[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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