already 
overwhelming, you may never know the full scope of the 
President's misconduct or those around him, and neither will 
the American people.
    The charges here involve the sacrifice of our national 
security at home and abroad and a threat to the integrity of 
the next election. If there are additional remedial steps that 
need to be taken after the President's conviction, the American 
people must know about it.
    But if, as a public already jaded by experience has come to 
suspect, this resolution is merely the first step of an effort 
orchestrated by the White House to rush the trial, hide the 
evidence, and render a fast verdict, or worse, a fast dismissal 
to make the President go away as quickly as possible, to cover 
up his misdeeds, then the American people will be deprived of a 
fair trial and may never learn just how deep the corruption of 
this administration goes or what other risk to our security and 
elections remain hidden.
    The harm will also endure for this body. If the Senate 
allows the President to get away with such extensive 
obstruction, it will affect the Senate's power of subpoena and 
oversight just as much as the House. The Senate's ability to 
conduct oversight will be beholden to the desires of this 
President and future Presidents, whether he or she decides they 
want to cooperate with a Senate investigation or another 
impeachment inquiry and trial. Our system of checks and 
balances will be broken. Presidents will become accountable to 
no one.
    Now, it has been reported that Leader McConnell has already 
got the votes to pass his resolution, the text of which we did 
not see until last night, and which has been changed even 
moments ago.
    And they say that Leader McConnell is a very good vote 
counter. Nonetheless, I hope that he is wrong, and not just 
because I think this process--the process contemplated by this 
resolution--is backwards and designed with a result in mind and 
that the result is not a fair trial. I hope that he is wrong 
because whatever Senators may have said or pledged or committed 
has been superseded by an event of constitutional dimensions. 
You have all now sworn an oath--not to each other, not to your 
legislative leadership, not to the managers or even to the 
Chief Justice. You have sworn an oath to do impartial justice. 
That oath binds you. That oath supersedes all else.
    Many of you in the Senate and many of us in the House have 
made statements about the President's conduct or this trial or 
this motion or expectations. None of that matters now. That is 
all in the past. Nothing matters now but the oath to do 
impartial justice, and that oath requires a fair trial--fair to 
the President and fair to the American people.
    But is that really possible? Or as the Founders feared, has 
factionalism or an excessive partisanship made that now 
impossible?
    One way to find out what a fair trial should look like, 
devoid of partisan consideration, is to ask yourselves how 
would you structure the trial if you didn't know what your 
party was and you didn't know what the party of the President 
was? Would it make sense to you to have the trial first and 
then decide on witnesses and evidence later? Would that be fair 
to both sides? I have to think that your answer would be no.
    Let me be blunt. Let me be very blunt. Right now a great 
many, perhaps even most, Americans do not believe there will be 
a fair trial. They don't believe that the Senate will be 
impartial. They believe that the result is precooked. The 
President will be acquitted, not because he is innocent--he is 
not--but because the Senators will vote by party, and he has 
the votes--the votes to prevent the evidence from coming out, 
the votes to make sure the public never sees it.
    The American people want a fair trial. They want to believe 
their system of governance is still capable of rising to the 
occasion. They want to believe that we can rise above party and 
do what is best for the country, but a great many Americans 
don't believe that will happen.
    Let's prove them wrong. Let's prove them wrong.
    How? By convicting the President? No, not by conviction 
alone, by convicting him if the House proves its case and only 
if the House proves its case, but by letting the House prove 
its case, by letting the House call witnesses, by letting the 
House obtain documents, by letting the House decide how to 
present its own case and not deciding it for us--in sum, by 
agreeing to a fair trial.
    Now let's turn to the precise terms of the resolution, the 
history of impeachment trials, and what fairness and 
impartiality require. [Slide 1]\i\
    Although we have many concerns about the resolution, I will 
begin with its single biggest flaw. The resolution does not 
ensure that subpoenas will, in fact, be issued for additional 
evidence that the Senate and the American people should have--
and that the President continues to block--to fairly decide the 
President's guilt or innocence. Moreover, it guarantees that 
such subpoenas will not be issued now, when it would be most 
valuable to the Senate, the parties, and the American people.
---------------------------------------------------------------------------
    \i\Slide numbers have been inserted into this document to indicate 
where in the proceedings a speaker presented a visual aid in the form 
of a ``slide'' presented on video monitors. All slides from the 
proceeding have been reproduced in Volume III of this document, 
matching the slide number indicated in the text of Volumes I and II.
---------------------------------------------------------------------------
    According to the resolution the leader has introduced, 
first the Senate receives briefs and filings from the parties. 
Next it hears lengthy presentations from the House and the 
President. Now my colleagues, the President's lawyers, have 
described this as opening statements. But let's not kid 
ourselves; that is the trial that they contemplate. The opening 
statements are the trial. They will either be most of the trial 
or they will be all of the trial. If the Senate votes to 
deprive itself of witnesses and documents, the opening 
statements will be the end of the trial. So to say ``Let's just 
have the opening statements, and then we will see'' means 
``Let's have the trial, and maybe we can sweep this all under 
the rug.''
    So we will hear these lengthy presentations from the House. 
There will be a question-and-answer period for the Senators, 
and then--and only then--after, essentially, the trial is over, 
after the briefs have been filed, after the arguments have been 
made, and after Senators have exhausted other questions, only 
then will the Senate consider whether to subpoena crucial 
documents and witness testimony that the President has 
desperately tried to conceal from this Congress and the 
American people--documents and witness testimony that, unlike 
the Clinton trial, have not yet been seen or heard.
    It is true that the record compiled by the House is 
overwhelming. It is true the record already compels the 
conviction of the President in the face of unprecedented 
resistance by the President. The House has assembled a powerful 
case, evidence of the President's high crimes and misdemeanors 
that includes direct evidence and testimony of officials who 
were unwilling and unwitting in this scheme and saw it for what 
it was. Yet there is still more evidence--relative and 
probative evidence--that the President continues to block that 
would flesh out the full extent of the President's misconduct 
and those around him.
    We have seen that, over the past few weeks, new evidence 
has continued to come to light as the nonpartisan Government 
Accountability Office has determined that the hold on military 
aid to Ukraine was illegal and broke the law; as John Bolton 
has offered to testify in the trial; as one of the President's 
agents, Lev Parnas, has produced documentary evidence that 
clarifies Mr. Giuliani's activities on behalf of the President 
and corroborates Ambassador Sondland's testimony that everyone 
was in the loop; as documents released under the Freedom of 
Information Act have documented the alarm at the Department of 
Defense that the President illegally withheld military support 
for Ukraine, an ally at war with Russia, without explanation; 
as the senior Office of Management and Budget official, Michael 
Duffey, instructed Department of Defense officials on July 25, 
90 minutes after President Trump spoke by phone with President 
Zelensky, that the Defense Department should pause all 
obligation of Ukraine military assistance under its purview--90 
minutes after that call.
    Duffey added, ``Given the sensitive nature of the request, 
I appreciate your keeping that information closely held to 
those who need to know to execute the direction.''
    Although the evidence is already more than sufficient to 
convict, there is simply no rational basis for the Senate to 
deprive itself of all relevant information in making such a 
hugely consequential judgment.
    Moreover, as the President's answer to his summons and his 
trial brief made clear, the President intends to contest the 
facts in false and misleading ways.
    But the President should not have it both ways. He should 
not be permitted to claim that the facts uncovered by the House 
are wrong while also concealing mountains of evidence that bear 
precisely on those facts.
    If this body seeks impartial justice, it should ensure that 
subpoenas are issued and that they are issued now, before the 
Senate begins extended proceedings based on a record that every 
person in this room and every American watching at home knows 
does not include documents and witness testimony it should 
because the President would not allow it to be so.
    Complying with these subpoenas would not impose a burden. 
The subpoenas cover narrowly tailored and targeted documents 
and witnesses that the President has concealed.
    The Senate deserves to see the documents from the White 
House, the State Department, the Office of Management and 
Budget, and the Department of Defense. These agencies already 
should have collected and at least preserved these documents in 
response to House subpoenas.
    Indeed, in some cases agencies have already produced 
documents in FOIA lawsuits, albeit in heavily redacted form. 
Witnesses with direct knowledge or involvement should be heard. 
That includes the President's Acting Chief of Staff, Mick 
Mulvaney; his former National Security Advisor, John Bolton, 
who has publicly offered to testify--two senior officials 
integral to implementing the President's freeze on Ukraine's 
military aid also have very relevant testimony; why not hear 
it?--Robert Blair, who served as Mr. Mulvaney's senior adviser; 
Michael Duffey, a senior official at OMB; and other witnesses 
with direct knowledge whom we reserve the right to call later--
but these witnesses with whom we wish to begin the trial.
    Last month, President Trump made clear that he supported 
having senior officials testifying before the Senate during his 
trial, declaring that he would ``love'' to have Secretary 
Pompeo, Mr. Mulvaney, now former Secretary Perry, and ``many 
other people testify'' in the Senate trial:
    (Text of Videotape presentation:)

    President TRUMP. So, when it's fair, and it will be fair in 
the Senate, I would love to have Mike Pompeo, I'd like to have 
Mick, I'd love to have Rick Perry and many other people 
testify.

    Mr. Manager SCHIFF. The Senate has an opportunity to take 
the President up on his offer to make his senior aides 
available, including Secretaries Perry and Pompeo.
    But now the President is changing his tune. The bluster of 
wanting these witnesses to testify is over. Notwithstanding the 
fact that he has never asserted the claim of privilege in the 
course of the House impeachment proceedings, he threatens to 
invoke one now in a last-ditch effort to keep the rest of the 
truth from coming out.
    The President sends his lawyers here to breathlessly claim 
that these witnesses or others cannot possibly testify because 
it involves national security. Never mind that it was the 
President's actions in withholding military aid from an ally at 
war that threatened our national security in the first place. 
Never mind that the most impeachable, serious offenses will 
always involve national security because they will involve 
other nations, and that misconduct based on foreign 
entanglement is what the Framers feared most.
    The President's absurdist argument amounts to this: We must 
endanger national security to protect national security. We 
must make a President's conduct threatening our security beyond 
the reach of impeachment powers if we are to save the 
Presidency.
    This is dangerous nonsense.
    As Justices of the Supreme Court have underscored, the 
Constitution is not a suicide pact.
    But let us turn from the abstract to the very concrete, and 
let me show you just one example of what the President is 
hiding in the name of national security. [Slide 2]
    There is a document, which the President has refused to 
turn over, in which his top diplomat in Ukraine says to two 
other appointees of the President: ``As I said on the phone, I 
think it's crazy to withhold security assistance for help with 
a political campaign.''
    The administration refuses to turn over that document and 
so many more. We only know about its existence, we have only 
seen its contents because it was turned over by a cooperating 
witness.
    This is what the President would hide from you and from the 
American people. In the name of national security, he would 
hide graphic evidence of his dangerous misconduct. The only 
question is--and it is the question raised by this resolution--
Will you let him?
    Last year, President Trump said that article II of the 
Constitution would allow him to do anything he wanted, and 
evidently believing that article II empowered him to denigrate 
and defy a coequal branch of government, he also declared that 
he would fight all subpoenas. Let's hear the President's own 
words:
    (Text of Videotape presentation:)

    President TRUMP. Then I have an Article II, where I have 
the right to do whatever I want as President.

    Mr. Manager SCHIFF. True to his pledge to obstruct 
Congress, when President Trump faced an impeachment inquiry in 
the House of Representatives, he ordered the executive branch 
to defy every single request on every single subpoena. He 
issued this order through his White House Counsel, Pat 
Cipollone, on October 8--the same counsel who stood before you 
a moment ago to defend the President's misconduct. He then 
affirmed it again at a rally on October 10.
    Following President Trump's categorical order, we never 
received the documents and communications. It is important to 
note, in refusing to respond to Congress, the President did not 
make any--any--formal claim of privilege, ever. Instead, Mr. 
Cipollone's letter stated, in effect, that the President would 
withhold all evidence from the executive branch unless the 
House surrendered to demands that would effectively place 
President Trump in charge of the inquiry into his own 
misconduct.
    Needless to say, that was a nonstarter and designed to be 
so. The President was determined to obstruct Congress no matter 
what we did, and his conduct since--his attacks on the 
impeachment inquiry, his attacks on witnesses--has affirmed 
that the President never had any intention to cooperate under 
any circumstance. And why? Because the evidence and testimony 
he conceals would only further prove his guilt. The innocent do 
not act this way.
    Simply stated, this trial should not reward the President's 
obstruction by allowing him to control what evidence is seen 
and when it is seen and what evidence will remain hidden. The 
documents the President seeks to conceal include White House 
records, including records about the President's unlawful hold 
on military aid; State Department records, including text 
messages and WhatsApp messages [Slide 3] exchanged by the State 
Department and Ukrainian officials and notes to file by career 
officials as they saw the President's scheme unfold in 
realtime; OMB records demonstrating evidence to fabricate an 
after-the-fact rationale for the President's order, showing 
internal objections that the President's orders violated the 
law; Defense Department records reflecting baffle and alarm 
that the President suspended military aid to a key security 
partner without explanation.
    Many of the President's aides have also followed his orders 
and refused to testify. These include essential figures in the 
impeachment inquiry, [Slide 4] including White House Chief of 
Staff Mick Mulvaney, former National Security Advisor John 
Bolton, and many others with relevant testimony, like Robert 
Blair and Michael Duffey. Mr. Blair, who serves as a senior 
adviser to Acting Chief of Staff Mulvaney, worked directly with 
Mr. Duffey, a political appointee in the Office of Management 
and Budget, to carry out the President's order to freeze vital 
military and security assistance to Ukraine.
    The Trump administration has refused to disclose their 
communications, even though we know from written testimony, 
public reporting, and even Freedom of Information Act lawsuits 
that they were instrumental in implementing the hold and 
extending it at the President's express direction even--even--
as career officials warned accurately that doing so would 
violate the law.
    The President has also made the insupportable claim that 
the House should have enforced its subpoenas in court and 
allowed the President's impeachment to delay for years. [Slide 
5] If we had done so, we would have abdicated our 
constitutional duty to act on the overwhelming facts before us 
and the evidence the President was seeking to cheat in the next 
election.
    We could not engage in a deliberately protracted court 
process while the President continued to threaten the sanctity 
of our elections.
    Resorting to the courts is also inconsistent with the 
Constitution that gives the House the sole power of 
impeachment. If the House were compelled to exhaust all legal 
remedies before impeaching the President, it would interpose 
the courts or the decision of a single judge between the House 
and the power to impeach. Moreover, it would invite the 
President to present his own impeachment by endlessly 
litigating the matter in court--appealing every judgment, 
engaging in any frivolous motion or device. Indeed, in the case 
of Don McGhan--the President's lawyer, who was ordered to fire 
the special counsel and lie about it--he was subpoenaed by the 
House in April of last year, and there is still no final 
judgment.
    A President may not defeat impeachment or accountability by 
engaging in endless litigation. Instead, it has been the long 
practice of the House to compile core evidence necessary to 
reach a reasoned decision about whether to impeach and then to 
bring the case here to the Senate for a full trial. That is 
exactly what we did here, with an understanding that the Senate 
has its own power to compel documents and testimony.
    It would be one thing if the House had shown no interest in 
documents or witnesses during its investigation--although, even 
there, the House has the sole right to determine its 
proceedings as long as it makes the full case to the House, as 
it did--but it is quite another when the President is the cause 
of his own complaint, when the President withholds witnesses 
and documents and then attempts to rely on his own 
noncompliance to justify further concealment.
    President Trump made it crystal clear that we would never 
see a single document or a single witness when he declared, as 
we just watched, that he would fight all subpoenas. As a matter 
of history and precedent, it would be wrong to assert that the 
Senate is unable to obtain and review new evidence during a 
Senate trial regardless of why evidence was not produced in the 
House.
    You can and should insist on receiving all the evidence so 
you can render impartial justice and can earn the confidence of 
the public in the Senate's willingness to hold a fair trial.
    Under the Constitution, the Senate does not just vote on 
impeachments. It does not just debate them. Instead, it is 
commanded by the Constitution to try all cases of impeachment. 
[Slide 6] If the Founders intended for the House to try the 
matter and the Senate to consider an appeal based on the cold 
record from the other Chamber, they would have said so, but 
they did not. Instead, they gave us the power to charge and you 
the power to try all impeachments.
    The Framers chose their language and the structure for a 
reason. As Alexander Hamilton said, the Senate is given ``awful 
discretion'' in matters of impeachment. The Constitution thus 
speaks to Senators in their judicial character as a court for 
the trial of impeachments. It requires them to aim at real 
demonstrations of innocence or guilt and requires them to do so 
by holding a trial.
    The Senate has repeatedly subpoenaed and received new 
documents, often many of them while adjudicating cases of 
impeachment. Moreover, the Senate has heard witness testimony 
in every one of the 15 Senate trials--full Senate trials--in 
the history of this Republic, including those of Presidents 
Andrew Johnson and Bill Clinton. [Slide 7] Indeed, in President 
Andrew Johnson's Senate impeachment trial, the House managers 
were permitted to begin presenting documentary evidence to the 
Senate on the very first day of the trial. The House managers' 
initial presentation of documents in President Johnson's case 
carried on for the first 2 days of trial and immediately after 
witnesses were called to appear in the Senate.
    This has been the standard practice in prior impeachment 
trials. Indeed, in most trials, this body has heard from many 
witnesses, ranging from 3 in President Clinton's case to 40 in 
President Johnson's case and well over 60 in other 
impeachments. As these numbers make clear, the Senate has 
always heard from key witnesses when trying an impeachment.
    The notion that only evidence that was taken before the 
House should be considered is squarely and unequivocally 
contrary to Senate precedent. Nothing in law or history 
supports it.
    To start, consider Leader McConnell's own description of 
his work in a prior Senate impeachment proceeding. In the case 
of Judge Claiborne, [Slide 8] after serving on the Senate trial 
committee, Leader McConnell described how the Senate committee 
``labored intensively for more than 2 months, amassing the 
necessary evidence and testimony.'' In the same essay, Leader 
McConnell recognized the full body's responsibility for 
amassing and digesting evidence. It was certainly a lot of 
evidence for the Senate to amass and digest in that proceeding, 
which involved charges against a district court judge. The 
Senate heard testimony from 19 witnesses, and it allowed for 
over 2,000 pages of documents to be entered into the record 
over the course of that trial.
    At no point did the Senate limit evidence to what was 
before the House. It did the opposite, consistent with unbroken 
Senate practice in every single impeachment trial--every single 
one.
    For example, of the 40 witnesses who testified during 
President Johnson's Senate trial, only 3 provided testimony to 
the House during its impeachment inquiry--only 3. [Slide 9] The 
remaining 37 witnesses in that Presidential impeachment trial 
testified before the Senate.
    Similarly, the Senate's full first impeachment trial, which 
involved charges against Judge Pickering, involved testimony 
from 11 witnesses, all of whom were new to the impeachment 
proceedings and had not testified before the House.
    There are many other examples of this point, including the 
Senate's most recent impeachment trial of Judge Porteous in 
2010. It is one that many of you and some of us know well. It, 
too, is consistent with this longstanding practice. There, the 
Senate heard testimony from 26 witnesses, 17 of whom had not 
testified before the House during its impeachment inquiry.
    Thus, there is a definitive tradition of the Senate hearing 
from new witnesses when trying Articles of Impeachment. There 
has never been a rule limiting witnesses to those who appeared 
in the House or limiting evidence before the Senate to that 
which the House itself considered. As Senator Hiram Johnson 
explained in 1934, that is because the integrity of Senate 
impeachment trials depend heavily upon the witnesses who are 
called, their appearance on the stand, their mode of giving 
testimony.
    There is thus an unbroken history of witness testimony in 
Senate impeachment trials, Presidential and judicial. I would 
argue, in the case of a President, it is even more important to 
hear the witnesses and see the documents.
    Any conceivable doubt on this score--and there should be 
none left--is dispelled by the Senate's own rules for trial of 
impeachment. [Slide 10] Obtaining documents and hearing live 
witness testimony is so fundamental that the Rules of Procedure 
and Practice in the Senate When Sitting on Impeachment Trials, 
which date back to 19th century, devote more attention to the 
gathering, handling, and admission of new evidence than any 
other single subject. [Slide 11] These rules expressly 
contemplate that the Senate will hear evidence and conduct a 
thorough trial when sitting as a Court of Impeachment. At every 
turn, they reject the notion that the Senate would take the 
House's evidentiary record, blind itself to everything else, 
and vote to convict or acquit.
    For example, rule VI says the Senate shall have the power 
to compel the attendance of witnesses and enforce obedience to 
its own orders.
    Rule VII authorizes the Presiding Officer to rule on all 
questions of evidence, including, but not limited to, questions 
of relevancy, materiality, and redundancy. This rule, too, 
presumes that the Senate trial will have testimony, giving rise 
to such questions.
    Rule XI authorizes the full Senate to designate a committee 
of Senators to receive evidence and take testimony at such 
times and places as the committee may determine. [Slide 11] As 
rule XI makes clear, the committee's report must be transmitted 
to the full Senate for final adjudication. But nothing here in 
the rules states: shall prevent the Senate from sending for any 
witness and hearing his testimony in open Senate or by order of 
the Senate involving the entire trial in the open Senate. Here, 
too, the Senate's operative impeachment rules expressly 
contemplate and provide for subpoenaing witnesses and hearing 
their testimony as part of the Senate trial.
    And the list goes on.
    These rules plainly contemplate a robust role for the 
Senate in gathering and considering evidence. They reflect 
centuries of practice of accepting and requiring new evidence 
in Senate trials. This Senate should honor that practice today 
by rejecting this resolution.
    It will be argued: What about the Clinton trial? Even if we 
are departing from every other impeachment trial in history, 
including the impeachment of President Andrew Johnson, it will 
be argued: What about the Clinton trial? Aren't we following 
the same process as in the Clinton trial? The answer is no.
    First, the process for the Clinton trial was worked out by 
mutual consent among the parties. [Slide 12] That is not true 
here, where the process is sought to be imposed by one party on 
the other.
    Second, all of the documents in the Clinton trial were 
turned over prior to the trial--all 90,000 pages of them--so 
they could be used in the House's case. None of the documents 
have been turned over by the President in this case, and under 
Leader McConnell's proposal, none may ever be. They certainly 
will not be available to you or to us during most or all of the 
trial. If we are really going to follow the Clinton precedent, 
the Senate must insist on the documents now before the trial 
begins.
    Third, [Slide 12] the issue in the Clinton trial was not 
one of calling witnesses but of recalling witnesses. All of the 
key witnesses in the Clinton trial had testified before the 
grand jury or had been interviewed by the FBI--one of them, 
dozens of times--and their testimony was already known. 
President Clinton himself testified on camera and under oath 
before the Senate trial. He allowed multiple chiefs of staff 
and other key officials to testify, again, before the Senate 
trial took place. Here, none of the witnesses we seek to call--
none of them--have testified or have been interviewed by the 
House. And, as I said, the President cannot complain that we 
did not call these witnesses before the House when their 
unavailability was caused by the President himself.
    Last, as you will remember--those of you who were here--the 
testimony in the Clinton trial involved decorum issues that are 
not present here. You may rest assured, whatever else the case 
may be, such issues will not be present here.
    In sum, the Clinton precedent--if we are serious about it, 
if we are really serious about modeling this proceeding after 
the Clinton trial--is one where all the documents had been 
provided up front and where all the witnesses had testified up 
front prior to the trial. That is not being replicated by the 
McConnell resolution--not in any way, not in any shape, not in 
any form. It is far from it. The traditional model followed in 
President Johnson's case and all of the others is really the 
one that is most appropriate to the circumstances.
    The Senate should address all the documentary issues and 
most of the witnesses now, not later. The need to subpoena 
documents and testimony now has only increased due to the 
President's obstruction for several reasons.
    First, his obstruction has made him uniquely and personally 
responsible for the absence of the witnesses before the House. 
Having ordered them not to appear, he may not be heard to 
complain now that they followed his orders and refused to 
testify. [Slide 13] To do otherwise only rewards the 
President's obstruction and encourages future Presidents to 
defy lawful process in impeachment investigations.
    Second, if the President wishes to contest the facts--and 
his answer and trial brief indicate that he will try--he must 
not continue to deny the Senate access to the relevant 
witnesses and documents that shed light on the very factual 
matters he wishes to challenge. The Senate trial is not 
analogous to an appeal where the parties must argue the facts 
on the basis of the record below. There is no record below. 
There is no below. This is the trial.
    Third, [Slide 13] the President must not be allowed to 
mislead the Senate by selectively introducing documents while 
withholding the vast body of documents that may contradict 
them. This is very important. The President must not be allowed 
to mislead you by introducing documents selectively and 
withholding all of the rest. All of the relevant documents 
should be produced so there is full disclosure of the truth; 
otherwise, there is a clear risk that the President will 
continue to hide all evidence harmful to his position, while 
selectively producing documents without any context or 
opportunity to examine their creators.
    Finally, [Slide 13] you may infer the President's guilt 
from his continuing efforts to obstruct the production of 
documents and witnesses. The President has said he wants 
witnesses like Mulvaney and Pompeo and others to testify and 
that his interactions with Ukraine have been perfect. Counsel 
has affirmed today that would be the President's defense: His 
conduct was perfect. It was perfect. It was perfectly fine to 
coerce an ally by withholding military aid to get help cheating 
in the next election. That will be part of the President's 
defense, although albeit not worded in that way.
    Now he has changed course. He does not want his witnesses 
to testify. The logical inference in any court of law would be 
that the party's continued obstruction of lawful subpoenas may 
be construed as evidence of guilt.
    Let me conclude. The facts will come out in the end. The 
documents which the President is hiding will be released, 
through the Freedom of Information Act or through other means 
over time. Witnesses will tell their stories in books and film. 
The truth will come out.
    The question is, [Slide 14] Will it come out in time? And 
what answer shall we give if we did not pursue the truth now 
and let it remain hidden until it was too late to consider on 
the profound issue of the President's guilt or innocence?
    There are many overlapping reasons for voting against this 
resolution, but they all converge on this single idea: 
fairness.
    The trial should be fair to the House, which has been 
wrongly deprived of evidence by a President who wishes to 
conceal it. It should be fair to the President, who will not 
benefit from an acquittal or dismissal if the trial is not 
viewed as fair, if it is not viewed as impartial. It should be 
fair to Senators, who are tasked with the grave responsibility 
of determining whether to convict or acquit and should do so 
with the benefit of all the facts. And it should be fair to the 
American people, who deserve the full truth and who deserve 
representatives who will seek it on their behalf.
    With that, Mr. Chief Justice, I yield back.
    The CHIEF JUSTICE. Mr. Cipollone, Mr. Sekulow, you have 57 
minutes available.
    Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the 
Senate, Leader McConnell, and Democratic Leader Schumer, it is 
also my privilege to represent the President of the United 
States before this Chamber.
    Senator Schumer said earlier today that the eyes of the 
Founders are on these proceedings. Indeed, that is true, but it 
is the heart of the Constitution that governs these 
proceedings.
    What we just heard from Manager Schiff is that courts have 
no role; privileges don't apply; and what happened in the past, 
we should just ignore. In fact, Manager Schiff just tried to 
summarize my colleague's defense of the President. He said it 
not in his words, of course, which is not the first time Mr. 
Schiff has put words into transcripts that did not exist.
    Mr. Schiff also talked about a trifecta. I will give you a 
trifecta. During the proceedings that took place before the 
Judiciary Committee, the President was denied the right to 
cross-examine witnesses; the President was denied the right to 
access evidence; and the President was denied the right to have 
counsel present at hearings. That is a trifecta--a trifecta 
that violates the Constitution of the United States.
    Mr. Schiff did say that the courts really don't have a role 
in this. Executive privilege--why would that matter? It matters 
because it is based on the Constitution of the United States. 
One manager said it is you that is on trial: the Senate. He 
also said--and others did--that you are not capable of abiding 
by your oath.
    Then we had the invocation of the ghost of the Mueller 
report. I know something about that report. It came up empty on 
the issue of collusion with Russia. There was no obstruction. 
In fact, the Mueller report, contrary to what these managers 
say today, came to the exact opposite conclusions of what they 
said.
    Let me quote from the House impeachment report at page 16:

    Although President Trump has at times invoked the notion of 
due process, an impeachment trial, impeachment inquiry, is not 
a criminal trial and should not be confused with it.

    Believe me, what has taken place in these proceedings is 
not to be confused with due process because due process demands 
and the Constitution requires that fundamental parities and due 
process--we are hearing a lot about due process. Due process is 
designed to protect the person accused.
    When the Russia investigation failed, it devolved into the 
Ukraine, a quid pro quo. When that didn't prove out, it was 
then bribery or maybe extortion. Somebody said--one of the 
Members of the House said treason. Instead, we get two Articles 
of Impeachment--two Articles of Impeachment that have a vague 
allegation about a noncrime allegation of abuse of power and 
obstruction of Congress.
    Members, managers--right here before you today--who have 
said that executive privilege and constitutional privileges 
have no place in these proceedings--on June 28, 2012, Attorney 
General Eric Holder became the first U.S. Attorney General to 
be held in both civil and criminal contempt. Why? Because 
President Obama asserted executive privilege.
    With respect to the Holder contempt proceedings, Mr. 
Manager Schiff wrote: ``The White House assertion of privilege 
is backed by decades of precedent that has recognized the need 
for the President and his senior advisers to receive candid 
advice and information from their top aides.''
    Indeed, that is correct--not because Manager Schiff said it 
but because the Constitution requires it.
    Mr. Manager Nadler said that the effort to hold Attorney 
General Holder in contempt for refusing to comply with various 
subpoenas was ``politically motivated,'' and Speaker Pelosi 
called the Holder matter ``little more than a witch hunt.''
    What are we dealing with here? Why are we here? Are we here 
because of a phone call or are we here before this great body 
because, as the President was sworn into office, there was a 
desire to see him removed?
    I remember in the Mueller report there were discussions 
about--remember--insurance policies. The insurance policy 
didn't work out so well, so then we moved to other 
investigations. I guess you would call them a reinsurance or an 
umbrella policy. That didn't work out so well, and here we are 
today.
    Manager Schiff quoted the Supreme Court, and I would like 
to make reference to the Supreme Court as well. It was then-
Justice Rehnquist, later to be Chief Justice Rehnquist, who 
wrote for the majority in United States v. Russell in 1973. 
These are the words: `` . . . we may someday be presented with 
a situation in which the conduct of law enforcement agents is 
so outrageous that due process principles would absolutely bar 
the government from invoking judicial process to obtain a 
conviction. . . . ''
    That day is today. That day was a year ago. That day was in 
July when Special Counsel Mueller testified. I am not today 
going to take the time to review, but I will do it later, the 
patterns and practices of irregularities that have gone on in 
these investigations from the outset; but to say that the 
courts have no role, the rush to impeachment, to not wait for a 
decision from a court on an issue as important as executive 
privilege--as if executive privilege hasn't been utilized by 
Presidents since our founding. This is not some new concept. We 
don't waive executive privilege, and there is a reason we keep 
executive privilege and we assert it when necessary, and that 
is to protect--to protect the Constitution and the separation 
of powers.
    The President's opponents, in their rush to impeach, have 
refused to wait for a complete judicial review. That was their 
choice. Speaker Pelosi clearly expressed her impatience and 
contempt for judicial proceedings when she said: ``We cannot be 
at the mercy of the courts.'' Think about that for a moment. We 
cannot be at the mercy of the courts.
    So take article III of the U.S. Constitution and remove it. 
We are acting as if the courts are an improper venue to 
determine constitutional issues of this magnitude? That is why 
we have courts. That is why we have a Federal judiciary.
    It was interesting when Professor Turley testified before 
the House Judiciary Committee, in front of Mr. Nadler's 
committee. He said:

    We have three branches of government, not two. If you 
impeach a President and you make a high crime and misdemeanor 
out of going to courts an abuse of power, it's your abuse of 
power.

    You know it is more than that. It is a lot more than that. 
There is a lot more than abuse of power if you say the courts 
don't apply, constitutional principles don't apply.
    Let's start with a clean slate as if nothing happened. A 
lot has happened. As we proceed in the days ahead, we will lay 
out our case. We are going to put forward to the American 
people--but, more importantly, for the Constitution's sake--
what is taking place here; that this idea that we should ignore 
what is taking place over the last 3 years is outrageous.
    We believe that what Senator McConnell has put forward 
provides due process and allows the proceedings to move forward 
in an orderly fashion.
    Thirty-three days--thirty-three days--they held on to those 
impeachment articles. Thirty-three days. It was such a rush for 
our national security to impeach this President before 
Christmas that they then held them for 33 days. To do what: to 
act as if the House of Representatives should negotiate the 
rules of the U.S. Senate. They didn't hide this. This was the 
expressed purpose. This was the reason they did it.
    We are prepared to proceed. Majority leader, Democratic 
minority leader, we are prepared to proceed. In our view, these 
proceedings should begin.
    Mr. Chief Justice, I yield the rest of my time to my 
colleague, the White House Counsel.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, I just want to 
make a couple of additional points.
    It is very difficult to sit there and listen to Mr. Schiff 
tell the tale he just told. Let's remember how we all got here: 
They made false allegations about a telephone call. The 
President of the United States declassified that telephone call 
and released it to the public. How is that for transparency?
    When Mr. Schiff found out there was nothing to his 
allegations, he focused on the second telephone call. He made 
false and his colleagues made false allegations about that 
second telephone call that occurred before the one he had 
demanded. So the President of the United States declassified 
and released that telephone call. Still nothing.
    Again, complete transparency in a way that, frankly, I am 
unfamiliar with any precedent of any President of the United 
States releasing a classified telephone call with a foreign 
leader.
    When Mr. Schiff saw that his allegations were false and he 
knew it anyway, what did he do? He went to the House, and he 
manufactured a fraudulent version of that call. He manufactured 
a false version of that call. He read it to the American 
people, and he didn't tell them it was a complete fake.
    Do you want to know about due process? I will tell you 
about due process. Never before in the history of our country 
has a President of the United States been confronted with this 
kind of impeachment proceeding in the House. It wasn't 
conducted by the Judiciary Committee. Mr. Nadler, when he 
applied for that job, told his colleagues, when they took over 
the House, that he was really good at impeachment.
    But what happened was the proceedings took place in a 
basement of the House of Representatives. The President was 
forbidden from attending. The President was not allowed to have 
a lawyer present.
    In every other impeachment proceeding, the President has 
been given a minimal due process. Nothing here. Not even Mr. 
Schiff's Republican colleagues were allowed into the SCIF. 
Information was selectively leaked out. Witnesses were 
threatened. Good public servants were told that they would be 
held in contempt. They were told that they were obstructing.
    What does Mr. Schiff mean by ``obstructing''? He means that 
unless you do exactly what he says, regardless of your 
constitutional rights, then, you are obstructing.
    The President was not allowed to call witnesses. By the 
way, there is still evidence in the SCIF that we haven't been 
allowed to see. I wonder why. No witnesses.
    Let's think about something else for a second. Let's think 
about something else. They held these articles for 33 days. We 
hear all this talk about an overwhelming case--an overwhelming 
case that they are not even prepared today to stand up and make 
an opening argument about. That is because they have no case. 
Frankly, they have no charge.
    When you look at these Articles of Impeachment, they are 
not only ridiculous; they are dangerous to our republic. And 
why? First of all, the notion that invoking your constitutional 
rights to protect the executive branch, that has been done by 
just about every President since George Washington--that is 
obstruction.
    That is our patriotic duty, Mr. Schiff, particularly when 
confronted with a wholesale trampling of constitutional rights 
that I am unfamiliar with in this country. Frankly, it is the 
kind of thing that our State Department would criticize if we 
see it in foreign countries. We have never seen anything like 
it.
    And Mr. Schiff said: Have I got a deal for you. Abandon all 
your constitutional rights, forget about your lawyers, and come 
in and do exactly what I say.
    No, thank you. No, thank you.
    And then he has the temerity to come into the Senate and 
say: We have no use for courts.
    It is outrageous.
    Let me tell you another story. There is a man named Charlie 
Kupperman. He is the Deputy National Security Advisor. He is 
the No. 2 to John Bolton.
    You have to remember that Mr. Schiff wants you to forget, 
but you have to remember how we got here. They threatened him. 
They sent him a subpoena. Mr. Kupperman did whatever any 
American should be allowed to do, used to be allowed to do. He 
was forced to get a lawyer. He was forced to pay for that 
lawyer, and he went to court.
    Mr. Schiff doesn't like courts. He went to court.
    And he said: Judge, tell me what to do. I have obligations 
that, frankly, rise to what the Supreme Court has called the 
apex of executive privilege in the area of national security. 
And then I have a subpoena from Mr. Schiff. What do I do?
    You know what Mr. Schiff did? Mr. Kupperman went to the 
judge, and the House said: Never mind. We withdraw the 
subpoena. We promise not to issue it again.
    And then they come here and ask you to do the work that 
they refused to do for themselves. They ask you to trample on 
executive privilege.
    Would they ever suggest that the executive could determine 
on its own what the speech or debate Clause means? Of course 
not. Would they ever suggest the House could invade the 
discussions the Supreme Court has behind closed doors? I hope 
not. But they come here, and they ask you to do what they 
refuse to do for themselves.
    They had a court date. They withdrew the subpoena. They 
evaded the decision, and they are asking you to become 
complicit in that evasion of the courts. It is ridiculous. We 
should call it out for what it is.
    Obstruction for going to court? It is an act of patriotism 
to defend the constitutional rights of the President, because 
if they can do it to the President, they can do it to any of 
you and do it to any American citizen, and that is wrong. 
Laurence Tribe, who has been advising them--I guess he didn't 
tell you that in the Clinton impeachment, it is dangerous to 
suggest that invoking constitutional rights is impeachable. It 
is dangerous.
    You know what? It is dangerous, Mr. Schiff.
    What are we doing here? We have the House that completely 
concocted a process that we have never seen before. They lock 
the President out. By the way, will Mr. Schiff give documents? 
We asked them for documents. We asked them for documents when, 
contrary to his prior statements, it turned out that his staff 
was working with the whistleblower.
    We said: Let us see the documents; release them to the 
public.
    We are still waiting.
    The idea that they would come here and lecture the Senate--
by the way, I was surprised to hear that. Did you realize you 
are on trial? Mr. Nadler is putting you on trial.
    Everybody is on trial except for them. It is ridiculous. It 
is ridiculous.
    They said in their brief: We have overwhelming evidence. 
And they are afraid to make their case. Think about it. Think 
about it. It is common sense--overwhelming evidence to impeach 
the President of the United States. And then, they come here on 
the first day and say: You know what, we need some more 
evidence.
    Let me tell you something. If I showed up in any court in 
this country and said: Judge, my case is overwhelming, but I am 
not ready to go yet; I need more evidence before I can make my 
case, I would get thrown out in 2 seconds. And that is exactly 
what should happen here. That is exactly what should happen 
here.
    It is too much to listen to almost--the hypocrisy of the 
whole thing. What are the stakes? What are the stakes? There is 
an election in almost 9 months. Months from now, there is going 
to be an election. Senators in this body the last time had very 
wise words. They echoed the words of our Founders. ``A partisan 
impeachment is like stealing an election.'' That is exactly 
what we have.
    Talk about the Framers' worst nightmare. It is a partisan 
impeachment they delivered to your doorstep, in an election 
year. Some of you are upset because you should be in Iowa right 
now, but, instead, we are here, and they are not ready to go. 
It is outrageous. It is outrageous.
    The American people will not stand for it. I will tell you 
that right now. They are not here to steal one election. They 
are here to steal two elections. It is buried in the small 
print of their ridiculous Articles of Impeachment. They want to 
remove President Trump from the ballot. They will not tell you 
that. They don't have the guts to say it directly, but that is 
exactly what they are here to do. They are asking the Senate to 
attack one of the most sacred rights we have as Americans--the 
right to choose our President in an election year. It has never 
been done before. It shouldn't be done.
    The reason it has never been done is because no one ever 
thought that it would be a good idea for our country, for our 
children, for our grandchildren to try to remove a President 
from a ballot, to deny the American people the right to vote 
based on a fraudulent investigation conducted in secret with no 
rights.
    I could go on and on, but my point is very simple. It is 
long past time we start this so we can end this ridiculous 
charade and go have an election.
    Thank you very much, Mr. Chief Justice.
    The CHIEF JUSTICE. Does the President's counsel yield back 
the remainder of their time?
    Mr. Counsel SEKULOW. We do.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1284

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to subpoena certain documents and records from the White 
House, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will read the document.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an amendment 
numbered 1284.
    (Purpose: To subpoena certain White House documents and records)
  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials--
          (1) the Chief Justice of the United States, through the 
        Secretary of the Senate, shall issue a subpoena to the Acting 
        Chief of Staff of the White House commanding him to produce, 
        for the time period from January 1, 2019, to the present, all 
        documents, communications, and other records within the 
        possession, custody, or control of the White House, including 
        the National Security Council, referring or relating to--
                  (A) all meetings and calls between President Trump 
                and the President of Ukraine, including documents, 
                communications, and other records related to the 
                scheduling of, preparation for, and follow-up from the 
                President's April 21 and July 25, 2019 telephone calls, 
                as well as the President's September 25, 2019 meeting 
                with the President of Ukraine in New York;
                  (B) all investigations, inquiries, or other probes 
                related to Ukraine, including any that relate in any 
                way to--
                          (i) former Vice President Joseph Biden;
                          (ii) Hunter Biden and any of his associates;
                          (iii) Burisma Holdings Limited (also known as 
                        ``Burisma'');
                          (iv) interference or involvement by Ukraine 
                        in the 2016 United States election;
                          (v) the Democratic National Committee; or
                          (vi) CrowdStrike;
                  (C) the actual or potential suspension, withholding, 
                delaying, freezing, or releasing of United States 
                foreign assistance, military assistance, or security 
                assistance of any kind to Ukraine, including but not 
                limited to the Ukraine Security Assistance Initiative 
                (USAI) and Foreign Military Financing (FMF);
                  (D) all documents, communications, notes, and other 
                records created or received by Acting Chief of Staff 
                Mick Mulvaney, then-National Security Advisor John R. 
                Bolton, Senior Advisor to the Chief of Staff Robert B. 
                Blair, and other White House officials relating to 
                efforts to--
                          (i) solicit, request, demand, induce, 
                        persuade, or coerce Ukraine to conduct or 
                        announce investigations;
                          (ii) offer, schedule, cancel, or withhold a 
                        White House meeting for Ukraine's president; or
                          (iii) hold and then release military and 
                        other security assistance to Ukraine;
                  (E) meetings at or involving the White House that 
                relate to Ukraine, including but not limited to--
                          (i) President Zelensky's inauguration on May 
                        20, 2019, in Kiev, Ukraine, including but not 
                        limited to President Trump's decision not to 
                        attend, to ask Vice President Pence to lead the 
                        delegation, directing Vice President Pence not 
                        to attend, and the subsequent decision about 
                        the composition of the delegation of the United 
                        States;
                          (ii) a meeting at the White House on or 
                        around May 23, 2019, involving, among others, 
                        President Trump, then-Special Representative 
                        for Ukraine Negotiations Ambassador Kurt 
                        Volker, then-Energy Secretary Rick Perry, and 
                        United States Ambassador to the European Union 
                        Gordon Sondland, as well as any private 
                        meetings or conversations with those 
                        individuals before or after the larger meeting;
                          (iii) meetings at the White House on or about 
                        July 10, 2019, involving Ukrainian officials 
                        Andriy Yermak and Oleksander Danylyuk and 
                        United States Government officials, including, 
                        but not limited to, then-National Security 
                        Advisor John Bolton, Secretary Perry, 
                        Ambassador Volker, and Ambassador Sondland, to 
                        include at least a meeting in Ambassador 
                        Bolton's office and a subsequent meeting in the 
                        Ward Room;
                          (iv) a meeting at the White House on or 
                        around August 30, 2019, involving President 
                        Trump, Secretary of State Mike Pompeo, and 
                        Secretary of Defense Mark Esper;
                          (v) a planned meeting, later cancelled, in 
                        Warsaw, Poland, on or around September 1, 2019 
                        between President Trump and President Zelensky, 
                        and subsequently attended by Vice President 
                        Pence; and
                          (vi) a meeting at the White House on or 
                        around September 11, 2019, involving President 
                        Trump, Vice President Pence, and Mr. Mulvaney 
                        concerning the lifting of the hold on security 
                        assistance for Ukraine;
                  (F) meetings, telephone calls or conversations 
                related to any occasions in which National Security 
                Council officials reported concerns to National 
                Security Council lawyers, including but not limited to 
                National Security Council Legal Advisor, John 
                Eisenberg, regarding matters related to Ukraine, 
                including but not limited to--
                          (i) the decision to delay military assistance 
                        to Ukraine;
                          (ii) the July 10, 2019 meeting at the White 
                        House with Ukrainian officials;
                          (iii) the President's July 25, 2019 call with 
                        the President of Ukraine;
                          (iv) a September 1, 2019 meeting between 
                        Ambassador Sondland and a Ukrainian official; 
                        and
                          (v) the President's September 7, 2019 call 
                        with Ambassador Sondland;
                  (G) any internal review or assessment within the 
                White House regarding Ukraine matters following the 
                September 9, 2019, request for documents from the House 
                Permanent Select Committee on Intelligence, the House 
                Committee on Oversight and Reform, and the House 
                Committee on Foreign Affairs, including, but not 
                limited to, documents collected that pertain to the 
                hold on military and other security assistance to 
                Ukraine, the scheduling of a White House meeting for 
                the president of Ukraine, and any requests for 
                investigations by Ukraine;
                  (H) the complaint submitted by a whistleblower within 
                the Intelligence Community on or around August 12, 
                2019, to the Inspector General of the Intelligence 
                Community;
                  (I) all meetings or calls, including requests for or 
                records of meetings or telephone calls, scheduling 
                items, calendar entries, White House visitor records, 
                and email or text messages using personal or work-
                related devices between or among--
                          (i) current or former White House officials 
                        or employees, including but not limited to 
                        President Trump; and
                          (ii) Rudolph W. Giuliani, Ambassador 
                        Sondland, Victoria Toensing, or Joseph 
                        diGenova; and
                  (J) former United States Ambassador to Ukraine Marie 
                ``Masha'' Yovanovitch, including but not limited to the 
                decision to end her tour or recall her from the United 
                States Embassy in Kiev; and
          (2) the Sergeant at Arms is authorized to utilize the 
        services of the Deputy Sergeant at Arms or any other employee 
        of the United States Senate in serving the subpoena authorized 
        to be issued by this section.

    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, I ask the Court for a 
brief 15-minute recess before the parties are recognized to 
debate the Schumer amendment.

                RECESS SUBJECT TO THE CALL OF THE CHAIR

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Senate stand in recess subject to the call of the 
Chair.
    There being no objection, at 2:49 p.m., the Senate, sitting 
as a Court of Impeachment, recessed until 3:16 p.m.; whereupon 
the Senate reassembled when called to order by the Chief 
Justice.
    The CHIEF JUSTICE. There are now 2 hours of argument on 
Senator Schumer's amendment.
    Mr. Schiff, do you wish to be heard on the amendment, and 
as the proponent or as the opponent?
    Mr. Manager SCHIFF. Mr. Chief Justice, we wish to be heard 
and are a proponent of the amendment.
    The CHIEF JUSTICE. Very well.
    Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an 
opponent of the amendment.
    The CHIEF JUSTICE. Mr. Schiff, you have an hour.
    Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
    In a moment, I will introduce House Manager Lofgren from 
California to respond on the amendment, but I did want to take 
this opportunity, before certain representations became 
congealed, to respond to my colleagues' argument on the 
resolution at large.
    First, it is worth noting they said nothing about the 
resolution. They said nothing about the resolution. They made 
no effort to defend it. They made no effort to even claim that 
this was like the Senate trial in the Clinton proceeding. They 
made no argument that, well, this is different here because of 
this or that. They made no argument about that whatsoever. They 
made no argument that it makes sense to try the case and then 
consider documents. They made no argument about why it makes 
sense to have a trial without witnesses.
    And why? Because it is indefensible. It is indefensible. No 
trial in America has ever been conducted like that, and so you 
heard nothing about it. And that should be the most telling 
thing about counsel's argument.
    They had no defense of the McConnell resolution because 
there is none. They couldn't defend it on the basis of setting 
precedent. They couldn't defend it on the basis of Senate 
history, traditionally. They couldn't defend it on the basis of 
the Constitution. They couldn't defend it at all.
    And so what did they say? Well, first they made the 
representation that the House is claiming there is no such 
thing as executive privilege. That is nonsense. No one here has 
ever suggested there is no such thing as executive privilege, 
but the interesting thing here is they have never claimed 
executive privilege. Not once during the House investigation 
did they ever say that a single document was privileged or a 
single witness had something privileged to say.
    And why didn't they invoke privilege? Why are we now? And 
even now they haven't quite invoked it? Why are we now? Why not 
in the House?
    Because in order to claim privilege, as they know, because 
they are good lawyers, you have to specify which document, 
which line, which conversation, and they didn't want to do that 
because to do that the President would have to reveal the 
evidence of his guilt. That is why they made no invocation of 
privilege.
    Now they make the further argument that the House should 
only be able to impeach after they exhaust all legal remedies, 
as if the Constitution says: The House shall have the sole 
power of impeachment, asterisk, but only after it goes to court 
in the district court, then the court of appeals, then the en 
banc, then the Supreme Court. Then it is remanded, and they go 
back up the chain, and it takes years.
    Why didn't the Founders require the exhaustion of legal 
remedies? Because they didn't want to put the impeachment 
process in the courts.
    And you know what is interesting is that while these 
lawyers for the President are here before you today saying the 
House should have gone to court, they were in court saying the 
House may not go to court to enforce subpoenas. I kid you not.
    Other lawyers--maybe not the ones at this table--but other 
lawyers for the President are in court saying the exact 
opposite of what they are telling you today. They are saying: 
You cannot enforce congressional subpoenas. That is 
nonjusticiable. You can't do it.
    Counsel brings up the case involving Charles Kupperman, who 
was a deputy to John Bolton on the National Security Council, 
and says: He did what he should do. He went to court to fight 
us.
    Well, the Justice Department took the position that he 
can't do that. So these lawyers are saying he should, and then 
those lawyers are saying he shouldn't. They can't have it both 
ways.
    Now, interestingly, while Mr. Kupperman--Dr. Kupperman--
went to court--and they applaud him for doing that--his boss, 
John Bolton, now says there is no necessity for him to go to 
court. He doesn't have to do it. He is willing to come and talk 
to you. He is willing to come and testify and tell you what he 
knows. The question is, Do you want to hear it? Do you want to 
hear it? Do you want to hear from someone who was in the 
meetings, someone who described what the President did--this 
deal between Mulvaney and Sondland--as a drug deal? Do you want 
to know why it was a drug deal? Do you want to ask him why it 
was a drug deal? Do you want to ask him why he repeatedly told 
people: Go talk to the lawyers?
    You should want to know. They don't want you to know. They 
don't want you to know. The President doesn't want you to know.
    Can you really live up to the oath you have taken to be 
impartial and not know? I don't think you can.
    Now, they also made the argument that you will hear more 
later on from, apparently, Professor Dershowitz that, well, 
abuse of power is not an impeachable offense. It is interesting 
that they had to go outside the realm of constitutional lawyers 
and scholars to a criminal defense lawyer to make that 
argument, because no reputable constitutional law expert would 
do that. Indeed, the one they called in the House--that 
Republicans called in the House--Jonathan Turley, said exactly 
the opposite. There is a reason that Jonathan Turley is not 
sitting at the table, much to his dismay, and that is because 
he doesn't support their argument. So they will cite him for 
one thing, but they will ignore him for the other.
    Now they say: Oh, the President is very transparent. He may 
have refused every subpoena, every document request, but he 
released two documents--the document on the July 25 call and 
the document on the April 21 call.
    Well, let's face it. He was forced to release the record of 
the July 25 call when he got caught, when a whistleblower filed 
a complaint, when we opened an investigation. He was forced 
because he got caught. You don't get credit for transparency 
when you get caught. And what is more, what is revealed in 
that, of course, is damning.
    Now they point to the only other record he has apparently 
released, the April 21 call, and that is interesting too. Now, 
that is just a congratulatory call, but what is interesting 
about it is the President was urged on that call to bring up an 
issue of corruption. And, indeed, in the readout of that call 
the White House misleadingly said he did, but now that we have 
seen the record, we see that he didn't. And notwithstanding 
counsel's claim in their trial brief that the President raised 
the issue of corruption in his phone call, the July 25 call, of 
course, that word doesn't appear in either conversation. And 
why? Because the only corruption he cared about was the 
corruption that he could help bring about.
    Now, Mr. Cipollone and Mr. Sekulow made the representation 
that Republicans were not even allowed in the depositions 
conducted in the House. Now, I am not going to suggest to you 
that Mr. Cipollone would deliberately make a false statement. I 
will leave it to Mr. Cipollone to make those allegations 
against others. But I will tell you this: He is mistaken. He is 
mistaken. Every Republican on the three investigative 
committees was allowed to participate in the depositions, and, 
more than that, they got the same time we did. You show me 
another proceeding, another Presidential impeachment or other 
that had that kind of access for the opposite party.
    And, now, there were depositions in the Clinton 
impeachment. There were depositions in the Nixon impeachment. 
So what they would say is some secret process. Well, they were 
the same private depositions in these other impeachments as 
well.
    Finally, on a couple last points, they made the argument 
that the President was not allowed, in the Judiciary Committee 
chaired by my colleague Chairman Nadler, to be present, to 
present evidence, to have his counsel present. That is also 
just plain wrong, just plain wrong. I am not going to suggest 
to you that they are being deliberately misleading here, but it 
is just plain wrong.
    You have also heard my friends at the other table make 
attacks on me and Chairman Nadler. You will hear more of that. 
I am not going to do them the dignity of responding to them, 
but I will say this. They make a very important point, although 
it is not the point I think they are trying to make. When you 
hear them attack the House managers, what you are really 
hearing is: We don't want to talk about the President's guilt. 
We don't want to talk about the McConnell resolution and how 
patently unfair it is. We don't want to talk about how--pardon 
the expression--ass-backward it is to have a trial and then ask 
for witnesses. And so they will attack House managers because 
maybe we can distract you for a moment from what is before you. 
Maybe if we attack House managers, you will be thinking about 
them instead of thinking about the guilt of the President.
    So you will hear more of that, and every time you do, every 
time you hear them attacking House managers, I want you to ask 
yourself: Away from what issue are they trying to distract me? 
What was the issue that came up just before this? What are they 
trying to deflect my attention from? Why don't they have a 
better argument to make on the merits?
    Finally, Mr. Sekulow asked: Why are we here? Why are we 
here?
    Well, I will tell you why we are here: Because the 
President used the power of his office to coerce an ally at war 
with an adversary, at war with Russia, used the powers of his 
office to withhold hundreds of millions of dollars of military 
aid that you appropriated and we appropriated to defend an ally 
and defend ourselves, because it is our national security as 
well. And why? To fight corruption? That is nonsense, and you 
know it.
    He withheld that money and he withheld even meeting with 
him in the Oval Office--the President of Ukraine--because he 
wanted to coerce Ukraine into these sham investigations of his 
opponent that he was terrified would beat him in the next 
election. That is what this is about.
    You want to say that is OK? Their brief says that is OK. 
The President has a right to do it. Under article II, we heard 
the President can do whatever he wants. You want to say that is 
OK? Then you have got to say that every future President can 
come into office and they can do the same thing. Are we 
prepared to say that? Well, that is why we are here.
    I now yield to Representative Lofgren.
    Ms. Manager LOFGREN. Mr. Chief Justice, Senators, counsel 
for the President, the House managers strongly support Senator 
Schumer's amendment, which would ensure a fair, legitimate 
trial based on a full evidentiary record.
    The Senate can remedy President Trump's unprecedented 
coverup by taking a straightforward step. It can ask for the 
key evidence that the President has improperly blocked. Senator 
Schumer's amendment does just that.
    The amendment authorizes the subpoena for White House 
documents that are directly relevant to this case. [Slide 15] 
These documents focus on the President's scheme to strong-arm 
Ukraine to announce an investigation into his political 
opponent to interfere with the 2020 election.
    The documents will reveal the extent of the White House's 
coordination with the President's agents, such as Ambassador 
Sondland and Rudy Giuliani, who pushed the President's so-
called ``drug deal'' on Ukrainian officials. The documents will 
also show us how key players inside the White House, such as 
the President's Acting Chief of Staff, Mick Mulvaney, and his 
deputy, Robert Blair, helped set up the deal by executing the 
freeze on all military aid and withholding a promised visit to 
the White House. The documents include records of the people 
who may have objected to this scheme, such as Ambassador 
Bolton.
    This is an important impeachment case against the 
President. The most important documents are going to be at the 
White House. The documents Senator Schumer's amendment targets 
would provide more clarity and context about President Trump's 
scheme. The amendment prevents the President from hiding 
evidence, as he has previously tried to do.
    The House subpoenaed these documents as part of the 
impeachment inquiry, but the President completely rejected this 
and every document subpoenaed from the House. As powerful as 
our evidence is--and make no mistake, it overwhelmingly proves 
his guilt--we did not receive a single document from the 
executive branch agency, including the White House itself.
    Recent revelations from press reports, Freedom of 
Information Act requests, and additional witnesses, such as Lev 
Parnas, underscore how relevant these documents are and, 
therefore, why the President has been so desperate to hide them 
and his misconduct from Congress and the American people.
    A trial without all the relevant evidence is not a fair 
trial. It would be wrong for you Senators, acting as judges, to 
be deprived of relevant evidence of the President's offenses 
when you are judging these most serious charges. It would also 
be unfair to the American people, who overwhelmingly believe 
the President should produce all relevant documents and 
evidence.
    Now, documentary evidence is used in all trials for a 
simple reason. As the story goes, the documents don't lie. 
Documents give objective real-time insight into the events 
under investigation. The need for such evidence is especially 
important in Senate impeachment trials. More than 200 years of 
Senate practice make clear that documents are generally the 
first order of business. They have been presented to the Senate 
before witnesses take the stand in great volume to ensure the 
Senate has the evidence it needs to evaluate the case.
    Documentary evidence in Senate trials has never been 
limited to the documents sent by the House. The Senate, 
throughout its existence, has exercised its authority pursuant 
to its clear rules of procedure to subpoena documents at the 
outset of the trial.
    We don't know with certainty what the documents will say. 
We simply want the truth, whatever that truth may be, and so do 
the American people. They want to know the truth, and so should 
everybody in this Chamber, regardless of party affiliation.
    There are key reasons why this amendment is necessary. We 
will begin by walking through the history and precedent of 
Senate impeachment trials. I will let you know about the 
House's efforts to get the documents, which were met by the 
President and his administration's categorical commitment to 
hide all the evidence at all costs, and we will address the 
specific need for these subpoenaed White House documents. 
[Slide 16] I will tell you why these documents are needed now, 
not at the end of the trial, in order to ensure a full, fair 
trial based on a complete evidentiary record.
    Someone suggested incorrectly [Slide 17] that the Senate is 
limited only to evidence gathered before the House approved its 
Articles of Impeachment. Others have suggested, also 
incorrectly, that it would somehow be strange for the Senate to 
issue subpoenas. These claims are without any historical, 
precedential, or legal support.
    Over the past two centuries, the Senate has always 
understood that its sole power under the Constitution to try 
all impeachments requires the Senate to sit as a Court of 
Impeachment and hold a trial. In fact, the Founders assigned 
sole authority only twice in the Constitution, first, giving 
the House sole authority to impeach, and, second, giving the 
Senate sole authority to try that impeachment.
    If the Founders had intended for the Senate to serve as 
some kind of appellate body, they would have said that. But, 
no, instead they wrote this in article I, section 3: ``The 
Senate shall have sole Power to try all Impeachments.''
    The Senate has always received the relevant documents in 
impeachment trials, and, indeed, the Senate's own rules of 
procedure and practice make clear that new evidence will be 
considered. Precedent shows this. All 15 full Senate 
impeachment trials considered new evidence.
    Let's look at a few examples that show the Senate takes new 
evidence in impeachment trials.
    The first-ever impeachment trial in 1868 against President 
Andrew Johnson [Slide 18] allowed the House managers to spend 
the first 2 days of the trial introducing new documentary 
evidence.
    It was the same in Judge John Pickering's trial in 1804. 
New documents were presented to the Senate nearly a week before 
House managers made their opening statements and later 
throughout the trial.
    As has been mentioned earlier by Mr. Schiff, [Slide 19] in 
modern times, in 2010, Judge Porteous's impeachment trial 
included 7 months of pretrial discovery and 6,000 pages of 
documentary evidence admitted at trial. After that evidence was 
admitted, the Senate held its trial.
    President Clinton's case did not involve subpoenas for 
documents. Why was that? Because President Clinton had already 
produced a huge trove of documents. The independent counsel 
turned over to Congress some 90,000 pages of relevant documents 
gathered during the course of his years-long investigation, and 
I remember, as a member of the Judiciary Committee, going over 
to the Ford building and looking at the boxes of the documents. 
But even with all those documents, the Clinton trial included 
the opportunity to present new evidence and submission of 
additional documents and three witnesses.
    The Clinton impeachment precedent also shows how President 
Trump's refusal to produce any relevant documents in response 
to congressional subpoenas is different from past Presidents--
different from President Clinton, different from President 
Johnson, and less even than President Nixon. In short, not a 
single President has categorically refused to cooperate with an 
impeachment investigation. Not a single President has issued a 
blanket direction to his administration to produce no documents 
and no witnesses. These are the precedents the Senate must rely 
on.
    The Senate should issue a subpoena for documents at the 
very outset of the proceedings so that this body, the House 
managers, the President can all account for those documents in 
their presentations and deliberations.
    It doesn't make sense to request and receive documents 
after the parties present their cases. The time is now to do 
that. So why is the amendment needed to prevent President Trump 
from continuing his categorical commitment to hide the 
evidence?
    In this case the House sought White House documents. Why 
don't we have them? It is not because we didn't try. It is 
because the White House refused to give them to us. The 
President's defense team seems to believe that the White House 
is permitted to completely refuse to provide any documents 
without regard to whether or not it is privileged. They 
apparently believe that Congress's authority is subject to the 
approval of the President. But that is not what the 
Constitution says. Our Constitution sets forth a democracy with 
a system of checks and balances to ensure that no one, and 
certainly not the President, is above the law. Even President 
Nixon produced more than 30 transcripts of White House 
recordings and notes in the meetings with the President.
    Here, [Slide 20] even before the House launched the 
investigation that led to this trial, President Trump rejected 
Congress's constitutional responsibility to use its lawful 
authority to investigate his actions. He asserted that his 
administration was fighting all the subpoenas, proclaiming:
    ``I have an Article II, where I have the right to do 
whatever I want as President.''
    Here is what he said:
    (Text of Videotape presentation:)

    President TRUMP. I have an Article II, where I have the 
right to do whatever I want as President.

    Ms. Manager LOFGREN. Even after the House formally 
announced its investigation of the President's conduct in 
Ukraine, the President still continued his obstruction. 
Beginning on September 9, 2019 [Slide 21], the House 
investigative committee made two attempts to voluntarily obtain 
documents from the White House. The White House refused to 
engage and, frankly, to even respond to the House committee.
    On October 4, the House Committee on Oversight Reform sent 
a subpoena to the White House Acting Chief of Staff, Mick 
Mulvaney, this time compelling the production of documents from 
the White House by October 18. On October 8, [Slide 22] before 
the White House documents were due, the White House Counsel 
sent a letter to Speaker Pelosi, stating the President's 
position that President Trump and his administration cannot 
participate in this partisan inquiry under the circumstances. 
The President simply declared that he will not participate in 
an investigation he didn't like.
    Ten days later, on October 18, the White House Counsel sent 
a letter to the House, confirming that it would continue to 
stonewall. The White House Counsel again stated that the 
President refused to participate.
    Well, the Constitution, article I, section 2, says that the 
House will have the sole power of impeachment, just as in 
article I, section 3, the Senate has the sole power to try. 
Participation in a duly authorized congressional investigation 
isn't optional. It is not up to the President to decide whether 
to participate or not. The Constitution gives the House the 
sole power of impeachment. It gives the Senate the sole power 
to try all impeachments.
    The President may not like being impeached, but if the 
President, not the Congress, decides when impeachment 
proceedings are appropriate, then the impeachment power is no 
power at all. If you let him block from Congress and from the 
American people the evidence to cover up his offenses, then the 
impeachment power truly will be meaningless.
    With all the back-and-forth about these documents, we have 
heard the phrase ``executive privilege.'' The President and his 
lawyers keep saying--[Slide 23] they talk about a vast legal 
right to justify hiding the truth, withholding information. But 
that is a distraction. That is not what the Constitution 
provides.
    The truth is, as has been mentioned by Mr. Schiff, in the 
course of the entire impeachment inquiry, President Trump has 
not once asserted executive privilege--not a single time. It 
was not the reason provided by Mr. Cipollone for refusing to 
comply with the House subpoenas. Indeed, President Trump didn't 
offer legal justification for withholding the evidence.
    Here is the truth. The President, Members of Congress, 
judges, and the Supreme Court have recognized throughout our 
Nation's history that Congress's investigative powers are at 
their absolute peak during impeachment proceedings--your 
powers. Executive privilege cannot be a barrier to give 
absolute secrecy to cover up wrongdoing. If it did, the House 
and the Senate would see their powers disappear.
    When President Nixon tried that argument by refusing to 
produce tape recordings to prosecutors and to Congress, he was 
soundly rebuked by the other two branches of government. The 
Supreme Court unanimously ruled against him. The House 
Judiciary Committee voted that he be impeached for obstruction 
of Congress.
    It would be remarkable for the United States Senate to 
declare for the first time in our Nation's history that the 
President has an absolute right to decide whether his own 
impeachment trial is legitimate. It would be extraordinary for 
the Senate to refuse to seek important documentary evidence, 
especially when the President has yet to assert any privilege 
to justify withholding documents.
    There is another reason this amendment is important. The 
documents sought are directly relevant to the President's 
misconduct. The White House is concealing documents involving 
officials who had direct knowledge of key events at the heart 
of this trial. This isn't just a guess. We know these documents 
exist from the witnesses who testified in the House and from 
other public release of documents. [Slide 24]
    Let's walk through those specific documents that the White 
House should send to the Senate. They include, among other 
documents relating to President Trump, direct communications 
with President Zelensky; President Trump's request for 
political investigations, including communications with Rudy 
Giuliani, Ambassador Sondland, and others; President Trump's 
unlawful hold of the $391 million of military aid; concerns 
that White House officials reported to NSC legal counsel in 
realtime; and the President's decision to recall Ambassador 
Marie Yovanovitch from Ukraine.
    The first set of documents the Senate should get about 
President Trump's communication with the President of Ukraine 
would include the phone calls on April 21 and July 25, [Slide 
25] as well as the September 25, 2019, meeting with President 
Zelensky in New York.
    We know, for example, that NSC officials prepared talking 
points for the President in preparation for both calls to the 
Ukrainian President. The talking points were about American 
policy, as reflected by the votes of Congress, as well as the 
Trump administration itself. They didn't include any mention of 
the Bidens or the 2016 election interference or investigations 
that President Trump requested on the July 25 call.
    Here is a clip of Lieutenant Colonel Vindman explaining how 
the President ignored the points about American policy 
reflecting the views of both the Congress and the Trump 
administration.
    (Text of Videotape presentation:)

    Mr. SCHIFF. Colonel Vindman, if I can turn your attention 
to the April 21 call that is the first call between President 
Trump and President Zelensky. Did you prepare talking points 
for the President's use during that call?
    LTC VINDMAN. Yes, I did.
    Mr. SCHIFF. Did those talking points include rooting out 
corruption in Ukraine?
    LTC VINDMAN. Yes.
    Mr. SCHIFF. That was something the President was supposed 
to raise in the conversation with President Zelensky?
    LTC VINDMAN. Those were the recommended talking points that 
were cleared through NSC staff for the President, yes.

    Ms. Manager LOFGREN. The materials provided for the July 25 
call that Lieutenant Colonel Vindman mentioned are highly 
relevant. They could help confirm that the President's actual 
statements to President Zelensky were unrelated to the foreign 
policy objectives of his own administration and show that they 
served his own personal interest at the expense of America's 
national security interest.
    These documents also include handwritten notes and other 
documents that White House officials generated during the calls 
and meetings. We know, for example, that Lieutenant Colonel 
Vindman, Mr. Morrison, and Jennifer Williams all testified to 
taking contemporaneous handwritten notes during the July 25 
call. [Slide 26] Ms. Williams and Lieutenant Colonel Vindman 
both testified that President Zelensky made an exclusive 
reference to Burisma that was not included in the memorandum 
that the White House released to the public. Here is a clip of 
their testimony.
    (Text of Videotape presentation:)

    Mr. SCHIFF. Both of you recall President Zelensky in that 
conversation raising the issue or mentioning Burisma; do you not?
    Ms. WILLIAMS. That is correct.
    LTC VINDMAN. Correct.
    Mr. SCHIFF. And yet the word ``Burisma'' appears nowhere in the 
call record that has been released to the public; is that right?
    Ms. WILLIAMS. That is right.
    LTC VINDMAN. Correct.

    Ms. Manager LOFGREN. Why do we need documents generated 
after the calls and meetings? They would shed light on how 
these events were perceived in the White House and what actions 
were taken moving forward. For example, National Security 
Advisor John Bolton [Slide 27] wasn't on the 25th call, but he 
was apparently informed about the contents of the call 
afterward. His reaction, once he was informed, would be helpful 
to understanding the extent to which President Trump's action 
deviated from American policy and American security interest.
    There is another set of documents [Slide 28] that the 
Senate should get, and they relate to the political 
investigations that President Trump and his agents repeatedly 
asked Ukrainian officials to announce. These documents were 
about efforts to pressure Ukraine to announce investigations 
and the decision to place a hold on military aid to Ukraine. 
They would be very important for you to evaluate the 
President's conduct.
    For example, Ambassador Bolton is a firsthand witness to 
President Trump's abuse of power. He reported directly to the 
President. He supervised the entire staff of the National 
Security Council. Public reports indicate that John Bolton is a 
voracious note-taker at every meeting.
    From witness testimony, we know that Ambassador Bolton 
hosted the July 10, 2019, meeting where Ambassador Sondland 
told Ukrainian officials that the promised White House meeting 
would be scheduled if they announce the investigations. We know 
Bolton was briefed about this meeting immediately following it 
when Ambassador Sondland said he had a deal with Mick Mulvaney 
to schedule the promised White House meeting if Ukraine 
announced investigations into the Bidens in the 2016 election.
    We also know Ambassador Bolton was involved in briefing the 
President on a Presidential decision memorandum in August 
reflecting the consensus interagency opinion that the Ukrainian 
security assessment was vital to America's national security--
something the Congress had approved appropriately and something 
the President had signed.
    Press reports indicate that he, too, was involved in the 
late August Oval Office meeting where he, Secretary Pompeo, and 
Secretary Esper all tried to convince the President to release 
the aid.
    Now, Ambassador Bolton has come forward and publicly 
confirmed that he was a witness to important events but also 
that he has new evidence that no one has seen yet. If we know 
there is evidence that has not yet come out, all of us should 
want to hear it. We should want to hear it now before 
Ambassador Bolton testifies. We should get documents and 
records relating to his testimony, including his notes, which 
would provide contemporaneous evidence about what was discussed 
in meetings related to Ukraine, which would help to evaluate 
his testimony.
    The evidence is not restricted to just Ambassador Bolton. 
During his public testimony, Ambassador Gordon Sondland stated: 
I have not had access to all my phone records. He also said 
that he and his lawyers had asked repeatedly for these 
materials. [Slide 29] He said the materials would help refresh 
his memory. We should go get that material.
    Ambassador Sondland also testified that he exchanged a 
number of emails with top officials, like Mick Mulvaney, about 
his efforts to pressure Ukraine to announce the investigations 
President Trump demanded. Here is his testimony.
    (Text of Videotape presentation:)

    Ambassador SONDLAND. First, let me say precisely, because 
we did not think that we were engaging in improper behavior, we 
made every effort to ensure that the relevant decision makers 
at the National Security Council and the State Department knew 
the important details of our efforts. The suggestion that we 
were engaged in some irregular or rogue diplomacy is absolutely 
false. I have now identified certain State Department emails 
and messages that provide contemporaneous support for my view. 
These emails show that the leadership of the State Department, 
the National Security Council, and the White House were all 
informed about the Ukraine efforts from May 23, 2019, until the 
security aid was released on September 11, 2019.

    Ms. Manager LOFGREN. These emails referenced in this 
testimony are in the possession of the White House, the State 
Department, and even the Department of Energy since officials 
from all three entities communicated together.
    Now, during his testimony, [Slide 30] Ambassador Sondland 
described it this way: Everyone was in the loop. It was no 
secret.
    These emails are therefore important to understanding the 
full scope of the scheme.
    A request for relevant evidence is not confined to Trump 
administration officials. [Slide 31] The Senate should also get 
White House records relating to the President's private agents 
who acted on his behalf in Ukraine, including Victoria Toensing 
and Joe diGenova. Witness testimony and documents have made 
clear that Mr. Giuliani, a frequent visitor to the White House 
who also received and made frequent calls to the White House, 
was acting on behalf of the President to press Ukrainian 
officials to announce investigations that would personally and 
politically benefit the President.
    For example, the May 10, 2019, letter from Mr. Giuliani to 
President-elect Zelensky that is shown on this slide [Slide 32] 
states he was acting ``as personal counsel to President Trump 
with his knowledge and consent.'' He requested a meeting with 
the President-elect, to be joined by Ms. Toensing, who is 
``very familiar with this matter.'' The evidence indicates he 
was collaborating with Ms. Toensing and Mr. diGenova in this 
effort.
    The Senate should get the White House records of the 
meeting and of the calls involving Mr. Giuliani, Ms. Toensing, 
or Mr. diGenova. These records are important to help you 
understand the extent to which the White House was involved in 
Mr. Giuliani's efforts to coerce Ukraine to announce the 
investigation the President wanted. The records would also show 
how the President's personal political agenda became more 
important than policies to help America's national security 
interests.
    The President's counsel may--consistent with his prior 
attempts to hide evidence--assert that attorney/client 
privilege would cover these documents, but the President's 
personal attorney/client privilege cannot shield evidence of 
misconduct in office or that of his aides or his lawyers' 
participation in corrupt schemes. We aren't asking for 
documents reflecting legitimate legal advice; we need documents 
about their actions to pressure Ukraine to announce an 
investigation into President Trump's political opponent.
    There is a set of White House documents that relate 
directly to the President's unlawful decision to withhold $391 
million appropriated--bipartisan--to help Ukraine. [Slide 33] 
Witnesses have testified that President Trump directly ordered 
a hold on the security assistance despite the unanimous opinion 
of these agencies that the aid should be released.
    Importantly, according to the Government Accountability 
Office, his action violated the law. On January 16, 2020, the 
GAO [Slide 34]--an independent watchdog--issued a legal opinion 
finding that President Trump violated the law when he held up 
security assistance to Ukraine. The GAO said:

    Faithful execution of the law does not permit the President 
to substitute his own policy priorities for those that Congress 
enacted into law. OMB withheld funds for a policy reason, which 
is not permitted under the Impoundment Control Act. The 
withholding was not a programmatic delay. Therefore, we 
conclude that OMB violated the ICA.

    The fact that the President's action to freeze the aid, 
which he used to pressure Ukraine to announce the political 
investigations he wanted, was against not only the official 
consensus of his own administration but also against the law, 
and it was to help himself. That helps demonstrate these 
actions were taken for President Trump's personal and political 
benefit.
    Witness testimony and public reporting made clear the White 
House has a significant body of documents that relate to these 
key aspects of the President's scheme. [Slide 35] Some of these 
documents outline the planning of the President's freeze.
    For example, the New York Times reported in June that Mr. 
Mulvaney emailed his senior adviser, Mr. Blair: Did we ever 
find out about the money for Ukraine and whether we can hold it 
back? This shows that Mr. Mulvaney was in email contact with 
his aides about the very issues under investigation as part of 
this impeachment. It tells us that the White House is in 
possession of communications that go to the heart of the 
charges before you.
    The Senate should also get materials prepared for summary 
notes from the late August meeting with President Trump, 
Secretary of Defense Mark Esper, and Secretary of State Mike 
Pompeo [Slide 36] when they try to convince the President that 
``freeing up the money for Ukraine was the right thing to do.'' 
According to the New York Times, Ambassador Bolton told the 
President this is in America's interest.
    The Senate should review that highly relevant document, 
which reflects real-time assertions by President Trump's own 
senior aides that Ukrainian aid was in the national security 
interest of the United States and that there was no legitimate 
reason to hold up the aid. There are documents that include 
after-the-fact justifications to try to overcome legal problems 
and the unanimous objections to freezing [Slide 37] the 
assistance to Ukraine, and we know these documents exist.
    On January 3, 2020, OMB stated in a letter to the New York 
Times that it had discovered 20 responsive documents consisting 
of 40 pages reflecting emails between White House official 
Robert Blair and OMB official Michael Duffey that relate 
directly to the freezing of the Ukraine security assistance. 
But OMB wouldn't release them in a Freedom of Information 
lawsuit, and they have refused to produce these documents at 
the direction of the President in response to the House's 
lawful subpoena.
    The Washington Post [Slide 38] reported that a 
``confidential White House review'' of President Trump's 
decision to hold up ``hundreds of documents that reveal 
extensive efforts to generate an after-the-fact justification 
for the . . . debate over whether the delay was legal''--that 
is known as a coverup, actually.
    The White House lawyers had, apparently, uncovered ``early 
August email exchanges between acting chief of staff Mick 
Mulvaney and White House budget officials seeking to provide 
some explanation for withholding the funds the president had 
already ordered a hold'' on.
    The documents also reportedly include communications 
between White House officials and outside agencies. Not only 
does Congress have a right to see them, but the public does, 
too, under freedom of information laws.
    As a matter of constitutional authority, the Senate has the 
greatest interest in and the right to compel those documents. 
Indeed, as the news article explains, White House lawyers are 
reportedly worried about ``unflattering exchanges and facts 
that could at a minimum embarrass the president.'' Perhaps they 
should be worried about that, but the risk of embarrassment 
cannot outweigh the constitutional interests in this 
impeachment proceeding.
    Any evidence of guilt, including further proof of the real 
reason the President ordered the funds withheld, or after-the-
fact attempts to paper over knowingly unlawful conduct, must be 
provided to ensure a full and fair trial. No privilege or 
national security rationale can be used as a shield from 
disclosing misconduct.
    There are key White House documents relating to multiple 
instances when White House officials reported [Slide 39] their 
concerns to White House lawyers about the President's scheme to 
press Ukraine to do the President a domestic political favor. 
For example, Lieutenant Colonel Vindman and Dr. Hill both 
informed NSC lawyers about the July 10 meeting in which 
Ambassador Sondland revealed he had a deal with Mr. Mulvaney.
    I am going to go directly to the clip by Dr. Hill because, 
at Bolton's direction, Dr. Hill also reported that meeting to 
John Eisenberg, as she explained in her testimony.
    (Text of Videotape presentation:)

    Dr. HILL. I had a discussion with Ambassador Bolton both 
after the meeting in his office, a very brief one, and then one 
immediately afterward, the subsequent meeting.
    Mr. GOLDMAN. So the subsequent meeting--after both meetings 
when you spoke to him and relayed to him what Ambassador 
Sondland said, what did Ambassador Bolton say to you?
    Dr. HILL. Well, I just want to highlight, first of all, 
that Ambassador Bolton wanted me to hold back in the room 
immediately after the meeting. Again, I was sitting on the sofa 
with a colleague--
    Mr. GOLDMAN. Right. But just in that second meeting, what 
did he say?
    Dr. HILL. Yes, but he was making a very strong point that 
he wanted to know exactly what was being said. And when I came 
back and related it to him, he had some very specific 
instruction for me. And I'm presuming that that's--
    Mr. GOLDMAN. What was that specific instruction?
    Dr. HILL. The specific instruction was that I had to go to 
the lawyers--to John Eisenberg, the senior counsel for the 
National Security Council, to basically say: You tell Eisenberg 
Ambassador Bolton told me that I am not part of this--whatever 
drug deal that Mulvaney and Sondland are cooking up.
    Mr. GOLDMAN. What did you understand it to mean by the drug 
deal that Mulvaney and Sondland were cooking up?
    Dr. HILL. I took it to mean investigations for a meeting.
    Mr. GOLDMAN. Did you go speak to the lawyers?
    Dr. HILL. I certainly did.
    Mr. GOLDMAN. And you relayed everything that you just told 
us and more?
    Dr. HILL. I relayed it, precisely, and then more of the 
details of how the meeting had unfolded, as well, which I gave 
a full description of this in my October 14 deposition.

    Ms. Manager LOFGREN. There was something wrong going on 
here, and White House officials were told repeatedly: Go tell 
the lawyers about it--Dr. Hill, Lieutenant Colonel Vindman, and 
Mr. Morrison, who reported to Mr. Eisenberg at least two 
conversations. We need the notes of those documents to find out 
what was said. [Slide 40] Again, attorney-client privilege 
cannot shield information about misconduct from the impeachment 
trial of the President of the United States.
    It is interesting. This amendment is supported by 200 years 
of precedent. It is needed to prevent the President from 
continuing to hide the evidence, and that is why the specific 
documents requested are so important for this case. It is 
faithful to the Constitution's provision that the Senate shall 
have the sole power to try all impeachments.
    The final point I will make today concerns urgency. The 
Senate should act on this subpoena now, at the outset of the 
trial. [Slide 41] In 14 of the Senate's 15 full impeachment 
trials, threshold evidentiary matters, including the timing, 
nature, and scope of witness testimony, and the gathering of 
all relevant documents, were addressed at the very outset of 
the trial. There are practical considerations as to why the 
subpoenas need to be issued now. Resolving whether a subpoena 
should issue now would let us immediately engage with the White 
House to resolve asserted legitimate privilege issues, if any 
exist, and ensure you get the documents as soon as possible so 
they can be presented to the Senators in advance of witness 
testimony. Waiting to resolve these threshold matters until 
after the parties have presented their case would undercut the 
process of a genuine credible trial.
    Thus, common sense, tradition, and fairness all compel that 
the amendment should be adopted, and it should be adopted now.
    Members of the Senate, for all of the reasons I have walked 
through today, I urge you to support the amendment to issue a 
subpoena for White House documents--documents that are directly 
relevant to evaluating the President's scheme.
    The House did its job. In the face of the President's 
obstruction and categorical commitment to hide the evidence, we 
still gathered direct evidence of his conduct and determined 
that his conduct required impeachment.
    The President complains about due process in the House 
investigation. But he was not only permitted to participate; he 
was actually required to participate. Yet he refused to do so. 
He refused to provide witnesses and documents that would tell 
his side of the story. So now it is up to you.
    With the backing of a subpoena, authorized by the Chief 
Justice of the United States, you can end President Trump's 
obstruction. If the Senate fails to take this step, if it will 
not even ask for this evidence, this trial and your verdict 
will be questioned.
    Congress and the American people deserve the full truth. 
There is no plausible reason why anyone wouldn't want to hear 
all of the available evidence about the President's conduct.
    It is up to this body to make sure that happens. It is up 
to you to decide whether the Senate will affirm its sole power 
and constitutional duty to try impeachments and whether and 
when it will get the evidence that it needs to render a fair 
verdict. Don't surrender to the President's stonewalling. It 
will allow the President to be above the law and deprive the 
American people of truth in the process.
    A fair trial is essential in every way. It is important for 
the President, who hopes to be exonerated, not merely acquitted 
by a trial seen as unfair. It is important for the Senate, 
whose vital role is to continue to protect and defend the 
Constitution of the United States, which has preserved our 
American liberty for centuries. And, finally, it is important 
for the American people, who expect a quest for truth, 
fairness, and justice.
    History is watching, and the House managers urge that you 
support the amendment.
    I reserve the balance of my time.
    The CHIEF JUSTICE. Thank you, counsel.
    Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, Patrick Philbin 
will present our opposition.
    The CHIEF JUSTICE. Very well.
    Mr. Philbin.
    Mr. Counsel PHILBIN. Thank you.
    Mr. Chief Justice, Majority Leader McConnell, Democratic 
Leader Schumer, and Senators, it is remarkable that after 
taking the action of the breathtaking gravity of voting to 
impeach the duly elected President of the United States and 
after saying for weeks that they had overwhelming evidence to 
support their case, the first thing that the House managers 
have done upon arriving, finally, at this Chamber, after 
waiting for 33 days, is to say: Well, actually, we need more 
evidence. We are not ready to present our case. We need to have 
subpoenas, and we need to do more discovery because we don't 
have the evidence we need to support our case.
    This is stunning. It is a stunning admission of the 
inadequate and broken process that the House Democrats ran in 
this impeachment inquiry that failed to compile a record to 
support their charges. It is stunning that they don't have the 
evidence they need to present their case and that they don't 
really have a case.
    If a litigant showed up in any court in this country on the 
day of trial and said to the judge, ``Actually, Your Honor, we 
are not ready to go; we need more discovery; we need to do some 
more subpoenas; we need to do some more work,'' they would be 
thrown out of court, and the lawyers would probably be 
sanctioned. This is not the sort of proceeding that this body 
should condone.
    We have just heard that this is so important. Let's 
consider what is really at issue in the resolution here and the 
amendment. It is a matter of timing. It is a matter of when 
this body will consider whether there should be witnesses or 
subpoenas for documents.
    Why is it that the House managers are so afraid to have to 
present their case? Remember, they have had weeks of a process 
that they entirely controlled. They had 17 witnesses who 
testified first in secret and then in public. They have 
compiled a record with thousands of pages of reports, and they 
are apparently afraid to just make a presentation based on the 
record that they compiled and then have you decide whether 
there is any ``there'' there--whether there is anything worth 
trying to talk to more witnesses about.
    Why is it that they can't wait a few days to make their 
presentation on everything they have been preparing for weeks 
and then have that issue considered? It is because they don't 
think there is any ``there'' there, and they want to ram this 
through now. They want to ram this through now when it is 
something that they, themselves, failed to do.
    I want to unpack a couple of aspects of what they are 
asking this body to do. Part of it relates to the broken 
process in the House and how that process was inadequate and 
invalid and compiled an inaccurate record, and part of it has 
to do with what accepting their request to have this body do 
their job for them would do to this institution going forward 
and how it would forever alter the relationship between the 
House and the Senate in impeachment proceedings.
    First, as to the process in the House. What the House 
managers are asking this body to do now is to really do their 
job for them because they didn't take the measures to pursue 
these documents in the House proceedings. There have been a 
number of statements made that they tried to get the documents 
and no executive privilege was asserted, and things like that.
    Let's look at what actually happened.
    They issued a subpoena to the White House, and the White 
House explained. And we were told a few minutes ago that the 
White House provided no response, provided no rationale. That 
is not true. In a letter of October 18, White House Counsel Pat 
Cipollone explained in three pages of legal argument why that 
subpoena was invalid. That subpoena was invalid because it was 
issued without authorization.
    We have heard a lot today about how the Constitution 
assigns the sole power of impeachment to the House. That is 
right. That is what article I, section 2, says, that it assigns 
the sole power of impeachment to the House, not to any Member 
of the House. And no committee of the House can exercise that 
authority to issue subpoenas until it has been delegated that 
authority by a vote of the House. There was no vote from the 
House. Instead, Speaker Pelosi held a press conference, and she 
purported, by holding a press conference on September 24, to 
delegate the authority of the House to Manager Schiff and 
several other committees and have them issue subpoenas. All of 
those subpoenas were invalid. That was explained to the House, 
to Manager Schiff, and the other chairmen of the committees at 
the time in that October 18 letter.
    Did the House take any steps to remedy that? Did they try 
to dispute that? Did they go to court? Did they do anything to 
resolve that problem? No, because, as we know, all that they 
wanted to do was issue a subpoena and move on. They just wanted 
to get through the impeachment process as quickly as possible 
and get it done before Christmas. That was their goal. So those 
subpoenas were unauthorized.
    Now, what about some of the other things they brought up: 
the witnesses, the witnesses who were directed not to testify. 
In part on this, we have heard Manager Schiff say several times 
that the White House never asserted executive privilege. Well, 
let me be clear on that. That is a lawyer's trick because it is 
technically true that the White House didn't assert executive 
privilege because there is a particular situation in which you 
do that and a particular way that you do that.
    There is another doctrine of immunity of senior advisers to 
the President that is based on the same principles as executive 
privilege, and that has been asserted by Presidents of both 
political parties since the 1970s at least.
    This is what one Attorney General explained about that: `` 
. . . the immunity such advisers enjoy from testimonial 
compulsion by a congressional committee is absolute and may not 
be overborne by competing congressional interests.''
    That was Attorney General Janet Reno in the Clinton 
administration explaining that senior advisers to the President 
are immune from congressional compulsion. That doctrine, that 
immunity, is rooted in the same principles of executive 
privilege that has been asserted by all Presidents since the 
1970s, and that was the basis on which a number of these 
advisers whose pictures they put up were directed not to 
testify.
    Did they try to challenge that inquiry? Did they go to 
court on that one? Did they try to go through the 
constitutionally mandated accommodations process to see if 
there was a way to come up with some aspect of testimony to be 
provided? No, none of that. They just wanted to forge ahead, 
rush through the process, not have the evidence, and then use 
that as another charge in their charging sheet for the 
impeachment, calling it obstruction of Congress.
    And what that is, as Professor Turley explained, is this 
idea that, when there is a conflict between the executive 
branch and the House in seeking information and the President 
is asserting constitutionally based privileges, that is part of 
the operation of separation of powers. That is the President's 
constitutional duty to defend the prerogatives of the office 
for the future occupants of that office. It is not something 
that can be charged as an impeachable offense, as the House 
Democrats have tried to say here. To do that is an abuse of 
power. That is what Professor Turley explained. It is 
Congress's--it is the House Democrats' abuse of power.
    We just heard Manager Lofgren refer to executive privilege 
as a distraction. She was asserting that these issues of 
executive privilege are just a distraction that shouldn't hold 
things up. This is what the Supreme Court has said about 
executive privilege in Nixon v. United States; that the 
protections for confidentiality and executive privilege are 
``fundamental to the operations of government and inextricably 
rooted in the separation of powers under the Constitution.''
    Inextricably rooted in the separation of powers. That is 
why it is the President's duty to defend executive branch 
confidentiality and interests, and that is what the President 
was doing here.
    Now, the process they pursued in the House abandoned any 
effort beyond issuing the first subpoena that was invalid to 
work out an accommodation with the White House and, instead, 
just tried to rush ahead to have the impeachment done by 
Christmas. What does that lead to now? They are coming to this 
body after a process that was half-baked, that didn't compile 
records sufficient to support their charges, and asking this 
body to do their job for them.
    Now, as Leader McConnell pointed out in some comments 
earlier today, to allow that, to accept the idea that the House 
can bring in an impeachment here that is not adequately 
supported, that has not been investigated, that has not got a 
record to support it, and turn this body into the investigatory 
body would permanently alter the relationship between the House 
and the Senate in impeachment proceedings. It is not the role 
of the Senate to have to do the House's job for them. It is not 
the role of the Senate to be doing an investigation and to be 
doing discovery in a matter like the impeachment of a President 
of the United States. If the House has not done the 
investigation and cannot support its case, it is not the time, 
once it arrives here, to start doing all that work. That is 
something that is the House's role.
    So this is something that is important for this 
institution, I believe, not to allow the House to turn it into 
a situation where this body would have to be doing the House's 
work for it. If there is not evidence to support the case, if 
they haven't done their investigation, then they are not going 
to be able to support their case.
    Again, what is at issue here--and I think it is important 
to recall--on the issue of this amendment, is not whether the 
Senate, whether this body, will be considering whether there 
should be witnesses or not but when that should be considered. 
There is no reason not to take the approach that was done in 
the Clinton impeachment. One hundred Senators agreed then that 
it made sense to hear from both sides before making 
determination on that, to hear from both sides to see what sort 
of case the House could present and the President's defense.
    That makes sense. In every trial system there is a 
mechanism for determining whether the parties have actually 
presented a triable issue, whether there is really some 
``there'' there that requires the further proceedings. This 
body should take that commonsense approach and hear what it is 
that the House managers have to say.
    Why are they afraid to present their case? They had weeks 
in a process that they controlled to compile their record, and 
they should be able to make that presentation now.
    The one point that I will close on is we heard Manager 
Schiff say several times that we have to have a fair process 
here. I was struck by it that at one point he said, if you 
allow only one side to present evidence, the outcome will be 
predetermined. The outcome will be predetermined.
    That is exactly what happened in the House. Let's recall 
that the process they had in the House was one-sided. They 
locked the President and his lawyers out. There was no due 
process for the President. They started in secret hearings in 
the basement. The President couldn't be present or, by his 
counsel, he couldn't present evidence. He couldn't cross-
examine the witnesses. Then there was a second round in public 
where, again, they locked the President out.
    We have heard--and they just said that the President had an 
opportunity to participate in the third round of hearings that 
they held before the Judiciary Committee. After one hearing on 
December 4, Speaker Pelosi, on the morning of December 5, went 
out and announced the conclusion of the Judiciary Committee 
proceedings. She announced that she was directing Chairman 
Nadler to draft Articles of Impeachment. That was before the 
day they had set for the President to even tell them what 
rights he wanted to have and to exercise in their proceedings.
    It was all already predetermined. The outcome had been 
predetermined. The Judiciary Committee had already decided it 
was not going to have any fact hearings. There was no process 
for the President. He was never allowed to participate.
    So when Chairman Schiff says here that, if you only allow 
one side to present evidence, that predetermines the outcome, 
that is what they did in the House because they had a 
predetermined outcome there, because it was all one-sided. For 
him to lecture this body now on what a fair process would be 
takes some gall. A fair process would be, when you come to the 
day of trial, be ready to start the trial and present your case 
and not ask for more discovery.
    The President is ready to proceed. The House managers 
should be ready to proceed.
    This amendment should be rejected. Thank you.
    The CHIEF JUSTICE. The House managers have 8 minutes 
remaining.
    Ms. Manager LOFGREN. Mr. Chief Justice, the House is 
certainly not asking the Senate to do the House's job. We are 
asking the Senate to do its job, to hold the trial. Have you 
ever heard of a trial that doesn't have evidence, that doesn't 
have witnesses? That is what this amendment is all about.
    Just a moment about the subpoenas. The President--President 
Trump--refused to provide any information to the House, ordered 
all of his people to stonewall us. Now, it has been suggested 
that we should spend 2 or 3 years litigating that question. I 
was a young law student--actually working on the Nixon 
impeachment--many years ago, and I remember the day the Supreme 
Court issued its unanimous decision that the President had to 
release the tapes. I think United States v. Nixon still governs 
the President. The House and the Senate should not be required 
to litigate United States v. Nixon back in the Supreme Court 
and down again for it to be good law. It is good law. The 
President has not complied with those requirements, to the 
detriment of the truth.
    This isn't about helping the House. This isn't about 
helping the Senate. This is about getting to the truth and 
making sure that impartial justice is done and that the 
American people are satisfied that a fair trial has been held.
    Mr. Chief Justice, I would yield now to my colleague Mr. 
Schiff.
    Mr. Manager SCHIFF. Mr. Chief Justice, Mr. Philbin says 
that the House is not ready to present its case. Of course, 
that is not something you heard from any of the managers. We 
are ready.
    The House calls John Bolton. The House calls John Bolton. 
The House calls Mick Mulvaney. Let's get this trial started, 
shall we? We are ready to present our case. We are ready to 
call our witnesses. The question is, Will you let us? That is 
the question before us.
    Mr. Philbin says: Well, if I showed up in court and said I 
wasn't ready, the judge would throw me out of the court. Of 
course, we are not saying we aren't ready. You know what would 
happen if Mr. Philbin went into a court and the judge said: I 
have made a deal with the defendant. I am not going to let the 
prosecutor call any witnesses. I am not going to let the 
prosecutor present any documents.
    You know who would get thrown out of court? The judge. The 
judge would be taken out in handcuffs.
    So let's step out of this body for a moment and imagine 
what a real trial would look like. It would begin with the 
government receiving documents, being able to introduce 
documents, and being able to call witnesses. This trial should 
be no different.
    Mr. Philbin makes reference to the Cipollone letter on 
October 18, which followed a Cipollone eight-page letter on 
October 8, saying: We are not going to do anything you ask.
    Part law, part diatribe. Mostly diatribe. You should read 
it. It is a letter, basically, that says what the President 
said on that TV screen, which is we are going to fight all 
subpoenas.
    The doctrine of absolute immunity that counsel refers to 
has, yes, been invoked or at least attempted by Presidents of 
both parties and rejected uniformly by the courts, including 
the most recent decision involving Don McGahn, the President's 
former White House Counsel, where the court said: That would 
make him a King. He is no King, and this trial has determined 
that he shall not become a King, accountable to no one, 
answerable to no one.
    What is more, this idea of absolute immunity, this fever 
dream of Presidents of both parties, it has no application to 
documents. Again, this amendment is on documents. There is no 
absolute immunity from providing documents.
    As Representative Lofgren illustrated, when this case has 
gone to the Supreme Court, in the Nixon case, the Court held 
that the interest and confidentiality in an impeachment 
proceeding must give way to the interests of the truth and the 
Senate and the American people.
    You cannot invoke privilege to protect wrongdoing. You 
cannot invoke privilege to protect evidence of a constitutional 
crime like we have here.
    Finally, with respect to those secret hearings that counsel 
keeps referring to, those secret depositions in the House were 
so secret that only 100 Members of Congress were able to be 
there and participate--only 100. That is how secret that 
Chamber was.
    Imagine that, in the grand jury proceedings in the Clinton 
investigation or in the Jaworski and the Nixon investigation--
imagine inviting 50 or 100 Members of Congress to sit in on 
those. Imagine, as the President would like here, apparently, 
the President insisting on having his lawyer in the grand jury 
because it was a case being investigated against him.
    We had no grand jury here. Why is that? Why did we have no 
grand jury here? Why was there no special prosecutor here? 
Because the Justice Department said they are not going to look 
into this. Bill Barr's Justice Department said there is nothing 
to see here. If it were up to that Justice Department, you 
wouldn't know anything about this. That is why there was no 
grand jury. That is why we, and the House, had to do the 
investigative work ourselves, and, yes, just like in the Nixon 
case, just like in the Clinton case, we used depositions.
    Do you know what deposition rules we used, those terribly 
unfair deposition rules we used? They were written by the 
Republicans. We used the same rules that the GOP House Members 
used. That is how terribly unfair they were.
    My gosh, they used our rules. How dare they? How dare they?
    Why do we do depositions? Because we didn't want one 
witness to hear what another witness was saying so they could 
either tailor their stories or know they just had to admit so 
much and no more. It is how every credible investigation works.
    Counsel can repeat all they like that the President didn't 
have a chance to participate, didn't have a chance to have 
counsel present in the Judiciary Committee or to offer 
evidence. They can say it as much as they like, but it does not 
make it any more true when they make the same false 
representations time and again. It makes it that much more 
deliberate and onerous.
    The President could have presented evidence in the 
Judiciary Committee. He chose not to. There is a reason for 
that. There is a reason why the witnesses they have talked 
about aren't material witnesses. They don't go to the question 
of whether the President withheld the aid for this corrupt 
purpose. They don't go to any of that, because they have no 
witnesses to absolve the President on the facts.
    You should want to see these documents. You should want to 
see them. You should want to know what these private emails and 
text messages have to say. If you are going to make a guess 
about the President's guilt or innocence, if you are going to 
make a decision about whether he should be removed from office, 
you should want to see what these documents say.
    If you don't care, if you have made up your mind--he is the 
President of my party or, for whatever reason, I am not 
interested, and what is more, I don't really want the country 
to see this--that is a totally different matter, but that is 
not what your oath requires. It is not what your oath requires. 
The oath requires you to do impartial justice, which means to 
see the evidence--to see the evidence. That is all we are 
asking. Just don't blind yourself to the evidence.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. President, I send a motion to the desk 
to table the amendment, and I ask for the yeas and nays.
    The CHIEF JUSTICE. The question is on agreeing to the 
motion to table.
    Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any other Senators in the 
Chamber wishing to vote or change his or her vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 15]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1285

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to subpoena certain documents and records from the State 
Department, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The senior assistant legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment, No. 1285.

    (Purpose: To subpoena certain Department of State documents and 
                                records)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials--
          (1) the Chief Justice of the United States, through the 
        Secretary of the Senate, shall issue a subpoena to the 
        Secretary of State commanding him to produce, for the time 
        period from January 1, 2019, to the present, all documents, 
        communications, and other records within the possession, 
        custody, or control of the Department of State, referring or 
        relating to--
                  (A) all meetings and calls between President Trump 
                and the President of Ukraine, including documents, 
                communications, and other records related to the 
                scheduling of, preparation for, and follow-up from the 
                President's April 21 and July 25, 2019 telephone calls, 
                as well as the President's September 25, 2019 meeting 
                with the President of Ukraine in New York;
                  (B) the actual or potential suspension, withholding, 
                delaying, freezing, or releasing of United States 
                foreign assistance, military assistance, or security 
                assistance of any kind to Ukraine, including but not 
                limited to the Ukraine Security Assistance Initiative 
                (USAI) and Foreign Military Financing (FMF), including 
                but not limited to all communications with the White 
                House, Department of Defense, and the Office of 
                Management and Budget, as well as the Ukrainian 
                government's knowledge prior to August 28, 2019, of any 
                actual or potential suspension, withholding, delaying, 
                freezing, or releasing of United States foreign 
                assistance to Ukraine, including all meetings, calls, 
                or other engagements with Ukrainian officials regarding 
                potential or actual suspensions, holds, or delays in 
                United States assistance to Ukraine;
                  (C) all documents, communications, notes, and other 
                records created or received by, Secretary Michael R. 
                Pompeo, Counselor T. Ulrich Brechbuhl, former Special 
                Representative for Ukraine Negotiations Ambassador Kurt 
                Volker, Deputy Assistant Secretary George Kent, then-
                United States Embassy in Ukraine Charge d'Affaires 
                William B. Taylor, and Ambassador to the European Union 
                Gordon Sondland, and other State Department officials, 
                relating to efforts to--
                          (i) solicit, request, demand, induce, 
                        persuade, or coerce Ukraine to conduct or 
                        announce investigations;
                          (ii) offer, schedule, cancel, or withhold a 
                        White House meeting for Ukraine's president; or
                          (iii) hold and then release military and 
                        other security assistance to Ukraine;
                  (D) any meetings or proposed meetings at or involving 
                the White House that relate to Ukraine, including but 
                not limited to--
                          (i) President Zelensky's inauguration on May 
                        20, 2019, in Kiev, Ukraine, including but not 
                        limited to President Trump's decision not to 
                        attend, to ask Vice President Pence to lead the 
                        delegation, directing Vice President Pence not 
                        to attend, and the subsequent decision about 
                        the composition of the delegation of the United 
                        States;
                          (ii) a meeting at the White House on or 
                        around May 23, 2019, involving, among others, 
                        President Trump, then-Special Representative 
                        for Ukraine Negotiations Ambassador Kurt 
                        Volker, then-Energy Secretary Rick Perry, and 
                        United States Ambassador to the European Union 
                        Gordon Sondland, as well as any private 
                        meetings or conversations with those 
                        individuals before or after the larger meeting;
                          (iii) meetings at the White House on or about 
                        July 10, 2019, involving Ukrainian officials 
                        Andriy Yermak and Oleksander Danylyuk and 
                        United States Government officials, including, 
                        but not limited to, then-National Security 
                        Advisor John Bolton, Secretary Perry, 
                        Ambassador Volker, and Ambassador Sondland, to 
                        include at least a meeting in Ambassador 
                        Bolton's office and a subsequent meeting in the 
                        Ward Room;
                          (iv) a meeting at the White House on or 
                        around August 30, 2019, involving President 
                        Trump, Secretary of State Mike Pompeo, and 
                        Secretary of Defense Mark Esper;
                          (v) a planned meeting, later cancelled, in 
                        Warsaw, Poland, on or around September 1, 2019 
                        between President Trump and President Zelensky, 
                        and subsequently attended by Vice President 
                        Pence; and
                          (vi) a meeting at the White House on or 
                        around September 11, 2019, involving President 
                        Trump, Vice President Pence, and Mr. Mulvaney 
                        concerning the lifting of the hold on security 
                        assistance for Ukraine;
                  (E) all communications, including but not limited to 
                WhatsApp or text messages on private devices, between 
                current or former State Department officials or 
                employees, including but not limited to Secretary 
                Michael R. Pompeo, Ambassador Volker, Ambassador 
                Sondland, Ambassador Taylor, and Deputy Assistant 
                Secretary Kent, and the following: President Zelensky, 
                Andriy Yermak, or individuals or entities associated 
                with or acting in any capacity as a representative, 
                agent, or proxy for President Zelensky before and after 
                his election;
                  (F) all records specifically identified by witnesses 
                in the House of Representatives' impeachment inquiry 
                that memorialize key events or concerns, and any 
                records reflecting an official response thereto, 
                including but not limited to--
                          (i) an August 29, 2019 cable sent by 
                        Ambassador Taylor to Secretary Pompeo;
                          (ii) an August 16, 2019 memorandum to file 
                        written by Deputy Assistant Secretary Kent; and
                          (iii) a September 15, 2019 memorandum to file 
                        written by Deputy Assistant Secretary Kent;
                  (G) all meetings or calls, including but not limited 
                tp all requests for or records of meetings or telephone 
                calls, scheduling items, calendar entries, State 
                Department visitor records, and email or text messages 
                using personal or work-related devices, between or 
                among--
                          (i) current or former State Department 
                        officials or employees, including but not 
                        limited to Secretary Michael R. Pompeo, 
                        Ambassador Volker, and Ambassador Sondland; and
                          (ii) Rudolph W. Giuliani, Victoria Toensing, 
                        or Joseph diGenova; and
                  (H) the curtailment or recall of former United States 
                Ambassador to Ukraine Marie ``Masha'' Yovanovitch from 
                the United States Embassy in Kiev, including credible 
                threat reports against her and any protective security 
                measures taken in response; and
          (2) the Sergeant at Arms is authorized to utilize the 
        services of the Deputy Sergeant at Arms or any other employee 
        of the Senate in serving the subpoena authorized to be issued 
        by this section.

    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, I ask for a brief 10-
minute recess before the parties are recognized to debate the 
Schumer amendment. At the end of the debate time, I will again 
move to table the amendment, as the timing of these votes are 
specified in the underlying resolution.
                                ------                                


                RECESS SUBJECT TO THE CALL OF THE CHAIR

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Senate stand in recess subject to the call of the 
Chair.
    There being no objection, at 4:48 p.m., the Senate, sitting 
as a Court of Impeachment, recessed until 5:16 p.m.; whereupon 
the Senate reassembled when called to order by the Chief 
Justice.
    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours equally divided.
    Mr. Manager Schiff, are you a proponent or an opponent?
    Mr. Manager SCHIFF. Proponent, Mr. Chief Justice.
    The CHIEF JUSTICE. Thank you.
    And Mr. Cipollone?
    Mr. Counsel CIPOLLONE. Opponent.
    The CHIEF JUSTICE. Mr. Schiff, you have an hour, and you 
will be able to reserve time for rebuttal.
    Mrs. Manager DEMINGS. Chief Justice Roberts, Senators, 
counsel for the White House, I am Val Demings from the State of 
Florida.
    The House managers strongly support the amendment to issue 
a subpoena for documents to the State Department.
    As we explained, the first Article of Impeachment charges 
the President with using the power of his office to solicit and 
pressure Ukraine to announce investigations that everyone in 
this Chamber knows to be bogus. The President didn't even care 
if an investigation was actually conducted, just that it was 
announced. Why? Because this was for his own personal and 
political benefit. The first article further charges that the 
President did so with corrupt motives and that his use of power 
for personal gain harmed the national security of the United 
States.
    As the second Article of Impeachment charges, the President 
sought to conceal evidence of this conduct. He did so by 
ordering his entire administration--every office, every agency, 
every official--to defy every subpoena served in the House 
impeachment inquiry. [Slide 42] No President in history has 
ever done anything like this. Many Presidents have expressly 
acknowledged that they couldn't do anything like this.
    President Trump did not take these extreme steps to hide 
evidence of his innocence or to protect the institution of the 
Presidency. As a career law enforcement officer, I have never 
seen anyone take such extreme steps to hide evidence allegedly 
proving his innocence, and I do not find that here today. The 
President is engaged in this coverup because he is guilty, and 
he knows it. And he knows that the evidence he is concealing 
will only further demonstrate his culpability.
    Notwithstanding this effort to stonewall our inquiry, the 
House amassed powerful evidence of the President's high crimes 
and misdemeanors--[Slide 43] 17 witnesses, 130 hours of 
testimony, combined with the President's own admissions on 
phone calls and in public comments, confirmed and corroborated 
by hundreds of texts, emails, and documents.
    Much of that evidence came from patriotic, nonpartisan, 
decorated officials in the State Department. They are brave men 
and women who honored their obligations under the law and gave 
testimony required by congressional subpoena in the face of the 
President's taunts and insults. These officials described the 
President's campaign to induce and pressure Ukraine to announce 
political investigations; his use of $391 million of vital 
military aid--taxpayer money appropriated on a bipartisan basis 
by Congress--as leverage to force Ukraine to comply; and his 
withholding of a meeting desperately sought by the newly-
elected President of Ukraine.
    This testimony was particularly compelling because the 
State Department is at the very center of President Trump's 
wrongdoing. We heard firsthand from diplomatic officials who 
saw up close and personal what was happening and who 
immediately--immediately--sounded the alarms.
    Ambassador William Taylor, who returned to Ukraine in June 
of last year as Acting Ambassador, texted other State 
Department officials: [Slide 44] ``I think it's crazy to 
withhold security assistance for help with a political 
campaign.''
    Ambassador to the European Union Gordon Sondland, who was 
delegated authority over Ukraine matters by none other than 
President Trump, testified: ``We knew these investigations were 
important to the President'' and ``we followed the President's 
orders.''
    David Holmes, a senior official at the U.S. Embassy in 
Kyiv, said: ``[I]t was made clear that some action on a 
Burisma/Biden investigation was a precondition for an Oval 
Office meeting.''
    During their testimony, many of these State Department 
officials described specific documents--including text 
messages, emails, former diplomatic cables, and notes--that 
would corroborate their testimony and shed additional light on 
President Trump's corrupt scheme.
    For instance, Ambassador Taylor, who raised concerns that 
military aid had been conditioned on the President's demand for 
political investigations, described a ``little notebook'' in 
which he would ``take notes on conversations'' he had with key 
officials. [Slide 45]
    Ambassador Sondland referred by date and recipient to 
emails regarding the President's demand that Ukraine announce 
political investigations. As we will see, those emails were 
sent to some of President Trump's top advisers, including 
Acting White House Chief of Staff Mick Mulvaney, Secretary of 
State Michael Pompeo, and Secretary of Energy Rick Perry.
    Deputy Assistant Secretary of State George Kent, who 
oversaw Ukraine policy matters in Washington for the State 
Department, wrote at least four memos to file to document 
concerning conduct he witnessed or heard.
    Ambassador Kurt Volker, the Special Representative for 
Ukraine Negotiations, provided evidence that he and other 
American officials communicated with high-level Ukrainian 
officials--including President Zelensky himself--via text 
message and WhatsApp about the President's improper demands and 
how Ukrainian officials would respond to them.
    Based on the testimony we received and on evidence that has 
since emerged, all of these documents and others that we will 
describe bear directly on the allegations set forth in the 
first Article of Impeachment. They would help complete our 
understanding of how the President's scheme unfolded in real 
time. [Slide 46] They would support the conclusion that senior 
Ukrainian officials understood the corrupt nature of President 
Trump's demand. They would further expose the extent to which 
Secretary Pompeo, Acting Chief of Staff Mick Mulvaney, and 
other senior Trump administration officials were aware of the 
President's plot and helped carry it out.
    We are not talking about a burdensome number of documents; 
we are talking about a specific, discrete set of materials held 
by the State Department--documents the State Department has 
already collected in response to our subpoena but has never 
produced. We know these materials exist, we know they are 
relevant, and we know the President is desperately trying to 
conceal them.
    As I will describe, the Senate should subpoena the 
following: No. 1, WhatsApp and other text message 
communications; 2, emails; 3, diplomatic cables; and 4, notes.
    Given the significance and relevance of these documents, 
the House requested that they be provided. When these requests 
were denied--when our requests were denied--the House issued 
subpoenas commanding that the documents be turned over, but at 
the President's direction, the Department of State unlawfully 
defied that subpoena.
    As I stand here now, the State Department has all these 
documents in its possession but refuses, based on the 
President's order, to let them see the light of day. This is an 
affront to the House, which has full power to see these 
documents. It is an affront to the Senate, which has been 
denied a full record on which to judge the President's guilt or 
innocence. It is an affront to the Constitution, which makes 
clear that nobody, not even the President, is above the law. It 
is an affront to the American people, who have a right to know 
what the President and his allies are hiding from them and why 
it is being hidden.
    In prior impeachment trials, this body has issued subpoenas 
requiring the recipient to hand over relevant documents. It 
must do so again here, and it must do so now at the beginning 
of the trial, not the end.
    Of course the need for a Senate subpoena arises because, as 
I have noted, the President ordered the State Department to 
defy a subpoena from the House. At this point, I would like to 
briefly describe our own efforts to get those materials. I will 
then address in a more detailed fashion exactly what documents 
the State Department has hidden from the American people and 
why the Senate should require it to turn them over.
    On September 9, exercising their article I oversight 
authority, the House investigating committee sent a document 
request to the State Department. The committee sought materials 
related to the President's effort to pressure Ukraine to 
announce investigations into his political rival, as well as 
his dangerous, unexplained withholding of millions of dollars 
in vital military aid.
    After the State Department failed to produce any documents, 
the House Committee on Foreign Affairs issued a subpoena to the 
State Department on September 27.
    In a letter on October 1, [Slide 47] Secretary Pompeo 
acknowledged receipt of the subpoena. At that time, he stated 
that he would respond to the committee's subpoena for documents 
by the return date, October 4, but his response never came.
    Instead, on October 8, President Trump's lawyer--writing on 
the President's behalf--issued a direction confirming that the 
administration would stonewall the impeachment inquiry.
    To date, the State Department has not produced a single 
document--not a single document--in response to the 
congressional subpoena, but witnesses who testified indicated 
that the State Department had gathered all of the records and 
was prepared to provide them before the White House directed it 
to defy the subpoena.
    Notwithstanding this unlawful obstruction, through the 
testimony of brave State Department employees, the House was 
able to identify, with remarkable precision, several categories 
of documents relevant to the first Article of Impeachment that 
are sitting right now--right now--the documents are sitting 
right now at the State Department.
    I would like to walk you through four key categories of 
documents that should be subpoenaed and which illustrate the 
highly relevant documents the State Department could produce 
immediately to this trial.
    The first category consists of WhatsApp and other text 
messages from State Department officials caught up in these 
events, [Slide 48] including Ambassadors Sondland and Taylor 
and also Deputy Assistant Secretary George Kent, all three of 
whom confirmed in their testimony that they regularly use 
WhatsApp to communicate with each other and foreign government 
officials.
    As Deputy Assistant Secretary Kent explained, WhatsApp is 
the dominant form of electronic communication in certain parts 
of the world. We know that the State Department possesses 
records of WhatsApp and text messages from critical 
eyewitnesses to these proceedings, including from Ambassadors 
Sondland and Taylor and Deputy Assistant Secretary Kent.
    We know that the Department is deliberately concealing 
these records at the direction of the President, and we know 
that they could contain highly relevant testimony about the 
President's plan to condition official Presidential acts on the 
announcement of investigations for his own personal and 
political gain.
    We know this not only from testimony but also because 
Ambassador Volker was able to provide us with a small but 
telling selection of his WhatsApp messages. Those records 
confirm that a full review of these texts and WhatsApp messages 
from relevant officials would help to paint a vivid, firsthand 
picture of statements, decisions, concerns, and beliefs held by 
important players unfolding in real time.
    For example, thanks to Ambassador Volker's messages, we 
know that Ambassador Sondland--a key player in the President's 
pressure campaign who testified in the House about a quid pro 
quo arrangement--texted directly with the Ukrainian President, 
President Zelensky. This image produced by Ambassador Volker 
appears to be a screenshot of a text message [Slide 49] that 
Ambassador Sondland exchanged with President Zelensky about 
plans for a White House visit--the very same visit that 
President Zelensky badly needed and that President Trump later 
withheld as part of the quid pro quo described by Ambassador 
Sondland in his testimony.
    This body and the American people have a right to know what 
else Ambassador Sondland and President Zelensky said in this 
and other relevant exchanges about the White House meeting or 
about the military aid and the President's demands, but we 
don't know exactly what was conveyed and when. We don't know it 
because President Trump directed the State Department to 
conceal these vital records. These are records that the State 
Department would have otherwise turned over if not for the 
President's direction and desire to cover up his wrongdoing.
    To get a sense of why texts and WhatsApp messages are so 
vital, just consider yet another piece of evidence we have 
gleaned from Ambassador Volker's partial production.
    On July 10, after the White House meetings at which 
Ambassador Sondland pressured Ukrainian officials to announce 
investigations of President Trump's political opponents, a 
Ukraine official texted Ambassador Volker: [Slide 50] ``I feel 
that the key for many things is Rudi and I ready to talk with 
him at any time.''
    This is evidence that, immediately following Ambassador 
Sondland's ultimatum, Ukrainian officials recognized that they 
needed to appease Rudy Giuliani by carrying out the 
investigations. Of course, Mr. Giuliani had publicly confirmed 
that he was not engaged in ``foreign policy'' but was instead 
advancing his client's--the President's--own personal 
interests.
    Further, in another text message exchange provided by 
Ambassador Volker, we see evidence that Ukraine understood 
President Trump's demands loud and clear.
    On the morning of July 25, half an hour before the infamous 
call between President Trump and President Zelensky, Ambassador 
Volker wrote to a senior Ukrainian official: [Slide 51]

    Heard from White House--assuming President Z convinces 
trump he will investigate/``get to the bottom of what 
happened'' in 2016, we will nail down date for visit to 
Washington. Good luck! See you tomorrow--Kurt.

    Ambassador Sondland confirmed that this text accurately 
summarized the President's directive to him earlier that 
morning.
    After the phone call between President Trump and President 
Zelensky, the Ukrainian official responded, pointedly: ``Phone 
call went well.'' He then discussed potential dates for a White 
House meeting.
    Then, the very next day, Ambassador Volker wrote to Rudy 
Giuliani: [Slide 52] ``Exactly the right messages as we 
discussed.''
    These messages confirm Mr. Giuliani's central role, the 
premeditated nature of President Trump's solicitation of 
political investigations, and the pressure campaign on Ukraine 
waged by Mr. Giuliani and senior officials at President Trump's 
direction.
    Again, this is just some of what we learned from Ambassador 
Volker's records. As you will see during this trial 
presentation, there were numerous WhatsApp messages in August 
while Ambassadors Volker and Sondland and Mr. Giuliani were 
pressuring President Zelensky's top aide to issue a statement 
announcing the investigation that President Trump wanted. 
Ambassador Taylor's text that you saw earlier about withholding 
the aid further reveals how much more material there likely is 
that relates to the Articles of Impeachment.
    There can be no doubt that a full production of relevant 
texts and WhatsApp messages from other officials involved in 
Ukraine and in touch with Ukrainian officials--including 
Ambassador Sondland, Ambassador Taylor, and Deputy Assistant 
Secretary Kent--would further illuminate the malfeasance 
addressed in our first article.
    This leads [Slide 53] to the second category [Slide 54] of 
documents that the State Department is unlawfully withholding--
emails involving key State Department officials concerning 
interactions with senior Ukrainian officials and relating to 
military aid, a White House meeting, and the President's demand 
for an investigation into his rivals.
    For example, on July 19, Ambassador Gordon Sondland spoke 
directly with President Zelensky about the upcoming July 25 
call between President Trump and President Zelensky.
    Ambassador Sondland sent an email updating key officials, 
including Secretary Pompeo, Acting White House Chief of Staff 
Mulvaney, and his senior adviser, Robert Blair. In this email, 
he noted that he ``prepared'' President Zelensky, who was 
willing to make the announcements of political investigations 
that President Trump desired. [Slide 55] Secretary Perry and 
Mick Mulvaney then responded to Sondland, acknowledging they 
received the email and recommending to move forward with the 
phone call that became the July 25 call between the Presidents 
of the United States and Ukraine.
    We know all of this not because the State Department 
provided us with critical documents but, instead, because 
Ambassador Sondland provided us a reproduction of the email.
    In his public testimony, Ambassador Sondland quite 
correctly explained that this email demonstrated ``everyone was 
in the loop.''
    (Text of Videotape presentation:)

    Ambassador SONDLAND. Everyone was in the loop. It was no 
secret. Everyone was informed via email on July 19th, days 
before the Presidential call. As I communicated to the team, I 
told President Zelensky in advance that assurances to run a 
fully transparent investigation and turn over every stone were 
necessary in his call with President Trump.

    Mrs. Manager DEMINGS. Even viewed alone, this reproduced 
email is damning. It was sent shortly after Ambassador Sondland 
personally conveyed the President's demand for investigations 
to Ukrainians at the White House, leading several officials to 
sound alarms. It was said just a few days before the July 25 
call, where President Trump asked for a ``favor,'' and, by 
itself, this email shows who was involved in President Trump's 
plan to pressure the Ukrainian President for his own political 
gain.
    But it is obvious that the full email chain and other 
related emails to this key time period would also be highly 
relevant. We don't have those emails because the State 
Department is hiding them, at the direction of the President. 
The Senate should issue the proposed subpoena to ensure a 
complete record of these and other relevant emails.
    Any doubt that the State Department is concealing critical 
evidence from this body was resolved when the State Department 
was recently ordered to release documents, including emails, 
pursuant to a lawsuit under the Freedom of Information Act. 
These documents are heavily redacted and are limited to a very 
narrow time period, but, nevertheless, despite the heavy 
redactions, this highly limited glimpse into the State 
Department's secret records demonstrates that those records are 
full of information relevant to this trial.
    For example, several of these newly released emails show 
multiple contacts between the State Department, including 
Secretary Pompeo, and Mr. Giuliani throughout 2019. This is an 
important fact.
    Mr. Giuliani served as the President's point person and 
executed his corrupt scheme. Mr. Giuliani repeatedly emphasized 
that his role was to advance the President's personal agenda--
the President's political interests, not to promote the 
national security interests of the United States. The fact that 
the President's private attorney was in contact at key 
junctures with the Secretary of State, whose senior officials 
were directed by the President to support Mr. Giuliani's 
efforts in Ukraine, is relevant, disturbing, and telling.
    For example, we know that on March 26, as Mr. Giuliani was 
pursuing the President's private agenda in Ukraine, and just 1 
week after The Hill published an article featuring Mr. 
Giuliani's Ukraine conspiracy theories, [Slide 56] Secretary 
Pompeo and Mr. Giuliani spoke directly on the phone.
    That same week, [Slide 57] President Trump's former 
personal secretary was asked by Mr. Giuliani's assistant for a 
direct connection to Secretary Pompeo.
    Based on these records, it is also clear that Secretary 
Pompeo was already actively engaged with Mr. Giuliani in early 
spring of 2019. It also appears that these efforts were backed 
by the White House, given the involvement of President Trump's 
personal secretary.
    This body and the American people need to see these emails 
and other files at the State Department, flushing out these 
exchanges and the details surrounding Mr. Giuliani's 
communications with Secretary Pompeo. Moreover, based on call 
records lawfully obtained by the House from this period, we 
know that from March 24 to March 30, Mr. Giuliani called the 
White House several times and also connected with an 
unidentified number numerous times.
    These records show [Slide 58] that on March 27, Mr. 
Giuliani placed a series of calls--series of calls--to the 
State Department switchboard, Secretary Pompeo's assistant, and 
the White House switchboard in quick succession, all within 
less than 30 minutes.
    Obtaining emails and other documents regarding the State 
Department leadership's interaction with President Trump's 
private lawyer in this period, when Mr. Giuliani was actively 
orchestrating the pressure campaign in Ukraine related to the 
sham investigation into Vice President Biden and the 2016 
election, would further clarify the President's involvement and 
direction at this key juncture in the formation of a plot to 
solicit foreign interference in our election.
    We also know, based on recently obtained documents from Lev 
Parnas, an associate of Rudy Giuliani who assisted him in his 
representation of President Trump, that Giuliani likely spoke 
with Secretary Pompeo about Ukraine matters even earlier than 
previously understood.
    According to documents obtained from Mr. Parnas, Mr. 
Giuliani wrote in early February of 2019 that he apparently 
spoke with Secretary Pompeo about the removal of the U.S. 
Ambassador in Ukraine, Marie Yovanovitch. Mr. Giuliani [Slide 
59] viewed her as an impediment to implementing the President's 
corrupt scheme and orchestrated a long-running smear campaign 
against her. Here is what Mr. Parnas said about this just last 
week.
    (Text of Videotape presentation:)

    Ms. MADDOW. Do you believe that part of the motivation to get rid 
of Ambassador Yovanovitch, to get her out of post, was she was in the 
way of this effort to get the government of Ukraine to announce 
investigations of Joe Biden?
    Mr. PARNAS. That was the only motivation.
    Ms. MADDOW. That was the only motivation?
    Mr. PARNAS. There was no other motivation.

    Mrs. Manager DEMINGS. These are just some of the email 
communications that we know to exist, but there are undoubtedly 
more, including, for example, Ambassador Yovanovitch's request 
for the State Department to issue a statement of support of her 
around the time that Mr. Giuliani was speaking directly with 
Secretary Pompeo, but that statement never came.
    The State Department has gathered these records, and they 
are ready to be turned over pursuant to a subpoena from the 
Senate. It would not be a time-consuming or lengthy process to 
obtain them, and there are clearly--clearly--important and 
relevant documents to the President's scheme. If we want the 
full and complete truth, then we need to see those emails.
    The Senate should also seek a third item that the State 
Department has refused to provide, and that is Ambassador 
Taylor's extraordinary first-person diplomatic cable to 
Secretary Pompeo, dated August 29 [Slide 60] and sent at the 
recommendation of the National Security Advisor, John Bolton, 
in which Ambassador Taylor strenuously objected to the 
withholding of military aid from Ukraine, as Ambassador Taylor 
recounted in his deposition.
    (Text of Videotape presentation:)

    Ambassador TAYLOR. Near the end of Ambassador Bolton's visit, I 
asked to meet him privately, during which I expressed to him my serious 
concern about the withholding of military assistance to Ukraine while 
the Ukrainians were defending their country from Russian aggression. 
Ambassador Bolton recommended that I send a first-person cable to 
Secretary Pompeo directly relaying my concerns.
    I wrote and transmitted such a cable on August 29th, describing the 
folly I saw in withholding military aid to Ukraine at a time when 
hostilities were still active in the east and when Russia was watching 
closely to gauge the level of American support for the Ukrainian 
Government. The Russians, as I said at my deposition, would love to see 
the humiliation of President Zelensky at the hands of the Americans. I 
told the Secretary that I could not and would not defend such a policy.
    Although I received no specific response, I heard that soon 
thereafter the Secretary carried the cable with him to a meeting at the 
White House focused on security assistance for Ukraine.

    Mrs. Manager DEMINGS. While we know from Ambassador Taylor 
and Deputy Assistant Secretary Kent that the cable was 
received, we do not know whether or how the State Department 
responded, nor do we know if the State Department possesses any 
other internal records relating to this cable.
    This cable is vital for three reasons. First, it 
demonstrates the harm that President Trump did to our national 
security when he used foreign policy as an instrument of his 
own personal, political gain. Second, on the same day the cable 
was sent, President Zelensky's senior aide told Ambassador 
Taylor that he was ``very concerned'' about the hold on 
military assistance. He added [Slide 61] that the Ukrainians 
were ``just desperate'' for it to be released. In other words, 
President Trump's effort to use military aid to apply 
additional pressure on Ukraine was working.
    Finally, based on reporting by the New York Times, we now 
know that within days of Ambassador Taylor sending this cable, 
President Trump discussed Ukrainian security assistance with 
Secretary Pompeo, Defense Secretary Esper, and National 
Security Advisor Bolton. The investigation uncovered testimony 
that Secretary Pompeo brought Ambassador Taylor's cable to the 
White House; perhaps it was during this meeting. There, perhaps 
prodded by Ambassador Taylor's cable, all three of them 
pleaded--pleaded--with the President to resume the crucial 
military aid. Yet the President refused.
    This body has a right to see Ambassador Taylor's cable, as 
well as the other State Department records addressing the 
official response to it. Although it may have been classified 
at the time, the State Department could no longer claim that 
the topic of security assistance remains classified today in 
light of the President's decision to declassify his two 
telephone calls with President Zelensky and Mr. Mulvaney's 
public statements about security assistance.
    The fourth category of documents that the Senate should 
subpoena are contemporaneous, first-person accounts from State 
Department officials [Slide 62] who were caught up in President 
Trump's corrupt scheme. These documents, [Slide 63] which were 
described in detail by Deputy Assistant Secretary Kent, 
Ambassador Taylor, and political officer David Holmes, would 
help complete the record and clarify how the President's scheme 
unfolded in realtime and how the Ukrainians reacted.
    Mr. Kent wrote notes or memos to file at least four times, 
according to his testimony. Ambassador Taylor took extensive 
notes of nearly every conversation he had--some in a little 
notebook. David Holmes, the Embassy official in Ukraine, was a 
consistent notetaker of important meetings with Ukrainian 
officials.
    (Text of Videotape presentation:)

    Mr. GOLDMAN. Did you take notes of this conversation on September 
1st with Ambassador Sondland?
    Ambassador TAYLOR. I did.
    Mr. GOLDMAN. And did you take notes related to most of the 
conversations, if not all of them, that you recited in your opening 
statement?
    Ambassador TAYLOR. All of them, Mr. Goldman.
     . . .
    Mr. GOLDMAN. And you are aware, I presume, that the State 
Department has not provided those notes to the committee. Is that 
right?
    Ambassador TAYLOR. I am aware.
    Mr. GOLDMAN. So we don't have the benefit of reviewing them to ask 
you these questions.
    Ambassador TAYLOR. Correct. I understand that they may be coming, 
sooner or later.
    Mr. GOLDMAN. Well, we would welcome that.

    Mrs. Manager DEMINGS. The State Department never produced 
those notes.
    As another example, Deputy Assistant Secretary Kent 
testified about a key document that he drafted on August 16, 
describing his concerns that the Trump administration was 
attempting to pressure Ukraine into opening politically 
motivated investigations.
    (Text of Videotape presentation:)

    Ms. SPEIER. I'd like to start with you, Mr. Kent. In your 
testimony, you said that you had--``In mid-August, it became clear to 
me that Giuliani's efforts to gin up politically motivated 
investigations were now infecting U.S. engagement with Ukraine, 
leveraging President Zelensky's desire for a White House meeting.'' Mr. 
Kent, did you actually write a memo documenting your concerns that 
there was an effort under way to pressure Ukraine to open an 
investigation to benefit President Trump?
    Mr. KENT. Yes, ma'am. I wrote a memo to the file on August 16th.
    Ms. SPEIER. But we don't have access to that memo, do we?
    Mr. KENT. I submitted it to the State Department, subject to the 
September 27th subpoena.
    Ms. SPEIER. And we have not received one piece of paper from the 
State Department relative to this investigation.

    Mrs. Manager DEMINGS. Deputy Assistant Secretary Kent also 
memorialized a September 15 conversation in which Ambassador 
Taylor described a Ukrainian official accusing America of 
hypocrisy for advising President Zelensky against investigating 
a prior Ukrainian president. Mr. Kent described that 
conversation during his testimony. He said: [Slide 64]

    But the more awkward part of the conversation came after Special 
Representative Volker made the point that the Ukrainians, who had 
opened their authorities under Zelensky, had opened investigations of 
former President Poroshenko. He didn't think that was appropriate.
    And then Andriy Yermak said: What? You mean the type of 
investigations you're pushing for us to do on Biden and Clinton?

    The conversation makes clear the Ukrainian officials 
understood the corrupt nature of President Trump's request and 
therefore doubted American credibility on anti-corruption 
measures.
    Records of these conversations--and other notes and 
memorandum by senior American officials in Ukraine--would flesh 
out and help complete the record for the first Article of 
Impeachment. They would tell the whole truth to the American 
people and to this body. You should require the State 
Department to provide them.
    To summarize, the Senate should issue the subpoena proposed 
and the amendment requiring the State Department to turn over 
relevant text messages and WhatsApp messages, emails, 
diplomatic cables, and notes. [Slide 65] These documents bear 
directly on the trial of this body--the trial that this body is 
required by the Constitution to hold. They are immediately 
relevant to the first Article of Impeachment. Their existence 
has been attested to by credible witnesses in the House, and 
the only reason we don't already have them is that the 
President has ordered his administration, including Secretary 
Pompeo, to hide them.
    The President's lawyers may suggest that the House should 
have sought these materials in court or awaited further 
lawsuits under the Freedom of Information Act, a.k.a. FOIA 
lawsuits. Any such suggestion is meritless.
    To start, the Constitution has never been understood to 
require such lawsuits, which has never occurred--never 
occurred--in any previous impeachment.
    Moreover, the President has repeatedly and strenuously 
argued that the House is not even allowed to file a suit to 
enforce its subpoenas. [Slide 66]
    In the Freedom of Information Act cases, the administration 
has only grudgingly and slowly produced an extremely small set 
of materials but has insisted on applying heavy and dubious 
redactions.
    FOIA lawsuits filed by third parties cannot serve as a 
credible alternative to congressional oversight. In fact, it is 
still alarming that the administration has produced more 
documents pursuant to Freedom of Information Act lawsuits by 
private citizens and entities than congressional subpoenas.
    Finally, as we all know, litigation would take an extremely 
long time--likely years, not weeks or months--while the 
misconduct of this President requires immediate attention. The 
misconduct of this President requires immediate attention.
    If this body is truly committed to a fair trial, it cannot 
let the President play a game of ``keep away'' and dictate what 
evidence the Senators can and cannot see bearing on his guilt 
or innocence. This body cannot permit him to hide all the 
evidence while disingenuously insisting on lawsuits that he 
doesn't actually think we can file--ones that he knows will not 
be resolved until after the election he is trying to cheat to 
win. Instead, to honor your oaths to do impartial justice, we 
urge each Senator to support a subpoena to the State 
Department. And that subpoena should be issued now, at the 
beginning of the trial, rather than at the end so these 
documents can be reviewed and their importance weighed by the 
parties, by the Senate, and by the American people. That is how 
things work in every courtroom in the Nation, and it is how 
they should work here, especially because the stakes, as you 
all know, are so high.
    The truth is there. Facts are stubborn things. The 
President is trying to hide it. This body should not surrender 
to his obstruction by refusing to demand a full record. That is 
why the House managers support this amendment.
    Mr. Chief Justice, the House managers reserve the balance 
of our time.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
    In the interest of time, I will not repeat all of the 
arguments we have made already with respect to these motions. I 
would say one thing before I turn it over to my cocounsel. Mr. 
Schiff came here and said he is not asking you to do something 
he wouldn't do for himself, and the House manager said: We were 
not asking you to do our jobs for us.
    Mr. Schiff came up here and said: ``I call Ambassador 
Bolton.'' Remember Paul Harvey? It is time for the rest of the 
story. He didn't call him in the House. He didn't subpoena 
Ambassador Bolton in the House.
    I have a letter here from Ambassador Bolton's lawyer. He is 
the same lawyer that Charlie Kupperman hired. It is dated 
November 8. He said: I write as counsel to Dr. Charles 
Kupperman and to Ambassador John Bolton in response to, one, 
the letter of November 5 from Chairman Schiff, Chairman Engel, 
and Acting Chair Maloney, the House chairs, withdrawing the 
subpoena to Dr. Kupperman--I mentioned that earlier--and to 
recent published reports announcing that the House chairs do 
not intend to issue subpoenas to Ambassador Bolton.
    He goes on to say: ``We are dismayed that committees have 
chosen not to join in seeking resolution from the Judicial 
Branch of this momentous Constitutional question.'' He ends the 
letter by saying: ``If the House chooses not to pursue through 
subpoena the testimony of Dr. Kupperman and Ambassador Bolton, 
let the record be clear: that is the House's decision.''
    They made that decision. They never subpoenaed Ambassador 
Bolton. They didn't try to call him in the House. They withdrew 
the subpoena for Charles Kupperman before the judge could rule, 
and they asked that the case be mooted. Now they come here, and 
they ask you to issue a subpoena for John Bolton. It is not 
right.
    I yield the remainder of my time to Mr. Sekulow.
    Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the 
Senate, the managers said facts are a stubborn thing. Let me 
give you some facts. It is from the transcripts.
    Ambassador Sondland actually testified unequivocally that 
the President did not tie aid to investigations. Instead, he 
acknowledged that any leak he had suggested was based entirely 
on his own speculation, unconnected to any conversation with 
the President.
    Here is the question:

    What about the aid? Ambassador Volker says that the aid was 
not tied.
    Answer. I didn't say that they were conclusively tied 
either. I said I was presuming it.
    Question. OK. And so the President never told you they were 
tied?
    Answer. That is correct.
    Question. So your testimony and Ambassador Volker's 
testimony is consistent, and the President did not tie 
investigations, aid to investigations?
    Answer. That is correct.

    Ambassador Sondland also testified that he asked President 
Trump directly about these issues, and the President explicitly 
told him that he did not want anything from Ukraine. He said:

    I want nothing. I want nothing. I want no quid pro quo. 
Tell Zelensky to do the right thing.

    Similar comments were made to Senator Johnson.
    Those are the facts--stubborn, but those are the facts.
    No one is above the law. Here is the law. As every Member 
of Congress knows and is undoubtedly aware, separate from even 
state sacred privileges is the Presidential communication 
executive privilege to communications in performance of a 
President's responsibilities. The Presidential communication 
privilege has constitutional origins. Courts have recognized a 
great public interest in preserving the confidentiality of 
conversations that take place in the President's performance of 
his official duties because such confidentiality is needed to 
protect the effectiveness of the Executive decisionmaking 
process. In re Sealed Case, which was decided in the District 
of Columbia Court of Appeals.
    The Supreme Court found such a privilege necessary to 
guarantee the candor of Presidential advisers and to provide a 
President and those who assist him with freedom to explore 
alternatives in the process of ultimately shaping policies and 
making decisions and to do so in a way many would be unwilling 
to express except in private. For these reasons, Presidential 
conversations are presumptively privileged.
    There is something else about this privilege. 
Communications made by Presidential advisers--again quoting 
courts--and by the way, lawyer lawsuits? Lawyer lawsuits? We 
are talking about the impeachment of a President of the United 
States, duly elected, and the Members and the managers are 
complaining about lawyer lawsuits? The Constitution allows 
lawyer lawsuits. It is disrespecting the Constitution of the 
United States to even say that in this Chamber, ``lawyer 
lawsuits.''
    Here is the law. Communications made by Presidential 
advisers in the course of preparing advice for the President 
come under the Presidential communications privilege even when 
these communications are not made directly to the President--
even when they are not made directly to the President--adviser 
to adviser. Given the need to provide sufficient elbow room for 
advisers to obtain information from all knowledgeable sources, 
the privilege must apply both to communications which these 
advisers solicited and received from others, as well as those 
they authorized themselves.
    The privilege must also extend to communications authored 
or received in response to solicitation by members of a 
Presidential adviser's staff since in many instances advisers 
must rely on their staffs to investigate an issue and formulate 
advice given to the President.
    Lawsuits, the Constitution--it is a dangerous moment for 
America when an impeachment of a President of the United States 
is being rushed through because of lawyer lawsuits. The 
Constitution allows it, if necessary. The Constitution demands 
it, if necessary.
    Thank you, Mr. Chief Justice.
    The CHIEF JUSTICE. Mrs. Demings, you have 13 minutes for 
rebuttal, or Mr. Schiff.
    Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
    Let me respond to some of my colleague's points, if I can.
    First, counsel said: Well, the House would like to call 
John Bolton, but the House did not seek his testimony during 
its investigation.
    Well, first of all, we did. We invited John Bolton to 
testify. Do you know what he told us? He said:

    I am not coming. And if you subpoena me, I will sue you.

    That was his answer: ``I will sue you.''
    Mr. Bolton is represented by the same lawyer who represents 
Dr. Kupperman, who actually did sue us when he was subpoenaed. 
So we knew that John Bolton would make good on that threat.
    Mr. Sekulow said something about lawyer lawsuits. I have to 
confess, I wasn't completely following the argument, but he 
said something about lawyer lawsuits and that we are against 
lawyer lawsuits. I don't know what that means, but I can tell 
you this: The Trump Justice Department is in court in that case 
and in other cases arguing that Congress cannot go to court to 
enforce its subpoenas. So when they say something about lawyer 
lawsuits and they say there is nothing wrong with the House 
suing to get these witnesses to show up and they should have 
sued to get them to show up, their own lawyers are in court 
saying that the House has no such right. They are in court 
saying that you can't have lawyer lawsuits. That argument 
cannot be made in both directions.
    What is more, in the McGhan issue, which tested this same 
bogus theory of absolute immunity--once again, that lawsuit 
involving the President's lawyer, Don McGahn, the one who was 
told to fire the special counsel and then to lie about it, that 
lawsuit to get his testimony--Judge Jackson ruled on that very 
recently when they made the same bogus claim, saying that he is 
absolutely immune from showing up.
    The judge said:

    That is nonsense. There is no support for that--not in the 
Constitution, not in the case. That is made out of whole cloth.

    But the judge said something more that was very 
interesting. What we urged John Bolton's lawyer was, you don't 
need to file a lawsuit. Dr. Kupperman, you don't need to file a 
lawsuit. There is one already filed involving Don McGahn that 
is about to be decided. So unless your real purpose here is 
delay, unless your real purpose here is to avoid testimony and 
you just wish to give the impression of a willingness to come 
forward, you just want to have the court's blessing--if that is 
really true, agree to be bound by the McGahn decision.
    Well, of course, they were not willing because they didn't 
want to testify. Now, for whatever reason, John Bolton is now 
willing to testify. I don't know why that is. Maybe it is 
because he has a book coming out. Maybe it is because it would 
be very hard to explain why he was unwilling to share important 
information with the Senate; that he couldn't show up for a 
House deposition or interview because he would need court 
permission to do it, but he could put it in the book. I don't 
know. I can't speak to his motivation. I can tell you he is 
willing to come now, if you are willing to hear him.
    Of course, they weren't willing to be bound by that court 
decision in McGahn, but the court said something very 
interesting, because one of the arguments they happened to 
make--one of the arguments that John Bolton's lawyer had been 
making as to why they needed their own separate litigation was, 
well, John Bolton and Dr. Kupperman, they are national security 
people, and Don McGahn is just a White House Counsel. No 
offense to the White House Counsel, but apparently it had 
nothing to do with the national security so they couldn't be 
bound by what the court in the McGahn case said. Well, the 
judge in the McGahn case said this applies to national security 
stuff too.
    So we do have the court decision. What is more, we have the 
court decision in the Harriet Miers case, in the George W. Bush 
administration, where, likewise, the court made short shrift of 
this claim of absolute, complete, and total immunity.
    Now, there were also comments made about Ambassador 
Volker's testimony by Mr. Cipollone, and they were along these 
lines: Ambassador Volker said the President never told him that 
the aid was being conditioned or that the meeting was being 
conditioned on Ukraine doing the sham investigation. So I guess 
that is case closed--unless the President told everyone, called 
them into the office and said: Hey, I am going to tell you now; 
and then: I am going to tell you now. If he didn't tell 
everyone, I guess it is case closed.
    Well, you know who the President did tell, among others? He 
told Mick Mulvaney. Mick Mulvaney went out on national 
television and said, yes, they discussed it, this 
investigation, this Russian narrative that it wasn't Ukraine 
that intervened in 2016; it was Russia. I am sorry. It wasn't 
Russia; it was Ukraine. Yes, that bogus 2016 theory; yes, they 
discussed it; yes, it was part of the reason why they withheld 
the money.
    When a reporter said: Well, you are kind of describing a 
quid pro quo, his answer was: Yes, get used to it--or get over 
it. We do it all the time.
    Now, they haven't said they want to hear from Mick 
Mulvaney. I wonder why. The President did talk to Mick Mulvaney 
about it. Wouldn't you like to hear what Mick Mulvaney has to 
say? If you really want to get to the bottom of this, if they 
are really challenging the fact that the President conditioned 
$400 million in military aid to an ally at war, if Mick 
Mulvaney has already said publicly that he talked to the 
President about it, and this is part of the reason why, don't 
you think we should hear from him? Wouldn't you think impartial 
justice requires you to hear from him?
    Now, counsel also referred to Ambassador Sondland and 
Sondland saying: Well, the President told me there was no quid 
pro quo. Now, of course, at the time the President said to 
Sondland no quid pro quo, he became aware of the whistleblower 
complaint, presumably by Mr. Cipollone. So the President knew 
that this was going to come to light. On the advice, 
apparently, of Mr. Cipollone, or maybe others, the Director of 
National Intelligence, for the first time in history, withheld 
a whistleblower complaint from Congress, its intended 
recipient. Nonetheless, the White House was aware of that 
complaint. We launched our own investigations.
    Yes, they got caught. In the midst of being caught, what 
does he say? It is called a false exculpatory. For those people 
at home, that is a fancy word of saying it is a false, phony 
alibi. No quid pro quo. He wasn't even asked the question was 
there a quid pro quo. He just blurted it out. That is the 
defense? The President denies it? What is more interesting, he 
didn't tell you about the other half of that conversation where 
the President says no quid pro quo. He says: No quid pro quo, 
but Zelensky needs to go to the mike, and he should want to do 
it, which is the equivalent of saying no quid pro quo, except 
the quid pro quo, and here is what it is. The quid pro quo is 
he needs to go to the mike, and he should want to do it. That 
is their alibi?
    They didn't also mention, of course--and you will hear 
about this during the trial, if we have a real trial. 
Ambassador Sondland also said: We are often asked was there a 
quid pro quo, and the answer is, yes, there was a quid pro quo. 
There was an absolute quid pro quo.
    What is more, when it came to the military aid, it was as 
simple as two plus two. Well, I will tell you something. We are 
not the only people who can add up two plus two. There are 
millions of people watching this who can add up two plus two 
also. When the President tells his Chief of Staff: We are 
holding up the aid because of this, as the Chief of Staff 
admitted; when the President gives no plausible or other 
explanation for holding up aid that you all and we all 
supported and voted on in a very bipartisan way, has no 
explanation for it; when in that call he never brings up 
corruption except the corruption he wants to bring about, it 
doesn't take a genius, it doesn't take Albert Einstein to add 
up two plus two. It equals four. In this case, it equals guilt.
    Now, you are going to have 16 hours to ask questions. You 
are going to have 16 hours. That is a long time to ask 
questions. Wouldn't you like to be able to ask about the 
documents in that 16 hours? Would you like to be able to say: 
Counsel for the President, what did Mick Mulvaney mean when he 
emailed so-and-so and said such and such? What is your 
explanation for that because that seems to be pretty damning 
evidence of exactly what the House is saying. What is your 
explanation of that? Mr. Sekulow, what is your explanation?
    Wouldn't you like to be able to ask about the documents or 
ask the House: Mr. Schiff, what about this text message? 
Doesn't that suggest such--what the President is arguing? 
Wouldn't you like to be able to ask me that question, or one of 
my colleagues? I think you would. I think you should.
    But the backward way this resolution is drafted, you get 16 
hours to ask questions about documents you have never seen. You 
know what is more? If you do decide at that point, after the 
trial is essentially over, that you do want to see the 
documents after all and the documents are produced, you don't 
get another 16 hours. You don't get 16 minutes. You don't get 
16 seconds to ask about those documents. Does that make any 
sense to you? Does that make any sense at all?
    I will tell you something I would like to know that may be 
in the documents. You probably heard before about the three 
amigos. My colleague has mentioned two of the three amigos: 
Amigo Volker and Amigo Sondland. These are two of the three 
people whom the President put in charge of Ukraine policy. The 
third amigo is Secretary Rick Perry, former Secretary of 
Energy. We know from Amigo Sondland's testimony that he was 
certainly in the loop, knew exactly all about this scheme, and 
we knew from Ambassador Volker's testimony and his text 
messages and his WhatsApps that that amigo was in the loop.
    What about the third amigo? Wouldn't you like to know if 
the third amigo was in the loop? Now, as my colleagues will 
explain when we get to the Department of Energy records, well, 
surprisingly, we didn't get those either. Any communication 
between the Department of Energy and the Department of State is 
covered by this amendment. Wouldn't you like to know? Don't you 
think the American people have a right to know what the third 
amigo knew about this scheme? I would like to know. I think you 
should be able to ask questions about it in your 16 hours.
    At the end of the day, I guess I will finish with something 
Mr. Sekulow said. He said this was a dangerous moment because 
we are trying to rush through this somehow. It is a dangerous 
moment, but we are not trying to rush through this trial. We 
are actually trying to have a real trial here. It is the 
President who is trying to rush through this.
    I have to tell you that whatever you decide here--maybe 
this is a waste of breath and maybe it is already decided, but 
whatever you decide here--I don't know who the next President 
is going to be; maybe it will be someone in this Chamber, but I 
guarantee you this: Whoever that next President is, whether 
they did something right or they did something wrong, there is 
going to come a time where you, in this body, are going to 
subpoena that President and that administration. You are going 
to want to get to the bottom of serious allegations. Are you 
prepared to say that that President can simply say: I am going 
to fight all the subpoenas. Are you prepared to say and accept 
that President saying: I have absolute immunity. You want me to 
come testify? Senator, do you want me to come testify? No, no. 
I have absolute immunity. You can subpoena me all you like. I 
will see you in court. And when you get to court, I am going to 
tell you, you can't see me in court.
    Are you prepared for that? That is what the future looks 
like. Don't think this is the last President, if you allow this 
to happen, who is going to allow this to take place.
    Mr. Chief Justice, I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I send a motion to the 
desk to table the amendment.
    The CHIEF JUSTICE. The question is on agreeing to the 
motion to table.
    Mr. McCONNELL. I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any Senators in the Chamber 
wishing to vote or change their vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 16]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1286

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to subpoena certain Office of Management and Budget 
documents, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1286.

(Purpose: To subpoena certain Office of Management and Budget documents 
                              and records)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials--
          (1) the Chief Justice of the United States, through the 
        Secretary of the Senate, shall issue a subpoena to the Acting 
        Director of the Office of Management and Budget commanding him 
        to produce, for the time period from January 1, 2019, to the 
        present, all documents, communications, and other records 
        within the possession, custody, or control of the Office of 
        Management and Budget, referring or relating to--
                  (A) the actual or potential suspension, withholding, 
                delaying, freezing, or releasing of United States 
                foreign assistance, military assistance, or security 
                assistance of any kind to Ukraine, including but not 
                limited to the Ukraine Security Assistance Initiative 
                (referred to in this section as ``USAI'') and Foreign 
                Military Financing (referred to in this section as 
                ``FMF''), including but not limited to--
                          (i) communications among, between, or 
                        referring to Director Michael John ``Mick'' 
                        Mulvaney, Assistant to the President Robert 
                        Blair, Acting Director Russell Vought, 
                        Associate Director Michael Duffey, or any other 
                        Office of Management and Budget employee;
                          (ii) communications related to requests by 
                        President Trump for information about Ukraine 
                        security or military assistance and responses 
                        to those requests;
                          (iii) communications related to concerns 
                        raised by any Office of Management and Budget 
                        employee related to the legality of any hold on 
                        foreign assistance, military assistance, or 
                        security assistance to Ukraine;
                          (iv) communications sent to the Department of 
                        State regarding a hold or block on 
                        congressional notifications regarding the 
                        release of FMF funds to Ukraine;
                          (v) communications between--
                                  (I) officials at the Department of 
                                Defense, including but not limited to 
                                Undersecretary of Defense Elaine 
                                McCusker; and
                                  (II) Associate Director Michael 
                                Duffey, Deputy Associate Director Mark 
                                Sandy, or any other Office of 
                                Management and Budget employee;
                          (vi) all draft and final versions of the 
                        August 7, 2019, memorandum prepared by the 
                        National Security Division, International 
                        Affairs Division, and Office of General Counsel 
                        of the Office of Management and Budget about 
                        the release of foreign assistance, security 
                        assistance, or security assistance to Ukraine;
                          (vii) the Ukrainian government's knowledge 
                        prior to August 28, 2019, of any actual or 
                        potential suspension, withholding, delaying, 
                        freezing, or releasing of United States foreign 
                        assistance, military assistance, or security 
                        assistance to Ukraine, including all meetings, 
                        calls, or other engagements with Ukrainian 
                        officials regarding potential or actual 
                        suspensions, holds, or delays in United States 
                        assistance to Ukraine;
                  (B) communications, opinions, advice, counsel, 
                approvals, or concurrences provided by any employee in 
                the Office of Management and Budget regarding the 
                actual or potential suspension, withholding, delaying, 
                freezing, or releasing of security assistance to 
                Ukraine including legality under the Impoundment 
                Control Act;
                  (C) Associate Director Michael Duffey taking over 
                duties related to apportionments of USAI or FMF from 
                Deputy Associate Director Mark Sandy or any other 
                Office of Management and Budget employee;
                  (D) all meetings related to the security assistance 
                to Ukraine including but not limited to interagency 
                meetings on July 18, 2019, July 23, 2019, July 26, 
                2019, and July 31, 2019, including any directions 
                provided to staff participating in those meetings and 
                any readouts from those meetings;
                  (E) the decision announced on or about September 11, 
                2019, to release appropriated foreign assistance, 
                military assistance, or security assistance to Ukraine, 
                including but not limited to any notes, memoranda, 
                documentation or correspondence related to the 
                decision;
                  (F) all draft and final versions of talking points 
                related to the withholding or release of foreign 
                assistance, military assistance, or security assistance 
                to Ukraine, including communications with the 
                Department of Defense related to concerns about the 
                accuracy of the talking points; and
                  (G) all meetings and calls between President Trump 
                and the President of Ukraine, including documents, 
                communications, and other records related to the 
                scheduling of, preparation for, and follow-up from the 
                President's April 21 and July 25, 2019, telephone 
                calls, as well as the President's September 25, 2019, 
                meeting with the President of Ukraine in New York; and
          (2) the Sergeant at Arms is authorized to utilize the 
        services of the Deputy Sergeant at Arms or any other employee 
        of the Senate in serving the subpoena authorized to be issued 
        by this section.

    The CHIEF JUSTICE. The majority leader is recognized.

                                PROGRAM

    Mr. McCONNELL. Mr. Chief Justice, first a scheduling note: 
As the parties are ready to debate this amendment, I suggest we 
go ahead, get through the debate, and vote before we take a 30-
minute recess for dinner.
    I remind everyone that I will be moving to table the 
amendment. It is also important to remember that both the 
evidence and witnesses are addressed in the underlying 
resolution.
    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent or opponent of this 
motion?
    Mr. Manager SCHIFF. Proponent, Mr. Chief Justice.
    The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or 
opponent?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an 
opponent.
    The CHIEF JUSTICE. Mr. Schiff, your side will proceed 
first, and you will be able to reserve time for rebuttal.
    Mr. Manager CROW. Mr. Chief Justice, before I begin, the 
House managers will reserve the balance of our time to respond 
to the counsel for the President.
    Mr. Chief Justice, Senators, counsel for the President, and 
the American people, I am Jason Crow from the great State of 
Colorado.
    The House managers strongly support this amendment to 
subpoena key documents from the Office of Management and 
Budget, or OMB. These documents go directly to one of President 
Trump's abuses of power: his decision to withhold vital 
military aid from a strategic partner that is at war to benefit 
his own personal reelection campaign. Why should that matter? 
Why should anybody care? [Slide 67] Why should I care?
    Before I was a Member of Congress, I was an American 
soldier serving in Iraq and Afghanistan. Although some years 
have passed since that time, there is still some memories that 
are seared in my brain. One of those memories was scavenging 
scrap metal on the streets of Baghdad in the summer of 2003, 
which we had to bolt onto the side of our trucks because we had 
no armor to protect against roadside bombs.
    When we talk about troops not getting the equipment they 
need, when they need it, it is personal to me. To be clear 
here, we are talking of $391 million of taxpayer money intended 
to protect our national security by helping our strategic 
partner, Ukraine, fight against Vladimir Putin's Russia, an 
adversary of the United States.
    The President could not carry out this scheme alone. He 
needed a lot of people to help him. That is why we know as much 
about it as we do today. But there is much more to know. That 
is what trials are for, to get the full picture.
    We know there is more because President Trump needed the 
Office of Management and Budget to figure out how to stop what 
should have been a routine release of funds mandated by 
Congress--a release of funds that was already under way.
    The people in this Chamber don't need me to tell you that 
because 87 of you in this room voted for those vital funds to 
support our partner Ukraine.
    Witnesses before the House testified extensively about 
OMB's involvement in carrying out the hold. It was OMB that 
relayed the President's instructions and implemented them. 
[Slide 68] It was OMB that scrambled to justify the freeze.
    OMB has key documents that President Trump has refused to 
turn over to Congress. It is time to subpoena those documents. 
These documents would provide insight into critical aspects of 
the military aid hold. They would show the decision-making 
process and motivations behind President Trump's freeze. They 
would reveal the concerns expressed by career OMB officials, 
including lawyers, that the hold was violating the law. They 
would expose the lengths to which OMB went to justify the 
President's hold. They would reveal concerns about the impact 
of the freeze on Ukraine and U.S. national security. They would 
show that senior officials repeatedly attempted to convince 
President Trump to release the hold.
    In short, they would show exactly how the President carried 
out the scheme to use our national defense funds to benefit his 
personal political campaign.
    We are not speculating about the existence of these 
documents. We are not guessing what the documents might show. 
During the course of the investigation in the House, witnesses 
who testified before the committees identified multiple 
documents directly relevant to the impeachment inquiry that OMB 
continues to hold to this day.
    We know these documents exist, and we know that the only 
reason we do not have them is because the President directed 
OMB not to produce them because he knows what they would show.
    To demonstrate the significance of the OMB documents and 
the value they would provide in this trial, I would like to 
walk you through some of what we know exists for which the 
Trump administration has refused to turn over.
    As we have discussed, the Trump administration has refused 
to turn over any documents to the House in response to multiple 
subpoenas and requests. Based on what is known from the 
testimony and the few documents that have been obtained through 
public reporting and lawsuits, it is clear that the President 
is trying to hide this evidence because he is afraid of what it 
would show. The documents offer stark examples of the chaos and 
confusion that the President's scheme set off across our 
government and made clear the importance of the documents that 
are still being concealed by the President.
    We know that OMB has documents that reveal that as early as 
June, the President was considering holding military aid for 
Ukraine. The President began questioning military aid to 
Ukraine after Congress appropriated and authorized the money--
$250 million in DOD funds and $140 million in State Department 
funds. [Slide 69] This funding had wide bipartisan support 
because, as many witnesses testified, providing military aid to 
Ukraine to defend itself against Russian aggression also 
benefits our own national security. Importantly, the 
President's questions came weeks after the Department of 
Defense already certified that Ukraine had undertaken the anti-
corruption reforms and other measures mandated by Congress as a 
condition for receiving that aid. There is a process for making 
sure that the funds make it to the right place and to the right 
people--a process that has been followed every year that we 
have been providing that security assistance to Ukraine, 
including the first 2 years under the Trump administration.
    Nonetheless, the President's questions came days after DOD 
issued a press release on June 18, announcing they would 
provide its $250 million portion of the taxpayer-funded 
military aid to Ukraine. According to public reporting, the day 
after DOD's press release, a White House official named Robert 
Blair called OMB's Acting Director, Russell Vought, to talk 
about the military aid to Ukraine. According to public reports, 
Mr. Blair told Vought: ``We need to hold it up.''
    OMB has refused to produce any documents related to this 
conversation. The Senate can get them by passing the amendment 
and issuing a subpoena.
    But there is more. The same day Blair told Vought to hold 
up the aid, Michael Duffey, a political appointee at OMB who 
reports to Vought, emailed Deputy Under Secretary of Defense 
Elaine McCusker and told her that the President had questions 
about the aid. Duffey copied Mark Sandy, a career official at 
OMB, who told us about the email in his testimony before the 
House.
    Like all others, that email was not produced by the Trump 
administration in the House impeachment investigation. We know 
this email exists, however, because in response to a Freedom of 
Information Act lawsuit, the Trump administration was forced to 
release a redacted email consistent with Sandy's description.
    But OMB provided none of those documents to the House. With 
this proposed amendment, [Slide 70] the Senate has an 
opportunity to obtain and review the full record that can 
further demonstrate how and why the President was holding the 
aid. These documents would also shed light on the President's 
order to implement the hold.
    On July 3, [Slide 71] the State Department told various 
officials that OMB blocked it from dispensing $141 million in 
aid. OMB had directed the State Department not to send a 
notification to Congress about spending the money, and without 
that notification, the aid was effectively blocked. Why did OMB 
block the congressional notification? Who told them to do it? 
What was the reason? The Senate would get those answers if it 
issued this subpoena.
    But there is more. On July 12, Blair--the White House 
official who had called Vought on June 19 and said ``We need to 
hold it up''--sent an email to Duffey at OMB. Blair said: ``The 
President is directing a hold on military support funding for 
Ukraine.''
    We haven't seen this email. The only reason we know about 
it is from the testimony of Mark Sandy, the career OMB official 
who followed the law and complied with his subpoena. As you can 
see from the transcript excerpt in front of you, [Slide 72] 
Sandy testified that the July 12 email did not mention concerns 
about any other country or any other aid packages, just 
Ukraine. So of the dozens of countries we provide aid and 
support for, the President was only concerned about one of 
them--Ukraine. Why? Well, we know why. But OMB has still 
refused to provide a copy of this July 12 email and has refused 
to provide any documents surrounding it, all because the 
President told OMB to continue to hide the truth from Congress 
and the American people.
    What was he afraid of? A subpoena issued by the Senate 
would show us.
    OMB also has documents about a key series of meetings 
triggered by the President's order to hold military aid. In the 
second half of July, the National Security Council convened a 
series of interagency meetings about the President's hold on 
military aid. OMB documents would show what happened during 
those meetings. For example, on July 18, the National Security 
Council staff convened a routine interagency meeting to discuss 
Ukraine policy. During the meeting, it was the OMB 
representative who announced that President Trump placed a hold 
on all military aid to Ukraine.
    Ambassador Bill Taylor, our most senior diplomat to 
Ukraine, participated in that meeting, and he described his 
reaction at his own hearing.
    (Text of Videotape presentation:)

    Ambassador TAYLOR. In a regular NSC secure video conference 
call on July 18, I heard a staff person from the Office of 
Management and Budget say that there was a hold on security 
assistance to Ukraine but could not say why. Toward the end of 
an otherwise normal meeting, a voice on the call--the person 
was off-screen--said that she was from OMB and her boss had 
instructed her not to approve any additional spending on 
security assistance for Ukraine until further notice.
    I and others sat in astonishment. The Ukrainians were 
fighting the Russians and counted on not only the training and 
weapons but also the assurance of U.S. support. All that the 
OMB staff person said was that the directive had come from the 
President, to the Chief of Staff, to OMB. In an instant, I 
realized that one of the key pillars of our strong support for 
Ukraine was threatened.

    Mr. Manager CROW. It is hard to believe OMB would not have 
any documents following this bombshell announcement. It surely 
does. It was the agency that delivered the shocking news to the 
rest of the U.S. Government that the President was withholding 
the vital military aid from our partner, and we would see these 
documents if the Senate issued a subpoena.
    The July 18 meeting was just the first in a series of 
meetings where OMB held the line and enforced the President's 
hold on the aid. But there was a second meeting on July 23, 
where we understood agencies raised concerns about the legality 
of OMB's hold on the aid and then a third meeting, at a more 
senior level, on July 26. Witnesses testified that at that 
meeting, OMB struggled to offer an explanation for the 
President's hold on the aid. Then there was a fourth meeting on 
July 31, where the legal concerns about the hold were raised. 
At each of these meetings, there was confusion about the scope 
and the reasons for the hold. Nobody seemed to know what was 
going on. But that was exactly the point.
    All of the agencies--except OMB, which was simply conveying 
the President's order--supported the military aid and argued 
for lifting the hold. OMB did not produce a single document 
providing information about his participation, preparation, or 
followup from any of these meetings.
    Did these OMB officials come prepared with talking points 
for these meetings? [Slide 73] Did OMB officials take notes 
during any of these meetings? Did they exchange emails about 
what was going on? Did OMB discuss what reasons they could give 
everyone else for the hold? By issuing this subpoena, the 
Senate can find out the answers to all of those questions and 
others like them. The American people deserve answers.
    OMB documents would also reveal key facts about what 
happened on July 25. On July 25, President Trump conducted his 
phone call with President Zelensky, during which he demanded 
``a favor.'' This favor was for Ukraine to conduct an 
investigation to benefit the President's reelection campaign. 
That call was at 9 a.m. [Slide 74] Just 90 minutes after 
President Trump hung up the phone, Duffey, the political 
appointee at OMB who is in charge of national security 
programs, emailed DOD to ``formalize'' the hold on the military 
aid, just 90 minutes after President Trump's call--a call in 
which the President had asked for ``a favor.''
    That email is on the screen in front of you. [Slide 75] We 
have a redacted copy of this email because it was recently 
released through the Freedom of Information Act. It was not 
released by the Trump administration in response to the House's 
subpoena.
    In this email, Duffey told DOD officials that, based on the 
guidance it received, they should ``hold off on any additional 
DOD obligations of these funds.'' He added that the request was 
``sensitive'' and that they should keep this information 
``closely held,'' meaning, don't tell anybody about it.
    Why did Duffey consider the information sensitive? Why 
didn't he want anyone to learn about it? Answers to those 
questions may be found in OMB emails--emails that we could all 
see if you issue a subpoena.
    But there is more. Remember, the administration needed to 
create a way to stop funding that was already underway. The 
train had already left the station and something like this had 
never been done before. Later in the evening of July 25, OMB 
found a way, even though DOD had already notified Congress that 
the funds would be released.
    Here is how this scheme worked. OMB sent DOD a funding 
document that included a carefully worded [Slide 76] footnote 
directing DOD to hold off on spending the funds ``to allow for 
an interagency process to determine the best use.'' Remember 
that language, ``to allow for an interagency process to 
determine the best use.''
    Let me explain that. The footnote stated that this ``brief 
pause'' would not prevent DOD from spending the money by the 
end of the fiscal year, which was coming up on September 30. 
OMB had to do this because it knew that not spending the money 
was illegal, and they knew that DOD would be worried about 
that. And they were right; DOD was worried about it. Mr. Sandy 
testified that in his 12 years of experience at OMB, he could 
not recall anything like this ever happening before. The 
drafting of this unusual funding document and the issuance of 
the document must have generated a significant amount of email 
traffic, memos, and other documentation at OMB--memos, email 
traffic, and documentation that we would all see if the Senate 
issued a subpoena.
    What was the result from this series of events on July 25? 
Where was Mr. Duffey's guidance to implement the hold coming 
from? Why was the request ``sensitive''? [Slide 77] What was 
the connection between OMB's direction to DOD and the call 
President Trump had with President Zelensky just 90 minutes 
before? Did agency officials communicate about the questions 
coming from Ukrainian officials?
    The American people deserve answers. A subpoena would 
provide those answers.
    OMB documents also would reveal information about the 
decision to have a political appointee take over Ukraine 
funding responsibility. [Slide 78] The tensions and chaos 
surrounding the freeze escalated at the end of July, when 
Duffey, a political appointee at OMB with no relevant 
experience in funding approvals, took authority for releasing 
military aid to Ukraine away from Sandy, a career OMB official. 
Sandy could think of no other example of a political 
appointee's taking on this responsibility. Sandy was given no 
reason other than Mr. Duffey wanted to be ``more involved in 
daily operations.''
    During his deposition, [Slide 79] Sandy confirmed that he 
was removed from the funding approval process after he had 
raised concerns to Duffey about whether the hold was legal 
under the Impoundment Control Act. Needless to say, OMB has 
refused to turn over any documents or communications involving 
that decision to replace Mr. Sandy.
    Why did Duffey--a political appointee with no relevant 
experience in this area--take over responsibility for Ukraine's 
funding approval? Was the White House involved in that 
decision? Was Sandy removed because he had expressed concerns 
about the legality of the hold? [Slide 80]
    By August 7, people in our government were worried, and 
when people in the government get worried, sometimes what they 
do is they draft memos, because when they are concerned about 
getting caught up in something that doesn't seem right, they 
don't want to be a part of it.
    So, on that day, Mark Sandy and other colleagues at the OMB 
drafted and sent a memo about Ukraine military aid to Acting 
Director Vought. According to Sandy, the memo advocated for the 
release of the funds. It said that the military aid was 
consistent with American national security interests, that it 
would help to oppose Russian aggression, and that it was backed 
by strong bipartisan support. But President Trump did not lift 
the hold.
    Over the next several weeks, the OMB continued to issue 
funding documents that kept kicking the can down the road, 
supposedly to allow for more of this ``interagency process'' 
while inserting those footnotes throughout the apportionment 
documents, stating that the delay wouldn't affect the funding. 
But here is the really shocking part: There was no interagency 
process. They made it up. It had ended months before. They made 
it up because nobody could say the real reason for the hold. In 
total, the OMB issued nine of these documents between July 25 
and September 10.
    Did the White House respond to the OMB's concerns and 
recommendation to release the aid? Did the White House instruct 
the OMB to continue creating a paper trail in an effort to 
justify the hold? [Slide 81] Who knew what and when the OMB 
documents would shed light on the OMB's actions as the 
President's scheme unraveled? [Slide 82] Did the White House 
direct the OMB to continue issuing the hold? What was OMB told 
about the President's reasons for releasing the hold? What 
communications did the OMB officials have with the White House 
around the time of the release? As the President's scheme 
unraveled, did anyone at the OMB connect the dots for the real 
reason for the hold? The OMB documents would shed light on all 
of these questions, and the American people deserve answers.
    I remember what it feels like to not have the equipment you 
need when you need it. Real people's lives are at stake. That 
is why this matters. We need this information so we can ensure 
that this never happens again. Eventually, this will all come 
out. We will have answers to these questions. The question now 
is whether we will have them in time and who here will be on 
the right side of history.
    I reserve the balance of our time for an opportunity to 
respond to the President's argument.
    The CHIEF JUSTICE. Thank you.
    Mr. Sekulow.
    Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and 
Members of the Senate.
    Manager Crow, you should be happy to know that the aid that 
was provided to Ukraine over the course of the present 
administration included lethal weapons. Those were not provided 
by the previous administration. The suggestion that Ukraine 
failed to get any equipment is false. The security assistance 
was not for funding Ukraine over the summer of 2019. There was 
no lack of equipment due to the temporary pause. It was for 
future funding.
    Ukraine's Deputy Minister of Defense, who oversaw the U.S. 
aid shipment, said: ``The hold went and came so quickly they 
did not notice any change.''
    Under Secretary of State David Hale explained: ``The pause 
to aid was for future assistance, not to keep the army going 
now.''
    So the made-up narrative that security assistance was 
conditioned on Ukraine's taking some action on investigations 
is further disproved by the straightforward fact that the aid 
was delivered on September 11, 2019, without Ukraine's taking 
any action on any investigation.
    It is interesting to note that the Obama administration 
withheld $585 million of promised aid to Egypt in 2013, but the 
administration's public message was that the money was not 
officially on hold as, technically, it was not due until 
September 30--the end of the fiscal year--so that then they 
didn't have to disclose the halt to anyone.
    It sounds like this may be a practice of a number of 
administrations. In fact, this President has been concerned 
about how aid is being put forward, so there have been pauses 
on foreign aid in a variety of contexts.
    In September of 2019, the administration announced that it 
was withholding over $100 million in aid to Afghanistan over 
concerns about government corruption. In August of 2019, 
President Trump announced that the administration and Seoul 
were in talks to substantially increase South Korea's share of 
the expense of U.S. military support for South Korea. In June, 
President Trump cut or paused over $550 million in foreign aid 
to El Salvador, Honduras, and Guatemala because those countries 
were not fairly sharing the burden of preventing mass migration 
to the United States.
    It is not the only administration. As I said, President 
Obama withheld hundreds of millions of dollars of aid to Egypt.
    To be clear--and I want to be clear--Ambassador Yovanovitch 
herself testified that our policy actually got stronger under 
President Trump, largely because, unlike the Obama 
administration, ``this administration made the decision to 
provide lethal weapons to Ukraine to help Ukraine fend off 
Russian aggression.'' She testified in a deposition before your 
various committees that it actually had felt, ``in the 3 years 
that I was there, partly because of my efforts but also the 
interagency team and President Trump's decision to provide 
lethal weapons to Ukraine, that our policy actually got 
stronger.''
    Deputy Assistant Secretary Kent, whose name has come up a 
couple of times, agreed that Javelins are incredibly effective 
weapons at stopping armored advance and that the Russians are 
scared of them.
    Ambassador Volker explained that President Trump approved 
each of the decisions made along the way, and as a result, 
America's policy toward Ukraine strengthened.
    So when we want to talk about facts, go to your own 
discovery and your own witnesses that you called.
    This all supposedly started because of a whistleblower. 
Where is that whistleblower?
    The CHIEF JUSTICE. The House managers have 35 minutes 
remaining.
    Mr. Manager CROW. Mr. Chief Justice, in war, time matters; 
minutes and hours can seem like years. So the idea that, well, 
it made it there eventually just doesn't work. And, yes, the 
aid was provided. It was provided by Congress--this Senate and 
the House of Representatives--with the President's signature. 
The Congress is the one that sends the aid, and millions of 
dollars of this aid would have been lost because of the delay 
had Congress not actually passed another law that extended that 
deadline to allow the funds to be spent. Let me repeat that. 
The delay had jeopardized the expenditure of the money to such 
an extent that Congress had to pass another law to extend the 
deadline so that the money and the equipment got to the people 
on the frontlines.
    Need I also reiterate, as to the supposed interagency 
process--the concerns that the President and his counsel 
continue to raise about corruption and making sure that the 
process went right--there was no interagency process. The whole 
thing was made up. It was a phantom. There was a delay, and 
delays matter.
    Mr. Chief Justice, I reserve the balance of my time for Mr. 
Schiff.
    The CHIEF JUSTICE. Mr. Schiff.
    Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
    There are just a few additional points I would like to make 
on this amendment and on my colleagues' arguments.
    First of all, Mr. Sekulow makes the point that the aid 
ultimately got released. They ultimately got the money, right? 
Yes, they got the money after the President got caught, after 
the President was forced to relieve the hold on the aid. After 
he got caught, yes, but even then, they had held on to the aid 
so long that it took a subsequent act of Congress to make sure 
it could all go out the door.
    So, what, is the President supposed to get credit for 
that--that we had to intervene because he withheld the aid for 
so long and that this is the only reason Ukraine got all of the 
aid we had approved in the first place?
    My colleagues have glossed over the fact that what they did 
was illegal, that the GAO--independent watchdog agency--found 
that that hold was illegal. So it not only violated the law, it 
not only took an act of Congress to make sure they ultimately 
got the aid, but this is supposed to be the defense as to why 
you shouldn't see the documents? Is that what we are to 
believe?
    Now, counsel also says, well, he is not the first President 
to withhold aid. And that is true. After all, counsel says: 
Well, President Obama withheld aid to Egypt. Yes. It was at the 
urging of the Members of Congress. Senators McCain and Graham 
urged that that aid be withheld. And why? Because there was a 
revolution in Egypt after it was appropriated. It was not 
something that was hidden from Congress. That was a pretty 
darned good reason to think, do we still want to give aid to 
this government after this revolution?
    We are not saying that aid has never been withheld--that is 
absurd--but I would hope and expect this is the first time aid 
has been withheld by a President of the United States to coerce 
an ally at war to help him cheat in the next election. I think 
that is a first, but what we do here may determine whether it 
is the last.
    There is one other thing about this pause in aid, right? It 
is the argument: Well, no harm, no foul. OK. You got caught. 
They got the aid. What is the big deal?
    Well, as we heard during the trial, it is not just the aid. 
Aid is obviously the most important thing, as Mr. Crow 
mentioned--you know, without it, you can't defend yourself--and 
we will have testimony as to just what kind of military aid the 
President was withholding. But we also had testimony that it 
was the fact of the aid itself that was so important to 
Ukraine, the fact that the United States had Ukraine's back. 
And why? Because this new President of Ukraine--this new, 
untested, former comedian President of Ukraine who was at war 
with Russia was going to be going into a negotiation with 
Vladimir Putin with an eye to ending that conflict, and whether 
he went into that negotiation from a position of strength or a 
position of weakness would depend on whether we had his back.
    And so when the Ukrainians learned and the Russians learned 
that the President of the United States did not have his back, 
was withholding this aid, what message do you think that sent 
to Vladimir Putin? What message do you think it sent to 
Vladimir Putin when Donald Trump wouldn't let Volodymyr 
Zelensky, our ally, in the door at the White House but would 
let the Russian Foreign Minister? What message does that send?
    So it is not just the aid, and it is not just when the aid 
is delivered, it is not just if all of the aid is delivered, it 
is also what message does the freeze send to our friend and, 
even more importantly, to our foe, and the message it sent was 
a disaster--was a disaster.
    Now, you might ask yourself because counselors said: Hey, 
President Trump has given lethal weapons to Ukraine--you might 
ask yourself, if the President was so concerned about 
corruption, why did he do that in 2017, and why did he do that 
in 2018? Why was it only 2019 that there was a problem? Was 
there no corruption in Ukraine in 2017? Was there no corruption 
in Ukraine in 2018?
    No. Ukraine has always battled corruption. It wasn't the 
presence or lack of corruption in one year to another; it was 
the presence of Joe Biden as a potential candidate for 
President. That was the key change in 2019. That made all the 
difference.
    Let's get back to one of the key moments in this saga. A 
lot of you are attorneys--you are probably much better 
attorneys than I am--and I am sure you had the experience in 
cases you tried where there was some vignette, some 
conversation, some document. It may not have been the most 
important on its face, but it told you something about the case 
that was much larger than that conversation.
    For me, one of those conversations was not on July 25 
between President Trump and President Zelensky but on July 26, 
the very next day.
    Now, you may have watched some of the House proceedings or 
you may not have, and people watching may have seen it and 
maybe they didn't, but there is this scene in a Ukrainian 
restaurant--a restaurant in Kyiv--with Gordon Sondland. Now, 
bear in mind it was Gordon Sondland who said there was 
absolutely quid pro quo and two plus two equals four. This is 
not some Never Trumper. This is a million-dollar donor to the 
Trump inauguration. OK? If there is a bias there, it is clearly 
in a million-dollar bias in favor of this President, not 
against him.
    So there is the scene in Kyiv, in this restaurant. Sondland 
has a cell phone, and he is sitting with David Holmes, who is a 
career diplomat--U.S. diplomat--in the Ukraine Embassy. Gordon 
Sondland takes out his phone, and he calls the White House. 
Gordon Sondland calling for the White House. Gordon Sondland 
holding for the President. And it takes a while to be 
connected, but he is connected to the President. That is pretty 
impressive, right? This isn't some guy with no relationship to 
the President. The President may say: Gordon Sondland, I barely 
know him, or something to that effect, but this is a guy who 
picked up his cell phone, and he can call the President of the 
United States from a restaurant in Kyiv, and he does.
    And the President's voice is so loud that David Holmes, 
this diplomat, can hear it. And what does the President say? 
Does he say: How is that reform coming? How is the attack on 
corruption going?
    No. He just says: Is he going to do the investigation? Is 
Zelensky going to do the investigation? And Sondland says: Yes. 
He will do anything you want. He loves your ass.
    This is the extent of the President's interest in Ukraine. 
They go on to talk about other things, and then they hang up. 
And David Holmes turns to the Ambassador and says--in language 
which I will have to modify to remove an expletive--says 
something along the lines of: Does the President give a 
``blank'' about Ukraine? And Sondland says: No. He doesn't give 
a ``blank'' about Ukraine. He only cares about the big stuff, 
like the investigation of the Bidens that Giuliani wants.
    This is a million-dollar donor to the Trump inaugural 
admitting the President doesn't care about Ukraine. He doesn't 
care whether they get military dollars to defend themselves. He 
doesn't care about what position Zelensky goes into in these 
negotiations with Putin. He doesn't care about that.
    Isn't that clear? It is why he didn't care about corruption 
in 2017 or 2018, and he certainly didn't care about it in 2019. 
All he cared about was the big stuff that affected him 
personally, like this investigation that he wanted of the 
Bidens.
    So we do ask: Do you want to see these documents? Do you 
want to know if these documents corroborate Ambassador 
Sondland? Will the documents show, as we fully expect they 
will, that the only thing he cared about was the big stuff that 
affected him?
    David Holmes' response was: Well, you know, there is some 
big stuff going on here, like the war with Russia. This isn't 
withholding aid because of a revolution in Egypt. This is 
withholding aid from a country in which 15,000 people have died 
fighting the Russians, and as Ambassador Taylor said and 
others: You know, Russia is fighting to remake the map of 
Europe by dint of military force.
    If we think that is just about Ukraine's security, we are 
very deceived. It is about our security. It is about the tens 
of thousands of troops we have in Europe. And if we undercut 
our own ally, if we give Russia reason to believe we will not 
have their back, that we will use Ukraine as a play thing or 
worse to get them to help us cheat in an election, that will 
only embolden Putin to do more.
    You said it as often as I have--the only thing he respects 
is strength. You think that looks like strength to Vladimir 
Putin? I think that looks like something that Vladimir Putin is 
only too accustomed to, and that is the kind of corruption that 
he finds and perpetuates in his own regime and pushes all 
around the world.
    My colleague Val Demings made reference to a conversation 
which I think is one of the other key vignettes in this whole 
sad saga, and that is a conversation that Ambassador Volker had 
with Andriy Yermak, one of the top aides to President Zelensky.
    This is a conversation in which Ambassador Volker is doing 
exactly what he is supposed to be doing, which is he is telling 
Yermak: You know, you guys shouldn't really do this 
investigation of your former President Poroshenko because it 
would be for a political reason. You really shouldn't engage in 
political investigations. And as Representative Demings said: 
What is the response of the Ukrainians? Oh, you mean like the 
one you want us to do of the Bidens and the Clintons. Threw it 
right back in his face. Ukraine is not oblivious to that 
hypocrisy.
    Mr. Sekulow says: What are we here for? You know, part of 
our strength is not only our support for our allies, it is not 
only our military might, it is what we stand for.
    We used to stand for the rule of law. We used to champion 
the rule of law around the world. Part of the rule of law is, 
of course, that no one is above the law.
    But to be out in Ukraine or anywhere else in the world 
championing the rule of law and saying don't engage in 
political prosecutions and having them throw it right back in 
our face: Oh, you mean like the one you want us to do--that is 
why we are here. That is why we are here. That is why we are 
here.
    I yield back.
    Mr. McCONNELL. Mr. Chief Justice.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I send a motion to the 
desk to table the amendment, and I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There is a sufficient second.
    The clerk will call the roll.
    The legislative clerk proceeded to call the roll.
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 17]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1287

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to issue a subpoena to John Michael ``Mick'' Mulvaney, and 
I ask that it be read.
    The CHIEF JUSTICE. The clerk will report.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1287.

         (Purpose: To subpoena John Michael ``Mick'' Mulvaney)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials, the Chief Justice of the 
United States, through the Secretary of the Senate, shall issue a 
subpoena for the taking of testimony of John Michael ``Mick'' Mulvaney, 
and the Sergeant at Arms is authorized to utilize the services of the 
Deputy Sergeant at Arms or any other employee of the Senate in serving 
the subpoena authorized to be issued by this section.

    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
for a 30-minute recess before the parties are recognized to 
debate the Schumer amendment.
    Following the debate time, I will once again move to table 
the amendment because those witnesses and evidence, as I 
repeatedly said, are addressed in the underlying resolution.
                                ------                                


                                 RECESS

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Senate stand in recess until 8 p.m.
    There being no objection, at 7:31 p.m., the Senate, sitting 
as a Court of Impeachment, recessed until 8:13 p.m. and 
reassembled when called to order by the Presiding Officer, the 
Chief Justice.
    The CHIEF JUSTICE. Mr. Schiff, are you in favor of the 
motion or opposed?
    Mr. Manager SCHIFF. In favor, Your Honor.
    The CHIEF JUSTICE. Mr. Cipollone?
    Mr. Counsel CIPOLLONE. We are opposed.
    The CHIEF JUSTICE. Mr. Schiff, the managers will go first 
and are able to reserve time for rebuttal.
    Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished 
Members of the Senate, counsel for the President, my name is 
Hakeem Jeffries, and I have the honor of representing the 8th 
Congressional District of New York, in Brooklyn and Queens. It 
is one of the most diverse districts in the Nation. In fact, I 
have been told that I have the 9th most African-American 
district in the country and the 16th most Jewish.
    Here on the Hill, some folks have said: Hakeem, is that 
complicated?
    But as my friend Leon Goldenberg says back at home: Hakeem, 
you have the best of both worlds.
    You see, in America, our diversity is a strength; it is not 
a weakness. And one of the things that binds us together--all 
of us--as Americans, regardless of race, regardless of 
religion, regardless of region, regardless of sexual 
orientation, and regardless of gender is that we believe in the 
rule of law and the importance of a fair trial.
    The House managers strongly support this amendment to 
subpoena witness testimony, including with respect to Mick 
Mulvaney.
    Who has ever heard of a trial with no witnesses? But that 
is exactly what some are contemplating here today. [Slide 83] 
This amendment would address that fundamental flaw. It would 
ensure that the trial includes testimony from a key witness: 
the President's Acting Chief of Staff and head of the Office of 
Management and Budget, Mick Mulvaney, and it would ensure that 
the Senate can consider his testimony immediately.
    Let's discuss why the need to hear from Mick Mulvaney is so 
critical.
    First, Leader McConnell's resolution undercuts more than 
200 years of Senate impeachment trial practice. [Slide 84] It 
departs from every impeachment trial conducted to date. It goes 
against the Senate's own longstanding impeachment rules, which 
contemplate the possibility of new witness testimony. In fact, 
it departs from any criminal or civil trial procedure in 
America. Why should this President be held to a different 
standard?
    Second, the proposed amendment for witness testimony is 
necessary in light of the President's determined effort to bury 
the evidence and cover up his corrupt abuse of power.
    The House tried to get Mr. Mulvaney's testimony. We 
subpoenaed him. Mr. Mulvaney, together with other key 
witnesses--National Security Advisor John Bolton, senior White 
House aide Robert Blair, Office of Management and Budget 
official Michael Duffey, and National Security Council lawyer 
John Eisenberg--were called to testify before the House as part 
of this impeachment inquiry, but President Trump was determined 
to hide from the American people what they had to say. The 
President directed the entire executive branch and all of his 
top aides and advisers to defy all requests for their 
testimony. That cannot be allowed to stand.
    Third, Mr. Mulvaney is a highly relevant witness to the 
events at issue in this trial. Mr. Mulvaney was at the center 
of every stage of the President's substantial pressure campaign 
against Ukraine. Based on the extensive evidence the House did 
obtain, it is clear that Mulvaney was crucial in planning the 
scheme, executing its implementation, and carrying out the 
coverup.
    Emails and witness testimony show that Mr. Mulvaney was in 
the loop on the President's decision to explicitly condition a 
White House meeting on Ukraine's announcement of investigations 
beneficial to the President's reelection prospects.
    He was closely involved in implementing the President's 
hold on the security assistance and subsequently admitted that 
the funds were being withheld to put pressure on Ukraine to 
conduct one of the phony political investigations that the 
President wanted--phony political investigations.
    A trial would not be complete without the testimony of Mick 
Mulvaney. Make no mistake. The evidentiary record that we have 
built is powerful and can clearly establish the President's 
guilt on both of the Articles of Impeachment, but it is hardly 
complete. The record comes to you without the testimony of Mr. 
Mulvaney and other important witnesses.
    That brings me to one final preliminary observation. The 
American people agree that there cannot be a fair trial without 
hearing from witnesses who have relevant information to 
provide.
    The Constitution, our democracy, the Senate, the President 
and, most importantly, the American people deserve a fair 
trial. A fair trial requires witnesses in order to provide the 
truth, the whole truth, and nothing but the truth. That is why 
this amendment should be adopted.
    Before we discuss Mr. Mulvaney's knowledge of the 
President's geopolitical shakedown, it is important to note 
that an impeachment trial without witnesses would be a stunning 
departure from this institution's past practice.
    This distinguished body [Slide 85] has conducted 15 
impeachment trials. All have included witnesses. Sometimes 
those trials included just a handful of witnesses, as indicated 
on the screen. At other times, they included dozens. In one 
case, there were over 100 different witnesses.
    As the slide shows, the average number of witnesses to 
appear at a Senate impeachment trial is 33, and in at least 3 
of those instances, including the impeachment of Bill Clinton, 
witnesses appeared before the Senate who had not previously 
appeared before the House. That is because the Senate, this 
great institution, has always taken its responsibility to 
administer a fair trial seriously. The Senate has always taken 
its duty to obtain evidence, including witness testimony, 
seriously. The Senate has always taken its obligation to 
evaluate the President's conduct based on a full body of 
available information seriously. This is the only way to ensure 
fundamental fairness for everyone involved.
    Respectfully, it is important to honor that unbroken 
precedent today so that Mr. Mulvaney's testimony, without fear 
or favor as to what he might say, can inform this distinguished 
body of Americans.
    This amendment is also important to counter the President's 
determination to bury the evidence of high crimes and 
misdemeanors.
    As we have explained in detail today, despite considerable 
efforts by the House to obtain relevant documents and 
testimony, [Slide 86] President Trump has directed the entire 
executive branch to execute a coverup. He has ordered the 
entire administration to ignore the powers of Congress's 
separate and coequal branch of government to investigate his 
offenses in a manner that is unprecedented in American history.
    There were 71 requests by the House for relevant evidence. 
In response, the White House produced zero documents in this 
impeachment inquiry--71 requests, 0 documents.
    President Trump is personally responsible for depriving the 
Senate of information important to consider in this trial. This 
point cannot be overstated. When faced with a congressional 
impeachment inquiry, a process expressly set forth by the 
Framers of the Constitution in article I, the President refused 
to comply in any respect, and he ordered his senior aides to 
fall in line.
    As shown on the slide, [Slide 4] as a result of President 
Trump's obstruction, 12 key witnesses, including Mr. Mulvaney, 
refused to appear for testimony in the House's impeachment 
inquiry. No one has heard what they have to say. These 
witnesses include central figures in the abuse of power charged 
in article I. What is the President hiding?
    Equally troublesome, President Trump and his administration 
did not make any legitimate attempts to reach a reasonable 
accommodation with the House or compromise regarding any 
document requests or witness subpoenas. Why? Because President 
Donald John Trump wasn't interested in cooperating. He was 
plotting a coverup.
    It is important to take a step back and think about what 
President Trump is doing. Complete and total Presidential 
obstruction is unprecedented in American history. Even 
President Nixon, whose Articles of Impeachment included 
obstruction of Congress, did not block key White House aides 
from testifying in front of Congress during the Senate 
Watergate hearings. In fact, he publicly urged White House 
aides to testify.
    Remember all of those witnesses who came in front of this 
body? Take a look at the screen. John Dean, the former White 
House Counsel, testified for multiple days pursuant to a 
subpoena. H.R. Haldeman, President Nixon's former Chief of 
Staff, was subpoenaed and testified. Alexander Butterfield, the 
White House official who revealed the existence of the tapes, 
testified publicly before the Senate, and so did several 
others. President Trump's complete and total obstruction makes 
Richard Nixon look like a choirboy.
    Two other Presidents have been tried before the Senate. How 
did they conduct themselves?
    William Jefferson Clinton and Andrew Johnson did not block 
any witnesses from participating in the Senate trial. President 
Trump, by contrast, refuses to permit relevant witnesses from 
testifying to this very day.
    Many of President Clinton's White House aides testified in 
front of Congress, even before the commencement of formal 
impeachment proceedings. During various investigations in the 
mid-1990s, the House and the Senate heard from more than two 
dozen White House aides, including the White House Counsel, the 
former Chief of Staff, and multiple senior advisers to 
President Clinton.
    President Clinton himself gave testimony on camera and 
under oath. He also allowed his most senior advisers, including 
multiple Chiefs of Staff and White House Counsels, to testify 
in the investigation that led to his impeachment.
    As you can see in the chart, [Slide 87] their testimony was 
packaged and delivered to the Senate. There were no missing 
witnesses who had defied subpoenas. No aides who had personal 
knowledge of his misconduct were directed to stay silent by 
President Clinton.
    We have an entirely different situation in this case. Here 
we are seeking witnesses the President has blocked from 
testifying before the House. Apparently, President Trump thinks 
he can do what no other President before him has attempted to 
do in such a brazen fashion: float above the law and hide the 
truth from the American people. That cannot be allowed to 
stand.
    Let me now address some bedrock principles about the 
Congress's authority to conduct investigations. Our broad 
powers of inquiry are at their strongest during an impeachment 
proceeding, when the House and Senate exercise responsibilities 
expressly set forth in article I of the Constitution.
    Nearly 140 years ago, [Slide 88] the Supreme Court 
recognized that, when the House or Senate is determining a 
question of impeachment, there is 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. Our Nation's 
Founders and greatest legal minds recognized these principles 
early on. Supreme Court Justice Joseph Story [Slide 89] 
explained that the President should not have the power of 
preventing a thorough investigation of his conduct or of 
securing himself against the disgrace of a public conviction by 
impeachment, if he should deserve it.
    President Trump cannot function as judge, jury, and 
executioner of our democracy. It wasn't just the courts that 
confirmed this for us. It was some of our Nation's leading 
public servants. [Slide 90] Representative John Quincy Adams, 
speaking on the floor of the House, after he had served as 
President, once explained: ``What mockery would it be for the 
Constitution of the United States to say that the House should 
have the power of impeachment, extending even to the President 
of the United States himself, and yet to say that the House had 
not the power to obtain the evidence and proofs on which their 
impeachment was based.''
    As Hamilton, Story, Adams, and others have recognized, the 
President cannot insulate himself from Congress's 
investigations of his wrongdoing. If the President could decide 
what evidence gets to be presented in his own trial, that would 
fundamentally nullify the constitutional power of impeachment.
    This amendment is important because President Trump simply 
cannot be allowed to hide the truth. No other President has 
done it; [Slide 91] the Supreme Court does not allow it; and 
the President is not above the law.
    Witnesses matter. Documents matter. Evidence matters. The 
truth matters.
    Let me now turn to the third justification for this 
amendment. [Slide 92] Mr. Mulvaney's testimony is critical to 
considering the case for removal. It is imperative that we hear 
from the President's closest aide, a man intimately involved at 
key stages of this extraordinary abuse of power. President 
Trump knows this. Why else would he be trying so hard to 
prevent Mick Mulvaney from testifying before you?
    There are at least four reasons why Mr. Mulvaney's 
testimony is critical. To begin with, as Acting White House 
Chief of Staff and head of the Office of Management and Budget, 
[Slide 93] Mick Mulvaney has firsthand knowledge about 
President Trump's efforts to shake down Ukraine and pressure 
its new President into announcing phony investigations.
    Mr. Mulvaney was in the loop at each critical stage of 
President Trump's scheme. He was in the loop in the planning of 
the scheme; he was in the loop in its implementation; and he 
was in the loop when the scheme fell apart. He even admitted 
publicly that the aid was withheld in order to pressure Ukraine 
into announcing an investigation designed to elevate the 
President's political standing.
    Mr. Mulvaney, perhaps more than any other administration 
witness, excepting the President, has firsthand insight into 
the decision to withhold $391 million in military and security 
aid to a vulnerable Ukraine without justification. Indeed, our 
investigation revealed that President Trump personally ordered 
Mr. Mulvaney to execute the freeze in July of 2019. Mr. 
Mulvaney holds the senior-most staff position at the White 
House. He is a member of President Trump's Cabinet, and he is 
responsible for President Trump's team at 1600 Pennsylvania 
Avenue. He remains the Director of the Office of Management and 
Budget, which implemented the hold on the security assistance, 
in violation of the law, as the Government Accountability 
Office recently concluded.
    In short, respectfully, the Senate's responsibility to 
conduct a complete and fair trial demands that Mr. Mulvaney 
testify.
    Second, Mr. Mulvaney's testimony is critical because of his 
knowledge of the planning of President Trump's abuse of power. 
Ambassador Gordon Sondland, [Slide 94] the U.S. Ambassador to 
the European Union, testified that there was a quid pro quo. 
Ambassador Sondland is not a so-called Never Trumper. Mr. 
Sondland gave $1 million to President Trump's inauguration.
    He testified that everybody was in the loop and that it was 
no secret what was going on. In fact, as early as May of 2019, 
Ambassador Sondland made clear that he was coordinating on 
Ukraine matters with Mr. Mulvaney.
    Here is what David Holmes, an official at the U.S. Embassy 
in Ukraine, had to say on that matter:
    (Text of Videotape presentation:)

    Mr. HOLMES. While Ambassador Sondland's mandate as the 
accredited Ambassador to the European Union did not cover 
individual member states, let alone nonmember countries like 
Ukraine, he made clear that he had direct and frequent access 
to President Trump and Chief of Staff Mick Mulvaney and 
portrayed himself as the conduit to the President and Mr. 
Mulvaney for this group.

    Mr. Manager JEFFRIES. After the U.S. delegation returned 
from the inauguration of the new Ukrainian President in April, 
they were able to secure an Oval Office meeting with President 
Trump to brief him on their trip, in part because of Ambassador 
Sondland's connections to Mick Mulvaney.
    Then, during a June 18, 2019, meeting, Ambassador Sondland 
informed National Security Council Senior Director Dr. Fiona 
Hill that he was in charge of Ukraine and that he had been 
briefing senior White House officials, including Mr. Mulvaney, 
about his efforts to undertake, as Dr. Hill put it, a domestic 
political errand in Ukraine.
    Here is Dr. Hill explaining this herself.
    (Text of Videotape presentation:)

    Dr. HILL. So I was upset with him that he wasn't fully 
telling us about all of the meetings that he was having. And he 
said to me, But I'm briefing the President, I'm briefing Chief 
of Staff Mulvaney, I'm briefing Secretary Pompeo, and I talked 
to Ambassador Bolton. Who else do I have to deal with? And the 
point is, we have a robust interagency process that deals with 
Ukraine. It includes Mr. Holmes. It includes Ambassador Taylor 
as the charge in Ukraine. It includes a whole load of other 
people. But it struck me when yesterday, when you put up on the 
screen Ambassador Sondland's emails and who was on these 
emails, and he said, These are the people who need to know, 
that he was absolutely right. Because he was being involved in 
a domestic political errand, and we were being involved in 
national security foreign policy, and those two things had just 
diverged.

    Mr. Manager JEFFRIES. And there is more--much more. A month 
later, President Trump's National Security Advisor at the time, 
John Bolton, told Dr. Fiona Hill to tell the National Security 
Council's lawyers that he was not part of whatever drug deal 
Sondland and Mulvaney were cooking up. He made that statement 
after Ambassador Sondland specifically said that he had a deal 
with Mr. Mulvaney to schedule a White House visit for President 
Zelensky if Ukraine announced the two phony investigations 
involving the Bidens and 2016 election interference--
investigations that were sought by President Donald John Trump.
    Here is Dr. Hill's testimony about Sondland describing this 
drug deal he had with Mulvaney.
    (Text of Videotape presentation:)

    Dr. HILL. And so when I came in, Gordon Sondland was 
basically saying, well, look, we have a deal here that there 
will be a meeting. I have a deal here with Chief of Staff 
Mulvaney that there will be a meeting if the Ukrainians open up 
or announce these investigations into 2016 and Burisma. And I 
cut it off immediately there. Because by this point, having 
heard Mr. Giuliani over and over again on the television and 
all of the issues that he was asserting, by this point it was 
clear that Burisma was code for the Bidens, because Giuliani 
was laying it out there. I could see why Colonel Vindman was 
alarmed, and he said, this is inappropriate, we're the National 
Security Council, we can't be involved in this.

    Mr. Manager JEFFRIES. The referenced agreement between 
Ambassador Sondland and Mick Mulvaney was so upsetting that Dr. 
Hill reported it to National Security Council legal advisers. 
Here is the testimony of Dr. Hill explaining these particular 
concerns.
    (Text of Videotape presentation:)

    Dr. HILL. Yes, but he was--he was making a very strong 
point that he wanted to know exactly what was being said. And 
when I came back and related it to him, he had some very 
specific instructions for me. And I'm presuming that that's the 
question that you're asking.
    Mr. GOLDMAN. What was that specific instruction?
    Dr. HILL. The specific instruction was that I had to go to 
the lawyers, to John Eisenberg, our senior counsel for the 
National Security Council, to basically say, you tell 
Eisenberg, Ambassador Bolton told me that I am not part of this 
whatever drug deal that Mulvaney and Sondland are cooking up.
    Mr. GOLDMAN. What did you understand him to mean by the 
drug deal that Mulvaney and Sondland were cooking up?
    Dr. HILL. I took it to mean investigations for a meeting.
    Mr. GOLDMAN. Did you go speak to the lawyers?
    Dr. HILL. I certainly did.

    Mr. Manager JEFFRIES. Sondland's testimony not only 
corroborates Dr. Hill's account. He actually says that Mick 
Mulvaney, the subject of this amendment, who should appear 
before the Senate if we are going to have a free and fair 
trial--Sondland says Mick Mulvaney knew all about it.
    (Text of Videotape presentation:)

    The CHAIRMAN. What I want to ask you about is, he makes 
reference in that drug deal to a drug deal cooked up by you and 
Mulvaney. It's the reference to Mulvaney that I want to ask you 
about. You've testified that Mulvaney was aware of this quid 
pro quo, of this condition that the Ukrainians had to meet, 
that is, announcing these public investigations to get the 
White House meeting. Is that right?
    Ambassador SONDLAND. Yeah. A lot of people were aware of 
it. And--
    The CHAIRMAN. Including Mr. Mulvaney?
    Ambassador SONDLAND. Correct.

    Mr. Manager JEFFRIES. The documents also highlight the 
extensive involvement of Mick Mulvaney in this geopolitical 
shakedown scheme. Email messages summarized by Ambassador 
Sondland during his sworn testimony show that he informed Mr. 
Mulvaney, as well as Secretary Pompeo and Secretary Perry, of 
his efforts to persuade President Zelensky to announce the 
investigations desired by President Trump.
    For example, as shown on the screen, [Slide 95] on July 19, 
Ambassador Sondland emailed several top administration 
officials, including Mr. Mulvaney, stating that he had talked 
to President Zelensky to help prepare him for a phone call with 
President Trump, and he reported that President Zelensky 
planned to assure President Trump that he intends to run a 
fully transparent investigation and will turn over every stone.
    Ambassador Sondland made clear in his testimony that he was 
referring to the Burisma/Biden and 2016 election interference 
investigations that were explicitly mentioned by President 
Trump on the July 25 phone call.
    Mr. Mulvaney wrote in a response: I asked NSC to set it up.
    What exactly did Mr. Mulvaney know about the Ukrainian 
commitment to turn over every stone? And when did he know it?
    These are many of the questions that require answers, under 
oath, from Mr. Mulvaney. Mr. Mulvaney is also a central figure 
with respect to how President Trump implemented his pressure 
campaign.
    According to public reports and witness testimony, Mr. 
Mulvaney was deeply involved with implementing the scheme, 
including the unlawful White House freeze on $391 million in 
aid to Ukraine.
    This isn't just other people fingering Mr. Mulvaney. Mr. 
Mulvaney has himself admitted that he was involved.
    (Text of Videotape presentation:)

    Mr. MULVANEY. Again, I was involved with the process by 
which the money was held up temporarily, okay?

    Mr. Manager JEFFRIES. The public reports confirm Mr. 
Mulvaney's own account that he has information that goes to the 
heart of this inquiry, specifically related to why the 
President ordered the hold on aid to Ukraine and kept it in 
place, despite deep-seated concerns among Trump administration 
officials.
    This New York Times article on the screen [Slide 96] 
summarizes an email conversation between Mr. Mulvaney and 
Robert Blair, a senior administration adviser, on June 27, when 
Mr. Mulvaney asked: ``Did we ever find out about the money for 
Ukraine and whether we can hold it back?''
    What prompted that email? According to public reports, Mr. 
Mulvaney was on Air Force One--Air Force One--with President 
Trump when he sent it. What other conversations did Mr. 
Mulvaney have with the President and White House officials 
about this unlawful freeze? The American people deserve to 
know.
    There is other significant evidence concerning Mr. 
Mulvaney's role in implementing the scheme. According to 
multiple witnesses, the direction to freeze the security 
assistance to Ukraine was delivered by Mick Mulvaney himself.
    Office of Management and Budget official Mark Sandy [Slide 
97] testified about a July 12 email from Mr. Blair stating that 
President Trump ``is directing a hold on military support 
funding for Ukraine.''
    Was Mr. Blair acting at Mr. Mulvaney's express direction? 
The Members of this distinguished body deserve to know.
    On July 18, the hold was announced to the agencies in the 
administration overseeing Ukraine policy matters. Those present 
were blindsided by the announcement that the security aid 
appropriated by this Congress on a bipartisan basis to Ukraine, 
which is still at war with Russian-backed separatists in the 
east, were alarmed that that aid had inexplicably been put on 
hold.
    Meanwhile, officials at the Defense Department and within 
the Office of Management and Budget became increasingly 
concerned that the hold also violated the law. Their concerns 
turned out to be accurate.
    Public reports have indicated that the White House is in 
possession of early August emails, exchanges between Acting 
Chief of Staff Mick Mulvaney and White House budget officials 
seeking to provide an explanation for the funds--an 
explanation, I should note, that they were trying to provide 
after the President had already ordered the hold.
    Mr. Mulvaney presumably has answers to these questions. We 
don't know what those answers are, but he should provide them 
to this Senate and to the American people.
    Finally, on October 17, 2019, at a press briefing at the 
White House, Mr. Mulvaney left no doubt that President Trump 
withheld the essential military aid as leverage to try to 
extract phony political investigations as part of his effort to 
solicit foreign interference in the 2020 election.
    This was an extraordinary press conference. Mr. Mulvaney 
made clear that the President was, in fact, pressuring Ukraine 
to investigate the conspiracy theory that Ukraine, rather than 
Russia, had interfered in the 2016 election--a conspiracy 
theory promoted by none other than the great purveyor of 
democracy, Vladimir Putin himself.
    When White House reporters attempted to clarify this 
acknowledgement of a quid pro quo related to security 
assistance, Mr. Mulvaney replied, ``We do that all the time 
with foreign policy. I have news for everybody: get over it.''
    Let's listen to a portion of that stunning exchange.
    (Text of Videotape presentation:)

    Mr. MULVANEY. Did he also mention to me in the past that the 
corruption related to the DNC server, absolutely. No question about 
that. But that's it. And that's why we held up the money. Now there was 
a report--
    REPORTER. So the demand for an investigation into the Democrats was 
part of the reason that he wanted to withhold funding to Ukraine.
    Mr. MULVANEY. The look back to what happened in 2016--
    REPORTER. The investigation into Democrats--
    Mr. MULVANEY. --certainly was part of the thing he was worried 
about in corruption with that nation. That is absolutely appropriate.
    REPORTER. But to be clear, what you just described is a quid pro 
quo. It is: Funding will not flow unless the investigation into the 
Democratic server happens as well.
    Mr. MULVANEY. We do that all the time with foreign policy. We were 
holding money at the same time for--what was it? The Northern Triangle 
countries. We were holding up aid at the Northern Tribal countries so 
that they would change their policies on immigration. By the way--and 
this speaks to an important point--I'm sorry? This speaks to an 
important point, because I heard this yesterday and I can never 
remember the gentleman who testified. Was it McKinney, the guy--was 
that his name? I don't know him. He testified yesterday. And if you 
go--and if you believe the news reports--okay? Because we've not seen 
any transcripts of this. The only transcript I've seen was Sondland's 
testimony this morning. If you read the news reports and you believe 
them--what did McKinney say yesterday? Well, McKinney said yesterday 
that he was really upset with the political influence in foreign 
policy. That was one of the reasons he was so upset about this. And I 
have news for everybody: Get over it. There's going to be political 
influence in foreign policy.

    Mr. Manager JEFFRIES. In this extraordinary press 
conference, Mr. Mulvaney spoke with authority and conviction 
about why President Trump withheld the aid. He did not mince 
his words. But then following the press conference, he tried to 
walk back his statements, as if he had not said them, or had 
not meant them. We need to hear from Mick Mulvaney directly so 
he can clarify his true intentions.
    Having gone through the need for the evidence, let's 
briefly address the President's arguments that he can block 
this testimony. That argument is not only wrong, it 
fundamentally undermines our system of checks and balances.
    Step back for a moment and consider the extraordinary 
position that President Trump is trying to manufacture for 
himself.
    The Department of Justice has already said that the 
President cannot be indicted or prosecuted in office. As we sit 
here today, [Slide 98] the President has actually filed a brief 
in the Supreme Court saying he cannot be criminally 
investigated while in the White House.
    The Senate and the House are the only check that is left 
when the President abuses his power, tries to cheat in the next 
election, undermines our national security, breaks the law in 
doing so, and then tries to cover it up. This is America. No 
one is above the law.
    But if the President is allowed to determine whether he is 
even investigated by Congress, if he is allowed to decide 
whether he should comply with lawful subpoenas in connection 
with an impeachment inquiry or trial, then he is the ultimate 
arbiter of whether he did anything wrong. That cannot stand.
    If he can't be indicted, and he can't be impeached, and he 
can't be removed, then he can't be held accountable. That is 
inconsistent with the U.S. Constitution.
    You will no doubt hear that the reason the President 
blocked all of these witnesses, including Mr. Mulvaney, from 
testifying is because of some lofty concern for the Office of 
the Presidency and the preservation of executive privilege.
    Let's get real. How can blocking witnesses from telling the 
truth about the President's misconduct help preserve the Office 
of the Presidency? This type of blanket obstruction undermines 
the credibility of the Office of the Presidency and deals the 
Constitution a potentially mortal death blow.
    To be clear, [Slide 99] executive privilege does not 
provide a legally justifiable basis for his complete and total 
blockage of evidence. In fact, as you heard earlier today, 
President Trump never even invoked executive privilege--not 
once. And without ever asserting this privilege, how can you 
consider his argument in a serious fashion?
    Instead, speaking through Mr. Cipollone, the distinguished 
White House Counsel, in a letter dated October 8, 2019, 
President Trump simply decided that he did not want to 
participate in the investigation into his own wrongdoing.
    It was a categorical decision not to cooperate, without 
consideration of specific facts or legal arguments. In fact, 
even the words President Trump used through his White House 
Counsel were made up.
    In the letter, Mr. Cipollone referred to so-called 
``executive branch confidentiality interests.'' But that is not 
a recognized jurisprudential shield, not a proper assertion of 
executive privilege. To the extent that there are privilege 
issues to consider, those can be resolved during their 
testimony, as they have been for decades.
    And finally, the President claimed that Mr. Mulvaney could 
not be compelled to testify because of so-called absolute 
immunity. [Slide 99] But every court to address this legal 
fiction has rejected it.
    As the Supreme Court emphatically stated, in unanimous 
fashion, in its decision on the Nixon tapes, confidentiality 
interests of the President must yield to an impeachment inquiry 
when there is a legitimate need for the information, as there 
is here today.
    There can be no doubt that Mr. Mulvaney, as the President's 
Chief of Staff and head of the Office of Management and Budget, 
is uniquely situated to provide this distinguished body with 
relevant and important information about the charges in the 
Articles of Impeachment.
    The President's obstruction has no basis in law and should 
yield to this body's coequal authority to investigate 
impeachable and corrupt conduct.
    One final point bears mentioning. If the President wanted 
to make witnesses available, even while preserving the limited 
protections of executive privilege, he can do so. In fact, 
President Trump expressed his desire for witnesses to testify 
in the Senate just last month. [Slide 100]
    Let's go to the videotape.
    (Text of Videotape presentation:)

    President TRUMP. So, when it's fair, and it will be fair in 
the Senate, I would love to have Mike Pompeo, I'd love to have 
Mick, I'd love to have Rick Perry and many other people 
testify.

    Mr. Manager JEFFRIES. If President Trump had nothing to 
hide, as he and his advisers repeatedly claim, they should all 
simply testify in the Senate trial. What is President Donald 
John Trump hiding from the American people?
    The Constitution requires a fair trial. Our democracy needs 
a fair trial.
    The American people deserve a fair trial. A fair trial 
means witnesses. A fair trial means documents. A fair trial 
means a consideration of all of the available evidence. A fair 
trial means testimony from Mick Mulvaney.
    Mr. Chief Justice, the House managers reserve the balance 
of our time.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Thank you.
    Mr. Mike Purpura from the White House Counsel's Office, 
Deputy Counsel to the President, will give the argument.
    Mr. Counsel PURPURA. Mr. Chief Justice, Members of the 
Senate, good evening. My name is Michael Purpura. I serve as 
Deputy Counsel to the President.
    We strongly oppose the amendments and support the 
resolution. There is simply no need to alter the process on 
witnesses and documents from that of the Clinton trial, which 
was supported by this body 100 to 0.
    At its core, this case is very simple, and the key facts 
are undisputed.
    First, you have seen the transcripts which the President 
released--transparent and unprecedented. There was no quid pro 
quo for anything. Security assistance funds aren't even 
mentioned on the call.
    Second, President Zelensky and the highest ranking 
officials in the Ukrainian Government repeatedly have said 
there was no quid pro quo and there was no pressure.
    Third, the Ukrainians were not even aware of the pause in 
the aid at the time of the call and weren't aware of it--they 
did not become aware of it until more than a month later.
    Fourth, the only witnesses in the House record who actually 
spoke to the President about the aid--Ambassador Sondland and 
Senator Ron Johnson--say the President was unequivocal in 
saying there was no quid pro quo.
    Fifth, and this one is pretty obvious, the aid flowed and 
President Trump and President Zelensky met without any 
investigations started or announced.
    Finally--and I ask that you not lose sight of the big 
picture here--by providing lethal aid to Ukraine, President 
Trump has proven himself to be a better friend and ally to 
Ukraine than his predecessor.
    The time for the House managers to bring their case is now. 
They had their chance to develop their evidence before they 
sent the Articles of Impeachment to this Chamber. This 
Chamber's role is not to do the House's job for it.
    I yield the balance of my time to Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
    Just a couple of observations. First of all, as Mr. Purpura 
said, what we are talking about is when this question is 
addressed. Under the resolution, that will be next week. This 
resolution was accepted 100 to 0. Some of you were here then 
and thought it was great. If we keep going like this, it will 
be next week. For those of you keeping score at home, they 
haven't even started yet.
    We are here today. We came hoping to have a trial. They 
spent the entire day telling you and the American people that 
they can't prove their case. I could have told you that in 5 
minutes and saved us all a lot of time.
    They came here talking about the GAO. It is an organization 
that works for Congress. Do you know who disagrees with the 
GAO? Don't take it from me; they do. They sent you Articles of 
Impeachment that make no claim of any violation of any law.
    By the way, you can search high and low in the Articles of 
Impeachment, and you know what it doesn't say? It doesn't say 
``quid pro quo'' because there wasn't any. Only in Washington 
would someone say that it is wrong when you don't spend 
taxpayer dollars fast enough even if you spend them on time.
    Let's talk about the Judiciary Committee for a second. They 
spent 2 days in the Judiciary Committee--2 days. The Judiciary 
Committee is supposed to be in charge of impeachments. The 
delivery time for the articles they have produced was 33 days. 
I think this might be the first impeachment in history where 
the delivery time was longer than the investigation in the 
Judiciary Committee.
    They come here and falsely accuse people--by the way, they 
falsely accused you. You are on trial now. They falsely accused 
people of phony political investigations. Really. Since the 
House Democrats took over, that is all we have had from them. 
They have used their office and all the money that the 
taxpayers send to Washington to pay them to conduct phony 
political investigations against the President, against his 
family, against anyone who knew him. They started impeaching 
him the minute he was elected. They weaponized the House of 
Representatives to investigate incessantly their political 
opponent. And they come here and make false allegations of 
phony political investigations. I think the doctors call that 
projection. It is time for it to end. It is time for someone--
for the Senate to hold them accountable.
    Think about what they are asking. I said it; they didn't 
deny it. They are trying to remove President Trump's name from 
the ballot, and they can't prove their case. They have told you 
that all day long. Think about what they are asking some of you 
Senators to do. Some of you are running for President. They are 
asking you to use your office to remove your political opponent 
from the ballot. That is wrong. That is not in the interest of 
our country. And to be honest with you, it is not really a show 
of confidence.
    I suppose we will have this debate again next week if we 
ever get there. It is getting late. I would ask you, 
respectfully, if we could simply start--maybe tomorrow we can 
start, and they can make their argument, and they can, I guess, 
make a case that they once called ``overwhelming.'' We will 
see.
    But this resolution is right, it is fair, and it makes 
sense. You have a right to hear what they have to say before 
you have to decide these critical issues. That is all this is 
about. Is it now or is it a week from now? Seriously, can we 
please start?
    Thank you.
    The CHIEF JUSTICE. Mr. Cipollone, is your side complete?
    Mr. Counsel CIPOLLONE. Yes, we are, Mr. Chief Justice.
    The CHIEF JUSTICE. Thank you.
    The House managers have 14 minutes remaining.
    Mr. Manager JEFFRIES. Counsel to the President indicated 
that we have not charged President Trump with a crime. We have 
charged him with crimes against the U.S. Constitution--high 
crimes and misdemeanors and abuse of power. It strikes at the 
very heart of what the Framers of the Constitution were 
concerned about--betrayal of one's oath of office for personal 
gain and the corruption of our democracy. High crimes and 
misdemeanors are what this trial is all about.
    Counsel for the President again has declined to address the 
substantive merits of the amendment that has been offered and 
tried to suggest that House Democrats have only been focused on 
trying to oust President Trump. Nothing could be further from 
the truth.
    In the last year, we passed 400 bills and sent them to this 
Chamber, and 275 of those bills are bipartisan in nature, 
addressing issues like lowering healthcare costs and 
prescription drug prices, trying to deal with the gun violence 
epidemic. We have worked with President Trump on criminal 
justice reform. I personally worked with him, along with all of 
you, on the First Step Act. We worked with him on the U.S.-
Mexico-Canada trade agreement. We worked with him to fund the 
government. We don't hate this President, but we love the 
Constitution. We love America. We love our democracy. That is 
why we are here today.
    The question was asked by Mr. Sekulow as he opened before 
this distinguished body: Why? Why are we here?
    Let me see if I can just posit an answer to that question. 
We are here, sir, because President Trump pressured a foreign 
government to target an American citizen for political and 
personal gain. We are here, sir, because President Trump 
solicited foreign interference in the 2020 election and 
corrupted our democracy. We are here, sir, because President 
Trump withheld $391 million in military aid from a vulnerable 
Ukraine without justification in a manner that has been deemed 
unlawful. We are here, sir, because President Donald Trump 
elevated his personal political interests and subordinated the 
national security interests of the United States of America. We 
are here, sir, because President Trump corruptly abused his 
power, and then he tried to cover it up. And we are here, sir, 
to follow the facts, apply the law, be guided by the 
Constitution, and present the truth to the American people. 
That is why we are here, Mr. Sekulow. And if you don't know, 
now you know.
    I yield to my distinguished colleague, Chairman Schiff.
    Mr. Manager SCHIFF. I thank the gentleman for yielding and 
just want to provide a couple of quick fact checks to my 
colleagues at the other table.
    First, Mr. Purpura said that security assistance funds were 
not mentioned at all in the July 25 call between President 
Trump and President Zelensky. Let's think back to what was 
discussed in that call. You might remember from that call that 
President Zelensky thanks President Trump for the Javelin anti-
tank weapons and says they are ready to order some more.
    And what is President Trump's immediate response?
    I have a favor to ask, though.
    What was it about the President of Ukraine's bringing up 
military assistance that triggered the President to go 
immediately to the favor that he wanted? I think that it is 
telling that it takes place in that part of the conversation.
    So, yes, security assistance, military assistance did come 
up in that call. It came up immediately preceding the ask. What 
kind of message do you think that sends to Ukraine? They are 
not stupid. The people watching this aren't stupid.
    Now, Mr. Purpura said: Well, they never found out about 
it--or they didn't find out about the freeze of the aid until a 
month later. Mr. Purpura needs to be a little more careful with 
his facts. Let me tell you about some of the testimony you are 
going to hear, and you will only hear it because it took place 
in the House. These were other witnesses from whom you wouldn't 
be able to hear it.
    You had Catherine Croft, a witness from the State 
Department, a career official at the State Department, who 
talked about how quickly, actually, after the freeze went into 
place that the Ukrainians found out about it, and she started 
getting contacts from the Ukrainian Embassy here in Washington. 
She said she was really impressed with her diplomatic 
tradecraft. What does that mean? It means she was really 
impressed with how quickly the Ukrainians found out about 
something that the administration was trying to hide from the 
American people.
    Ukraine found out about it. In fact, Laura Cooper, a career 
official at the Defense Department, said that her office 
started getting inquiries from Ukraine about the issues with 
the aid on July 25--the very day of the call. So much for 
Ukraine's not finding out about this until a month later.
    I thought this was very telling, too: The New York Times 
disclosed that by July 30--so within a week of the call between 
President Trump and President Zelensky--Ukraine's Foreign 
Ministry received a diplomatic cable from its Embassy, 
indicating that Trump had frozen the military aid. Within a 
week, that cable is reported to have gone from the Ukrainian 
Embassy to the Ukrainian Foreign Ministry.
    Former Ukrainian Deputy Foreign Minister Olena Zerkal said:

    We had this information. It was definitely mentioned that 
there were some issues.

    She went on to say that the cable was simultaneously 
provided to President Zelensky's office, but Andrii Derkach, 
whom you will hear more about later--a top aide to President 
Zelensky--reportedly directed her to keep silent and not 
discuss the hold with reporters or Congress.
    Now, we heard testimony about why the Ukrainians wanted to 
keep it secret that they knew about the hold. You can imagine 
why Zelensky didn't want his own people to know that the 
President of the United States was holding back aid from him. 
What does that look like for a new President of Ukraine who is 
trying to make the case that he is going to be able to defend 
his own country because he has such a great relationship with 
the great patron, the United States? He didn't want the 
Ukrainians to know about it. But do you know? Even more than 
that, he didn't want the Russians to know about it for the 
reasons we talked about earlier. So, yes, the Ukrainians kept 
it close to the vest.
    Mr. Purpura also went on to say: Well, the Ukrainians say 
they don't feel any pressure.
    That is what they say now. Of course, we know that it is 
not true.
    We have had testimony that they didn't want to be used as a 
political pawn in U.S. domestic politics. They resisted it. You 
will hear more testimony about that, about the efforts to push 
back on this public statement--how they tried to water it down 
and how they tried to leave out the specifics of how Giuliani, 
at the President's behest, forced them: You know, no, this 
isn't going to be credible if you don't add in Burisma and if 
you don't add in 2016.
    You will hear about the pressure. They felt it. So why 
isn't President Zelensky now saying he was pressured? Well, can 
you imagine the impact of that? Can you imagine the impact if 
President Zelensky were to acknowledge today: Hell, yes, we 
felt pressured. You would, too. We are at war with Russia for 
crying out loud. Yes, we felt pressured. We needed those 
hundreds of millions in military aid. Do you think I am going 
to say that now? I still can't get in the White House door. 
They let Lavrov in, the Russian Foreign Minister. They let him 
in, but I can't even get in the White House door. Do you think 
I am going to go out now and admit to this scheme?
    I mean, anyone who has watched this President in the last 3 
years knows how vindictive he can be. Do you think it would be 
smart for the President of Ukraine to contradict the President 
of the United States so directly on an issue he is being 
impeached for? That would be the worst form of malpractice for 
the new President of Ukraine. We shouldn't be surprised he 
would deny it. We should be surprised if he were to admit it.
    Let me just end with a couple of observations about Mr. 
Cipollone's comments.
    He says: This is no big deal. We are not talking about when 
we are going to have witnesses--or if we are going to have 
witnesses. We are just talking about when. We are just talking 
about when, as if, well, later, they are going to say: Oh, yes, 
well, we are happy to have the witnesses now. It is just a 
question of when.
    OK. As my colleague said, let's be real. There will be no 
``when.'' Do you think they are going to have an epiphany a few 
days from now and say: OK, we are ready for witnesses? No. No, 
their goal is to get you to say no now, to get you to have the 
trial, and then argue to ``make it go away.'' Let's dismiss the 
whole thing.
    That is the plan. A vote to delay is a vote to deny. Let's 
make no mistake about that. They are not going to have an 
epiphany a few days from now and suddenly say: OK, the American 
people do deserve the answers. Their whole goal is that you 
will never get to that point. You will never get to that point. 
When they say when, they mean never.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I make a motion to table 
the amendment, and I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 18]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The majority leader is recognized.

                       UNANIMOUS CONSENT REQUEST

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
to ask the Democratic leader, as there are certain similarities 
to all of these amendments, whether he might be willing to 
enter into a unanimous consent agreement to stack these votes.
    The CHIEF JUSTICE. Without objection, it is so ordered.
    The inquiry is permitted.
    Mr. SCHUMER. Thank you, Mr. Chief Justice.
    The bottom line is very simple.
    As has been clear to every Senator and the country, we 
believe witnesses and documents are extremely important and 
that a compelling case has been made for them. We will have 
votes on all of those.
    Also, the leader, without consulting us, made a number of 
significant changes that significantly deviated from the 1999 
Clinton resolution. We want to change those, so there will be a 
good number of votes. We are willing to do some of those votes 
tomorrow. There is no reason we have to do them all tonight and 
inconvenience the Senate and the Chief Justice, but we will not 
back off on getting votes on all of these amendments, which we 
regard as extremely significant and important to the country.
    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, as I have said 
repeatedly, all of these amendments under the resolution could 
be dealt with at the appropriate time.
    I suggest the absence of a quorum.
    The CHIEF JUSTICE. The clerk will call the roll.
    The senior assistant legislative clerk proceeded to call 
the roll.
    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the order for the quorum call be rescinded.
    The CHIEF JUSTICE. Without objection, it is so ordered.
    Mr. SCHUMER. Mr. Chief Justice.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1288

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to subpoena certain documents and records from the 
Department of Defense, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will read the document.
    The senior assistant legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1288.

   (Purpose: To subpoena certain Department of Defense documents and 
                                records)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials--
          (1) the Chief Justice of the United States, through the 
        Secretary of the Senate, shall issue a subpoena to the 
        Secretary of Defense commanding him to produce, for the time 
        period from January 1, 2019, to the present, all documents, 
        communications, and other records within the possession, 
        custody, or control of the Department of Defense, referring or 
        relating to--
                  (A) the actual or potential suspension, withholding, 
                delaying, freezing, or releasing of United States 
                foreign assistance, military assistance, or security 
                assistance of any kind to Ukraine, including but not 
                limited to the Ukraine Security Assistance Initiative 
                (USAI) and Foreign Military Financing (FMF), including 
                but not limited to--
                          (i) communications among or between officials 
                        at the Department of Defense, White House, 
                        Office of Management and Budget, Department of 
                        State, or Office of the Vice President;
                          (ii) documents, communications, notes, or 
                        other records created, sent, or received by 
                        Secretary Mark Esper, Deputy Secretary David 
                        Norquist, Undersecretary of Defense Elaine 
                        McCusker, and Deputy Assistant Secretary of 
                        Defense Laura Cooper, or Mr. Eric Chewning;
                          (iii) draft or final letters from Deputy 
                        Secretary David Norquist to the Office of 
                        Management and Budget; and
                          (iv) unredacted copies of all documents 
                        released in response to the September 25, 2019, 
                        Freedom of Information Act request by the 
                        Center for Public Integrity (tracking number 
                        19-F-1934);
                  (B) the Ukrainian government's knowledge prior to 
                August 28, 2019, of any actual or potential suspension, 
                withholding, delaying, freezing, or releasing of United 
                States foreign assistance, military assistance, or 
                security assistance to Ukraine, including but not 
                limited to all meetings, calls, or other engagements 
                with Ukrainian officials regarding potential or actual 
                suspensions, holds, or delays in United States 
                assistance to Ukraine, including but not limited to--
                          (i) communications received from the 
                        Department of State concerning the Ukrainian 
                        Embassy's inquiries about United States foreign 
                        assistance, military assistance, and security 
                        assistance to Ukraine; and
                          (ii) communications received directly from 
                        the Ukrainian Embassy about United States 
                        foreign assistance, military assistance, and 
                        security assistance to Ukraine;
                  (C) communications, opinions, advice, counsel, 
                approvals, or concurrences provided by the Department 
                of Defense, Office of Management and Budget, or the 
                White House, on the legality of any suspension, 
                withholding, delaying, freezing, or releasing of United 
                States foreign assistance, military assistance, and 
                security assistance to Ukraine;
                  (D) planned or actual meetings with President Trump 
                related to United States foreign assistance, military 
                assistance, or security assistance to Ukraine, 
                including but not limited to any talking points and 
                notes for Secretary Mark Esper's planned or actual 
                meetings with President Trump on August 16, August 19, 
                or August 30, 2019;
                  (E) the decision announced on or about September 11, 
                2019, to release appropriated foreign assistance, 
                military assistance, and security assistance to 
                Ukraine, including but not limited to any notes, 
                memoranda, documentation or correspondence related to 
                the decision; and
                  (F) all meetings and calls between President Trump 
                and the President of Ukraine, including but not limited 
                to documents, communications, and other records related 
                to the scheduling of, preparation for, and follow-up 
                from the President's April 21 and July 25, 2019 
                telephone calls, as well as the President's September 
                25, 2019 meeting with the President of Ukraine in New 
                York; and
          (2) the Sergeant at Arms is authorized to utilize the 
        services of the Deputy Sergeant at Arms or any other employee 
        of the Senate in serving the subpoena authorized to be issued 
        by this section.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours.
    Mr. Manager Schiff, are you a proponent or opponent?
    Mr. Manager SCHIFF. We are a proponent.
    The CHIEF JUSTICE. Mr. Cipollone?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an 
opponent.
    The CHIEF JUSTICE. Mr. Schiff, the House managers can 
proceed first and reserve their time for rebuttal.
    Mr. Manager CROW. Mr. Chief Justice, the House managers 
will be reserving the balance of our time to respond to the 
argument of the counsel for the President.
    Mr. Chief Justice, Senators, counsel for the President, and 
the American people, I would like to begin by getting something 
off of my chest, something that has been bothering me for a 
little while.
    Counsel for the President and some other folks in this room 
have been talking a lot about how late it is getting, how long 
this debate is taking. It is almost 10 p.m. in Washington, DC. 
They say: Let's get the show on the road. Let's get moving.
    The whole time, the only thing I can think about is how 
late it is in other places because right now, it is the middle 
of the night in Europe, where we have over 60,000 U.S. troops. 
There are helicopter pilots flying training missions, tankers 
maneuvering across fields, infantrymen walking with 100-pound 
packs, and, yes, Ukrainian soldiers getting ready to wake up in 
their trenches facing off against Russian tanks right now. I 
don't think any of those folks want to hear us talk about how 
tired we are or how late it is. We have time to have this 
debate.
    That is why the House managers strongly support this 
amendment to subpoena key documents from the Department of 
Defense, because just like the subpoena for OMB, these 
documents from DOD speak directly to one of President Trump's 
abuses--his withholding of critical military aid from our 
partner Ukraine to further his personal political campaign.
    In fact, $250 million of taxpayer-funded military aid for 
Ukraine was managed by the Department of Defense as part of the 
Ukraine Security Assistance Initiative. These funds, approved 
by 87 Senators in this very room, would purchase additional 
training, equipment, and advising to strengthen the capacity of 
Ukraine's Armed Forces.
    The equipment approved for Ukraine included sniper rifles, 
rocket-propelled grenade launchers, counter-artillery radar, 
night vision goggles, and medical supplies. This equipment was 
to be purchased almost exclusively from American businesses. 
This equipment, along with the training and advising provided 
by DOD, was intended to protect our national security by 
helping our friend Ukraine fight against Vladimir Putin's 
Russia.
    Earlier, counsel for the President tried to make the 
argument: Well, it made it there. The aid eventually made it 
there. The delay doesn't really matter.
    You heard me talk about why the delay does matter, but what 
counsel for the President didn't say is that all of their aid 
has not made it there. Congress had to pass another law so that 
$35.2 million of that aid wouldn't expire and lapse. We did, 
but to this day, $18.5 million of that money remains 
outstanding and hasn't made its way to the battlefield.
    It was DOD that repeatedly advised the White House and OMB 
of the importance of security assistance not only to Ukraine 
but also U.S. national security. It was DOD in August of 2019 
that warned OMB that the freeze was unlawful and that the funds 
could be lost as a result. It was DOD that scrambled, after the 
hold was lifted without explanation on September 11, to spend 
the funds before they expired at the end of the month.
    Without a doubt, DOD has key documents that the President 
has refused to turn over to Congress--key documents that go to 
the heart of the ways in which the President abused his power. 
It is time to subpoena those documents.
    DOD documents would provide insight into critical aspects 
of this hold. They would show the decisionmaking process and 
motivations behind President Trump's freeze. They would reveal 
the concerns expressed by DOD and OMB officials that the hold 
was violating the law. [Slide 101] They would reveal our 
defense officials' grave concerns about the impact of the 
freeze on Ukraine and U.S. national security. They would show 
that senior Defense Department officials repeatedly attempted 
to convince President Trump to release the aid. In short, they 
would further establish the President's scheme to use our 
national defense funds to benefit his personal political 
campaign.
    We are not speculating about the existence of these 
documents, and we are not guessing about what they might show 
because during the course of the investigation in the House, 
witnesses who testified before the committees identified 
multiple documents directly relevant to the impeachment inquiry 
that DOD continues to withhold. We know these documents exist, 
and we know that the only reason we do not have them is because 
the President himself directed the Pentagon not to produce them 
because he knows what they would show.
    To demonstrate the significance of the DOD documents and 
the value they would provide in this trial, I would like to 
walk you through some of what we know exists but that the Trump 
administration continues to refuse to turn over. Again, based 
on what is known from the testimony and the few documents that 
have been obtained from public reporting and lawsuits, it is 
clear that the President is trying to hide this evidence 
because he is afraid of what it would show the American people.
    We know that DOD has documents that reveal that as early as 
June, the President was considering withholding military aid 
for Ukraine. As I mentioned earlier, the President began 
questioning military aid to Ukraine in June of last year. The 
President's questions came days after DOD issued a press 
release on June 18 announcing it would provide its $250 million 
portion of the aid to Ukraine.
    According to public reporting, [Slide 102] Deputy Under 
Secretary of Defense Elaine McCusker, [Slide 103] who manages 
the DOD's budget, learned about the President's questions. We 
know this email exists because in response to a Freedom of 
Information Act lawsuit, the Trump administration was forced to 
release a redacted email. But DOD provided none of those 
documents to the House.
    Deputy Assistant Secretary of Defense Laura Cooper and her 
team were tasked by the Secretary of Defense with responding to 
the President's questions about Ukraine assistance. Ms. Cooper 
testified that she put those answers in an email and described 
those emails during her deposition. She testified that DOD 
advised that the security assistance was crucial for both 
Ukraine and U.S. national security and had strong bipartisan 
support in Congress. But DOD provided none of those documents 
to the House.
    With this proposed amendment, the Senate has an opportunity 
to obtain and review the full record that can further 
demonstrate how and why the President was holding the aid.
    Laura Cooper also testified about the interagency meetings 
that occurred in late 2019--the meetings at which DOD was 
shocked to learn that President Trump had placed a mysterious 
hold on the security assistance. We know what happened at 
several of those meetings because Ms. Cooper participated in 
them, in some cases with other senior Defense Department 
officials. However, we don't have Laura Cooper's notes from 
those meetings. We don't have the emails she sent to senior DOD 
officials reporting the stunning news about the President's 
hold. We don't have the emails that show the response from the 
Secretary of Defense and other senior defense officials because 
DOD has refused to provide them.
    Separately, Laura Cooper testified about when the Ukraine 
first learned of the President's secret hold on the military 
assistance. The same day as the President's July 25 call with 
President Zelensky, DOD officials received two emails from the 
State Department indicating that officials from the Ukrainian 
Embassy and congressional staff had become aware of the hold 
and were starting to ask questions.
    Ms. Cooper testified that she was informed that [Slide 104] 
``the Ukrainian embassy and House Foreign Affairs Committee are 
asking about the military aid'' and that ``The Hill'' knows 
about the FMS situation to an extent, and so does the Ukrainian 
Embassy. All of this shows that people were starting to get 
very worried.
    Again, this amendment for a subpoena to DOD would compel 
the production of these important documents, but, again, there 
is more. DOD documents would also reveal key facts about what 
happened on July 25 after OMB directed DOD to ``hold off'' on 
any additional DOD obligations for the assistance to Ukraine. 
How did DOD officials react to OMB's directive to keep this 
order quiet? Did DOD officials raise immediate concerns about 
the legality of the hold--concerns that they would eventually 
vocally articulate to OMB in August? Did DOD officials hear 
from the American businesses that were on tap to provide the 
equipment for Ukraine? Was DOD informed that the President's 
hold would undermine American jobs? Answers to those questions 
may be found in DOD emails--emails that we can all see if you 
issue the subpoena.
    Earlier, I mentioned that by late July, officials in our 
government had raised significant concerns about the impact and 
the legality of President's Trump's hold on the military aid. 
[Slide 105] We know this from witness testimony, public 
reporting, and documents produced in the Freedom of Information 
Act lawsuits. For example, at an interagency meeting on July 
31, Laura Cooper, one of the officials at DOD, announced that 
because there were two legally available options to continue 
the hold and they did not have direction to pursue either of 
those legal options, DOD would have to start spending the funds 
on August 6. Cooper explained that if they did not start 
spending the funds, they would risk violating the Impoundment 
Control Act. It was a fateful warning because that is exactly 
what happened.
    Throughout August, Pentagon officials grew increasingly 
concerned as the hold dragged on. According to public 
reporting, DOD wrote to OMB on August 9 to say that it could no 
longer claim the delay would have no effect on the Defense 
Department's ability to spend the funds. We only know this 
through recent reporting about the contents of the email.
    President Trump certainly hasn't made this information 
public. In response to a Freedom of Information Act request, 
[Slide 106] the Trump administration released this August 9 
email from Elaine McCusker, the Pentagon's chief budget 
officer. As you can see from the slide in front of you, it is 
almost entirely blacked out.
    According to public reporting, the email said: [Slide 107]

    As we discussed, as of 12 AUG, we don't think we can agree 
that the pause ``will not preclude timely execution.'' We hope 
it won't and will do all we can to execute once the policy 
decision is made, but can no longer make that declarative 
statement.

    Let me interpret what is actually being said here. What is 
actually being said is: We are in trouble. We can't spend the 
money in the time that we have left, and we are not going to 
cover your tracks anymore and say that we can. The extensive 
redactions in the Freedom of Information Act productions 
highlight the administration's efforts to conceal the 
President's wrongdoing. They also underscore why the Senate 
must subpoena DOD documents to ensure that all of the relevant 
facts come to light, and, yes, there is more.
    Based on the concerns expressed by McCusker and others at 
DOD, OMB eventually dropped from the documents the statement 
that the hold would not preclude timely execution of the funds. 
But OMB also circulated talking points claiming: ``No action 
has been taken by OMB that would preclude the obligation of 
these funds before the end of the fiscal year.''
    Let me just explain what is going on here. Everybody is 
getting worried. Everybody knows that something bad is about to 
happen. Nobody has a good explanation, and nobody wants to be 
left holding the bag. So they are sending the emails, and they 
are sending the memos to say: I told you so, and I am not going 
to be held responsible.
    DOD's McCusker took issue with OMB's talking point. She did 
so in writing. Ms. McCusker emailed Mr. Duffey to tell him that 
OMB's talking points were ``just not accurate'' and that DOD 
had been consistently conveying that point for weeks. Again, we 
know this from a press [Slide 108] report--not from documents 
produced to Congress by the Trump administration.
    Now, President Trump did release some documents in response 
to a lawsuit under the Freedom of Information Act, but here is 
what Ms. McCusker's email looked like when it was released by 
the Trump administration.
    Her concern that [Slide 109] OMB's talking point was ``just 
not accurate'' was, again, entirely blacked out. What else is 
being hidden from the American people? The Senate should issue 
the subpoena.
    DOD documents would also shed light on OMB's actions as the 
President's scheme unraveled. [Slide 110] On September 9, Ms. 
McCusker informed Duffey that DOD could fall short of spending 
$120 million or more because of the hold. Duffey responded by 
suggesting that it would be DOD's fault if they ended up 
violating the Impoundment Control Act.
    McCusker responded: ``You can't be serious. I am 
speechless.'' [Slide 111]
    It will come as no surprise, then, that the administration 
entirely redacted this email, too, when it produced the 
documents in connection with the Freedom of Information Act 
lawsuit. Thanks to public reporting, though, we do know its 
contents, but what else is being hidden from the American 
people? What other reactions did this exchange set off within 
DOD? And were those concerns brought back to the White House?
    The Department of Defense's documents would shed light on 
these questions. The American people deserve answers.
    Make no mistake, the record before the House fully supports 
the conclusion that President Trump froze vital military aid to 
pressure Ukraine into helping the President's political 
campaign. The DOD documents would provide further evidence of 
this scheme. They would expose the full extent of the truth to 
Congress and the American people and would firmly rebut any 
notion that President Trump was acting based on concerns about 
corruption or other countries' contributions, and the President 
knows it. If there was any doubt, recent events prove that DOD 
has documents that are directly relevant to this trial.
    As I spoke about earlier, before I was a Member of 
Congress, I was a soldier in Iraq and Afghanistan. I do know 
what it feels like to not have the equipment that you need. The 
men and women who work at the Department of Defense and 
administer this vital aid understand that reality too. That is 
why they repeatedly made the case to President Trump that 
military assistance to Ukraine is important and that it would 
not only help Ukraine but also bolster our deterrence against 
further Russian aggression in Europe. Every time we have these 
discussions, that might seem abstract to people around the 
country. I do think about those 60,000 U.S. troops we have in 
Europe, many of whom, by the way, are stationed there with 
their families, their spouses, their children, and how they are 
training and working every day to hold the line and fight for 
freedom and liberty in Europe. And if the war in Ukraine spills 
over outside of Ukraine, it is those men and women who will 
have to get into their tanks and their helicopters and do their 
job.
    The United States Senate cannot let this information remain 
hidden. It goes directly to one of President Trump's abuses of 
power--again, withholding aid that 87 people in this room 
already voted for. The President, the Senate, and the American 
people deserve a fair trial. Let's see the documents and let's 
see them now and let the facts speak for themselves.
    I would like to end by reading a short transcript, 
something that I was thinking about earlier this evening. This 
is a transcript from Ambassador Taylor's testimony. I just want 
to take a minute to read it to you. He was talking about a trip 
that he made to visit our friends in Ukraine.

    We had a meeting with the defense minister. It was the 
first meeting of the day. We went over there. They invited us 
to a ceremony that they have in front of their ministry every 
day. Every day they have this ceremony, and it is about a half-
an-hour ceremony where soldiers are in formation, the defense 
minister, and families of soldiers who have been killed are all 
there. The selection of which soldiers who have been killed are 
honored is on the date of it.

    So whatever today's date is, you know if we were there 
today, on the 22nd of October, the families of those soldiers 
who were killed on any 22nd of October in the previous 5 years 
would be there.
    Ambassador Taylor was talking about our friends. At least 
13,000 of them have given their lives in the last 5 years in 
the fight for liberty in Europe. This, ladies and gentleman, is 
a national disgrace, and only the people in this room can fix 
it. It is time to issue the subpoenas.
    Mr. Chief Justice, the House managers reserve the balance 
of our time for an opportunity to respond to the President's 
argument.
    The CHIEF JUSTICE. Mr. Cipollone?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, Mr. Philbin will 
address the argument.
    The CHIEF JUSTICE. Mr. Philbin.
    Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the 
Senate, I will be brief. This may seem like some deja vu all 
over again because we have been arguing about the same issues, 
really, over and over and over for a long time. I think 
something that Americans don't really understand about 
Washington is how could the House Democrats think that it is 
the best use of time for this body to spend an entire day 
deciding simply the issue of when this body should decide about 
whether or not there should be witnesses and documents 
subpoenaed? That is the issue before the body now. It is not 
the question, finally, of whether there should be witnesses or 
documents.
    As the majority leader has made clear multiple times, the 
underlying resolution simply allows that issue to be addressed 
a week from now. The only question at issue now--and the House 
managers keep saying: How can you have a trial without 
witnesses? How can you have a trial without documents? That is 
not even the issue. The only issue now is whether you have to 
decide that issue to subpoena documents or witnesses now or 
decide it in a week after you hear the presentations. Why are 
they so eager to have you buy a pig in a poke? Why is it 
necessary to make that decision without having more 
information?
    In the Clinton trial, this body agreed 100 to 0 that it 
made more sense to have more information and then decide how to 
proceed and that it was rational to have more information to 
hear the presentations and then decide what more was necessary. 
Why is it so important that you have to make that decision now 
without that information? That doesn't make any sense.
    The rational thing to do is to hear what sort of case they 
present and, importantly, to hear the President's defense 
because the President had no opportunity in the House to 
present any defense.
    We have heard a lot about the rule of law and about 
precedent. What was unprecedented was the process that was used 
in the House, a process that began with an impeachment inquiry 
that started without any vote by the House.
    This is the point I made earlier. The Constitution assigns 
the sole power of impeachment to the House, not to any single 
Member of the House. So the press conference that Speaker 
Pelosi held on September 24 did not validly initiate an 
impeachment inquiry, nor did it validly give power to 
committees to issue subpoenas.
    We are talking now about the DOD documents. What efforts 
did they make in their proceeding to get these documents? They 
issued one invalid subpoena totally unauthorized under the 
Constitution. It was unprecedented because it was issued in an 
impeachment inquiry reportedly without any vote from the House. 
It had never happened before in our history in a Presidential 
impeachment. It was unlawful. It was unauthorized. That is why 
no documents were produced, and they made no other efforts to 
pursue that.
    We have heard a lot about the rule of law. The rule of law 
applies to House Democrats, as well, and they didn't abide by 
it. It was unprecedented to have a process in which the 
President had no opportunity to present his defense, no 
opportunity to present witnesses, no opportunity to be 
represented by counsel, and no opportunity to present evidence 
whatsoever in three rounds of hearings.
    They will mention: Oh, in the Judiciary Committee, they 
were willing to give the President rights. But in the Judiciary 
Committee, after one hearing, the Speaker announced the 
conclusion that articles were going to be drafted and the 
committee had already decided it would hear no fact witnesses. 
There were no rights for the President.
    So it makes sense, what is rational--what 100 Senators 21 
years ago thought was rational was to hear the case that can be 
presented on the record established so far and then decide if 
something else needs to be done. Let the President make his 
case. We are ready to get this started. The House managers 
should be as well.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we yield the 
balance of our time.
    The CHIEF JUSTICE. The House managers have 38 minutes 
remaining.
    Mr. Manager CROW. Mr. Chief Justice, I will be brief.
    Counsel for the President continues to say a lot of things 
that just really rub me the wrong way. When he says: You know, 
we are talking and saying the same argument over and over and 
over again, well, I am ready to keep going because this is an 
important debate, and we need to have it now.
    He also said something about what the American people don't 
understand about Washington. Well, I haven't been here very 
long, but I can tell you that I don't think the American people 
care very much about whether or not people in Washington are 
sitting around debating all the time and thinking about what 
you are concerned about right now. What they are concerned 
about is whether or not their government is working for them 
and whether or not there is corruption in their government. 
That is what they understand, and that is what this debate is 
about.
    Counsel for the President said: Why now? Why the 
information now?
    The better question is: Why not now? This trial has 
started. Let's have the facts and information now.
    Ladies and gentlemen, the time is right. There is no reason 
why we shouldn't issue those subpoenas, get the facts, get the 
testimony, have the debate, and let the American people see 
what is really going on.
    Mr. Chief Justice, I yield the balance of my time to Mr. 
Schiff.
    The CHIEF JUSTICE. Thank you.
    Mr. Manager SCHIFF. Senators, I will be brief, but I do 
want to respond to a couple of points my colleagues have made.
    First is the argument that you heard before--and I have no 
doubt you will hear again--that the subpoenas issued by the 
House are invalid. Well, that is really wonderful. I imagine 
when you issue subpoenas, they will declare yours invalid as 
well.
    What is the basis of the claim that they are invalid? It is 
because they weren't issued the way the President wants.
    Part of the argument is that you have to issue the 
subpoenas the way we say, and that can only be done after there 
is a resolution that we approve of adopted by the full House. 
First, they complained there was no resolution, no formal 
resolution of the impeachment inquiry, and then when we passed 
the formal resolution, they complained about that. They 
complained when we didn't have one, and they complained when we 
did have one.
    They made that argument already in court, and they lost. In 
the McGahn case, they similarly argued that this subpoena for 
Mr. McGahn is invalid. Do you know what the judge said? The 
judge essentially said: That is nonsense.
    The President doesn't get to decide how the House conducts 
an impeachment proceeding. The President doesn't get to decide 
whether a subpoena at issue is valid or invalid. No, the House 
gets to decide because the House is given the sole power of 
impeachment, not the President of the United States.
    Counsel says: Why are we going through all of these 
documents? Aren't all of these motions the same? The fact is, 
we are not talking about the same documents here. They would 
like nothing better than for you to know nothing about the 
documents we seek. They don't want you to know what Defense 
Department documents they are withholding. Of course, they 
don't want you to hear that. They don't want you to know what 
State Department documents are there because if it is just 
abstract, if it is just your argument for documents, well, they 
can say: Well, that is really not that important, right? It is 
just some generic thing.
    But when you learn, as you have learned today and tonight, 
what those documents are, when you have seen the efforts to 
conceal those Freedom of Information Act emails that my 
colleague Mr. Crow just referred to, and when you see what was 
released to the public, and it is all redacted, and we find out 
what is under those redactions, wow, surprise. It is 
incriminating information they have redacted out. That is not 
supposed to be the basis for redaction under the Freedom of 
Information Act. That is what we call a coverup.
    They don't want you to see that today. They don't want you 
to see the before and the after, the redacted and the 
nonredacted. They don't want you to hear from these witnesses 
about the detailed personal notes they took. Ambassador Taylor 
took detailed personal notes.
    They want to try to contest what Ambassador Sondland said 
about his conversations with the President because Sondland, 
after he talked with the President, talked directly with 
Ambassador Taylor and talked directly with Mr. Morrison and 
explained his conversation to the President. Guess what. Mr. 
Morrison and Ambassador Taylor took detailed notes. If there is 
a dispute about what the President told Mr. Sondland, wouldn't 
you like to see the notes? They don't want you to know the 
notes exist.
    They don't want to have this debate. They would rather just 
argue: No, it is just about the documents. It is just about 
when. We want the Senators to have their 16 hours of questions 
before they can see any of this stuff. And do you know what? 
Then we are going to move to dismiss the case. As I said 
earlier, the ``when'' means never.
    Finally, the Clinton precedent. President Clinton turned 
over 90,000 pages of documents before the trial. I agree. Let's 
follow the Clinton precedent. It is not going to take 90,000 
documents. The documents are already collected.
    You heard the testimony on the screen of Ambassador Taylor 
saying: Oh, they are going to turn them over shortly. But we 
are still waiting. They are still sitting there at the State 
Department.
    We even played a video for you of Secretary Esper on one of 
the Sunday shows saying, we are going to comply with these 
subpoenas.
    That was one week. Then somebody got to him and all of a 
sudden he was singing a different tune.
    They don't want you to know what these documents hold. And, 
yes, we are showing you what these witnesses can tell you. We 
are showing you what Mulvaney can tell you. And, yes, we are 
making it hard for you. We are making it hard for you to say 
no. We are making it hard for you to say: I don't want to hear 
from these people. I don't want to see these documents.
    We are making it hard. It is not our job to make it easy 
for you. It is our job to make it hard to deprive the American 
people of a fair trial, and that is why we are taking the time 
to do it.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I make a motion to table 
the amendment, and I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There is a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any Senators in the Chamber 
who wish to change his or her vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 19]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    Mr. SCHUMER. Mr. Chief Justice.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1289

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to issue subpoenas to Robert B. Blair and Michael P. 
Duffey, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will report the amendment.
    The senior assistant legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1289.

      (Purpose: To subpoena Robert B. Blair and Michael P. Duffey)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials--
          (1) the Chief Justice of the United States, through the 
        Secretary of the Senate, shall--
                  (A) issue a subpoena for the taking of testimony of 
                Robert B. Blair; and
                  (B) issue a subpoena for the taking of testimony of 
                Michael P. Duffey; and
          (2) the Sergeant at Arms is authorized to utilize the 
        services of the Deputy Sergeant at Arms or any other employee 
        of the Senate in serving the subpoena authorized to be issued 
        by this section.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent or opponent?
    Mr. Manager SCHIFF. Mr. Chief Justice, we are a proponent.
    The CHIEF JUSTICE. Mr. Cipollone?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an 
opponent.
    The CHIEF JUSTICE. Mr. Schiff and the House managers will 
proceed and reserve time for rebuttal.
    Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators, 
counsel for the President, my name is Sylvia Garcia, and I am a 
Congresswoman from Texas in the Houston region.
    I have been sitting for some time, as well as you, and it 
brought to mind the many years I spent as a judge, just as all 
of you today are judges in this hearing.
    It is important that I say a few words before I start our 
argument for this amendment because, in the scheme of things, 
it is really not that very complicated. The American people, 
everyday Americans, know what a trial looks like, whether they 
have seen it on ``Perry Mason'' or ``Law & Order,'' or maybe 
they have been in court themselves. They know what a trial is. 
It is about making sure that people have an opportunity to be 
heard--both sides. It is about witnesses. It is about 
documents. It is about getting a fair shot.
    That is all we are asking for today, is to make sure we 
give the American people the trial they expect, to make sure 
the American people know that this President needs to be held 
accountable, because if it were they who were accused or 
alleged to have done something, they would want the same thing.
    So, for me, it is about making sure we get a fair trial, 
which is why I am here representing the House managers to 
strongly support this amendment to subpoena Robert Blair and 
Michael Duffey. Blair and Duffey are the two officials who 
carried out President Trump's order to freeze vital military 
aid to Ukraine. Their testimony would shed light on central 
facts the House uncovered in our impeachment inquiry. Their 
testimony will further affirm that President Trump had no 
legitimate policy reason for the order.
    Blair works in the White House as a senior adviser to the 
Acting Chief of Staff, Mick Mulvaney. Duffey is a political 
appointee. He works in the Office of Management and Budget. 
There, he serves as the Associate Director for National 
Security Programs. Both were subpoenaed by the House 
investigative committees. Both were ordered not to appear, so 
both failed to appear for the scheduled depositions despite 
repeated outreach and despite their legal subpoenas to comply.
    Blair and Duffey are not household names. Many Americans 
have never heard of them. But they operated the machinery of 
the executive branch. They implemented President Trump's 
instruction to freeze military aid to Ukraine. They 
communicated about the freeze with each other, with Mulvaney, 
[Slide 112] with OMB's Acting Director, Russell Vought, and 
with numerous officials of the State Department and the 
Department of Defense. They stood at the center of this tangled 
web.
    Some of their communications are known to us from the 
testimony of other witnesses before House committees. Other 
communications have been revealed through public reporting and 
the Freedom of Information Act releases. But these 
communications only partly penetrate the secrecy in which 
President Trump sought to cloak his instruction to freeze 
military aid to a vulnerable strategic partner. As plentiful 
evidence confirms, officials throughout the government were 
stumped--literally stumped--about why the freeze was happening. 
They were thwarted when they tried to get explanations from 
Blair and Duffey. Consistent with President Trump's effort to 
hide all evidence, Blair and Duffey have defied the House's 
subpoenas at the President's direction.
    To explain why this amendment should be passed, I would 
like to walk you through some key events in which Blair and 
Duffey participated.
    To start, Blair and Duffey were directly involved in the 
initial stages of President Trump's freeze of the military aid.
    On June 18, [Slide 113] the Department of Defense issued a 
statement that it would be providing its $250 million portion 
of the assistance to Ukraine and that Ukraine had met all the 
required preconditions for receiving the money. The very next 
day, on June 19, Blair, in his role as assistant to the 
President, called Vought, the Acting Director of OMB. The call 
was to talk about the military aid to Ukraine. According to 
public reports, Blair told Vought: ``We need to hold it up.''
    That same day, Duffey, who reports to Vought, emailed 
Deputy Under Secretary of Defense Elaine McCusker about the 
military aid. Although the administration refused to produce 
that email to the House--and all other documents--a copy of 
[Slide 103] that email was recently produced in response to a 
Freedom of Information Act lawsuit. In the email, Duffey 
informed DOD that ``the President has asked about this funding 
release.''
    Duffey copied Mark Sandy, a career official who reports to 
him and who testified before the House about this email. Sandy 
testified that McCusker provided the requested information to 
him, which he shared with Duffey.
    These communications raised many questions about Blair and 
Duffey, and they are in the best position to provide answers. 
For example, [Slide 114] who or what prompted Blair to tell 
Vought that OMB needed to freeze the aid? Who? What reason was 
Blair given? Who instructed Duffey to reach out to the 
Department of Defense? Who told him the President had 
questions, and what were those questions? Did Duffey and Blair 
have communications about the military aid to Ukraine with the 
President? with Acting Chief of Staff Mick Mulvaney? between 
themselves? What about the funding release and the President's 
so-called questions? Blair and Duffey could provide the 
answers. They could explain what directions they received, when 
they were provided, and who provided them. The American people 
deserve to know these facts.
    The next significant event in our timeline happened at the 
end of June. On June 27, Blair got an email from his boss, 
Mulvaney. Mulvaney was on Air Force One with President Trump. 
[Slide 115] According to public reports, Mulvaney asked Blair: 
``Did we ever find out about the money for Ukraine and whether 
we can hold it back?'' Blair responded it would be possible, 
but he said they should ``expect Congress to become unhinged.''
    When did Mulvaney and Blair first discuss the President's 
freeze on military aid? Was there further discussion about the 
issue in this email? Did Mulvaney explain why it was so 
important to freeze the money, even if it would cause Congress 
``becoming unhinged''? Did they discuss why Congress would have 
such a strong reaction and whether it would be justified? Did 
Blair raise any objections to this seemingly unexplained 
decision to freeze the funds? The Senate could obtain these 
answers by hearing from these witnesses directly.
    Now let's move on to the implementation of the freeze. 
Despite Blair's warning about how Congress would react, 
President Trump ordered a freeze on military aid to Ukraine in 
July. Blair and Duffey were directly involved in executing the 
President's order. To be clear, certain decisions remain 
shrouded in secrecy, but key actions have been revealed.
    On July 3, the State Department told various officials that 
OMB was blocking it from spending its $141 million portion of 
the aid. More specifically, [Slide 116] OMB directed the State 
Department not to send a notification to Congress about 
spending the aid. Without that notification, the aid was 
effectively frozen.
    Who from OMB ordered the State Department not to send its 
congressional notification? Did they give a reason? We just 
don't know. Remember, at President Trump's instruction, OMB and 
the State Department refused to produce a single document to 
the House, but the direction almost certainly came from Duffey 
or one of his subordinates, acting on behalf of President 
Trump.
    We also know that on July 12, Blair sent an email to 
Duffey. Duffey's subordinate, Mark Sandy, saw the email and 
described it in his testimony before the House. As Sandy 
testified, [Slide 117] it was Blair who conveyed that ``the 
President is directing a hold on military support funding for 
Ukraine.'' And that email only addressed Ukraine.
    Blair's email raises several questions. [Slide 118] What 
other discussions took place about the President's decision to 
freeze the aid? Did the President or Mulvaney give Blair a 
reason for the freeze? Did Blair know that the President was 
holding the aid to pressure Ukraine to announce investigations 
of his political rival?
    We also know that 2 days before Blair sent his email to 
Duffey, Ambassador Sondland told Ukrainian officials that he 
had a deal with Mulvaney. The deal consisted of a White House 
visit for President Zelensky on Ukraine conducting the 
political investigations that President Trump sought. That is 
what prompted Ambassador Bolton to say he was ``not part of 
whatever drug deal Sondland and Mulvaney are cooking up.''
    Blair is Mulvaney's senior adviser. Did Blair know about 
the Sondland/Mulvaney deal? Did he know that they were 
leveraging an official White House visit for the President to 
get Ukraine to investigate his political rival? The White House 
was unable to provide any reason for the hold.
    Throughout this period, officials across the executive 
branch started asking questions--questions about the freeze on 
the military aid. Around July 17 or 18, Duffey emailed Blair. 
He asked about the reason for the freeze, [Slide 119] but he 
got no explanation. Instead, Blair insisted: We need to let the 
hold take place and they could revisit the issue with the 
President later.
    In the House, we heard testimony from multiple officials, 
including Ambassador Taylor, who was until very recently our 
top diplomat in Ukraine, our numero uno. We also heard from 
several other officials from the Department of Defense, the NSC 
staff, and OMB, but no one--no one--heard any credible 
evidence, any credible explanation for the freeze at the time. 
No one. Nada. Senators, think about it. Not even our top U.S. 
diplomat to Ukraine had any idea as to why the President had 
ordered the funds frozen. That is shocking. That should worry 
every single one of us here.
    Here are some of those witnesses. They are up on the slide. 
Again, no one tells why--why this decision was made so secretly 
and without any explanation. Why was the President compromising 
the safety of his strategic ally in the region? [Slide 120] Why 
was he harming our national security interests in the process?
    On July 26, Duffey attended a meeting of high-level 
executive branch officials. Duffey made clear that the freeze 
on military aid was based on President Trump's express 
direction.
    But, apparently, he could not clearly explain whether it 
was a freeze beyond a vague reference to concerns about 
corruption.
    Witnesses who testified before the House all provided the 
same consistent recounting of what happened. As you can see 
from the statements on the slide, [Slide 121] officials were 
not provided a clear explanation for such a dramatic step.
    As we have already discussed earlier and will explain in 
more depth during the trial, these facts contradict the White 
House's recent claims of why President Trump froze the Ukraine 
aid. Those facts clearly show efforts by this President and 
those around him to fabricate explanations after the 
President's illegal scheme came to light.
    In fact, the White House Counsel's own review of the freeze 
reportedly found that Mulvaney and OMB attempted to create an 
after-the-fact justification for the President's decision. That 
is a polite way of saying Mulvaney's team led an effort to 
cover up the President's conduct and to manufacture misleading 
pretextual explanations to hide the corruption.
    Senators, there is still more. Blair and Duffey were also 
involved in the events surrounding the President's July 25 
phone call with President Zelensky. On July 19, Blair, along 
with other officials, received an email from Ambassador 
Sondland. The email described a conversation he had just had 
with President Zelensky. [Slide 122] Ambassador Sondland stated 
that Zelensky was ``prepared to receive POTUS' call,'' and 
``will assure him that he intends to run a fully transparent 
investigation'' and will ``turn over every stone.''
    As reflected in this email and confirmed by his testimony, 
Ambassador Sondland had helped President Zelensky prepare for 
his July 25 phone call with President Trump, telling him it was 
necessary to assure President Trump that he would conduct the 
investigations. Ambassador Sondland then reported back to Blair 
and others that President Zelensky was prepared to do just 
that.
    Blair knew the plan. As Ambassador Sondland put it, he was 
in the loop on the scheme.
    Why was Blair part of this group? What was his involvement 
in setting up the call? What did he understand Sondland's 
message to mean? [Slide 123] What did he know about the 
investigations sought by the President? Did he have any 
conversations with the President or Mulvaney about the 
President's request for the investigations? We need Blair's 
testimony to answer these questions.
    And then, 6 days later, Blair was in the Situation Room, 
listening in--listening in--on President Trump's July 25 call 
with President Zelensky. [Slide 124] He heard President 
Zelensky raise the issue of U.S. aid to Ukraine. He heard 
President Trump respond but asked him for ``a favor, though''--
namely, investigations of the 2016 election and of Vice 
President Biden.
    The House heard the testimony of three of the other 
officials who listened into the President's July 25 call--
directly listened in. Lieutenant Colonel Vindman, Tim Morrison, 
and Jennifer Williams--each of them expressed concerns about 
the call. Lieutenant Colonel Vindman and Tim Morrison 
immediately reported the call to NSC lawyers. [Slide 125] 
Jennifer Williams said the call ``struck her as unusual and 
inappropriate,'' and further, ``more political in nature.''
    Senators, the American people deserve to hear if Blair 
shared the concerns of the other officials who listened to the 
President's call. What was his reaction to the call? [Slide 
126] Did he take notes? Was he at all concerned like the other 
officials? Did he know exactly what was happening and why? Did 
the evidence we have suggest he did know? But the Senate should 
have the opportunity to ask him directly.
    Just 90 minutes after that July 25 call, Blair's contact at 
OMB, Michael Duffey, sent officials of the Department of 
Defense an email to make sure that DOD continued to freeze the 
military aid that Ukraine so desperately needed. This email, 
[Slide 75] like all others, was not produced to the House. 
However, it was produced pursuant to court order in a Freedom 
of Information Act lawsuit.
    As the email reflects, Duffey told the DOD officials that 
based on the guidance he had received, they should ``hold off 
any additional DOD obligations of these funds.''
    Duffey added that the request was sensitive and that they 
should keep this information closely held. This email, too, 
[Slide 127] raises questions that Duffey should answer. What 
exactly was the guidance Duffey received? Who gave it to him? 
Was it connected to President Trump's phone call? And why was 
it so sensitive that he directed DOD to keep it closely held? 
The Senate should demand the answers to these questions.
    The Senate should also hear from Duffey as to why he 
abruptly removed a career OMB official who questioned the 
freeze on military aid to Ukraine and whether he did so at the 
direction of the White House or President Trump. Throughout 
July, Mark Sandy, the OMB career official who handled military 
aid to Ukraine, repeatedly tried to get Duffey to provide an 
explanation for the freeze. He was unsuccessful.
    Sandy and other officials from OMB and the Pentagon also 
raised questions about the freeze violating the Impoundment 
Control Act, the Federal law that limits the President's 
ability to withhold funds that have been allocated by Congress.
    In fact, two career OMB officials ultimately resigned, in 
part, based on concerns about the handling of the Ukraine 
military aid freeze. These concerns were not unfounded.
    Just last week, the nonpartisan Government Accountability 
Office issued a detailed legal opinion finding that OMB had 
violated Federal law by executing the President's order to 
freeze military aid to Ukraine. Remarkably, on July 29, after 
Sandy had expressed his concerns about the legality of the 
freeze, Duffey removed Sandy from responsibility for Ukraine 
military aid. Instead, Duffey took over responsibility for 
withholding the aid himself. [Slide 128] He was a political 
appointee. He had no relevant experience. He had no 
demonstration of interest in such matters. His last job had 
been as a State-level Republican Party official.
    He is the one who took over responsibility for withholding 
the aid? He gave no credible explanation for his decision. He 
only said that he wanted to become ``more involved in daily 
operations.''
    Sandy, who has decades of experience, testified that 
nothing like this had ever happened in his career. His boss, a 
political appointee, just happened to have a sudden interest in 
being more hands-on and was now laser-focused exclusively on 
Ukraine.
    The Senate should ask Duffey why he took over the handling 
of the Ukraine military aid. Was he directed to? Why was Sandy 
removed from his responsibility over Ukraine aid? Was it 
because he expressed concerns about the legality of the freeze?
    These questions are those that Duffey would be able to 
answer.
    Now we move on to warnings from DOD. Around this period, in 
late July and early August, Duffey also ignored warnings from 
DOD about the legality of the freeze. The Senate should hear 
from him and judge what he has to say. [Slide 129] Throughout 
July and August, Duffey executed President Trump's freeze of 
the military aid through a series of funding documents from 
OMB.
    In carefully worded footnotes, OMB tried to claim that this 
``was a brief pause and it would not affect DOD's ability to 
spend the money on time.''
    As we now know from public reporting, as a freeze 
continued, DOD officials grew more and more alarmed. They knew 
the freeze would impact DOD's ability to spend the funds before 
the end of the fiscal year. DOD officials, including Deputy 
Under Secretary McCusker, voiced these concerns to Duffey on 
multiple occasions.
    First, in an email on August 9, McCusker told Duffey DOD 
could no longer support OMB's claim that the freeze would not 
preclude timely execution of the aid for Ukraine. Her email 
read: [Slide 107]

    As we discussed, as of 12 August, I don't think we can 
agree that the pause will not preclude timely execution. We 
hope it won't, and we will do all we can to execute once the 
policy decision is made but can no longer make that declarative 
statement.

    Then, again, on August 12, McCusker warned Duffey in an 
email: The footnotes needed to include a caveat that 
``execution risk increases continued delays.'' [Slide 130]
    The House never received these documents from OMB or DOD. 
We know what they contain because of public reporting, despite 
persistent efforts by the Trump administration to keep them 
from Congress and the public.
    The Pentagon's alarm should have raised concerns for 
Duffey. Did he share DOD's concerns with anyone else? Did he 
agree with those concerns or take any actions in response? 
[Slide 131] Did he take direction from Blair, the White House, 
or President Trump? These are questions that Duffey should 
answer.
    Despite his actions executing the President's freeze, 
Duffey internally expressed reservations about it. In August, 
he signed off on a memorandum to Acting Director Vought that 
recommended releasing the aid. That memo stated that the 
military aid was consistent with the United States' national 
security strategy in the region, that it served to counter 
Russian aggression, and that the aid was rooted in bipartisan 
support in Congress. This is contrary to Duffey's actions 
leading up to the memo. What changed? What caused Duffey to 
disagree with the President's direction to continue to withhold 
the aid? Duffey should be called to explain why he recommended 
that the President release the aid, what other steps he took to 
advocate for the release. Does he know why Vought and the White 
House apparently disregarded the recommendation?
    Based on public reporting, we know, after the press 
reported the freeze in late August, OMB circulated talking 
points falsely claiming ``no action has been taken by OMB that 
would preclude the obligation of these funds before the end of 
the fiscal year.'' [Slide 108]
    According to public reporting, McCusker responded with an 
email to Duffey to tell him that this was ``just not accurate'' 
and that DOD had been ``consistently conveying'' that for 
weeks. Due to the public release of these emails and recent 
reporting, we also know that Duffey emailed McCusker on August 
30 and told her there was a ``clear direction from POTUS'' to 
continue the freeze.
    McCusker continued to warn that the freeze was having real 
effects on DOD's ability to spend the military aid, and the 
impact would keep growing if the freeze continued. According to 
recent reports, around September 9, after the President's 
scheme had been exposed and the House had launched its 
investigations, Duffey responded to McCusker's warnings with a 
formal and lengthy email. He asserted it would be DOD's fault, 
not OMB's, if DOD was unable to spend funds in time. Deputy 
Under Secretary of Defense Elaine McCusker reportedly 
responded: ``I am speechless.''
    We now know that DOD's concerns were well-founded. The 
President's freeze on the security aid was illegal. Duffey 
should be called to testify about why DOD's repeated warnings 
went unheeded. What prompted his email that attempted to shift 
blame to DOD about the fact that the President released the aid 
only after his scheme was exposed?
    Senators, make no mistake. We have a detailed factual 
record showing the freeze was President Trump's decision and 
that he did it to pressure Ukraine to announce the political 
investigations he wanted.
    But President Trump's decisions also set off a cascade of 
confusion and misdirection within the executive branch. As the 
President's political appointees carried out his orders, career 
officials tried to do their jobs--or, at the very least, not 
break the law. Blair and Duffey would help shed more light on 
how the President's orders were carried out. That is why 
committees of the House issued subpoenas for both of their 
testimony, but Blair and Duffey, as I said earlier, like many 
other Trump officials, refused to appear because the President 
ordered them not to appear. I might add, as a former judge, I 
have never seen anything like this before, where someone is 
ordered not to appear by one party and the witnesses just don't 
appear.
    The Senate should not allow the President and his 
administration to continue to evade accountability based on 
these ever-shifting and ever-meritless excuses. We need to hold 
him accountable because no one is above the law.
    (English translation of statement made in Spanish is as 
follows:)
    No one is above the law.
    Blair and Duffey have valuable testimony to offer. The 
Senate should call upon them to do their duty by issuing this 
subpoena.
    Mr. Chief Justice, the House managers reserve the balance 
of our time for an opportunity to respond to the President's 
argument.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, Pam Bondi, 
Special Advisor to the President, former attorney general of 
Florida.
    The CHIEF JUSTICE. Ms. Bondi.
    Ms. Counsel BONDI. Honorable Senators, just to fact-
correct, please, a few things. Mr. Duffey didn't come from a 
State job. Mr. Duffey came from Deputy Chief of Staff at DOD 
before he went to OMB. There is a big difference there.
    Manager Garcia said he failed to appear. Well, the House 
committee would not allow agency counsel to appear with Mr. 
Duffey or Mr. Blair. They would not let agency counsel appear 
with either of them.
    Office of Legal Counsel determined, of course, that the 
exclusion of agency counsel from House proceedings is 
unconstitutional. It is a pretty basic right. So what did they 
do? They took no action on the subpoenas, but now they want you 
to take action on them.
    What the House managers have been telling you all day is 
that the White House is trying to hide from American people 
what witnesses had to say. They have been saying we want to 
bury evidence; we want to hide evidence. That hypocrisy is 
astounding. They have been saying: Let's not forget why we are 
here.
    Well, we are here tonight because they threw due process, 
fundamental fairness, and our Constitution out the window in 
the House proceedings. That is why we are here--because they 
started in the secret bunker hearings where the President and 
his counsel weren't even allowed to participate when they were 
trying to impeach him.
    Intel and Judiciary Committee was a one-sided circus. 
Ranking Member Nunes asked to call witnesses. He explained why 
in detail. It was denied by Manager Schiff. Ranking Member 
Collins asked to call witnesses, which was denied by Manager 
Nadler. And that is what they call fairness? That is not how 
our American justice system works, and it is certainly not how 
our impeachment process is designed by our Constitution.
    The House took no action on the subpoenas issued to Mr. 
Duffey and Mr. Blair because they didn't want a court to tell 
them that they were trampling on their constitutional rights. 
Now they want this Chamber to do it for them.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, we yield the 
remainder of our time.
    The CHIEF JUSTICE. House managers have 24 minutes 
remaining.
    Mr. Manager SCHIFF. Mr. Chief Justice, a couple of fact 
checks, once again.
    First of all, the complaint is made that, well, the House 
wouldn't allow agency counsel. Why wouldn't the House allow 
agency counsel to be present in those secret depositions that 
you have been hearing so much about? As I mentioned earlier, 
those secret depositions allowed 100 Members of the House to 
participate. There are 100 Members of the Senate. We could have 
had that secret deposition right here on the Senate floor. 
During those depositions, Members of both parties were given 
equal time to ask questions of these witnesses.
    By the way, where did Democrats get that rule of no agency 
counsel during these depositions? We got it from the 
Republicans. This was the Republican deposition rule, and we 
can cite you adamant explanations by Trey Gowdy and others 
about how these rules are so important that the depositions not 
be public, that agency counsel be excluded.
    And why? Well, you get a good sense of it when you see the 
testimony of Deputy Assistant Secretary George Kent. Kent 
describes how he is at a meeting with some of the State 
Department lawyers and others, and they are talking about the 
document request from Congress and what are they going to do 
about these and what documents are responsive and what 
documents aren't responsive. The issue comes up in a letter the 
State Department sent to Congress saying: You are intimidating 
the witnesses. Secretary Kent testified: No, no, no. The 
Congress wasn't intimidating witnesses; it was the State 
Department that was intimidating witnesses to try to prevent 
them from testifying.
    My colleagues at the other table say: Why aren't you 
allowing the minders from the State Department to sit next to 
those witnesses and hear what they have to say in the 
depositions? We have seen all too much witness intimidation in 
this investigation, to begin with, without having an agency 
minder sitting in on the deposition.
    By the way, those agency minders don't get to sit in on 
grand jury interviews either. There is a very good 
investigative reason that has been used by Republicans and 
Democrats who have been adamant about the policy of excluding 
agency counsel.
    It was also represented that the Intelligence Committee and 
the Judiciary Committee wouldn't allow the minority to call any 
witnesses. That is just not true. In fact, fully one-third of 
the witnesses who appeared in open hearing in our committee 
were minority-chosen witnesses. What they ended up having to 
say was pretty darn incriminating of the President, but, 
nonetheless, they chose them.
    So about this idea that, well, we had no due process, the 
fact of the matter is, we followed the procedures in the 
Clinton and Nixon impeachments. They can continue to say we 
didn't, but we did. In some respects, we gave even greater due 
process opportunities here than there. The fact that the 
President would take no advantage of them doesn't change the 
fact that they had that opportunity.
    Finally, the claim is made that we trampled on the 
constitutional rights by daring to subpoena these witnesses. 
How dare we subpoena administration officials--right?--because 
Congress never does that. How dare we do that. How dare we 
subpoena them. Well, the court heard that argument in the case 
of Don McGahn, and you should read the judge's opinion in 
finding that this claim of absolute immunity has no support, no 
substance; it would have resulted in a monarchy. It is 
essentially the judicial equivalent of: Don't let the door hit 
you in the backside on the way out, Counsel. There is no merit 
there.
    Counsel can repeat that argument as often as they like, but 
there is no support in the courts for it. There should be no 
support for it in this body, not if you want any of your 
subpoenas in the future to mean anything at all.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I have a motion at the 
desk to table the amendment.
    I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any other Senators in the 
Chamber wishing to vote or change their vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 20]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table was agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1290

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to prevent the selective admission of evidence and provide 
for the appropriate handling of classified and confidential 
materials, and I ask that it be read. It is short.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1290.

(Purpose: To prevent the selective admission of evidence and to provide 
   for appropriate handling of classified and confidential materials)

  On page 2, between lines 4 and 5, insert the following:
  If, during the impeachment trial of Donald John Trump, any party 
seeks to admit evidence that has not been submitted as part of the 
record of the House of Representatives and that was subject to a duly 
authorized subpoena, that party shall also provide the opposing party 
all other documents responsive to that subpoena. For the purposes of 
this paragraph, the term ``duly authorized subpoena'' includes any 
subpoena issued pursuant to the impeachment inquiry of the House of 
Representatives.
  The Senate shall take all necessary measures to ensure the proper 
handling of confidential and classified information in the record.

    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Let's take a 5-minute break. I ask everybody 
to stay close to the Chamber. We will go with a hard 5 minutes.

                RECESS SUBJECT TO THE CALL OF THE CHAIR

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the Senate stand in recess subject to the call of the 
Chair.
    There being no objection, the Senate, at 11:19 p.m., 
recessed until 11:39 p.m. and reassembled when called to order 
by the Chief Justice.
    The CHIEF JUSTICE. Mr. Schiff, are you in favor or opposed?
    Mr. Manager SCHIFF. In favor.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counselor CIPOLLONE. Mr. Chief Justice, we are opposed.
    The CHIEF JUSTICE. There are 2 hours for argument, equally 
divided.
    Mr. Schiff, you may proceed first.
    Mr. Manager SCHIFF. Senators, the majority leader amended 
his resolution earlier today to allow the admission of the 
House record into evidence, though the resolution leaves the 
record subject to objections.
    But there is a gaping hole--another gaping hole--in the 
resolution. The resolution would allow the President to cherry-
pick documents he has refused to produce to the House and 
attempt to admit them into evidence here.
    That would enable the President to use his obstruction not 
only as a shield to his misconduct but also as a sword in his 
defense. That would be patently unfair and wholly improper. It 
must not be permitted, and that is what the Schumer amendment 
addresses.
    The amendment addresses that issue by providing that if any 
party seeks to admit, for the first time here, information that 
was previously subject to subpoena, that party must do a simple 
and fair thing; it must provide the opposing party all of the 
other documents responsive to the subpoena. That is how the law 
works in America. It is called the rule of completeness.
    When the selective introduction of evidence distorts facts 
or sows confusion in a trial, there is a solution. It is to 
ensure that documents that provide for a complete picture can 
be introduced to avert such distortions and confusion.
    The rule of completeness is rooted in the commonsense 
evidentiary principle that a fair trial does not permit the 
parties to selectively introduce evidence in a way that would 
mislead factfinders. The Senators should embrace it as a rule 
for this trial, and the amendment does just that.
    This amendment does not in any way limit the evidence the 
President may introduce during his trial. He should be able to 
defend himself against the charges against him as every 
defendant has the right to do around the country. But this 
amendment does make sure that he does it in a fair way and that 
his obstruction cannot be used as a weapon.
    It is an amendment based on simple fairness, and it will 
help the Senate and the American people get to the truth.
    House managers are not afraid of the evidence, whatever it 
may be. We want an open process designed to get to the truth, 
no matter whether it helps or hurts our case. That is what the 
Senate should want, and that is what the American people 
certainly want.
    This amendment helps that process of getting more evidence 
so we can get to the truth, and we urge you to vote for it.
    The amendment also addresses another omission in the 
majority leader's resolution by providing for the proper 
handling of confidential and classified information for the 
record. This amendment seeks to balance the public's interest 
in transparency with the importance of protecting limited, 
sensitive information bearing directly on the case you are 
trying.
    As for confidential information, some of the evidence in 
this case includes records of phone calls. They establish 
important patterns of conduct, as we explain in the Ukraine 
impeachment report.
    But the original phone records, including a great deal more 
information in context, should be available for this body to 
review if needed in a confidential setting. It contains 
personally sensitive information concerning individuals who are 
not at issue in this trial and would potentially subject them 
to intrusions on their privacy.
    The Secretary of the Senate has the capacity to handle such 
material and make it available to you as needed.
    The amendment allows the privacy interests of many 
individuals to be protected, while allowing the Senators access 
to the full record.
    As for the classified information that this amendment 
addresses, there may be several very relevant classified 
documents.
    Let me just highlight one in particular. It involves the 
testimony of the Vice President's national security aide, 
Jennifer Williams, and it concerns a conversation between the 
Vice President and the President of Ukraine, and the House 
managers believe that it would be of value to this body to see, 
in trying the case.
    Let me start by saying that we have twice requested that 
the Vice President declassify this document. We have reviewed 
it, and there is no basis to keep it classified. The Vice 
President has not responded, and we can only conclude this was 
an additional effort by the President to conceal wrongdoing 
from the public. But as it stands now, it remains classified. 
It must be handled like any other classified document by this 
body in a method that would allow them.
    Let me just take a moment to go further. The public should 
see that supplemental testimony as well. That supplemental 
testimony--that classified testimony--was added to the record 
by the Vice President's aide because she believed, I think, on 
further reflection, that it would shed additional light on what 
she has said publicly. You should see it and you should 
evaluate it for what it has to say, but, what is more, so 
should the American people.
    So I would urge not only that you support this amendment to 
make sure that you can handle the classified information, there 
is a mechanism for it, and personal identifiable information 
need not be made public, but also information that is 
improperly classified that bears or sheds light on her decision 
should be accessible to you and should be accessible to the 
American people.
    I reserve the balance of our time.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice. Mr. 
Philbin and Mr. Sekulow will argue.
    The CHIEF JUSTICE. Mr. Philbin.
    Mr. Counsel PHILBIN. Mr. Chief Justice and Members of the 
Senate, the President opposes this amendment, and I can be 
brief in explaining why.
    This amendment would say that any subpoena that was issued 
pursuant to the House's impeachment inquiry--any subpoena that 
they issued at all--becomes defined as a duly authorized 
subpoena for purposes of this amendment. As we have explained 
several times today, because the House began this inquiry 
without taking a vote, it never authorized any of its 
committees to issue subpoenas pursuant to the impeachment 
power.
    The first 23 subpoenas, at a minimum, that the House 
committees issued were all unauthorized in ultra vires, and 
that is why the Trump administration did not respond to them 
and did not comply with them. That was explained in a letter of 
October 18, from White House Counsel Cipollone to Chairman 
Schiff and others, and that is a legal infirmity in those 
subpoenas.
    There has never been an impeachment inquiry initiated by 
the House of Representatives against a President of the United 
States without it being authorized by a vote of the full House. 
This is a principle that the Supreme Court has made clear in 
cases such as United States vs. Rumely, that no committee of 
Congress can exercise authority assigned by the Constitution to 
the Chamber itself, of the House or the Senate, without being 
delegated that authority by the House or the Senate.
    In Rumely, the Court explains that to determine the 
validity of a subpoena requires ``construing the scope of the 
authority which the House of Representatives gave to the 
committee.''
    So this is a legal issue, an infirmity in those subpoenas, 
and this amendment proposes to do away with that legal 
infirmity by defining all their subpoenas as duly authorized, 
and we do not support that amendment.
    In addition to that, I just want to respond briefly to 
Chairman Schiff's description of the rule of completeness. This 
is not about the rule of completeness. The rule of completeness 
has to do with a particular document or a particular piece of 
evidence which is misleading in itself. With that document, if 
there is something specific about it that there is another 
response on the email chain--something like that--that 
particular document has some specific thing attached to it, and 
then that should also come into evidence.
    But since all the evidentiary motions are being preserved 
and objections can be made later, evidentiary arguments under 
the underlying resolution can be made. The rule of completeness 
can be argued. There is no need for that to do this amendment, 
because this amendment doesn't have anything to do with the 
rule of completeness.
    With that, I will yield the remainder of my time to Mr. 
Sekulow.
    The CHIEF JUSTICE. Mr. Sekulow.
    Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and 
Members of the Senate. I will be brief. This amendment to the 
resolution we oppose, as Mr. Philbin just said, because it is 
in essence an unconstitutional attempt to cure a defect--a 
defect in their own proceeding.
    To be clear, we are reserving our objections as it relates 
to hearsay, which is what the record primarily consists of.
    I also want to respond very briefly to what Manager Schiff 
said regarding the proceedings in the House of Representatives 
and the lack of agency counsel. He said it is much like the 
grand jury. He best be glad and the Members of his committee 
best be glad that it is not like a grand jury, because if it 
was a grand jury and information was leaked, which it was 
consistently throughout this process, they could be subject to 
felony.
    So I want to be clear. Utilizing this amendment to cure a 
constitutional defect--and that is what this is--is exactly 
what we have been arguing about now for almost 11 hours. It is 
changing the rules. It is different rules.
    I can't determine if we are dealing with a trial, a 
pretrial motion--but we now spent 11 hours arguing about 
something that we will be arguing again next week.
    But the idea that you can cure in three paragraphs 
constitutional defects doesn't pass constitutional muster.
    We yield the rest of our time.
    The CHIEF JUSTICE. The House managers have 54 minutes 
remaining.
    Mr. Manager SCHIFF. Well, first of all, the counsel makes 
the argument once again that with subpoenas, the President gets 
to decide which are valid and which are invalid, and any 
subpoena the President doesn't like, he may simply declare 
invalid, and that is the end of the story. Therefore, it is 
invalid, and no documents are required, and no witnesses need 
to show up, and, therefore, you don't need to consider whether 
the President should be able to game the system by showing you 
a handful of documents to mislead you and deprive you of seeing 
all of the other documents relevant to that same subject. That 
is their argument. The President didn't like the way the 
subpoenas were issued, even though the Court has already ruled 
on this issue and said: No, Mr. President, you don't get to 
decide whether a subpoena is valid or not in an impeachment 
proceeding. That is the sole responsibility of the House.
    But no, I guess they would suggest to you the President 
would never mislead you about documents. If they seek to 
introduce something, you can be assured that that document 
tells the complete truth.
    But we already know you can place no such reliance on the 
President. How do we know this? We have already seen it.
    Look at what they did in response to the FOIA, or Freedom 
of Information Act, requests. They blacked out all the 
incriminating information. They blacked out the ``we can't 
represent any more that we are going to be able to actually 
spend this money in time. We can't represent that we are not 
going to be in violation of the law of the Impoundment Act.'' 
They redact that.
    Is that what you want in this trial, for them to be able to 
introduce one part of an email chain and not show you the rest?
    You want to be able to have a situation where the President 
has withheld all these documents from you, can introduce a 
document that suggests a benign explanation but not the reply 
that confirms the corrupt explanation, because that is what we 
are really talking about here.
    Now they clothe this in the argument that, well, we don't 
think these were duly authorized subpoenas. We are merely 
categorizing the universe of documents they should turn over if 
they want to turn over selective documents. Let them call them 
unduly authorized, therefore. The point is, that the documents 
that should be turned over should not be cherry-picked by a 
White House that has already shown such a deliberate intent to 
deceive.
    Finally, counsel says they can't tell whether we are 
dealing with a trial here. Well, do you know something? Neither 
can we. If they are confused, they are confused for a good 
reason, because this doesn't look like any other trial that 
they are used to. People watching--they are confused, too, 
because they would think if this was a trial, there would be no 
debate about whether the party with the burden of proof could 
call witnesses. Of course, they could. Of course, they can.
    The defendant doesn't get to decide who the prosecution can 
call as a witness. If you are confused, so is the public. They 
want this to look like a regular trial, and it should. That has 
been the history of this body. That has been the history of 
this body.
    Now I know it is late, but I have to tell you it doesn't 
have to be late. We don't control the schedule here. We are not 
deciding we want to carry on through the evening. We don't get 
to decide the schedule.
    There is a reason why we are still here at 5 minutes to 
midnight. There is a reason why we are here at 5 minutes to 
midnight, and that is because they don't want the American 
people to see what is going on here. They are hoping people are 
asleep. You know, a lot of people are asleep right now, all 
over the country, because it is midnight.
    Now, maybe in my State of California people are still awake 
and watching, but is this really what we should be doing when 
we are deciding the fate of a Presidency--that we should be 
doing this in the midnight hour?
    I started out the day asking whether there could be a fair 
trial and expressing the skepticism I think the country feels 
about whether that is possible, how much they want to believe 
this is possible. But I have to say, watching now at midnight, 
this effort to hide this in the dead of night cannot be 
encouraging to them about whether there will be a fair trial.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I have a motion at the 
desk to table the amendment.
    The CHIEF JUSTICE. The question is on agreeing to the 
motion.
    Is there a sufficient second?
    There is a sufficient second.
    Mr. McCONNELL. I ask for the yeas and nays.
    The CHIEF JUSTICE. The clerk will call the roll.
    The legislative clerk called the roll.
    The CHIEF JUSTICE. Does any Senator in the Chamber wish to 
change his or her vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 21]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1291

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to issue a subpoena to John Robert Bolton, and I ask that 
it be read.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1291.

               (Purpose: To subpoena John Robert Bolton)

  At the appropriate place in the resolving clause, insert the 
following:
  Sec. ___.  Notwithstanding any other provision of this resolution, 
pursuant to rules V and VI of the Rules of Procedure and Practice in 
the Senate When Sitting on Impeachment Trials, the Chief Justice of the 
United States, through the Secretary of the Senate, shall issue a 
subpoena for the taking of testimony of John Robert Bolton, and the 
Sergeant at Arms is authorized to utilize the services of the Deputy 
Sergeant at Arms or any other employee of the Senate in serving the 
subpoena authorized to be issued by this section.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
with 2 hours equally divided.
    Mr. Manager Schiff, are you a proponent?
    Mr. Manager SCHIFF. Yes, I am.
    The CHIEF JUSTICE. Mr. Cipollone, are you an opponent?
    Mr. Counsel CIPOLLONE. Yes, Mr. Chief Justice.
    The CHIEF JUSTICE. Mr. Schiff, you may proceed, and you may 
reserve time for rebuttal.
    Mr. Manager NADLER. Before I begin, Mr. Chief Justice, the 
House managers will be reserving the balance of our time to 
respond to the arguments of the counsel for the President.
    Mr. Chief Justice, Senators, counsel for the President, the 
House managers strongly support this amendment to subpoena John 
Bolton. I am struck by what we have heard from the President's 
counsel so far tonight. They complain about process, but they 
do not seriously contest any of the allegations against the 
President. They insist that the President has done nothing 
wrong, but they refuse to allow the evidence and hear from the 
witnesses. They will not permit the American people to hear 
from the witnesses, and they lie and lie and lie and lie.
    For example, for months, President Trump has repeatedly 
complained that the House denied them the right to call 
witnesses, to cross-examine witnesses, and so forth. You heard 
Mr. Cipollone repeat this lie today. Well, I have with me the 
letter that I sent as Chairman of the House Judiciary Committee 
last November 26, inviting the President and his counsel to 
attend our hearings, to cross-examine the witnesses, to call 
witnesses of his own, and so forth. I also have the White House 
letter signed by Mr. Cipollone, rejecting that offer. We should 
expect at least a little regard for the truth from the White 
House, but that is apparently too much to expect.
    Ladies and gentlemen, this is a trial. At a trial, the 
lawyers present evidence. The American people know that. Most 
10-year-olds know that. If you vote to block this witness or 
any of the evidence that should be presented here, it can only 
be because you do not want the American people to hear the 
evidence, that you do not want a fair trial, and that you are 
complicit in President Trump's efforts to hide his misconduct 
and hide the truth from the American people.
    Ambassador Bolton was appointed by President Trump. He has 
stated his willingness to testify in this trial. He is prepared 
to testify. [Slide 132] He says that he has relevant evidence 
not yet disclosed to the public. His comments reaffirm what is 
obvious from the testimony and documents obtained by the House, 
which highlight Ambassador Bolton's role in the repeated 
criticism of the President's misconduct.
    In fact, extensive evidence collected by the House makes 
clear that Ambassador Bolton not only had firsthand knowledge 
of the Ukraine scheme but that he was deeply concerned with it. 
He described the scheme as a ``drug deal'' to a senior member 
of the staff. He warned that President Trump's personal lawyer, 
Rudy Giuliani, would ``blow everybody up.'' Indeed, in advance 
of the July 25, 2019, call, Ambassador Bolton expressed concern 
that President Trump would ask the Ukrainian President to 
announce these political investigations, which is, of course, 
exactly what happened. Of course, there weren't to be any 
investigations. All he cared about was an announcement to smear 
a political rival in the United States. He repeatedly urged his 
staff to report their own concerns about the President's 
conduct to legal counsel--that is, Ambassador Bolton did, not 
the President--as the scheme was unfolding.
    Finally, as National Security Advisor, he also objected to 
the President's freezing of military aid to Ukraine and 
advocated for the release of that aid, [Slide 132] including 
directly with President Trump. Of course, as we all know, the 
Impoundment Control Act makes illegal the President's 
withholding of that aid after Congress had voted for it, but 
the President ignored the warnings about that because all he 
cared about was smearing a political rival. The law meant 
nothing to him.
    Ambassador Bolton has made clear that he is ready, willing, 
and able to testify about everything he witnessed, but 
President Trump does not want you to hear from Ambassador 
Bolton, and the reason has nothing to do with executive 
privilege or this other nonsense. The reason has nothing to do 
with national security. If the President cared about national 
security, he would not have blocked military assistance to a 
vulnerable strategic ally in the attempt to secure a personal 
political favor for himself.
    No, the President does not want you to hear from Ambassador 
Bolton because the President does not want the American people 
to hear firsthand testimony about the misconduct at the heart 
of this trial. The question is whether the Senate will be 
complicit in the President's crimes by covering them up. Any 
Senator who votes against Ambassador Bolton's testimony or any 
relevant testimony shows that he or she wants to be part of the 
coverup. What other possible reason is there to prohibit a 
relevant witness from testifying here? Unfortunately, so far, I 
have seen every Republican Senator has shown that they want to 
be part of the coverup by voting against every document and 
witness proposed.
    Ambassador Bolton is a firsthand witness to President 
Trump's abuse of power. As the National Security Advisor, he 
reported directly to the President and supervised the entire 
National Security Council. [Slide 133] That included three key 
witnesses with responsibility for Ukraine matters who testified 
in great detail before the House--Dr. Fiona Hill, Tim Morrison, 
and Lieutenant Colonel Alexander Vindman.
    Moreover, in his role, John Bolton was the tip of the spear 
for President Trump on national security. It was his 
responsibility to oversee everything happening in the Trump 
administration regarding foreign policy and national security. 
By virtue of his unique position appointed by the President, 
Bolton had knowledge of the latest intelligence and 
developments in our relationship with Ukraine, including our 
support of the country and its new President, and that is why 
the President and some Members of this body are afraid to hear 
from Ambassador Bolton--because they know he knows too much.
    There is also substantial evidence that Ambassador Bolton 
kept a keen eye on Rudy Giuliani, who was acting on behalf of 
the President in connection with Ukraine. As we will describe, 
Ambassador Bolton communicated directly with Mr. Giuliani at 
key moments. He knows the details of the so-called drug deal he 
would later warn against.
    Perhaps most importantly, Ambassador Bolton has said both 
that he will testify and that he has relevant information that 
has not yet been disclosed. A key witness has come forward and 
confirmed not only that he participated in critically important 
events but that he has new evidence we have not yet heard. That 
is precisely what Ambassador Bolton has done. His lawyer tells 
us that Ambassador Bolton [Slide 134] was ``personally involved 
in many of the events, meetings, and conversations about which 
the House heard testimony, as well as many relevant meetings 
and conversations that have not yet been discussed in the 
testimony thus far.''
    Ambassador Bolton was requested as a witness in the House 
inquiry, but he refused to appear voluntarily. His lawyers 
informed the House Intelligence Committee that Ambassador 
Bolton would take the matter to court if issued a subpoena, as 
his subordinate did, but the Ambassador changed his tune. He 
recently issued a statement confirming that ``if the Senate 
issues a subpoena for my testimony, I am prepared to testify.'' 
[Slide 135]
    So the question presented as to Ambassador Bolton is clear. 
It comes down to this: Will the Senate do its duty and hear all 
the evidence? Or will it slam this door shut and show it is 
participating in a coverup because it fears to hear testimony 
from the former National Security Advisor of the President, 
because it fears what he might say or it fears he knows too 
much?
    Consider this as well: Why is President Trump so intent on 
preventing us from hearing Ambassador Bolton, his own 
appointee, his formerly trusted confidant? Because he knows--he 
knows--his guilt and he knows that he doesn't want people who 
know about it to testify. The question is whether Republican 
Senators here today will participate in that coverup.
    The reasons seem clear. President Trump wants to block this 
witness because Ambassador Bolton has direct knowledge of the 
Ukraine scheme, which he called a drug deal. Let's start with 
the key meeting that took place on July 10.
    Just 2 weeks before President Trump's now famous July 25 
call with President Zelensky, Ambassador Bolton hosted senior 
Ukrainian officials in his West Wing office. That meeting 
included Dr. Hill, Lieutenant Colonel Vindman, Ambassadors 
Sondland and Volker, and Energy Secretary Rick Perry. As they 
did in every meeting they took with U.S. officials, Ukrainian 
officials asked when President Trump would schedule a White 
House meeting for the newly elected Ukrainian President because 
it was very important for the Ukrainian President, a new 
President of an embattled democracy being invaded by Russia, to 
show that he had legitimacy by a meeting with the United 
States.
    Dr. Hill testified that Ambassador Sondland blurted out 
that he had a deal with Mr. Mulvaney for a White House visit, 
provided that Ukraine first announce investigations into the 
President's political rivals. Ambassador Bolton immediately 
stiffened and ended the meeting. Dr. Hill's testimony is on the 
screen.
    In other words, Ambassador Bolton and others at the meeting 
were interested in the national security of the United States. 
[Slide 136] They were interested in protecting an American ally 
against Russian invasion. They couldn't understand why this 
sudden order was coming from the President to abandon that ally 
because they didn't yet know--they didn't yet know--of the 
President's plot to try to extort the Ukrainian Government into 
doing him a political favor by announcing an investigation of a 
political rival.
    When Dr. Hill reported back to Ambassador Bolton about the 
second conversation, Ambassador Bolton told Dr. Hill to go to 
the National Security Council's legal advisor, John Eisenberg, 
and tell him: ``I am not part of whatever drug deal Sondland 
and Mulvaney are cooking up on this.''
    Here is an excerpt of her hearing testimony.
    (Text of Videotape presentation:)

    Dr. HILL. The specific instruction was that I had to go to the 
lawyers--to John Eisenberg, the senior counsel for the National 
Security Council, to basically say: You tell Eisenberg Ambassador 
Bolton told me that I am not part of this--whatever drug deal that 
Mulvaney and Sondland are cooking up.
    Mr. GOLDMAN. What did you understand him to mean by the drug deal 
that Mulvaney and Sondland were cooking up?
    Dr. HILL. I took it to mean investigations for a meeting.
    Mr. GOLDMAN. Did you go speak to the lawyers?
    Dr. HILL. I certainly did.

    Mr. Manager NADLER. These statements of events are reason 
enough to insist that Ambassador Bolton testify. He can explain 
the misconduct that caused him to characterize the Ukraine 
scheme as a drug deal and why he directed his subordinates to 
report their concerns to a legal counsel. He can tell us 
everything else he knows about how Ambassador Sondland, Mr. 
Mulvaney, and others were attempting to press the Ukrainians to 
do President Trump's political bidding. Once more, only 
Ambassador Bolton can tell us what he was thinking and what he 
knew as this scheme developed. That is why the President fears 
his testimony. That is why some Members of this body fear his 
testimony.
    Ambassador Bolton's involvement was not limited to a few 
isolated events; he was a witness at key moments in the course 
of the Ukraine scheme, especially in July, August, and 
September of last year. I would like to walk through some of 
these events. Please remember, as I am describing them, that 
this is not the entire universe of issues to which Ambassador 
Bolton could testify; they are only examples that show why he 
is such an important witness and why the President is desperate 
to block his testimony.
    We know from Ambassador Bolton's attorney that there may be 
other meetings and conversations that have not yet come to our 
attention. To take one example, we know from witness testimony 
that Ambassador Bolton repeatedly expressed concerns about the 
involvement of President Trump's personal lawyer, Mr. Giuliani.
    In the spring and summer of 2019, Ambassador Bolton caught 
wind of Mr. Giuliani's involvement in Ukraine and soon began to 
express concerns. Ambassador Bolton expressed strong concerns 
about Mr. Giuliani's involvement in Ukraine matters. [Slide 
137]
    When Ambassador Bolton described Mr. Giuliani as ``a hand 
grenade that was going to blow everybody up,'' it was based on 
his fear that Mr. Giuliani's work on behalf of the President, 
his attempts to have Ukraine announce these investigations--
these sham investigations--and his campaign to smear Ambassador 
Yovanovitch would ultimately backfire and cause lasting damage 
to the President. It turns out he was right.
    (Text of Videotape presentation:)

    Ms. SEWELL. Did your boss, Dr. Bolton--I mean Ambassador Bolton, 
tell you that Giuliani was ``a hand grenade''?
    Dr. HILL. He did, yes.
    Ms. SEWELL. What do you think he meant by his characterization of 
Giuliani as a hand grenade?
    Dr. HILL. What he meant by this was pretty clear to me in the 
context of all of the statements that Mr. Giuliani was making publicly 
about the investigations that he was promoting, that the story line he 
was promoting, the narrative he was promoting was going to backfire. I 
think it has backfired.

    Mr. Manager NADLER. In June, as Ambassador Bolton became 
aware of Mr. Giuliani's coordination with Ambassadors Volker 
and Sondland, he told Dr. Hill and other members of the 
National Security Council staff that ``nobody should be meeting 
with Giuliani.'' But, he, of course, did not know of the 
President's plot as to why people were meeting with Giuliani.
    Dr. Hill also testified that Ambassador Bolton was 
``closely monitoring what Mr. Giuliani was doing and the 
messaging that he was sending out.'' But Ambassador Bolton was 
keenly aware that Mr. Giuliani was doing the President's 
bidding. That is also why the President fears his testimony.
    During a meeting on June 13, 2019, Ambassador Bolton made 
clear that he supported more engagement with Ukraine by senior 
White House officials but questioned that ``Mr. Giuliani was a 
key voice with the president on Ukraine.'' He joked that every 
time Ukraine is mentioned, Giuliani pops up. [Slide 138]
    Ambassador Bolton also communicated directly with Mr. 
Giuliani at key junctures. According to call records obtained 
by the House, Mr. Giuliani connected with Ambassador Bolton's 
office three times for brief calls between April 23 and May 10, 
2019, a time period that corresponds with the recall of 
Ambassador Yovanovitch and the acceleration of Mr. Giuliani's 
efforts on behalf of President Trump to pressure Ukraine into 
opening investigations that would benefit his reelection 
campaign.
    For instance, on April 23, the day before the State 
Department recalled Ambassador Yovanovitch from Ukraine, Mr. 
Giuliani had an 8-minute 28-second call from the White House. 
Thirty minutes later, he had a 48-second call with a phone 
number associated with Ambassador Bolton.
    If he were called to testify, we could ask Ambassador 
Bolton directly what transpired on that call and whether that 
phone call informed his assessment that Mr. Giuliani was ``a 
hand grenade that was going to blow everyone up.'' We can ask 
Mr. Bolton why, when there are approximately 1.8 million 
companies in Ukraine--several hundred thousand of which have 
been accused of corruption--the President was focused on only 
one. He didn't care about anything else. He cared only about 
the company on which the former Vice President's son had been a 
board member. Can you believe that he was concerned with 
corruption and only knew about one company, when there are 
hundreds of thousands that were accused of corruption?
    Although Ambassador Bolton did not listen in on the July 25 
call between President Trump and President Zelensky in which 
President Trump asked the Ukrainian President a favor--a favor 
to investigate one company and Joe Biden's son--we have learned 
from witness testimony that Ambassador Bolton was opposed to 
scheduling the call in the first place. Why? Because he 
accurately predicted, in the words of Ambassador Taylor, that 
``there could be some talk of investigations or worse on the 
call.'' [Slide 139] In fact, he did not want the call to happen 
at all because he ``thought it was going to be a disaster.''
    How did Ambassador Bolton know that President Trump would 
bring this up? What made him so concerned that a call would be 
a disaster? I think we know, but only Ambassador Bolton can 
answer these questions.
    Based on extensive witness testimony, we also know that 
throughout this period, multiple people on the National 
Security Council's staff reported concerns to Ambassador Bolton 
about tying American foreign policy to President Trump's 
``domestic political errand,'' as Dr. Hill so aptly put it.
    After he abruptly ended the July 10 meeting--the meeting in 
which Ambassador Sondland abruptly told the Ukrainians that a 
White House meeting could be scheduled in exchange for the 
announced investigations--Ambassador Bolton spoke to Dr. Hill 
and directed her to report her concerns to National Security 
Council's legal adviser John Eisenberg.
    At the end of August, Ambassador Bolton advised Ambassador 
Taylor to send a first-person cable to Secretary Pompeo to 
relay concerns about the hold on the military aid.
    Ambassador Bolton also advised Mr. Morrison--Dr. Hill's 
successor as the top Russia and Ukraine official on the 
National Security Council--on at least two different occasions 
to report what he had heard to the National Security Council's 
lawyers, it sounding so suspicious.
    On September 1, [Slide 140] Ambassador Bolton directed Mr. 
Morrison to report to the National Security Council's lawyers 
an explicit proposal from Ambassador Sondland to a senior 
Ukrainian official that ``what could help them move the aid was 
if the prosecutor general would go to the mike and announce 
that he was opening the Burisma investigation.''
    On September 7, Ambassador Bolton instructed Mr. Morrison 
to report to the lawyers another conversation Mr. Morrison had 
with Ambassador Sondland. This time, Ambassador Sondland had 
conveyed that the administration would not release the military 
aid unless President Zelensky announced the investigations 
demanded by President Trump--the investigations of one company 
because the President was so concerned about the corruption in 
Ukraine. It was one company that had had Vice President Biden's 
son on the board, and the President just happened to pick that 
company from hundreds of thousands to be concerned about 
corruption. And the President also opposed funding for 
corruption aid to Ukraine.
    Why did Ambassador Bolton tell his subordinates to report 
these issues to the national security lawyers? What does he 
know about how the lawyers responded to the concerns of Dr. 
Hill or of Lieutenant Colonel Vindman and Mr. Morrison? Again, 
only Ambassador Bolton can answer these questions, and we must 
assume that the answers go to the heart of the President's 
misconduct, given the President's attempt to block his 
testimony. Why would the President oppose the testimony of his 
own appointee as the National Security Advisor of the United 
States unless he knew that testimony would be damming to him? 
Those are other reasons the President fears Ambassador Bolton's 
testimony.
    I would like to now turn to Ambassador Bolton's knowledge 
of and concerns about President Trump's illegal withholding of 
the military aid to Ukraine.
    Of course, we all know that under the Anti-Impoundment Act 
of 1974--passed to prevent President Nixon from refusing to 
spend money appropriated by Congress--withholding money 
appropriated by Congress is illegal; nonetheless, the President 
did it for obviously corrupt motives.
    By July of last year, Ambassador Bolton was well aware that 
President Trump was illegally withholding security assistance 
to Ukraine, and he and his subordinates tried to convince the 
President to pursue America's national security interests and 
release the aid instead of continuing to withhold vital 
military assistance to the President--instead of holding that 
vital military assistance hostage to the President's personal 
political agenda.
    Throughout the rest of July, [Slide 141] over the course of 
several interagency meetings, the National Security Council 
repeatedly discussed the freeze on Ukraine's security 
assistance. As National Security Advisor, Ambassador Bolton 
supervised that process. These meetings worked their way up to 
the level of Cabinet deputies, and every agency involved, 
except for the Office of Management and Budget, supported 
releasing the aid. OMB, meanwhile, said its position was based 
on President Trump's express orders.
    We know that a number of individuals at OMB and the 
Department of Defense raised serious concerns about the 
legality of freezing the funds, which we know is illegal. We 
now have an explicit ruling from the Government Accountability 
Office, which we didn't need because we knew that is why the 
law was passed in 1974, that the freeze ordered by President 
Trump was illegal--and he was obviously told this--and violated 
the Impoundment Control Act.
    We also know that after the meeting of Cabinet deputies on 
July 26, Tim Morrison talked to Ambassador Bolton, and 
according to Mr. Morrison, Ambassador Bolton said that the 
entire Cabinet supported releasing the freeze and wanted to get 
the issue to President Trump as soon as possible.
    When did Ambassador Bolton first become aware that 
President Trump was withholding military aid to Ukraine and 
conditioning the release of that aid on Ukraine announcing 
political investigations? What was he told was the reason? What 
else did he learn about the President's actions in these 
meetings? Again, only Ambassador Bolton can answer these 
questions, and again we must presume that President Trump is 
desperate for us not to hear those answers. I hope not too many 
of the Members of this body are desperate to make sure that the 
American people don't hear these same answers.
    We know that Ambassador Bolton tried throughout August, 
without success, to persuade the President that the aid to 
Ukraine had to be released because that was in America's best 
interest and necessary for our national security.
    In mid-August, we know Lieutenant Colonel Vindman wrote a 
Presidential decision memorandum recommending that the freeze 
be lifted based on the consensus views of the entire Cabinet. 
The memo was given to Ambassador Bolton, who subsequently had a 
direct, one-on-one conversation with the President in which he 
tried but failed to convince him to release the hold.
    (Text of Videotape presentation:)

    Mr. SWALWELL. You said Ambassador Bolton had a one-on-one meeting 
with President Trump in late August 2019, but the President was not yet 
ready to approve the release of the assistance. Do you remember that?
    Mr. MORRISON. This was 226?
    Mr. SWALWELL. Yes, 266 and 268. But I am asking you: Did that 
happen or did it not?
    Mr. MORRISON. Sir, I just want to be clear characterizing it. OK, 
sir.
    Mr. SWALWELL. Yes. You testified to that. What was the outcome of 
that meeting between Ambassador Bolton and President Trump?
    Mr. MORRISON. Ambassador Bolton did not yet believe the President 
was ready to approve the assistance.
    Mr. SWALWELL. Did Ambassador Bolton inform you of any reason for 
the ongoing hold that stemmed from this meeting?
    Mr. MORRISON. No, sir.

    Mr. Manager NADLER. Ambassador Bolton's efforts failed. By 
August 30, OMB informed DOD that there was ``clear direction 
from POTUS to continue to hold.'' What rationale did President 
Trump give Ambassador Bolton and other senior officials for 
refusing to release the aid? Were these reasons convincing to 
Ambassador Bolton, and did they reflect the best interests of 
our national security or the President's personal political 
interests?
    Only Ambassador Bolton can tell us the answers. A fair 
trial in this body would ensure that he testifies. The 
President does not want you to hear Ambassador Bolton's 
testimony. Why is that? For all the obvious reasons I have 
stated.
    The President claims that he froze aid to Ukraine in the 
interest of our national security. If that is true, why would 
he oppose testimony from his own former National Security 
Advisor?
    Make no mistake. President Trump had no legal grounds to 
block Ambassador Bolton's testimony in this trial. Executive 
privilege is not a spell that the President can cast to cover 
up evidence of his own misconduct. It is a qualified privilege 
that protects senior advisers performing official functions. 
Executive privilege is a shield, not a sword. It cannot be used 
to block a witness who is willing to testify, as Ambassador 
Bolton says he is.
    As we know from the Nixon case in Watergate, the privilege 
also does not prevent us from obtaining specific evidence of 
wrongdoing. The Supreme Court unanimously rejected President 
Nixon's attempts to use executive privilege to conceal 
incriminating tape recordings. All the similar efforts by 
President Trump must also fail.
    The President sometimes relies on a theory of absolute 
immunity that says that he can order anybody in the executive 
branch not to testify to the House or the Senate or to a court. 
Obviously, this is ridiculous. It has been flatly rejected by 
every Federal court to consider the idea. It is embarrassing 
that the President's counsel would talk about this today.
    Again, even if President Trump asserts that Ambassador 
Bolton is absolutely immune from compelled testimony, the 
President has no authority to block Ambassador Bolton from 
appearing here. As one court recently explained, [Slide 142] 
Presidents are not Kings, and they do not have subjects whose 
destiny they are entitled to control.
    This body should not act as if the President is a King. We 
will see, with the next vote on this question, whether the 
Members of this body want to protect the President against all 
investigation, against all suspicion, against any crimes, or 
not.
    The Framers of our Constitution were most concerned about 
abuse of power where it affects national security. President 
Trump has been impeached for placing his political interests 
ahead of our national security. It is imperative, therefore, 
that we hear from the National Security Advisor who witnessed 
the President's scheme from start to finish. To be clear, the 
record, as it stands, fully supports both Articles of 
Impeachment. It is beyond argument that President Trump mounted 
a sustained pressure campaign to get Ukraine to announce 
investigations that would benefit him politically and then 
tried to cover it up. The President does not seriously deny any 
of these facts.
    The only question left is this: Why is the President so 
intent on concealing the evidence and blocking all documents 
and testimony here today? Only guilty people try to hide the 
evidence.
    Of course, all of this is relevant only if this here today 
is a fair trial, only if you, the Senate, sitting as an 
impartial jury, do not work with the accused to conceal the 
evidence from the American people.
    We cannot be surprised that the President objects to 
calling witnesses who would prove his guilt. That is who he is. 
He does not want you to see evidence or hear testimony that 
details how he betrayed his office and asked a foreign 
government to intervene in our election. But we should be 
surprised that, here in the U.S. Senate, the greatest 
deliberative body in the world, where we are expected to put 
our oath of office ahead of political expediency, where we are 
expected to be honest, where we are expected to protect the 
interests of the American people--we should be surprised, 
shocked--that any Senator would vote to block this witness or 
any relevant witness who might shed additional light on the 
President's obvious misconduct.
    The President is on trial in the Senate, but the Senate is 
on trial in the eyes of the American people. Will you vote to 
allow all of the relevant evidence to be presented here, or 
will you betray your pledge to be an impartial juror? Will you 
bring Ambassador Bolton here? Will you permit us to present you 
with the entire record of the President's misconduct, or will 
you, instead, choose to be complicit in the President's 
coverup?
    So far, I am sad to say, I see a lot of Senators voting for 
a coverup, voting to deny witnesses--an absolutely indefensible 
vote, obviously a treacherous vote, a vote against an honest 
consideration of the evidence against the President, a vote 
against an honest trial, a vote against the United States.
    A real trial, we know, has witnesses. We urge you to do 
your duty, permit a fair trial. All the witnesses must be 
permitted. That is elementary in American justice. Either you 
want the truth and you must permit the witnesses, or you want a 
shameful coverup. History will judge. So will the electorate.
    Mr. Chief Justice, we reserve the balance of our time--the 
managers.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, Members of the 
Senate, we came here today to address the false case brought to 
you by the House managers. We have been respectful of the 
Senate. We have made our arguments to you.
    You don't deserve and we don't deserve what just happened. 
Mr. Nadler came up here and made false allegations against our 
team. He made false allegations against all of you. He accused 
you of a coverup. He has been making false allegations against 
the President. The only one who should be embarrassed, Mr. 
Nadler, is you, for the way you have addressed this body. This 
is the U.S. Senate. You are not in charge here.
    Now let me address the issue of Mr. Bolton. I have 
addressed it before. They don't tell you that they didn't 
bother to call Mr. Bolton themselves. They didn't subpoena him. 
Mr. Cooper wrote them a letter. He said very clearly: If the 
House chooses not to pursue through subpoena the testimony of 
Dr. Kupperman and Ambassador Bolton, let the record be clear. 
That is the House's decision.
    They didn't pursue Ambassador Bolton, and they withdrew the 
subpoena to Mr. Kupperman. So, for them to come here now and 
demand that, before we even start the arguments--they ask you 
to do something that they refuse to do for themselves and then 
accuse you of a coverup when you don't do it--it is ridiculous. 
Talk about out-of-control governing.
    Now, let me read you a quote from Mr. Nadler not so long 
ago:

    The effect of impeachment is to overturn the popular will 
of the voters. There must never be a narrowly voted impeachment 
or an impeachment supported by one of our major political 
parties and opposed by the other. Such an impeachment would 
produce divisiveness and bitterness in our politics for years 
to come and will call into question the very legitimacy of our 
political institutions.

    Well, you have just seen it for yourself. What happened, 
Mr. Nadler? What happened?
    The American people pay their salaries, and they are here 
to take away their vote. They are here to take away their 
voice. They have come here, and they have attacked every 
institution of our government. They have attacked the 
President, the executive branch. They have attacked the 
judicial branch. They say they don't have time for courts. They 
have attacked the U.S. Senate, repeatedly. It is about time we 
bring this power trip in for a landing.
    President Trump is a man of his word. He made promises to 
the American people, and he delivered--over and over and over 
again. And they come here and say, with no evidence, spending 
the day complaining, that they can't make their case, attacking 
a resolution that had 100 percent support in this body. And 
some of the people here supported it at the time. It is a 
farce, and it should end.
    Mr. Nadler, you owe an apology to the President of the 
United States and his family. You owe an apology to the Senate. 
But, most of all, you owe an apology to the American people.
    Mr. Chief Justice, I yield the remainder of my time to Mr. 
Sekulow.
    The CHIEF JUSTICE. Mr. Sekulow.
    Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the 
Senate, chairman Nadler talked about treacherous, and at about 
12:10 a.m., January 22, the chairman of the Judiciary 
Committee, in this body, on the floor of this Senate, said 
``executive privilege and other nonsense.'' Now, think about 
that for a moment--``executive privilege and other nonsense.''
    Mr. Nadler, it is not nonsense. These are privileges 
recognized by the Supreme Court of the United States. To shred 
the Constitution on the floor of the Senate--to serve what 
purpose? The Senate is not on trial. The Constitution doesn't 
allow what just took place.
    Look at what we have dealt with for the last now 13 hours. 
We, hopefully, are closing the proceedings, but not on a very 
high note.
    Only guilty people try to hide evidence? So, I guess, when 
President Obama instructed his Attorney General to not give 
information, he was guilty of a crime. That is the way it 
works, Mr. Nadler? Is that the way you view the U.S. 
Constitution? Because that is not the way it was written. That 
is not the way it is interpreted, and that is not the way the 
American people should have to live.
    I will tell you what is treacherous: To come to the floor 
of the Senate and say ``executive privilege and other 
nonsense.''
    Mr. Chief Justice, we yield the rest of our time.
    The CHIEF JUSTICE. The managers have 27 minutes remaining.
    Mr. Manager NADLER. Mr. Chief Justice, Members of the 
Senate, the President's counsel has no standing to talk about 
lying. He told this body today--the President has told this 
body--and told the American people repeatedly, for example, 
that the House of Representatives refused to allow the 
President due process. I told you that it is available--public 
document, November 26 letter from me, as chairman of the 
Judiciary Committee, to the President, offering him due 
process, offering witnesses, offering cross-examination.
    A few days later, we received a letter from Mr. Cipollone 
on White House stationery that said: No, we have no interest in 
appearing.
    On the one hand, the House is condemned by the President 
for not giving him due process after they rejected the offer of 
due process. That letter rejecting it was December 1.
    The President's counsel says that the House should have 
issued subpoenas. We did issue subpoenas. The President, you 
may recall--you should recall--said he would oppose all 
subpoenas, and he did. So many of those subpoenas are still 
being fought in court--subpoenas issued last April. So that is 
also untrue. It takes a heck of a lot of nerve to criticize the 
House for not issuing subpoenas when the President said he 
would oppose all subpoenas. We have issued a lot of subpoenas. 
He opposes all of them, and they are tied up in court.
    The President claims--and most Members of this body know 
better--executive privilege, which is a limited privilege, 
which exists but not as a shield, not as a shield against 
wrongdoing, as the Supreme Court specifically said in the Nixon 
case in 1974. The President claims absolute immunity. Mr. 
Cipollone wrote some of those letters, not only saying the 
President but that nobody should testify that he doesn't want, 
and then they have the nerve--and that is a violation of the 
constitutional rights of the House of Representatives and the 
Senate and of the American people represented through them.
    It is an assertion of the kingly prerogative, a monarchical 
prerogative. Only the President--only the President has rights, 
and the people as represented in Congress cannot get 
information from the executive branch at all. This body has 
committees. It has a 200-year record of issuing subpoenas, of 
having the administration of the day testify, of sometimes 
having subpoena fights, but no President has ever claimed the 
right to stonewall Congress on everything, period. Congress has 
no right to get information. The American people have no right 
to get information. That, in fact, is article II of the 
impeachment that we have voted.
    It is beyond belief that the President claims monarchical 
powers--I can do whatever I want under article II, says he--and 
then acts on that, defies everything, defies the law to 
withhold aid from Ukraine, defies the law in a dozen different 
directions all the time, and lies about it all the time and 
says to Mr. Cipollone to lie about it. These facts are 
undeniable--undeniable.
    I reserve.
    Mr. Manager SCHIFF. Mr. Cipollone, once again, complained 
that we did not request John Bolton to testify in the House, 
but of course we did. We did request his testimony, and he was 
a no-show.
    When we talked to his counsel about subpoenaing his 
testimony, the answer was: You give us a subpoena, and we will 
sue you. And, indeed, that is what Mr. Bolton's attorney did 
with the subpoena for Dr. Kupperman.
    There was no willingness by Mr. Bolton to testify before 
the House. He said he would sue us. What is the problem with 
his suing us? Their Justice Department, under Bill Barr, is in 
court arguing--actually in that very case involving Dr. 
Kupperman--that Dr. Kupperman can't sue the administration and 
the Congress.
    That is the same position that Congress has taken, the same 
position the administration is taking but, apparently, not the 
same position these lawyers are taking.
    Here is the bigger problem with that. We subpoenaed Don 
McGahn, as I told you earlier. You should know we subpoenaed 
Don McGahn in April of 2019. It is January of 2020. We still 
don't have a final decision from the court requiring him to 
testify. In a couple of months, it will be 1 year since we 
issued that subpoena.
    The President would like nothing more than for us to have 
to go through 1 year or 2 years or 3 years of litigation to get 
any witness to come before the House. The problem is, the 
President is trying to cheat in this election. We don't have 
the luxury of waiting 1 year or 2 years or 3 years, when the 
very object of this scheme was to cheat in the next election. 
It is not like that threat has gone away.
    Just last month, the President's lawyer was in Ukraine 
still trying to smear his opponent and still trying to get 
Ukraine to interfere in our election. The President said, even 
while the impeachment investigation was going on, when he was 
asked: What did you want in that call with Zelensky, and his 
answer was: Well, if we are being honest about it, Zelensky 
should do that investigation of the Bidens.
    He hasn't stopped asking them to interfere. Do you think 
the Ukrainians have any doubt about what he wants? One of the 
witnesses, David Holmes, testified about the pressure that 
Ukraine feels. He made a very important point: It isn't over. 
It is not like they don't want anything else from the United 
States.
    This effort to pressure Ukraine goes on to this day, with 
the President's lawyer continuing the scheme, as we speak, with 
the President inviting other nations to also involve themselves 
in our election.
    China--he wants to now investigate the Bidens. This is no 
intangible threat to our elections. Within the last couple of 
weeks, it has been reported that the Russians have tried to 
hack Burisma. Why do you think they are hacking Burisma? 
Because, as Chairman Nadler says, everybody seems to be 
interested in this one company out of hundreds of thousands 
Ukrainian companies. It is a coincidence that the same company 
that the President has been trying to smear Joe Biden over 
happens to be the company the Russians are hacking.
    Why would the Russians do that? If you look back to the 
last election, the Russians hacked the DNC, and they started to 
leak campaign documents in a drip, drip, drip, and the 
President was only too happy--over 100 times in the last couple 
of months in the campaign--to cite those Russian-hacked Russian 
documents, and now the Russians are at it again.
    This is no illusory threat to the independence of our 
elections. The Russians are at it, as we speak. What does the 
President do? Is he saying: Back off, Russia; I am not 
interested in your help; I don't want foreign interference? No, 
he is saying: Come on in, China. He has his guy in Ukraine 
continuing the scheme.
    We can't wait a year or 2 years or 3 years, like we have 
had to wait with Don McGahn, to get John Bolton in to testify 
to let you know that this threat is ongoing.
    Counsel also says: Well, this is just like Obama, right? 
This is just like Obama, citing, I suppose, the Fast and 
Furious case. They don't mention to you that in that 
investigation, the Obama administration turned over tens of 
thousands of documents. They don't want you to know about that. 
They say it is just like Obama.
    When you find video of Barack Obama saying that under 
article II he can do anything, then you can compare Barack 
Obama to Donald Trump. When you find a video of Barack Obama 
saying: I am going to fight all subpoenas, then you can compare 
Barack Obama to Donald Trump.
    And finally, Mr. Cipollone says, President Trump is a man 
of his word. It is too late in the evening for me to go into 
that one, except to say this. President Trump gave his word he 
would drain the swamp. He said he would drain the swamp. What 
have we seen? We have seen his personal lawyer go to jail, his 
campaign chairman go to jail, his deputy campaign chairman 
convicted of a different crime, his associates' associate, Lev 
Parnas, under indictment. The list goes and on. That is, I 
guess, how you drain the swamp. You have all your people go to 
jail.
    I don't think that is really what was meant by that 
expression. For the purposes of why we are here today, how does 
someone who promises to drain the swamp coerce an ally of ours 
into doing a political investigation? That is the swamp. That 
is not draining the swamp; that is exporting the swamp.
    I yield back.
    The CHIEF JUSTICE. I think it is appropriate at this point 
for me to admonish both the House managers and the President's 
counsel in equal terms to remember that they are addressing the 
world's greatest deliberative body. One reason it has earned 
that title is because its Members avoid speaking in a manner 
and using language that is not conducive to civil discourse.
    In the 1905 Swayne trial, a Senator objected when one of 
the managers used the word ``pettifogging,'' and the Presiding 
Officer said the word ought not have been used. I don't think 
we need to aspire to that high a standard, but I think those 
addressing the Senate should remember where they are.
    The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, it will surprise no one 
that I move to table the amendment and ask for the yeas and 
nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There is a sufficient second.
    The legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any other Senators in the 
Chamber desiring to vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 22]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1292

    Mr. SCHUMER. Thank you, Mr. Chief Justice.
    I send an amendment to the desk to provide for a vote of 
the Senate on any motion to subpoena witnesses or documents 
after the question period, and I waive its reading.
    The CHIEF JUSTICE. Is there any objection to the waiving of 
the reading?
    Mr. Counsel CIPOLLONE. I object.
    Mr. SCHUMER. I withdraw my request for a waiver.
    The CHIEF JUSTICE. Does any Senator have an objection to 
the waiving of the reading?
    Ms. MURKOWSKI. I object.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1292.

 (Purpose: To provide that motions to subpoena witnesses or documents 
              shall be in order after the question period)

  On page 3, line 8, strike ``4 hours'' and insert ``2 hours''.
  On page 3, line 10, strike ``the question of'' and all that follows 
through ``rules'' on line 12.
  On page 3, line 14, insert ``any such motion'' after ``decide''.
  On page 3, line 15, strike ``whether'' and all that follows through 
``documents'' on line 17.
  On page 3, line 18, strike ``that question'' and insert ``any such 
motion''.
  On page 3, lines 23 and 24 strike ``and the Senate shall decide after 
deposition which witnesses shall testify'' and insert ``and then shall 
testify in the Senate''.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent or opponent?
    Mr. Manager SCHIFF. Proponent.
    Mr. Counsel CIPOLLONE. We oppose it.
    The CHIEF JUSTICE. Mr. Schiff, you may proceed and reserve 
time for rebuttal.
    Mr. Manager SCHIFF. Senators, this amendment makes two 
important changes to the McConnell resolution.
    The first is, the McConnell resolution does not actually 
provide for an immediate vote even later on the witnesses we 
have requested.
    What the McConnell resolution says is that at some point 
after, essentially, the trial is over--after you have had the 
arguments of both sides and you have had the 16 hours of 
questioning--then there will be a debate as to whether to have 
a vote and a debate on a particular witness. There is no 
guarantee that you are going to get a chance to vote on 
specific witnesses.
    All the resolution provides is that you are going to get an 
opportunity to vote to have a debate on whether to ultimately 
have a vote on a particular witness. This would strip that 
middle layer. It would strip the debate on whether to have a 
debate on a particular witness.
    If my counsel, my colleagues for the President's team, are 
making the point that ``Well, you are going to get that 
opportunity later,'' the reality is that under the McConnell 
resolution, we may never get to have a debate about particular 
witnesses.
    You heard the discussion of four witnesses tonight. There 
may be others who come to the attention of this body who are 
able to get documents that we should also call. But will you 
ever get to hear a debate about why a particular witness is 
necessary? Well, you may only get a debate over the debate. 
This amendment would remove that debate over debate regarding 
particular witnesses.
    The other thing this resolution would provide is that you 
should hear from these witnesses directly. The McConnell 
resolution says that we deposed, and that is it. It doesn't say 
you are ever going to actually hear these witnesses for 
yourself, which means that you, as the triers of fact, may not 
get to see and witness the credibility of these witnesses. You 
may only get to see a deposition or deposition transcript or 
maybe a video of a deposition. I don't know. But if there is 
any contesting of facts, wouldn't you like to hear from the 
witnesses yourself and very directly?
    Now, the reason why it was done this way in the Clinton 
case and why there were depositions--and again, in the Clinton 
case, all these people had been interviewed and deposed or 
testified before. The reason it was done that way in the 
Clinton case is because of the salacious nature of the 
testimony. Nobody wanted witnesses on the Senate floor talking 
about sex. Well, as I said earlier, I can assure you that will 
not be the issue here.
    To whatever degree there was a reluctance in the Clinton 
case to have live testimony because of its salacious character, 
that is not an issue here. That is not a reason here not to 
hear from those witnesses yourself.
    This resolution makes those two important changes, and I 
would urge your support.
    I reserve time.
    The CHIEF JUSTICE. Mr. Cipollone.
    Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
    Mr. Purpura will argue this motion.
    Mr. Counsel PURPURA. Mr. Chief Justice, Members of the 
Senate, good morning. I will be very brief on this.
    We strongly oppose the amendment. We support the resolution 
as written. We believe, as to the two areas that Manager Schiff 
discussed, the resolution appropriately considers those 
questions and strikes the impeachment balance in the Senate's 
discretion as the sole trier of impeachments.
    The rules in place here in the resolution are similar to 
the Clinton proceeding in that regard in the sense that this 
body has the discretion as to whether to hear from the witness 
live, if there are witnesses at some point, or not.
    But, more fundamentally, the preliminary question has to be 
overcome, which is there will be 4 hours total, with 2 hours 
for them to try to convince you, after the parties have made 
their presentation--which they will have 24 hours to do--as to 
the preliminary question of whether it shall be in order to 
consider and debate any motion to subpoena witnesses or 
documents.
    Those were precisely the Clinton rules--actually, stronger 
than the Clinton rules. Those rules, as I have indicated 
before, passed 100 to 0. We think that the resolution strikes 
the appropriate balance, and we urge that the amendment be 
rejected.
    I yield my time.
    The CHIEF JUSTICE. Thank you, counsel.
    Mr. Schiff, you have 57 minutes.
    Mr. Manager SCHIFF. Don't worry. I won't use it.
    I will say only that if there were any veneer left to 
camouflage where the President's counsel is really coming from, 
the veneer is completely gone now. After saying we are going to 
have an opportunity to have a vote on these witnesses later, 
now they are saying: No, you are just going to have a vote on 
whether to debate having a vote on the witnesses.
    The camouflage was pretty thin to begin with, but it is 
completely gone now.
    What they really want is to get to that generic debate 
about whether or not to have a debate on witnesses and have you 
vote it down so you never actually have to vote to refuse these 
witnesses, although you had to do that tonight. I don't see 
what purpose that serves except, I suppose, to put one more 
layer in the way of accountability.
    But the veneer is gone. All this promise about ``You are 
going to get that opportunity, it is just a question of 
when''--no, the whole goal is for you to never get the chance 
to take that vote. And what is more, the vote on this 
resolution is a vote that says that you don't want to hear from 
these witnesses yourself. You don't want to evaluate the 
credibility of these witnesses yourself. Maybe--just maybe--you 
will let them be deposed, but you don't want to hear them 
yourself. You don't want to see these witnesses put up their 
hand and take an oath.
    I don't know what the rules of these depositions are going 
to be. Maybe the public isn't going to ever get to see what 
happens in those depositions. We released all the deposition 
transcripts from our depositions--the secret 100-person 
depositions--but we have no idea what rules they will adopt for 
these depositions. Maybe the public will see them; maybe they 
won't. Maybe you will get to see them; I assume you will get to 
see them. But at the end of the day, this is also a vote you 
have to cast that says: No, I don't want to hear them for 
myself. No, I don't want to evaluate their credibility for 
myself.
    This is, after all, only a vote, only a case, only a trial 
about the impeachment of the President of the United States. If 
you have a bank robbery trial or you have a trial where 
somebody is stealing a piece of mail, you could get live 
witnesses. But to impeach the President of the United States, 
they are saying: No, we don't need to see their credibility.
    Is that really where we are here tonight? Is that what the 
American people expect of a fair trial? I don't think it is.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I move to table the 
amendment and ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The PRESIDING OFFICER. Are there any other Senators in the 
Chamber desiring to vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 23]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1293

    Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the 
desk to allow adequate time for written responses to any 
motions by the parties, and I ask that it be read.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The senior assistant legislative clerk read as follows:

    The Senator from New York [Mr. Schumer] proposes an 
amendment numbered 1293.

    (Purpose: To allow additional time to file responses to motions)

  On page 2, beginning on line 10, strike ``11:00 a.m. on Wednesday, 
January 22, 2020'' and insert ``9:00 a.m. on Thursday, January 23, 
2020''.
  On page 2, line 15, strike ``Wednesday, January 22, 2020'' and insert 
``Thursday, January 23, 2020''.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent of this amendment?
    Mr. Manager SCHIFF. Mr. Chief Justice, I am a proponent.
    The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or an 
opponent of this amendment?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, I am an opponent.
    The CHIEF JUSTICE. Okay.
    Mr. Schiff, you may proceed and reserve time for rebuttal 
if you wish.
    Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
    This amendment is quite simple. Under the McConnell 
resolution, the parties file motions tomorrow at 9 a.m.--
written motions, that is--and the responding party has to file 
their reply 2 hours later. That really doesn't give anybody 
enough time to respond to a written motion.
    When the President's team filed, for example, their trial 
brief, it was over 100 pages. We at least had 24 hours to file 
our reply, and that is all we would ask for. In the Clinton 
trial--again, if we are interested in the Clinton case--they 
had 41 hours to respond to written motions. We are not asking 
for 41 hours, but we are asking for enough time to write a 
decent response to a motion.
    That is essentially it, and I would hope that we could 
agree at least on this.
    I reserve the balance of my time.
    The CHIEF JUSTICE. Mr. Sekulow.
    Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and 
Members of the Senate.
    So it seems like tomorrow is a day off according to your 
procedure; is that correct, Mr. Schiff?
    Mr. Manager SCHIFF. I forgot the time.
    Mr. Counsel SEKULOW. Today is tomorrow, and tomorrow is 
today. The answer is that we are ready to proceed. We will 
respond to any motions. We would ask the Chamber to reject this 
amendment.
    The CHIEF JUSTICE. Mr. Schiff, there are 59 minutes 
remaining.
    Mr. Manager SCHIFF. I yield back our time.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I move to table the 
amendment.
    The CHIEF JUSTICE. Is there a sufficient second?
    There is a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The result was announced--yeas 52, nays 48, as follows:

                         [Rollcall Vote No. 24]

                                YEAS--52

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--48

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    The CHIEF JUSTICE. The Democratic leader is recognized.

                           AMENDMENT NO. 1294

    Mr. SCHUMER. Mr. Chief Justice, on behalf of Senator Van 
Hollen, I send an amendment to the desk to help ensure 
impartial justice by requiring the Chief Justice of the United 
States to rule on motions to subpoena witnesses and documents. 
I ask that it be read. This is our last amendment of the 
evening.
    The CHIEF JUSTICE. The clerk will read the amendment.
    The senior assistant legislative clerk read as follows:

    The Senator from New York [Mr. Schumer], for Mr. Van 
Hollen, proposes an amendment numbered 1294.

   (Purpose: To help ensure impartial justice by requiring the Chief 
 Justice of the United States to rule on motions to subpoena witnesses 
                             and documents)

  On page 3, line 20, insert ``The Presiding Officer shall rule to 
authorize the subpoena of any witness or any document that a Senator or 
a party moves to subpoena if the Presiding Officer determines that the 
witness or document is likely to have probative evidence relevant to 
either article of impeachment before the Senate.'' after ``order.''.

    The CHIEF JUSTICE. The amendment is arguable by the parties 
for 2 hours, equally divided.
    Mr. Manager Schiff, are you a proponent or an opponent of 
the motion?
    Mr. Manager Schiff. Mr. Chief Justice, I am a proponent.
    The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or an 
opponent of the motion?
    Mr. Counsel CIPOLLONE. Mr. Chief Justice, I am an opponent.
    The CHIEF JUSTICE. Mr. Schiff, you may proceed and reserve 
time for rebuttal.
    Mr. Manager SCHIFF. Senators, this amendment would provide 
that the Presiding Officer shall rule to authorize the subpoena 
of any witness or any document that a Senator or a party moves 
to subpoena if the Presiding Officer determines that that 
witness is likely to have probative evidence relevant to either 
Article of Impeachment.
    It is quite simple. It would allow the Chief Justice and it 
would allow Senators, the House managers, and the President's 
counsel to make use of the experience of the Chief Justice of 
the Supreme Court to decide the questions of the relevance of 
witnesses. Either party can call the witnesses, and if we can't 
come to an agreement on witnesses ourselves, we will pick a 
neutral arbiter, that being the Chief Justice of the Supreme 
Court. If the Chief Justice finds that a witness would be 
probative, that witness would be allowed to testify. If the 
Chief Justice finds the testimony would be immaterial, that 
witness would not be allowed to testify.
    Now, it still maintains the Senate's tradition that if you 
don't agree with the Chief Justice, you can overrule him. If 
you have the votes, you can overrule the Chief Justice and say 
you disagree with what the Chief Justice has decided.
    But it would give this decision to a neutral party. That 
right is extended to both parties, who will be done in line 
with the schedule that the majority leader has set out. It is 
not the schedule we want. We still don't think it makes any 
sense to have the trial and then decide our witnesses. But if 
we are going to have to do it that way, and it looks like we 
are, at least let's have a neutral arbiter decide--much as he 
may loathe the task--whether a witness is relevant or a witness 
is not.
    We would hope that if there is nothing else we can agree on 
tonight, that we could agree to allow the Chief Justice to give 
us the benefit of his experience in deciding which witnesses 
are relevant to this inquiry and which witnesses are not.
    With that, I reserve the balance of my time.
    The CHIEF JUSTICE. Mr. Sekulow.
    Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the 
Senate, and with no disrespect to the Chief Justice, this is 
not an appellate court. This is the U.S. Senate. There is not 
an arbitration clause in the U.S. Constitution. The Senate 
shall have the sole power to try all impeachments. We oppose 
the amendment.
    We yield our time.
    The CHIEF JUSTICE. Mr. Schiff, you have 57 minutes 
remaining.
    Mr. Manager SCHIFF. Well, this is a good note to conclude 
on because don't let it be said we haven't made progress today.
    The President's counsel has just acknowledged for the first 
time that this is not an appellate court. I am glad we have 
established that. This is the trial, not the appeal, and the 
trial ought to have witnesses and the trial should be based on 
the cold record from the court below, but there is no court 
below, because, as the counsel has just admitted, you are not 
the appellate court.
    But I think what we have also seen here tonight is, they 
not only don't want you to hear these witnesses, they don't 
want to hear them live. They don't want even really to hear 
them deposed. They don't want a neutral Justice to weigh in 
because if the neutral Justice weighs in and says: You know, 
pretty hard to argue that John Bolton is not relevant here, 
pretty hard to argue that Mick Mulvaney is not relevant here--I 
just watched that videotape where he said he discussed this 
with the President. They are contesting it. Pretty relevant.
    What about Hunter Biden? Hunter Biden is probably the real 
reason they don't want the Chief Justice to have to rule on the 
materiality of a witness, right? What can Hunter Biden tell us 
about why the President withheld hundreds of millions of 
dollars from Ukraine? I can tell you what he can tell us--
nothing. What does Hunter Biden know about why the President 
wouldn't meet with President Zelensky? He can't tell us 
anything about that. What can he tell us about these Defense 
Department documents or OMB documents? What can he tell us 
about the violation of the law, withholding this money? Of 
course he can't tell us anything about that because his 
testimony is immaterial and irrelevant. The only purpose in 
calling him is to succeed at what they failed to do earlier in 
this whole scheme, and that is to smear Joe Biden by going 
after his son.
    We trust the Chief Justice of the Supreme Court to make 
that decision that he is not a material witness. This isn't 
like fantasy football here. We are not making trades--or we 
shouldn't be. We will trade you one completely irrelevant, 
immaterial witness who allows us to smear the President's 
opponent in exchange for ones who are really relevant whom you 
should hear. Is that a fair trial?
    If you can't trust the Chief Justice, appointed by a 
Republican President, to make a fair decision about 
materiality, I think it betrays the weakness of your case.
    Look, I will be honest. There has been some apprehension on 
our side about this idea, but we have confidence that the Chief 
Justice would make a fair and impartial decision and that he 
would do impartial justice, and it is something that my 
colleagues representing the President don't. They don't. They 
don't want a fair judicial ruling about this. They don't want 
one that you could overturn because they don't want a fair 
trial.
    And so we end where we started--with one party wanting a 
fair trial and one party that doesn't; one party that doesn't 
fear a fair trial and one party that is terrified of a fair 
trial.
    I yield back.
    The CHIEF JUSTICE. The majority leader is recognized.

                            MOTION TO TABLE

    Mr. McCONNELL. Mr. Chief Justice, I make a motion to table 
the amendment, and I ask for the yeas and nays.
    The CHIEF JUSTICE. Is there a sufficient second?
    There appears to be a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any other Senators in the 
Chamber desiring to vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 25]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The motion to table is agreed to; the amendment is tabled.
    Mr. McCONNELL. Mr. Chief Justice.
    The CHIEF JUSTICE. The majority leader is recognized.
    Mr. McCONNELL. Mr. Chief Justice, I would like to say, on 
behalf of all of us, we want to thank you for your patience.
    (Applause.)
    The CHIEF JUSTICE. Comes with the job. Please.
    Mr. McCONNELL. On scheduling, assuming there are no more 
amendments, the next vote will be on adoption of the 
resolution, and then all Senators should stay in their seats 
until the trial is adjourned for the evening.
    The CHIEF JUSTICE. The question is on adoption of S. Res. 
483.
    Mr. THUNE. Mr. Chief Justice, I ask for yeas and nays.
    The CHIEF JUSTICE. There is a sufficient second.
    The clerk will call the roll.
    The senior assistant legislative clerk called the roll.
    The CHIEF JUSTICE. Are there any other Senators in the 
Chamber desiring to vote?
    The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 26]

                                YEAS--53

Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

                                NAYS--47

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden

    The CHIEF JUSTICE. The yeas are 53, and the nays are 47.
    The resolution (S. Res. 483) was agreed to.
    The CHIEF JUSTICE. The majority leader is recognized.
                                ------                                


                     ADJOURNMENT UNTIL 1 P.M. TODAY

    Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent 
that the trial adjourn until 1 p.m., Wednesday, January 22, and 
that this order also constitute the adjournment of the Senate.
    There being no objection, the Senate, sitting as the Court 
of Impeachment, at 1:50 a.m., adjourned until Wednesday, 
January 22, 2020, at 1 p.m.



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