[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


               LESSONS FROM THE MUELLER REPORT, PART III:
               ``CONSTITUTIONAL PROCESSES FOR ADDRESSING
                       PRESIDENTIAL MISCONDUCT''

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         FRIDAY, JULY 12, 2019

                               __________

                           Serial No. 116-34

                               __________

         Printed for the use of the Committee on the Judiciary
         
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               Available via: http://judiciary.house.gov               
               
                              __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
               MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California              DOUG COLLINS, Georgia, Ranking 
SHEILA JACKSON LEE, Texas                Member
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York         MARTHA ROBY, Alabama
DAVID N. CICILLINE, Rhode Island     MATT GAETZ, Florida
ERIC SWALWELL, California            MIKE JOHNSON, Louisiana
TED LIEU, California                 ANDY BIGGS, Arizona
JAMIE RASKIN, Maryland               TOM MCCLINTOCK, California
PRAMILA JAYAPAL, Washington          DEBBIE LESKO, Arizona
VAL BUTLER DEMINGS, Florida          GUY RESCHENTHALER, Pennsylvania
J. LUIS CORREA, California           BEN CLINE, Virginia
SYLVIA R. GARCIA, Texas              KELLY ARMSTRONG, North Dakota
JOE NEGUSE, Colorado                 W. GREGORY STEUBE, Florida
LUCY MCBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        PERRY APELBAUM, Majority Staff Director & Chief of Staff
                BRENDAN BELAIR, Minority Staff Director
                           
                           C O N T E N T S

                              ----------                              

                         Friday, July 12, 2019

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Doug Collins, Ranking Member, Committee on the 
  Judiciary......................................................     3

                               WITNESSES

Caroline Fredrickson, President, American Constitution Society...     6
  Oral Testimony.................................................     6
  Prepared Testimony.............................................     8
John Eastman, Henry Salvatori Professor of Law and Community 
  Service and Director, Center for Constitutional Jurisprudence, 
  Chapman University, Fowler School of Law.......................    15
  Oral Testimony.................................................    15
  Prepared Testimony.............................................    17
Michael Gerhardt, Samuel Ashe Distinguished Professor in 
  Constitutional Law, The University of North Carolina School of 
  Law............................................................    23
  Oral Testimony.................................................    23
  Prepared Testimony.............................................    25

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE RECORD

A Statement by Former Federal Prosecutors dated May 22, 2019 
  submitted by The Honorable Sheila Jackson Lee..................    38

                                APPENDIX

A Statement For the Record submitted by The Honorable Sheila 
  Jackson Lee....................................................    97

 
 LESSONS FROM THE MUELLER REPORT, PART III: ``CONSTITUTIONAL PROCESSES 
               FOR ADDRESSING PRESIDENTIAL MISCON-DUCT''

                              ----------                              


                         Friday, July 12, 2019

                        House of Representatives

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 9:10 a.m., in Room 
2141, Rayburn House Office Building, Hon. Jerrold Nadler 
[chairman of the committee] presiding.
    Present: Representatives Nadler, Lofgren, Jackson Lee, 
Cohen, Johnson of Georgia, Deutch, Bass, Cicilline, Swalwell, 
Lieu, Raskin, Jayapal, Demings, Scanlon, Garcia, Neguse, 
Stanton, Dean, Mucarsel-Powell, Escobar, Collins, Gohmert, 
Jordan, Gaetz, Johnson of Louisiana, Biggs, McClintock, Lesko, 
Cline, Armstrong, and Steube.
    Staff Present: Arya Hariharan, Deputy Chief Oversight 
Counsel; David Greengrass, Senior Counsel; Lisette Morton, 
Director Policy, Planning and Member Services; Madeline 
Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach 
Advisor; Susan Jensen, Parliamentarian/Senior Counsel; Sophie 
Brill, Counsel; Matt Morgan, Counsel; Brendan Belair, Minority 
Staff Director; Bobby Parmiter, Minority Deputy Staff Director/
Chief Counsel; Jon Ferro, Minority Parliamentarian/General 
Counsel; Paul Taylor, Minority Chief Counsel, Constitution 
Subcommittee; and Andrea Woodard, Minority Professional Staff 
Member.
    Chairman Nadler. The Judiciary Committee will please come 
to order. Without objection, the chair is authorized to declare 
recesses of the Committee at any time.
    We welcome everyone to today's hearing on Lessons from the 
Mueller Report, Part III: Constitutional Processes for 
Addressing Presidential Misconduct.
    I will now recognize myself for an opening statement.
    The title of today's hearing is Lessons from the Mueller 
Report, Part III: Constitutional Processes for Addressing 
Presidential Misconduct. As many of you may already know, the 
subtitle is a quote taken directly from Volume II of the 
Mueller report where the special counsel describes why he did 
not reach a, quote, prosecutorial judgment, close quote, 
regarding President Trump's conduct.
    There the special counsel explained that as an attorney 
operating within the Department of Justice, he is bound by 
Department policy, including an Office of Legal Counsel opinion 
that asserts that a President is immune from prosecution while 
in office.
    The special counsel, quote, recognized that a Federal 
criminal accusation against a sitting President would place 
burdens on the President's capacity to govern, close quote. Yet 
the Mueller report also acknowledged that such an accusation 
could, quote, potentially preempt constitutional processes for 
addressing Presidential misconduct, close quote.
    The special counsel's mention of these constitutional 
processes should not be taken lightly. It goes to the heart of 
Congress' role in our constitutional system of checks and 
balances, and that is the subject of today's hearing.
    As the Mueller report's frequent references to Congress 
make clear, Congress has a role in investigating the potential 
Presidential misconduct he uncovered so that it may determine 
how best to exercise its article I authorities to Act as check 
on the abuse or misuse of executive branch power.
    In light of its jurisdiction and past precedent, this 
Committee in particular has a constitutional duty to 
investigate allegations of misconduct by executive branch 
officials, including the President of the United States, and is 
currently investigating allegations of abuse of power, public 
corruption, and obstruction of justice within the Trump 
Administration.
    The purpose of this hearing is to examine the range of 
constitutional remedies available for addressing Presidential 
misconduct under its authority article I authorities. Today's 
discussion will aid the Committee in determining the remedies 
available to it as the investigation unfolds.
    Under its article I authorities, Congress has a number of 
responses to Presidential misconduct available to it. With 
regard to the committee's responsibility to determine whether 
to recommend Articles of Impeachment against the President, 
Articles of Impeachment are already--I'm sorry--Articles of 
Impeachment are under consideration as part of the committee's 
investigation, although no final determination has made.
    In addition, the Committee has the authority to recommend 
its own Articles of Impeachment for consideration by the full 
House of Representatives.
    The Committee seeks documentary evidence and intends to 
conduct hearings with Mr. McGahn and other critical witnesses 
testifying before us. That is necessary to determine whether 
the Committee should recommend Articles of Impeachment or any 
other article I remedies, and, if so, in what form.
    The Committee is also considering other responses to the 
conduct under investigation. While censure of the President is 
rare, Congress has previously passed measures expressing 
disagreement with specific Presidential conduct. The Committee 
is considering several pieces of legislation that would address 
the allegations of misconduct uncovered by the special 
counsel's investigation and other serious policy concerns 
raised by the Mueller report.
    Legislative proposals to determine misconduct described in 
the Mueller report include measures that would increase 
transparency with regard to White House communications 
concerning law enforcement investigations. Those proposals also 
include measures to impose additional safeguards to protect the 
integrity and independence of future special counsel 
investigations.
    The Committee also has been referred proposals to amend the 
Constitution to limit the scope of executive clemency and 
legislation to increase transparency regarding Presidential 
pardons, which responds to additional fact patterns described 
in the report.
    Volume I of the Mueller report also documented numerous 
troubling contacts between the Trump campaign and individuals 
associated with the Russian Government. As a result, several 
Members have introduced legislation that would impose a duty on 
campaigns to report their contacts with foreign governments.
    With regard to possible criminal, civil, or administrative 
referrals, the Justice Department has discretion as to whether 
to Act upon a referral by Congress for prosecution or civil 
enforcement. As even DOJ policy acknowledges, a President is 
not immune from criminal prosecution after leaving office, and 
I have introduced legislation that would toll the statute of 
limitations on Federal offenses during a President's term in 
office.
    State authorities may also enforce State laws against the 
President. The congressional referral process serves the 
important purpose of creating a record and preserving evidence 
for such time as prosecution, civil enforcement, or other 
administrative response is feasible.
    The Committee cannot, however, determine which article I 
remedies are appropriate without first ascertaining all of the 
relevant facts, and it cannot do so when the Administration 
refuses to cooperate with legitimate congressional oversight. 
That is why today's hearing will also give the Committee the 
opportunity to consider the lawfulness of the Administration's 
efforts to limit congressional oversight requests.
    The Trump Administration has asserted that several current 
and former government officials are, quote, absolutely immune, 
unquote, from having to comply with congressional subpoenas for 
testimony. However, the only court to ever consider such claims 
rejected them in a case involving this very committee's past 
effort to seek information about inappropriate White House 
involvement in the firing of several U.S. attorneys.
    In addition to asserting claims of absolute immunity, in 
quotes, the White House has instructed several witnesses not to 
comply with the committee's duly issued subpoenas for documents 
or to answer questions on the basis that the documents and 
answers are subject to executive privilege or would otherwise, 
quote, implicate constitutionally based executive branch 
confidentiality interests, close quote. Needless to say, these 
assertions raise a host of problematic legal and constitutional 
issues.
    We have a distinguished panel of witnesses who can help us 
sort through the various constitutional processes implicated by 
the Mueller report, and I look forward to hearing their 
testimony.
    It is now my pleasure to recognize the Ranking Member of 
the Judiciary Committee, the gentleman from Georgia, Mr. 
Collins, for his opening statement.
    Mr. Collins. Thank you, Mr. Chairman.
    I was sorry for a moment--you ever have one of those 
dreams, and there have been movies about this. You have a dream 
that you wake up and you're back in school, you're back in high 
school. For me, it was back in Ms. McCall's class in North Hall 
High School government, American Government class. It's the 
proper role of government and the different checks and balances 
and what is Congress' role and what's the President's role and 
what's the judiciary's role.
    We can stop this hearing right now, because Chairman just 
laid out all of the congressional routes and avenues that 
Congress has to it. We're going to have a time--and I'm glad 
the panel's here. Y'all are great folks. You've got scholarly 
work. We're going to hear some wonderful things. We've stopped 
right here. The problem is we're just dragging this on.
    It's not that you want to come to impeachment. The chairman 
talked about impeachment. If that's what you want to do, then 
that's the part--we don't need to discuss is this a 
constitutional right of Congress to do impeachment. That is 
exactly what Congress' right to do. The constitutional 
processes are very well addressed in the Constitution and in 
our processes.
    Instead, we come here today to have another almost 
impeachment hearing but not an impeachment hearing. We want to 
get facts; we want to do this. No, we're just waiting on and 
on.
    I'm trapped back in 9th grade. Ms. McCall was a wonderful 
teacher, but I don't want to go back through it again. This is 
Black and white. We know this problem here.
    So, what are we not doing? Instead of this morning at 9 
o'clock on a Friday, on a fly-out day, when we are actually--
Chairman and I have a bill on the floor here in just a little 
bit that actually touches real people's lives in New York from 
the 9/11 fund, which is a very valid thing that we need to be 
doing.
    Yesterday, we spent this entire Committee time arguing over 
subpoenas and the discussion on the border, but yet why 
wouldn't we use this 9 o'clock time to actually have a markup 
of actual immigration bills such as mine that addresses border 
issues? Now, you may discuss agree with what I propose, but 
that's what markups are for. That's what actually is taking 
this time. You have a bill. Put your bills up. Let's actually 
get to actually solving real issues instead of having 
theoretical college discussions on what is Congress' power. If 
we don't know what Congress' power is now, this hearing is not 
going to help us. In fact, it's ridiculous.
    Legislation. I agree with Chairman. The chairman talked 
about election--which actually the Mueller report actually 
found election interference. Why aren't we putting those bills 
forward instead of having our authority taken over by the House 
Admin Committee on election bills because they don't want to 
run it through here? Let's solve problems.
    Process. Here's our biggest thing from yesterday. Maybe 
this is it, is what the process is. We know what the process 
is. The majority just can't find their way to figure out what 
they want to do with that process.
    So next week, we have Robert Mueller coming in here, and 
the whole bottom row is disenfranchised, for the most part. I 
guess there is some more negotiations going on. I've read that 
in the media. Maybe I need to call Chairman Schiff and make 
sure that that was okay, because they were undoubtedly driving 
this ship, because they all get to talk next week. My side 
doesn't and neither does the Democratic side get to talk. It 
disenfranchises Florida, it disenfranchises North Dakota, it 
disenfranchises everyone.
    Instead of that, we're doing this. It just, frankly, 
boggles the mind. I will say this: If there's anybody on this 
Committee--and there are very wonderful people on both sides of 
this Committee who are very, very intelligent. You can ask your 
questions today, and we can talk about the constitutional 
process, and you have got some great folks here to talk to you 
about it.
    In all due respect, we know what the constitutional process 
is here. We just want to dance around it so we can keep another 
round of stories going that the Judiciary Committee is pursuing 
harassment and doing what it needs to do to make sure this 
Administration is held accountable because we don't like him.
    The economy is good, life is going better, and we don't 
like it because we don't like the November 2016 election. 
That's all this is about. We found that out again yesterday. 
We're going to find it out again this morning.
    So, for everybody who didn't get to the wonderful ability 
to be in Ms. McCall's 9th grade American Government class at 
North Hall High School, this may be your opportunity. Get your 
hornbooks out, get your study books out. This is going to be a 
constitutional process of what we already know is our 
processes, but we're going to have some experts tell us what 
those processes are.
    Mr. Chairman, there's a lot of things you could be calling 
today. This isn't one of them. Why don't we actually take up 
real legislation to fix the border crisis, to fix the issues 
that we all talk up about here? Instead, we have hearings.
    Our body is to actually legislate. You and I have 
legislated before. Let's start legislating and stop the show. 
It is again--the popcorn is cooking. It's time, as I've always 
said, let the show begin.
    I yield back.
    Chairman Nadler. Thank you, Mr. Collins.
    I will now introduce today's witnesses.
    Caroline Fredrickson is President of the American 
Constitutional Society for Law and Policy. Previously, she was 
the director of the American Civil Liberty Union's Washington 
legislative office, held various positions in the Senate and 
served in the Clinton Administration.
    Ms. Fredrickson received her JD from Columbia Law School, 
in my district, and her BA from Yale University.
    John Eastman is the Henry Salvatori Professor of Law and 
Community Service and the former dean at Chapman University's 
Dale Fowler School of Law. He also serves as director of the 
Center for Constitutional Jurisprudence at the Claremont 
Institute. Previously, Dr. Eastman served as a law clerk to 
Justice Clarence Thomas and to Judge J. Michael Luttig.
    Dr. Eastman received his Ph.D. from Claremont Graduate 
School, his JD from the University of Chicago Law School, and 
his BA from the University of Dallas.
    Michael Gerhardt is the Samuel Ashe Distinguished Professor 
in Constitutional Law at the University of North Carolina 
School of Law in Chapel Hill. Professor Gerhardt served on then 
President-elect Bill Clinton's Justice Department transition 
team and drafted the Administration's judicial selection 
policy. He later served as special counsel to the Clinton 
Administration and the Senate Judiciary Committee.
    Professor Gerhardt received his JD from the University of 
Chicago Law School, his MS from the London School of Economics, 
and his BA from Yale University.
    We welcome our distinguished witnesses, and we thank you 
for participating in today's hearing.
    Now if you would please rise, I'll begin by swearing you 
in.
    Would you raise your right hands?
    Do you swear or affirm under penalty of perjury the 
testimony you're about to give is true and correct, to the best 
of your knowledge, information, and belief, so help you God?
    Thank you.
    Let the record show the witnesses answered in the 
affirmative. Thank you and please be seated.
    Please note that your written statements will be entered 
into the record in its entirety. Accordingly, I ask that you 
summarize your testimony in 5 minutes. To help you stay within 
that time, there's a timing light on your table. When the light 
switches from green to yellow, you have 1 minute to conclude 
your testimony. When the light turns red, it signals your 5 
minutes have expired.
    Mr. Fredrickson, you may begin--Ms. Fredrickson, I'm sorry, 
you may begin.

               TESTIMONY OF CAROLINE FREDRICKSON

    Ms. Fredrickson. Good morning. Thank you, Mr. Chairman.
    My name is Caroline Fredrickson. I'm the President of the 
American Constitution Society.
    ACS has worked to promote informed public evaluation of the 
investigations into Russian interference in the 2016 election. 
It is with this background that I'm pleased to testify on the 
constitutional processes for addressing Presidential 
misconduct.
    The final report issued by Special Counsel Robert Mueller 
on Russian interference in the 2016 election reached several 
chilling conclusions. Russia conducted wide-ranging attacks on 
our Nation's election system. The Trump campaign had multiple 
contacts with Russian nationals and did not report these 
interactions to U.S. authorities. There's substantial evidence 
that President Trump repeatedly attempted to thwart the 
investigation, including through his unheeded requests to the 
White House Counsel to fire the special counsel, create a false 
paper trail, and make public misrepresentations regarding this 
incident.
    To say these findings are troubling is an understatement. 
It is Congress' constitutional duty to respond. Close 
examination of how Russia executed these interference 
strategies is necessary to inform this Committee and other 
committees of jurisdiction how to best tailor a wide range of 
legislative initiatives on subjects from electronic data 
protections to the provision of additional funding or resources 
for U.S. agencies responsible for monitoring and investigating 
foreign interference, to the integrity of special counsel 
inquiries, to ensuring limits on political interference with 
Department of Justice decisionmaking.
    Although congressional oversight might eventually lead to 
impeachment, it does not have to do so. The Supreme Court has 
long held that Congress' oversight authorities are inherent in 
the article I legislative powers. These authorities are broad 
and encompass matters including, quote, the Administration of 
existing laws, proposed or possibly needed statutes, and probes 
to expose corruption, inefficiency, and waste. Indeed, the 
Court has emphasized that oversight is essential to the conduct 
of government.
    This Committee has additional constitutional authorities to 
conduct oversight, under article I, section 2, stating that the 
House of Representatives has the sole power of impeachment.
    Congressional investigations often lead to new laws, but 
some investigations have led Congress to conclude that enacting 
new laws is not necessary to address issues identified in the 
inquiry. Sometimes congressional oversight has led to executive 
branch reforms. Other times, inquiries into alleged 
Administration corruption have resulted in resignations, 
referrals, House or Senate resolutions memorializing 
disapproval of Presidential or other Administration misconduct, 
or impeachment proceedings.
    Congressional oversight history is replete with 
investigations into alleged White House misconduct that did not 
involve impeachment. Many involved testimony from top White 
House aides, including White House counsels, chiefs of staff to 
the President, National Security Advisors, and top advisors to 
the Vice President and First Lady. Impeachment proceedings have 
begun without any formal vote of the House.
    In addition, for Presidential impeachments, the Judiciary 
Committee has conducted hearings to determine whether or not to 
recommend articles to the full House. In the impeachment of 
President Nixon, the House Judiciary Committee had been 
considering Articles of Impeachment for close to a year before 
there was a full House vote in February 1974.
    With respect to the Mueller report and related information, 
several key unanswered questions demand rigorous congressional 
review. For example, how can Congress best protect our 
elections from future attacks by Russia or other hostile 
nations? Why did Trump campaign officials, associates, and 
then-candidate Trump continue to have contact with Russians 
after becoming aware of the hacking? Why did some lie to 
investigators about these contacts, and why did they suggest 
publicly that Trump, quote, had nothing to do with Russia? Does 
the substantial evidence of obstruction of justice and other 
misconduct merit further congressional action, including 
legislation, censure, impeachment, or referrals? Finally, does 
the content behind the Mueller report redactions and gaps in 
evidence suggest any additional wrongdoing by the President or 
others?
    Congress' job has been made substantially harder by the 
Administration's intransigence in resisting congressional 
oversight at every turn, instructing officials to disobey 
congressional subpoenas, and invoking broad claims of executive 
privilege. It has gone so far as to claim that this Committee 
even lacks authority to investigate these matters in the first 
instance.
    Given the gravity of the Mueller report conclusions and the 
related information that has emerged publicly to date, a 
failure by Congress to examine these issues would constitute an 
abdication of Congress' fundamental constitutional oversight 
responsibilities.
    Thank you.
    [The statement of Ms. Fredrickson follows:]

               STATEMENT OF CAROLINE FREDRICKSON

                          Introduction

    The final report issued by Special Counsel Robert Mueller 
on his investigation into Russian interference in the 2016 
election delivered several chilling conclusions: (1) Russia 
conducted wide-ranging attacks on our nation's election system; 
(2) both before and after public reports of the Russian 
attacks, the Trump campaign had multiple contacts with Russian 
nationals and did not report these interactions to U.S. 
authorities; and (3) there is substantial evidence that 
President Donald Trump repeatedly attempted to thwart the 
Department of Justice's efforts to investigate the Russian 
attacks, including through his unheeded requests to the White 
House Counsel to fire the Special Counsel and create a false 
paper trail and make public misrepresentations regarding this 
incident.
    These troubling findings and other public accounts of 
alleged presidential corruption demand and are rightfully 
receiving scrutiny by this Committee and other congressional 
committees. As this Committee knows well, the investigations 
the Committee is pursuing in this vein are well grounded in 
Congress's article I powers and the jurisdictional directives 
of the House Rules. Unfortunately, instead of providing 
information to enable Congress to do its job, the President has 
said he will resist all congressional subpoenas, and his 
lawyers have requested that this Committee ``discontinue'' its 
investigation and have made the extraordinary and unfounded 
claim that the Committee lacks authority to investigate these 
matters.\1\
---------------------------------------------------------------------------
    \1\ See Charlie Savage, Trump Vows Stonewall of `All' House 
Subpoenas, Setting up Fight over Powers, N.Y. Times (Apr. 24, 2019), 
https://www.nytimes.com/2019/04/24/us/politics/donald-trump-
subpoenas.html; Letter from Pat A. Cippolone, White House Counsel, to 
Jerrold Nadler, Chairman, House Comm. on the Judiciary (May 15, 2019), 
http://cdn.cnn.com/cnn/2019/
images/05/15/pacletter05.15.2019.pdf.
---------------------------------------------------------------------------
    In light of the Administration's misguided public positions 
on this Committee's oversight responsibilities, I appreciate 
the opportunity to participate in the hearing the Committee is 
holding to set the record straight on congressional avenues for 
addressing presidential misconduct.
    As President of the American Constitution Society (ACS), I 
speak and write on a range of legal and constitutional issues 
and oversee lawyer and law student chapters throughout the 
country. ACS has worked to promote informed public evaluation 
of the investigations into Russian interference in the 2016 
election through the development and dissemination of legal 
analysis of key issues that emerge as the inquiries unfold. 
Most recently, on the subjects before the Committee today, ACS 
published ACS Board Member and Ohio State Professor of Law 
Peter Shane's analysis titled ``The Fatal Flaw in the Argument 
for McGahn's Testimonial Immunity,'' \2\ Georgetown University 
Professor of Law Victoria Nourse's piece titled ``Oversight is 
a Necessity, Not A Luxury,'' \3\ and submitted testimony for 
the record of this Committee's May 15, 2019, hearing on 
``Executive Privilege and Congressional Oversight.''
---------------------------------------------------------------------------
    \2\ Peter Shane, The Fatal Flaw in the Argument for McGahn's 
Testimonial Immunity, ACS Blogs (May 22, 2019), https://www.acslaw.org/
expertforum/the-fatal-flaw-in-the-argument-for-mcgahns-testimonial-
immunity/.
    \3\ Victoria Nourse, Oversight Is a Constitutional Necessity, Not a 
Luxury, ACS Blogs (May 1, 2019), https://www.acslaw.org/expertforum/
oversight-is-a-constitutional-necessity-not-a-luxury/.
---------------------------------------------------------------------------
    I offer a few points for your consideration today.

                  Congress's Oversight Powers

    Congress has broad constitutional authority to examine the 
pressing questions that emerged over the course of Special 
Counsel Robert Mueller's inquiry and in his final report. The 
Supreme Court has long held that Congress's oversight 
authorities are inherent in Congress's article I legislative 
powers.\4\ These oversight authorities are ``broad'' and 
encompass matters including ``the Administration of existing 
laws,'' ``proposed or possibly needed statutes,'' and ``probes 
. . . to expose corruption, inefficiency, and waste.'' \5\ 
Indeed, the Court has emphasized that oversight is 
``essential'' to the conduct of government.\6\ This Committee 
has additional constitutional authorities to conduct oversight 
under the provisions of article I, section 2 stating that the 
House of Representatives has the ``sole power of impeachment.'' 
\7\
---------------------------------------------------------------------------
    \4\ McGrain v. Daugherty, 273 U.S. 135, 174-75 (1927).
    \5\ Watkins v. United States, 354 U.S. 178, 187 (1957).
    \6\ McGrain, 273 U.S. at 174.
    \7\ U.S. Const. art. I, Sec.  2. The constitution sets forth the 
scope of the impeachment authority as follows: ``The President, Vice 
President and all civil officers of the United States, shall be removed 
from office on impeachment for, and conviction of, treason, bribery, or 
other high crimes and misdemeanors.'' U.S. Const. art. II, Sec.  4.
---------------------------------------------------------------------------
    Congressional investigations often lead to the development 
of new laws, but Congress may also address oversight findings 
through other courses of action. Some investigations have led 
Congress to conclude that enacting new laws is not necessary to 
address issues identified in the inquiry.\8\ Some congressional 
oversight proceedings have led to executive branch reforms.\9\ 
Some inquiries into alleged Administration corruption 
havevresulted in accountability steps such as resignations,\10\ 
referrals,\11\ House or Senate resolutions memorializing 
disapproval of presidential or other Administration 
misconduct,\12\ or the launch of impeachment proceedings.\13\ 
Further, as we have seen in this Committee and others, 
sometimes investigation of one issue uncovers information that 
leads a Committee to investigate separate problems previously 
unknown at the outset of the initial inquiry,\14\ or to request 
further review from an agency inspector general.\15\
---------------------------------------------------------------------------
    \8\ See, e.g., Illegal Use of Steroids in Major League Baseball: 
Hearing on The Mitchell Report Before H. Comm. on Oversight and Gov't 
Reform, 110th Cong. 18 (2008) (statement of Ranking Member Tom Davis), 
https://www.govinfo.gov/content/pkg/CHRG-110hhrg55749/pdf/CHRG-
110hhrg55749.pdf (describing how, in light of changed circumstances 
following bipartisan hearings on steroid use by teens and major league 
athletes, Congress did not enact relevant legislation: ``Nearly 3 years 
ago, our first foray into this subject proved extremely productive. 
After our hearings, then Ranking Member Henry Waxman and I introduced 
legislation that turned out to be unnecessary because baseball and 
other major sports acted quickly, on their own, to enhance drug testing 
and enforcement programs'').
    \9\ See, e.g., Claudia Lauer, FEMA To Buy Back Trailers Due To 
Formaldehyde Worries, L.A. Times (Aug. 11, 2011), https://
www.latimes.com/archives/la-xpm-2007-aug-11-na-fema11-story .html 
(describing how, following a congressional hearing spotlighting health 
risks associated with formaldehyde levels in residential trailers the 
Federal Emergency Management Agency (FEMA) provided Hurricane Katrina 
victims, the FEMA director committed to testing the trailers and 
suspending their sales).
    \10\ See, e.g., Coral Davenport, Lisa Friedman, & Maggie Haberman, 
EPA Chief Scott Pruitt Resigns Under a Cloud of Ethics Scandals, N.Y. 
Times (July 5, 2018), https://www.nytimes.com/2018/07/05/climate/scott-
pruitt-epa-trump.html (describing multiple congressional and inspector 
general investigations that precipitated the 2018 resignation of EPA 
Administrator Scott Pruitt).
    \11\ See, e.g., Jube Shiver Jr. & Abigail Goldman, Criminal Probe 
of Stewart Sought, L.A. Times (Sept. 11, 2002), https://
www.latimes.com/archives/la-xpm-2002-sep-11-fi-martha11-story.html 
(describing bipartisan referral to the Department of Justice by the 
chairs and Ranking Members the House Committee on Energy and Commerce 
and its Subcommittee on Oversight and Investigations regarding 
statements made by Martha Stewart in the Committee's inquiry into 
biotech stock trading).
    \12\ For example, the Senate in 1834 approved a resolution 
criticizing President Andrew Jackson's conduct relating to firing his 
Treasury Secretary. Censure, U.S. Senate, https://www.senate.gov/
reference/reference_index_subjects/Censure_vrd.htm (last visited July 
8, 2019).
    \13\ See for example H.R. Res. 803, 93rd Cong. (1974), which 
authorized and directed the House Committee on the Judiciary ``to 
investigate fully and completely whether sufficient grounds exist for 
the House of Representatives to impeach President Richard M. Nixon.''
    \14\ For example, information produced in the House and Senate 
Judiciary Committee investigations of alleged improprieties in the Bush 
Administration's firing of U.S. Attorneys, as well as information 
produced in the House Oversight and Government Reform Committee's 
investigation of lobbying contacts between Jack Abramoff and the White 
House, suggested that the Administration was using unofficial email 
accounts to conduct official business--a revelation that led to an 
Oversight Committee inquiry into potential records management 
violations. See Letter from Henry A. Waxman, Chairman, House Comm. on 
Oversight and Gov't Reform to Mike Duncan, Chairman, Republican Nat'l 
Comm. (Mar. 26, 2007), https://wayback.archive-it.org/4949/
20141031193105/http://oversight-archive.waxman.house.gov/documents/
20070326110802-38974.pdf.
    \15\ For example, following congressional testimony from the 
General Services Administration and FBI regarding the Administration's 
decision to halt long-standing plans to move the FBI headquarters, and 
a congressional call for an inspector general investigation of this 
issue, the FBI's office of inspector general announced in July 2019 
that they had launched a review. Jonathan O'Connell, Justice Department 
Watchdog to Investigate Decision to Cancel FBI Headquarters Plan, Wash. 
Post (July 3, 2019), https://www.washingtonpost.com/politics/justice-
department-watchdog-to-investigate-decision-to-cancel-fbi-headquarters-
plan/2019/07/03/76971
d76-9d85-11e9-9ed4-c9089972ad5a_story.html?utm_term=.77a5abc82390.
---------------------------------------------------------------------------
    Regardless of the course an investigation may take, 
Congress can employ powerful oversight tools that include the 
authority to subpoena witnesses \16\ and hold them in 
contempt.\17\ In addition, standing House committees including 
this Committee have authority to conduct depositions.\18\
---------------------------------------------------------------------------
    \16\ Watkins v. United States, 354 U.S. 178, 187-88 (1957).
    \17\ For a detailed discussion of Congress's criminal, civil, and 
inherent contempt authorities, see Cong. Research Serv., Congressional 
Subpoenas: Enforcing Executive Branch Compliance R45653 (2019), https:/
/fas.org/sgp/crs/misc/R45653.pdf.
    \18\ H.R. Res. 6, 116th Cong. Sec.  103 (2019).
---------------------------------------------------------------------------
    With respect to this Committee's investigation into Russian 
interference in the 2016 election and allegations of misconduct 
by President Trump, this Committee may conduct hearings to 
support relevant legislation, impeachment proceedings, or other 
steps that may be necessary, depending on the facts that 
emerge.

           Precedent on Congressional Investigations

    Congressional history is of course replete with 
investigations of alleged White House misconduct that have not 
involved impeachment. Many of these--across both Republican and 
Democratic Administrations--involved congressional deposition 
or hearing testimony from top White House aides.
    For example, the Senate Judiciary Committee investigated 
business dealings of President Carter's brother and alleged 
related White House communications, taking testimony from the 
National Security Advisor and the Press Secretary to the 
President.\19\ A joint House and Senate Committee reviewed the 
role of the Reagan White House in the diversion of Iran arms 
sales funds to Nicaraguan contras, taking testimony from two 
National Security Advisors to the President and the National 
Security Advisor to the Vice President, among other White House 
aides.\20\ Committees in both the House and Senate conducted 
inquiries into whether the Clinton White House engaged in 
campaign finance improprieties, taking testimony from a White 
House Chief of Staff, Deputy Chief of Staff, two White House 
Counsels, two Deputy White House Counsels, the Chief of Staff 
to the First Lady, and the National Security Advisor, among 
other White House aides.\21\ Further, the House Oversight 
Committee investigated alleged inappropriate Bush White House 
use of nongovernment email for official business, taking 
deposition testimony from two White House Political 
Directors.\22\
---------------------------------------------------------------------------
    \19\ See, Inquiry Into the Matter of Billy Carter and Libya, S. 
Rep. No. 99-1015 (1980), https://www.intelligence.senate.gov/sites/
default/files/961015.pdf (noting deposition testimony of Press 
Secretary Jody Powell and deposition and hearing testimony of National 
Security Advisor Zbigniew Brzezinski).
    \20\ See, Report of the Congressional Committees Investigating the 
Iran-Contra Affair, H.R. Rep. No. 100-433, S. Rep. No. 100-216, at 
Appendix B, Vol. 2 (1987), https://babel .hathitrust.org/cgi/
pt?id=uc1.aa0008704835&view=1up&seq=1 (citing deposition testimony of 
National Security Advisors John Poindexter and Robert McFarlane, 
National Security Advisor to the Vice President Donald Gregg, and 
others).
    \21\ See, Report of Illegal or Improper Activities in Connection 
With 1996 FEderal Election Campaigns, S. Rep. No. 105-167 (1998); 
Investigation of Political Fundraising Improprieties and Possible 
Violations of Law, H.R. Rep. No. 105-829 (1998) (noting hearing and 
deposition testimony of White House Chief of Staff Thomas McLarty, 
Deputy Chief of Staff Harold Ickes, White House Counsels John Quinn and 
Charles F.C. Ruff, Chief of Staff to the First Lady Margaret Williams, 
and National Security Advisor Sandy Berger, among others).
    \22\ See Staff of H.R. Comm. on Oversight and Gov't Reform, 110th 
Cong., Dept. of Matthew Aaron Schlapp, (2007), https://wayback.archive-
it.org/4949/20141031185147/http://oversight-archive.waxman.house.gov/
documents/20081015115613.pdf; Staff of H.R. Comm. on Oversight and 
Gov't Reform, 110th Cong., Dept. of Sara M. Taylor (2007), https://
wayback.archive-it.org/4949/20141031185215/http://oversight-
archive.waxman.house.gov/
documents/20081015115720.pdf.
---------------------------------------------------------------------------
    Impeachment proceedings have begun without any formal vote 
of the House to initiate impeachment. In addition, for 
presidential impeachments, the Judiciary Committee has 
conducted hearings to determine whether or not to recommend 
articles to the full House. With respect to the impeachment of 
President Nixon, the House Judiciary Committee had been 
considering articles of impeachment for close to a year before 
there was a full House vote in February 1974.\23\
---------------------------------------------------------------------------
    \23\ H.R. Res. 803, 93rd Cong. (1974).
---------------------------------------------------------------------------
    With respect to the impeachment of President Clinton, the 
Independent Counsel inquiry that resulted in an impeachment 
referral to the House of Representatives in September 1998 \24\ 
originated in 1994 as an inquiry into alleged improprieties 
relating to investments by President Bill Clinton and First 
Lady Hillary Clinton in a real estate company in Arkansas, the 
Whitewater Development Corporation.\25\ The Independent Counsel 
investigation ultimately expanded to other issues that formed 
the basis of the impeachment referral,\26\ and the referral did 
not ultimately involve Whitewater.\27\ In the interim, however, 
and long before the October 1998 House resolution initiating 
impeachment proceedings,\28\ Congress conducted extensive 
investigations into Whitewater.\29\
---------------------------------------------------------------------------
    \24\ Kenneth W. Starr, Referral From Independent Counsel Kenneth W. 
Starr in Conformity With the Requirements of Title 28, United States 
Code Section 595(C), H.R. Doc. No. 105-310 11(1998), https://
www.govinfo.gov/content/pkg/GPO-CDOC-106sdoc3/pdf/GPO-CDOC-106sdoc3-
2.pdf.
    \25\ By an August 5, 1994, order by the special division of the 
District of Columbia Circuit Court, Kenneth Starr was appointed 
independent counsel to take over the investigation commenced in January 
1994 by independent counsel Robert Fiske into allegations relating to 
the Whitewater Development Corporation. See Kenneth Starr's Mandate, 
Wall Street J. (Sept. 25, 1996), https://www.wsj.com/articles/
SB843603671806139000 (excerpting the court order).
    \26\ In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1998 WL 
472444, at *1 (D.D.C. Jan. 16, 1998).
    \27\ Kenneth W. Starr, Referral From Independent Counsel Kenneth W. 
Starr in Conformity With the Requirements of Title 28, United States 
Code Section 595(C), H.R. Doc. No. 105-310 (1998), https://
www.govinfo.gov/content/pkg/GPO-CDOC-106sdoc3/pdf/GPO-CDOC-106sdoc3-
2.pdf.
    \28\ H.R. Res. 581, 105th Cong. (1998), https://www.congress.gov/
bill/105th-congress/house-resolution/581.
    \29\ The House Committee on Banking held its first hearing on 
Whitewater matters on July 26, 1994. See Whitewater Investigation, Part 
4, C-SPAN, https://www.c-span.org/video/?59036-1/whitewater-
investigation-part-4 (last visited July 8, 2019). See also 
Investigation of Whitewater Development Corporation and Related 
Matters: Final Report, S. Rep. No. 104-280, at 1 (1996), https://
www.congress.gov/104/crpt/srpt280/CRPT-104srpt280.pdf.
---------------------------------------------------------------------------
    In fact, in contrast to the Trump Administration's 
resistance to this Committee's request for testimony and 
documents from former Trump White House Counsel Don McGahn,\30\ 
the Senate Special Committee to Investigate the Whitewater Land 
Development Corporation and Related Matters took testimony from 
two Clinton White House Counsels, Bernard Nussbaum and Lloyd 
Cutler.\31\ Other senior White House aides who provided 
testimony for congressional inquiries into Whitewater matters 
included two Deputy Counsels to the President,\32\ the Special 
Counsel to the President,\33\ the Chief of Staff to the Vice 
President,\34\ the Chief of Staff to the First Lady,\35\ the 
Assistant to the President and Communications Director,\36\ the 
former Press Secretary to the President,\37\ the Press 
Secretary to the First Lady,\38\ the Staff Secretary to the 
President,\39\ and a Senior Policy Advisor to the 
President.\40\
---------------------------------------------------------------------------
    \30\ Letter from Pat A. Cipollone, White House Counsel, to Jerrold 
Nadler, Chairman, House Comm. on the Judiciary (May 20, 2019), https://
assets.bwbx.io/documents/users/iqjWHBF dfxIU/rSS0nmVzVL0M/v0.
    \31\ See Progress of the Investigation Into Whitewater Development 
Corporation and Related Matters and Recommendation for Future Funding, 
S. Rep. No. 104-204, at 24-30 (1996), https://www.congress.gov/104/
crpt/srpt204/CRPT-104srpt204.pdf (detailing deposition and hearing 
testimony received by the Committee).
    \32\ See id. at 25-26 (noting deposition and hearing testimony of 
Bruce Lindsey); Cong. Research Serv., Presidential Advisers' Testimony 
Before Congressional Committees: An Overview 13 (2007), https://
fas.org/irp/crs/RL31351.pdf (noting that Joel I. Klein testified at a 
hearing before the Senate Committee on Banking, Housing, and Urban 
Affairs, regarding Whitewater-related matters on August 3, 1994) 
[hereafter Presidential Advisers' Testimony Before Congressional 
Committees].
    \33\ See S. Rep. No. 104-204, at 27-28 (noting deposition and 
hearing testimony of Jane Sherburne).
    \34\ See id. at 25-26 (noting deposition and hearing testimony of 
John Quinn).
    \35\ See id. at 25 (noting deposition and hearing testimony of 
Margaret Williams).
    \36\ See id. at 24-25 (noting deposition and hearing testimony of 
Mark Gearan).
    \37\ See id. at 24 (noting deposition testimony of Dee Dee Myers).
    \38\ See id. at 25 (noting deposition testimony of Lisa Caputo).
    \39\ See Presidential Advisers' Testimony Before Congressional 
Committees, supra note 34, at 12-14 (noting that John D. Podesta 
testified at a hearing before the House Banking Committee on July 28, 
1994, and at a hearing before the Senate Banking Committee on August 4, 
1994, on Whitewater-related matters).
    \40\ See S. Rep. No. 104-204, at 24 (noting deposition testimony of 
George Stephanopoulos).
---------------------------------------------------------------------------

Issues Relating to the Mueller Report That Demand Congressional 
                           Oversight

    Whether or not the House ever moves forward on impeachment 
against President Trump, several key unanswered questions 
relating to the Mueller Report demand rigorous congressional 
review. These include:

        (1)  How can Congress best protect American voters from future 
        attacks on the election system by Russia or other hostile 
        nations?

    The Mueller Report concluded that Russia engaged in 
``sweeping and systemic'' interference in the 2016 election 
\41\ through a social media ``information warfare'' campaign 
that ``favored'' candidate Trump and ``disparaged'' candidate 
Clinton,\42\ and by hacking into databases of entities and 
individuals working for the Clinton campaign and releasing 
stolen materials through fictitious online entities the 
Russians created and through the organization Wikileaks.\43\ 
The Report further stated that Russia targeted databases of 
individuals and entities associated with administering 
elections,\44\ and top U.S. intelligence and law enforcement 
authorities have stated that Russia in 2018 againvattempted to 
disrupt U.S. elections \45\ and have warned of anticipated 
foreign interference attempts in the 2020 election as well.\46\
---------------------------------------------------------------------------
    \41\ Special Counsel Robert S. Mueller, III, U.S. Dep't of Justice, 
Report on the Investigation Into Russian Interference in the 2016 
Election Vol. I, 1-5 (2019), https://www.documentcloud.org/documents/
5955118-The-Mueller-Report.html [hereafter Mueller Report].
    \42\ Id. at Vol. I, 1-4, 14-35.
    \43\ Id. at Vol. I, 1-5, 36-50.
    \44\ Id. at Vol. I, 50-51.
    \45\ See, e.g. David Smith, U.S. Still Under Attack from 
``Pervasive Campaign'' by Russia, U.S. Officials Warn, Guardian (Aug. 
3, 2018), https://www.theguardian.com/us-news/2018/aug/03/us-russia-
election-meddling-latest-dan-coats.
    \46\ E.g., Alyza Sebenius, Russia Internet Trolls Are Apparently 
Shifting Strategies for 2020 Elections, Time (Mar. 9, 2019), https://
time.com/5548544/russian-internet-trolls-strategies-2020-elections/.
---------------------------------------------------------------------------
    Close examination of how Russia executed these interference 
strategies is necessary to inform this Committee and other 
Committees of jurisdiction regarding how best to tailor 
legislative initiatives involving electronic data protections, 
the provision of additional funding or resources for the U.S. 
agencies responsible for monitoring and investigating foreign 
interference, and other measures to protect the integrity of 
our election laws and systems.

        (2)  Why did Trump campaign officials, Trump associates, and 
        then-candidate Trump continue to have contact during the 
        campaign with Russian nationals after becoming aware of Russian 
        hacking, why did Trump associates lie to investigators about 
        these contacts, and why did Trump and his associates and 
        suggest publicly that Trump had ``nothing to do with Russia''?

    The redacted Mueller Report documents dozens of Trump 
associate contacts with Russian nationals and Russian-
associated individuals during the campaign and presidential 
transition.\47\ However, it contains no evidence that Trump 
campaign officials reported these contacts to U.S. law 
enforcement agencies during the campaign or presidential 
transition, despite public reports starting in June 2016 \48\ 
regarding Russian hacking of Democratic emails and candidate 
Trump's August 2016 briefing on this matter by intelligence 
officials.\49\ In fact, President Trump recently indicated that 
if approached in the future by a foreign government promising 
``dirt'' on a campaign opponent, he might not report such 
contacts to U.S. authorities.\50\
---------------------------------------------------------------------------
    \47\ Mueller Report, supra note 43, at Vol. I, 66-173; see also 
Grace Panetta, The Mueller Report Is Here; Here Are All the Known 
Contacts Between the Campaign and Russian-Government Linked People or 
Entities, Bus. Insider (Apr. 19, 2019), https://
www.businessinsider.com/trump-campaign-russia-government-contact-
timeline-2018-7 (summarizing the Mueller Report and tallying 101 
contacts); The Moscow Project, Ctr. for Am. Progress, https://themoscow 
project.org/explainers/trumps-russia-cover-up-by-the-numbers-70-
contacts-with-russia-linked-operatives/ (last updated June 3, 2019) 
(tallying total contacts in the redacted Mueller Report and other 
public accounts at 272).
    \48\ Ellen Nakashima, Russian Government Hackers Penetrated DNC, 
Stole Opposition Research on Trump, Wash. Post (June 14, 2016), https:/
/www.washingtonpost.com/world/national-security/russian-government-
hackers-penetrated-dnc-stole-opposition-research-on-trump/2016/06/14/
cf006cb4-316e-11e6-8ff7-7b6c1998b7a0_story.html?utm_term=.de1c7ecf8bfb.
    \49\ Robert Windrem & William M. Arkin, Trump Told Russia to Blame 
for Hacks Long Before 2016 Debate, NBC News (Oct. 10, 2016), https://
www.nbcnews.com/news/us-news/trump-was-told-russia-was-blame-hacks-
long-debate-n663686 (describing August 2016 intelligence briefing of 
Trump regarding the hacks).
    \50\ Lucien Bruggeman, ``I Think I'd Take It'': In Exclusive 
Interview, Trump Says He Would Listen if Foreigners Offered Dirt on 
Opponents, ABS News (June 19, 2019), https://abcnews .go.com/Politics/
id-exclusive-interview-trump-listen-foreigners-offered-dirt/
story?id=63669304.
---------------------------------------------------------------------------
    Campaign and presidential transition interactions between 
Trump associates and Russian nationals include, among others:

      Contacts in 2015 and 2016 between Trump attorney 
Michael Cohen, Trump associate Felix Slater, and Russian 
nationals regarding a potential Trump project in Moscow 
involving 250 condominiums and a 15-floor hotel, on which Trump 
signed a letter of intent; \51\
---------------------------------------------------------------------------
    \51\ Mueller Report, supra note 43, at Vol. I, 67-80.
---------------------------------------------------------------------------
      An April 2016 communication from a Russian 
operative to campaign advisor George Papadopoulos that Russians 
have "dirt" on Clinton in the form of emails and a plan to 
distribute them; \52\
---------------------------------------------------------------------------
    \52\ Id. at Vol. I, 86-89.
---------------------------------------------------------------------------
      A meeting on June 9, 2016, at Trump Tower, New 
York, between Russian nationals and top campaign officials and 
Trump associates including campaign head Paul Manafort, Donald 
Trump, Jr., and Jared Kushner, after outreach from an 
intermediary informing Trump, Jr., that the Russians had 
derogatory information on Clinton that was ``part of Russia and 
its government's support for Mr. Trump;'' \53\
---------------------------------------------------------------------------
    \53\ Id. at Vol. I, 110-20.
---------------------------------------------------------------------------
      A meeting on August 2, 2016, between Trump 
campaign head Paul Manafort, deputy campaign head Rick Gates, 
and Konstantin Kilimnik, an individual ``the FBI assesses to 
have ties to Russian Intelligence,'' \54\ in which the Trump 
campaign officials shared internal campaign battleground 
polling data and discussed a Ukrainian ``peace plan'' that 
Gates acknowledged was in essence a means of providing Russia 
control of eastern Ukraine; \55\
---------------------------------------------------------------------------
    \54\ Id. at Vol. I, 14.
    \55\ Id. at Vol. I, 130, 139-40.
---------------------------------------------------------------------------
      Periodic other instances where Gates, reportedly 
at Manafort's instruction, provided Kilimnik with campaign 
updates including polling data; \56\
---------------------------------------------------------------------------
    \56\ Id. at Vol. I, 129, 136-37.
---------------------------------------------------------------------------
      A November 30, 2016, meeting between Kushner and 
Russian Ambassador Sergey Kislyak at which Kushner asked about 
the option, which Kislayak rejected, of the two communicating 
``using secure facilities at the Russian embassy''; \57\
---------------------------------------------------------------------------
    \57\ Id. at Vol. I, 159-61.
---------------------------------------------------------------------------
      Discussions in December 2016 between Trump 
campaign foreign policy advisor and subsequent National 
Security Advisor Michael Flynn and the Russian Ambassador 
regarding Russia's reaction to sanctions then-President Obama 
issued and regarding a U.N. Security Council vote on Israeli 
settlements; \58\ and
---------------------------------------------------------------------------
    \58\ Id. at Vol. I, 167-73.
---------------------------------------------------------------------------
      Meetings on January 11-12, 2017, in the 
Seychelles between Trump associate Erik Prince and Russian 
financier Kirill Dmitriev in which they addressed U.S.-Russia 
relations.\59\
---------------------------------------------------------------------------
    \59\ Id. at Vol. I, 151-56.

    According to the Mueller Report, multiple Trump associates 
lied to investigators about Trump associate contacts with 
Russia. For example, Papadopoulos and Flynn pleaded guilty to 
lying to federal investigators about their contacts with 
Russians, Cohen pleaded guilty to making false statements to 
Congress about the Trump Moscow project, and a federal judge 
found that Manafort lied about providing a Russian-linked 
operative with polling data.\60\ In addition, given the 
voluminous contacts that the Trump campaign and associates had 
with Russia, the Report raised questions about why the Trump 
campaign, including then-candidate Trump, repeatedly 
represented to the public that Trump had no connections to 
Russia.\61\
---------------------------------------------------------------------------
    \60\ E.g., id. at Vol. I, 9-10.
    \61\ Id. at Vol. II, 18-23.
---------------------------------------------------------------------------
    Congressional review of these and other Trump associate 
contacts with Russia is imperative for informing Congress of 
the potential effectiveness of additional federal laws 
requiring campaign disclosures of certain contacts with foreign 
nationals or other limits to avert inappropriate foreign 
attempts to interfere with U.S. elections. Such inquiry is also 
necessary to evaluate any continuing risks that Russians who 
were in contact with the Trump campaign have any inappropriate 
sway over the Trump Administration or individual officials.

        (3)  Does the substantial evidence the Mueller Report presents 
        of obstruction of justice and other misconduct on the part of 
        President Trump and other Trump officials merit further 
        congressional actions including legislation, censure, 
        impeachment, or referrals?

    The Mueller Report in Volume II details multiple incidents 
that raise questions about whether President Trump committed 
obstruction of justice and witness tampering. In fact, over 
1000 former prosecutors who served under both Republican and 
Democratic Administrations have stated that ``the conduct of 
President Trump described in Special Counsel Robert Mueller's 
report would, in the case of any other person not covered by 
the Office of Legal Counsel policy against indicting a sitting 
President, result in multiple felony charges for obstruction of 
justice.'' \62\
---------------------------------------------------------------------------
    \62\ Statement by Former Federal Prosecutors, Medium (May 6, 2019), 
https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-
8ab7691c2aa1.
---------------------------------------------------------------------------
    One key example is President Trump's actions directing the 
White House Counsel to order the firing of Special Counsel 
Mueller. According to the Report, shortly after June 14, 2017, 
press reports that Mueller was investigating the President for 
obstruction of justice, the President called White House 
Counsel Don McGahn at home twice, directing him to call Acting 
Attorney General Rod Rosenstein ``to say that the Special 
Counsel had conflicts of interest and must be removed.'' McGahn 
refused and stayed on as White House Counsel, though he 
threatened to resign and told the White House chief of staff 
the President had asked him to ``do crazy shit.'' \63\
---------------------------------------------------------------------------
    \63\ Mueller Report, supra note 43, at Vol. II, 77-90.
---------------------------------------------------------------------------
    Months later when media accounts disclosed the President's 
request to McGahn, the President, through his counsel and 
aides, asked McGahn to refute this story and ``create a record 
to make clear that the President had never directed McGahn to 
fire the Special Counsel,'' which McGahn refused to do. The 
President himself also pressed McGahn personally--and 
unsuccessfully--in the Oval Office to deny the press 
accounts.\64\
---------------------------------------------------------------------------
    \64\ Id. at Vol. II, 113-18.
---------------------------------------------------------------------------
    Other potentially obstructive conduct documented in the 
Mueller Report concerns the President's actions following the 
February 2017 firing of National Security Advisor Michael 
Flynn. According to the Report, after learning that Flynn had 
made statements to the FBI regarding his contacts with Russian 
Ambassador Kislyak that could constitute lying to 
investigators, Trump cleared his office for a one-on-one 
meeting with then--FBI Director James Comey and asked Comey to 
``let [Flynn] go.'' He also asked then-Deputy National Security 
Advisor K.T. McFarland to draft an internal memo saying Trump 
did not direct Flynn to call Kislyak, which McFarland did not 
do because she did not know whether he had so directed 
Flynn.\65\
---------------------------------------------------------------------------
    \65\ Id. at Vol. II, 40-44.
---------------------------------------------------------------------------
    The report also raises questions about whether the 
President had improper motives in pressing for Attorney General 
Jeff Sessions to ``un-recuse'' himself, firing Comey, 
discouraging cooperation with the Mueller inquiry, and 
suggesting future pardons to witnesses under investigation.\66\
---------------------------------------------------------------------------
    \66\ Id. at Vol. II, 109-11.
---------------------------------------------------------------------------
    The Mueller Report pointedly notes that it ``does not 
exonerate'' the President.\67\ Instead, the Report explains 
that the Office of Special Counsel ``accepted'' the Office of 
Legal Counsel policy that a sitting President cannot be 
indicted, while asserting that ``the separation-of-powers 
doctrine authorizes Congress to protect official proceedings, 
including those of courts and grand juries, from corrupt, 
obstructive acts regardless of their source,'' and underscoring 
that ``no person is above the law.'' \68\
---------------------------------------------------------------------------
    \67\ Id. at Vol. II, 8.
    \68\ Id.
---------------------------------------------------------------------------
    The American public deserves thorough congressional review 
of the potentially obstructive conduct indicated by the 
redacted Mueller Report. This oversight is an important 
foundation for evaluating the effectiveness of current laws 
including provisions of the obstruction of justice statutes on 
intimidating witnesses, suborning perjury, and falsifying 
evidence, and determining whether any additional congressional 
actions are merited to ensure full accountability for 
presidential misconduct and safeguard the Department of Justice 
from political interference.

        (4)  To what extent does the content behind the Mueller report 
        redactions, gaps in evidence gathering that the Special Counsel 
        identified, and cases referred to other prosecutors by the 
        Special Counsel, suggest any additional wrongdoing by the 
        President or his associates?

    It is worth noting that one of the more heavily redacted 
sections of the Mueller report concerns contacts between 
Russian entities with access to hacked Clinton campaign emails 
and Trump associates. For example, the Report suggests that 
both Cohen and Manafort had conversations with Trump in July 
2016 shortly after Wikileaks released hacked emails, but 
redacts the content of those discussions.\69\ The Report 
further notes that ``Trump told Gates that more releases of 
damaging information would be coming,'' but redacts the 
contextual information around that statement.\70\
---------------------------------------------------------------------------
    \69\ Id. at Vol. I, 53.
    \70\ Id. at Vol. I, 54.
---------------------------------------------------------------------------
    Redactions also obscure the Report's discussion of 12 of 
the 14 matters the Special Counsel referred to other law 
enforcement authorities on the grounds that they fall outside 
the Special Counsel's jurisdiction.\71\ The two matters that 
were not redacted include a case regarding evidence of wire 
fraud and campaign finance violations, which, as the Mueller 
Report stated, ``ultimately led to the conviction of Cohen in 
the Southern District of New York for campaign-finance offenses 
related to payments he said he made at the direction of the 
President.'' \72\
---------------------------------------------------------------------------
    \71\ Id. at Vol. II, Appendix D.
    \72\ Id. at Vol. II, 77, fn. 500.
---------------------------------------------------------------------------
    Beyond the redactions, the Mueller Report noted numerous 
obstacles to obtaining a complete record in the first place, 
such as:

      The President refused the request by the Special 
Counsel for an interview, providing only written responses to 
questions, which the Mueller Report said denied the Special 
Counsel the ``opportunity to ask follow-up questions that would 
ensure complete answers and potentially refresh [the 
President's] recollection or clarify the extent or nature of 
his lack of recollection'';
      The Office of the Special Counsel considered the 
President's written responses to be ``incomplete'' and 
``imprecise,'' and noted that the President stated on ``more 
than 30 occasions that he `does not recall' or `remember' or 
`have an independent recollection' ''; \73\
---------------------------------------------------------------------------
    \73\ Id. at Vol. II, Appendix C.
---------------------------------------------------------------------------
      Some of the witnesses used communications 
applications that did not allow for long-term data retention, 
or ``deleted relevant communications''; \74\ and
---------------------------------------------------------------------------
    \74\ Id. at Vol. I, 10.
---------------------------------------------------------------------------
      Some individuals invoked the 5th Amendment right 
against compelled self-incrimination.\75\
---------------------------------------------------------------------------
    \75\ Id.

    Review of the un-redacted Mueller report and underlying 
evidence along with any relevant follow-up interviews and 
document requests is necessary to ensure full public 
accountability for these gaps and informed congressional 
evaluation of the laws implicated by Mueller's findings and 
whether further legislation or investigation is necessary.

                           Conclusion

    In sum, given the gravity of the Mueller Report's 
conclusions and the related information that has emerged 
publicly to date, a failure by Congress to examine these issues 
would constitute an abdication of Congress's fundamental 
constitutional oversight responsibilities. As former Senate 
Judiciary Committee Chairman and current Senate Finance 
Committee Chairman Charles Grassley has eloquently stated, 
congressional oversight is all about ``[k]eeping faith with `We 
the People.' It means working as hard as you can to give the 
people confidence that their government either plays by the 
rules or is held accountable.'' \76\
---------------------------------------------------------------------------
    \76\ Senator Chuck Grassley, Chairman, Senate Judiciary Comm., 
Remarks at the Heritage Foundation (June 25, 2018), https://
www.judiciary.senate.gov/grassley-on-the-importance-and-responsibility-
of-congressional-oversight.

    Chairman Nadler. Thank you.
    Dr. Eastman.

                 TESTIMONY OF DR. JOHN EASTMAN

    Mr. Eastman. Thank you, Chairman Nadler and Members of the 
committee. I'm delighted to be here to participate in this 
hearing.
    Before turning to the substance of my remarks and 
addressing the precise question you've posed, I think it's 
important to take issue with the underlying assumption of the 
hearing contained in the full title of this hearing.
    By tying the question of Presidential misconduct to the 
Mueller report, you imply that the Mueller report identified 
Presidential misconduct that should trigger whatever 
constitutional processes might be available. As a factual 
matter, I could not disagree more, for I do not find anything 
in that report even remotely rising to the level that would 
trigger the one constitutional path designed to address 
Presidential misconduct, and that's impeachment.
    I should also note that this is not the first time the 
judiciary--a congressional judiciary Committee has considered 
this question. In 1998, the Senate Judiciary Committee, 
Subcommittee on the Constitution, held a hearing on impeachment 
or indictment. I commend the proceedings of that hearing to 
your attention, particularly the extremely persuasive testimony 
and submitted scholarly work of Yale law professor, Akhil Amar. 
The conclusion he reached then is the same one I reach now, and 
it is the same one that has been reached by the Office of Legal 
Counsel in both Democrat and Republican Administrations 
spanning nearly a half a century.
    Because of the unique role the Constitution assigns to the 
Office of President, a sitting President cannot be indicted. 
That does not place the President above the law, as some have 
claimed, but it does recognize that the sole remedy envisioned 
by the Constitution for illegal conduct by a President, while 
he is President, is the impeachment process outlined in article 
I, section 3.
    As Professor Amar so aptly put it, the grand jury in such a 
case is the House, the indictment is the Articles of 
Impeachment, and the Senate is the petit jury.
    I won't go through the conclusions of those two OLC 
reports, other than to very quickly summarize them. The notion 
that the President can be himself a criminal defendant in a 
Federal prosecution would put him on both sides of the criminal 
prosecution. He is, after all, the Chief Executive of the 
Nation, responsible for the prosecutorial function of the 
Federal Government.
    It's also true that he has unique official duties that no 
one else in the government has, most of which, as the OLC 
report in 2000 under the Clinton Administration acknowledged, 
most of which cannot be exercised by anybody else. That 
strongly counseled them, both OLCs, to conclude that the 
President could not--not only not be tried or incarcerated if 
convicted, but not even indicted, because it would amount to 
such a fundamental intrusion on his executive duties, and 
therefore, impact greatly the entire Nation.
    There's a third thing that the OLC report in 2000 offered 
that I think is even more dispositive: The President's role as 
guardian and executor of the 4-year popular mandate expressed 
in the most recent balloting for the Presidency. To allow a 
single prosecutor or a single grand jury regionally drawn in 
someplace in the country the ability to incapacitate a 
President who had been chosen through a national election by 
the people--by the whole people of the United States is really 
contrary to our basic system of government. That's why the OLC 
concluded the decision to terminate the mandate is more 
fittingly handled by the Congress than by a jury.
    I want to close by looking at those OLC reports. They focus 
on the fact that the impeachment process is done by elected 
Members of Congress who are politically accountable. And it's 
that piece that I want to focus on. Because if there is indeed 
anything in the Mueller report that rises to the level of 
treason, bribery, or other high crimes and misdemeanors, then 
the Members of this body will likely be held accountable 
politically if the House does not initiate impeachment 
proceedings.
    The flip side of that coin is also true. If, as I believe 
is clearly the case, nothing identified in the Mueller report 
remotely rises to that level, then the Members of this body who 
continue to pursue impeachment investigations and even formal 
impeachment proceedings that manifestly appear to the public to 
be an attempt to distract the President from the performance of 
his constitutional duties, or worse, to negate the results of 
the 2000 election, then they too should be and likely will be 
held politically accountable. That's why the Constitution 
assigns this awesome oversight authority to this body, but it 
comes with a political accountability that flows from that.
    We can get into the question and answer about the specific 
instances, but I think that the various instances that are 
alleged for obstruction of justice or Russia collusion pale in 
comparison to some of the things we know occurred by the prior 
Administration. It's that level of comparison that the American 
people will ultimately choose to make as the political 
accountability for this Committee and every Member of the House 
of Representative if they continue to pursue these things.
    Thank you for your attention.
    [The statement of Mr. Eastman follows:]

              STATEMENT OF DR. JOHN C. EASTMAN\1\
---------------------------------------------------------------------------

    \1\ Institutional affiliations listed for identification purposes 
only. The views presented by Dr. Eastman are his own, and do not 
necessarily reflect the views of the Institutions with which he is 
affiliated.
---------------------------------------------------------------------------
    Good afternoon, Chairman Nadler, Ranking Member Collins, 
and the other Members of the House Judiciary Committee. Thank 
you for inviting me to address the important question as to 
what processes the Constitution provides for addressing 
presidential misconduct. My name is John Eastman, and I am the 
Henry Salvatori Professor of Law & Community Service, and 
former Dean, at the Chapman University Fowler School of Law, 
where I have been teaching and writing about constitutional law 
for the past twenty years. I am also a Senior Fellow at The 
Claremont Institute, where I direct the Center for 
Constitutional Jurisprudence, a public interest law firm that 
specializes in constitutional litigation, particularly in 
matters involving core structural components of the 
Constitution such as separation of powers.
    Before turning to the substance of my remarks addressing 
that precise question, however, I think it important to take 
issue with the underlying assumption contained in the full 
title of this hearing. By tying the question of presidential 
misconduct to the Mueller report, you imply that the Mueller 
report identified presidential misconduct that would trigger 
whatever constitutional processes might be available. As a 
factual matter, I could not disagree more, for I do not find 
anything even remotely rising to the level that would trigger 
the one constitutional path designed to address presidential 
misconduct, namely impeachment.
    I should also note that this is not the first time a 
congressional Judiciary Committee has considered this question. 
In 1998, the Senate Judiciary Committee's Subcommittee on the 
Constitution, Federalism, and Property Rights held a hearing 
entitled: ``Impeachment or Indictment: Is a Sitting President 
Subject to the Compulsory Criminal Process?'' \2\ I commend the 
proceedings of that hearing to your attention, particularly the 
extremely persuasive testimony and submitted scholarly work of 
Yale Law Professor Akhil Amar. The conclusion he reached then 
is the same one I reach now, and it is the same one that has 
been reached by the Office of Legal Counsel in both Democrat 
and Republican Administrations spanning nearly a half century.
---------------------------------------------------------------------------
    \2\ Hearing Before the Subcommittee on the Constitution, 
Federalism, and Property Rights of the Committee on the Judiciary, 
United States Senate, on Examining the Extent to Which a Sitting 
President Should be Subject to Indictment or Other Compulsory Criminal 
Process, 105th Cong., 2d Sess., S. Hrg. 105-969 (Sept. 9, 1998).
---------------------------------------------------------------------------
    Because of the unique role the Constitution assigns to the 
office of President, a sitting President cannot be indicted. 
That does not place the President ``above the law,'' as some 
have claimed. But it does recognize that the sole remedy 
envisioned by the Constitution for illegal conduct by a 
President while he is President is the impeachment process 
outlined in article I, section 3 of the Constitution. As 
Professor Amar so aptly put it, the ``grand jury'' in such a 
case is the House; the ``indictment'' is the articles of 
impeachment; and the Senate is the petit jury.\3\
---------------------------------------------------------------------------
    \3\ Id. at 186.
---------------------------------------------------------------------------

I. The Office of Legal Counsel in Both Republican and Democrat 
 Administrations has Concluded That a Sitting President Cannot 
             Be Indicted While He Remains in Office

            a. Watergate and President Richard Nixon

    In 1973, near the height of one of the most significant 
political-criminal scandals in our nation's history,\4\ the 
Office of Legal Counsel prepared a memorandum analyzing 
whether, constitutionally, a sitting President could be 
imprisoned, tried, or even indicted for criminal conduct while 
he remained in office.\5\ After a comprehensive review of the 
arguments on both sides of that question, it concluded that a 
sitting President could not be indicted while he remained in 
office (even while also concluding that other federal officers, 
up to and including the Vice President, could be indicted while 
in office, and that the President himself would be subject to 
criminal prosecution after he left office). The OLC reached 
this conclusion not because the President is, in his person, 
above the law (like the King of England was), but rather 
because the office of the President is, in our constitutional 
system, unique. It offered two principal grounds for this 
conclusion. First, as the sole head of the Executive branch who 
controls criminal prosecutions, controls part of the evidence 
as holder of the power of Executive privilege, and is vested 
with the pardoning power, he cannot at the same time be the 
defendant in a criminal case he is responsible for bringing.\6\ 
Second, the ``unique official duties'' that the Constitution 
assigns to the President, ``most of which cannot be exercised 
by anyone else,'' counseled against not only a trial and 
possible incarceration upon conviction of the President while 
he was in office, but also against even an indictment, which 
would not only distract the President from the official duties 
uniquely assigned to him but also undermine the authority of 
the office itself, and hence the nation, not just at home but 
on the world stage.\7\ The Office of Legal Counsel also offered 
a third, and I think even more dispositive reason: ``the 
President's role as guardian and executor of the four-year 
popular mandate expressed in the most recent balloting for the 
Presidency.'' \8\ To allow for ordinary criminal process to 
operate against the President would place in the hands of a 
single prosecutor or a single grand jury, regionally drawn, the 
ability to incapacitate a President chosen through a national 
election by the whole people of the United States. That is why, 
the OLC concluded, that ``the decision to terminate the mandate 
. . . is more fittingly handled by the Congress than by a jury, 
and such congressional power is founded in the Constitution.'' 
\9\
---------------------------------------------------------------------------
    \4\ The re-election campaign of the then-sitting President, Richard 
Nixon, known as the Committee for the Re-Election of the President 
(appropriately, ``CREEP''), had spied on his political opponents and 
then engaged in a massive cover-up and obstruction of justice of the 
illegal conduct. The matter would have been even worse had the 
President used government sources to do the spying, as appears to have 
happened more recently when high-ranking officials in the 
Administration of President Barack Obama obtain FISA warrants to spy on 
key figures in the political campaign of the nominee of the opposition 
party.
    \5\ 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 (Sept. 24, 1973) (``1973 OLC Memo'').
    \6\ Id. at 26.
    \7\ Id. at 27-32.
    \8\ Id. at 32.
    \9\ Id.
---------------------------------------------------------------------------

     b. Whitewater, Monica Lewinsky, and President Clinton

    A quarter century after the Office of Legal Counsel in the 
Nixon Administration determined that a sitting President could 
not be indicted, the Office of Legal Counsel in the Clinton 
Administration revisited the issue and reached the same 
conclusion.\10\ Specifically, it noted the inherent conflict in 
the Chief Executive also being the defendant--``just as a 
person cannot be judge in his own case, he cannot be prosecutor 
and defendant at the same time.'' \11\ It also agreed with the 
earlier OLC conclusion that a criminal indictment would 
impermissibly interfere with the President's duties, quoting 
the earlier conclusion that ``under our constitutional plan as 
outlined in article I, sec. 3, only the Congress by the formal 
process of impeachment, and not a court by any process should 
be accorded the power to interrupt the Presidency or oust an 
incumbent.'' \12\ And it continued its agreement with the 
earlier OLC conclusion with respect to the ``non-physical'' 
interference with the President's duties, namely, that because 
``the President is the symbolic head of the Nation,'' ``[t]o 
wound him by a criminal proceeding is to hamstring the 
operation of the whole governmental apparatus, both in foreign 
and domestic affairs.'' \13\
---------------------------------------------------------------------------
    \10\ Memorandum from Randolph D. Moss, Assistant Attorney General, 
Office of Legal Counsel, ``A Sitting President's Amenability to 
Indictment and Criminal Process'' (Oct. 16, 2000) (``2000 OLC Memo''), 
reprinted in Opinions of the Office of Legal Counsel, Vol. 24, pp. 222-
260.
    \11\ Id. at 228.
    \12\ Id. at 229.
    \13\ Id. at 230.
---------------------------------------------------------------------------
    The 2000 OLC memo also agreed with the concern that 
allowing a normal criminal indictment ``would confer upon a 
jury of twelve the power, in effect, to overturn'' a 
presidential election, which is the only national election for 
which there is no substitute.\14\ Again quoting from the 1973 
OLC memo, it noted that ``The decision to terminate this 
mandate . . . is more fittingly handled by the Congress than by 
a jury, and such congressional power is founded in the 
Constitution.'' \15\ It also noted that, in contrast to a 
normal jury trial, ``[t]he whole country is represented at the 
[impeachment] trial, there is no appeal from the verdict, and 
removal opens the way for placing the political system on a new 
and more healthy foundation.'' \16\
---------------------------------------------------------------------------
    \14\ Id. at 231.
    \15\ Id.
    \16\ Id.
---------------------------------------------------------------------------
    Significantly, the 2000 OLC memo also considered several 
important intervening decisions by the Supreme Court that 
allowed for various actions against a sitting President, and 
concluded that none of the holdings in those cases altered its 
conclusion. United States v. Nixon \17\ rejected a claim of 
executive privilege in response to a subpoena in a criminal 
matter against someone other than the President. Nixon v. 
Fitzgerald \18\ upheld presidential immunity from defending 
civil actions arising out of official conduct. Clinton v. Jones 
\19\ denied presidential immunity from defending civil actions 
arising out of personal conduct before the President was 
elected. OLC took particular note of the fact that in 
Fitzgerald, the Supreme Court had ``noted that recognition of a 
presidential immunity from such suits `will not leave the 
Nation without sufficient protection against misconduct on the 
part of the Chief Executive,' in light of other mechanisms 
creating `incentives to avoid misconduct' (including 
impeachment).'' \20\
---------------------------------------------------------------------------
    \17\ 418 U.S. 683 (1974).
    \18\ 457 U.S. 731 (1982).
    \19\ 520 U.S. 681 (1997).
    \20\ 2000 OLC Memo, supra, at 241.
---------------------------------------------------------------------------
    In the end, the OLC found particularly compelling that the 
process actually set out in the Constitution is one ``that may 
be initiated and maintained only by politically accountable 
legislative officials''--in significant contrast of a process 
of normal indictment and trial, which ``would place into the 
hands of a single prosecutor and grand jury the practical power 
to interfere with the ability of a popularly elected President 
to carry out his assigned constitutional functions.'' \21\
---------------------------------------------------------------------------
    \21\ Id. at 246.
---------------------------------------------------------------------------

   II. ``Political Accountability'' Is, In My View, The Key 
   Benefit of Impeachment as the Sole Remedy for Addressing 
             Illegal Conduct by a Sitting President

    I want to focus on that last piece of the OLC argument: 
Political accountability. If this body truly believes that 
anything in the Mueller report (or otherwise) rises to the 
level of ``Treason, Bribery or other high Crimes and 
Misdemeanors,'' then the Members of this body will likely be 
held accountable politically if the House does not initiative 
impeachment proceedings. The flip side of that coin is also 
true. If, as I believe is clearly the case, nothing identified 
in the Mueller report remotely rises to that level, then the 
Members of this body who continue to pursue impeachment 
investigations and even formal impeachment proceedings, that 
manifestly appear to the public to be an attempt to distract 
the President from the performance of his constitutional duties 
or, worse, to negate the results of the 2016 election, then 
they, too, should be and likely will be held politically 
accountable.
    In my view, that is as it should be, and it is the 
strongest argument in favor of the conclusions drawn by the 
Office of Legal Counsel in both the Nixon and Clinton 
Administrations. The Constitution was created, after all, by 
``We, the People,'' \22\ and by virtue of the political 
accountability inherent in the impeachment process, it is 
ultimately ``We, the People,'' who will have the final say on 
the matter.
---------------------------------------------------------------------------
    \22\ U.S. Const., Preamble.
---------------------------------------------------------------------------
    Both OLC memos cited above acknowledged that the same 
concerns about interference with the President's duties and 
undermining the President's authority both domestically and 
internationally would arise in the context of impeachment as 
well as ordinary criminal prosecution. ``While the impeachment 
process might also, of course, hinder the President's 
performance of his duties,'' the 2000 OLC acknowledged, the 
fact that ``the process may be initiated and maintained only by 
politically accountable legislative officials'' would help 
ensure that such disruption to the conduct of government at 
home and risk to the national interest in international affairs 
would arise only in the gravest of circumstances.\23\ So, let 
us look at the allegations of Presidential misconduct in that 
light, and I think it clear that none remotely rise to that 
level, if they can be described as ``misconduct'' at all.
---------------------------------------------------------------------------
    \23\ 2000 OLC Memo, supra at 246.
---------------------------------------------------------------------------
    Let's start with the claim that the President colluded with 
Russia to throw the election his way. The claim has been a 
farce since it was first raised, and it is even more so in 
light of the exhaustive Part I of the Mueller report admitting 
that ``the investigation did not establish that Members of the 
Trump campaign conspired or coordinated with the Russian 
government in its election interference activities.'' \24\ Even 
more laughable is the claim that candidate Trump expressly 
invited Russian interference when, responding to the stunning 
disclosure of the fact that former Secretary of State Hillary 
Clinton had destroyed more than 30,000 emails weeks after they 
had been subpoenaed by this body, he jokingly replied that he 
hoped Russia could find the missing emails.\25\ Although many 
reported Trump's statement as an invitation for Russia to hack 
Secretary Clinton's private email server, it was clearly an 
acknowledgement that Russia (and other foreign nations) had 
probably already done so.\26\ After all, the emails had been on 
an unsecure private server Secretary Clinton appears to have 
set up deliberately to skirt government disclosure laws, and 
the FBI had concluded that it was ``reasonably likely'' \27\ 
foreign nations had accessed the unsecured emails. In any 
event, these frivolous allegations pale in comparison to what 
we actually know about campaign collusion with foreign 
governments that occurred on the other side of the aisle. We 
know that the Hillary Clinton campaign and the DNC both paid 
millions of dollars to their law firm, illegally claiming that 
was for ``legal services'' when some of the payments were then 
funneled to Fusion GPS to pay for opposition research from a 
former British intelligence officer, Christopher Steele.\28\ We 
know, from notes taken by a State Department official, that Mr. 
Steele claimed to have obtained at least some of the scurrilous 
information in the dossier he complied from high-ranking 
Russian officials, namely Vyacheslav Trubnikov, the former head 
of the Russian Intelligence Service, and Vladislav Surkov, 
former Deputy Prime Minister of the Russian Federation and a 
close advisor to Russian President Vladimir Putin.\29\ And we 
know that that Russian-sourced, unverified dossier written by a 
former British spy was used (at least in part) by the Obama 
Administration to obtain FISA warrants to spy on Members of the 
opposition party's presidential campaign team.\30\ This is a 
scandal of Nixonian proportions that ought to trigger the 
bipartisan concern of this Committee and indeed of every 
American, yet you're focused instead on trifles to score 
political points.
---------------------------------------------------------------------------
    \24\ Special Counsel Robert S. Mueller, III, U.S. Dep't of Justice, 
Report on the Investigation Into Russian Interference in the 2016 
Election, Vol. I, p. 4 (2019), https://www.document cloud.org/
documents/5955118-The-Mueller-Report.html (``Mueller Report'').
    \25\ Id., Vol. 1, p. 62.
    \26\ See, e.g., id. at Vol. I, p. 62 (quoting Barbara Ledeen memo 
``stating that the `Clinton email server was, in all likelihood, 
breached long ago,' and that the Chinese, Russian, and Iranian 
intelligence services could `re-assemble the server's email content.' 
'').
    \27\ The final version of the FBI report was sanitized by then-
Director James Comey so say only that foreign access was ``possible.'' 
Office of the Inspector General, U.S. Department of Justice, ``A Review 
of Various Actions by the Federal Bureau of Investigation and 
Department of Justice in Advance of the 2016 Election,'' p. 193 (June 
2018) (``IG Report'').
    \28\ Verified Complaint, para. 2, Coolidge Reagan Foundation v. 
Federal Election Commission, No. 1:19-cv-01493-ESH (D.D.C., filed 5/22/
2019); see also Memo from HPSCI Majority Staff to HPSCI Majority 
Members, ``Foreign Intelligence Surveillance Act Abuses at the 
Department of Justice and the Federal Bureau of Investigation,'' p. 2 
(Jan. 18, 2018) (``Nunes Memo''), available at https://
upload.wikimedia.org/wikipedia/commons/2/25/Nunes_Memo.pdf.
    \29\ Kathy Kavalec, ``Notes from Meeting with Chris Steele and 
Tatyana Duran of Orbis Security,'' Oct. 11, 2016), available at https:/
/www.scribd.com/document/409446360/CU-FOIA-
Document-Release-Kavalec-Memo-Related-Records (p. 17); see also Chuck 
Ross, ``Steele Identified Russian Dossier Sources, Notes Reveal,'' 
Daily Caller (May 16, 2019), available at https://dailycaller.com/2019/
05/16/steele-dossier-sources-state-department/.
    \30\ Nunes Memo, supra, at 2.
---------------------------------------------------------------------------
    Let me turn, then, to the claims of obstruction of justice. 
Most of the allegations are based on various claims that the 
President might have attempted to ``interfere'' with the Russia 
investigation or interfere with the investigation of alleged 
wrongdoing by his first National Security Advisor, Michael 
Flynn. Such claims--and they are manifest in this Committee's 
own hearing memo--reflect a fundamental misunderstanding of the 
role of the President in our constitutional system. The power 
to conduct investigations and to initiate (or decline to 
initiate) prosecutions is a core executive power, and the 
Constitution makes clear that ``The Executive power''--all of 
it--``shall be vested in a President of the United States.'' 
\31\ The power of the FBI to conduct investigations is 
derivative of the President's constitutional authority, as is 
the power of the Department of Justice to prosecute. In other 
words, the President has full authority under the Constitution 
to direct both the investigation and any prosecutions that 
might flow from it. That Presidents typically don't get 
involved in the day-to-day activities of either the FBI or the 
Department of Justice does not negate the constitutional chain 
of command.
---------------------------------------------------------------------------
    \31\ U.S. Const. Art. II, Sec. 1, cl. 1.
---------------------------------------------------------------------------
    Even if it did--or even if Congress could, by statute, take 
away from the President a core executive power that the 
Constitution assigns to him--the factual allegations simply 
don't rise to the level of obstruction in any common sense 
understanding of that term. Take the Michael Flynn matter. My 
co-panelist here, Caroline Frederickson, claims that the 
President asked former FBI Director Comey to ``let [Flynn] 
go.'' \32\ Note that even in Ms. Frederickson's version, the 
President merely made a request, not an order (with which Comey 
did not comply, in any event); a mere unfulfilled request 
hardly rises to the level of obstruction. Ms. Frederickson's 
version is not even accurate. What Comey claims the President 
said, as reported in the Mueller report, is: ``I hope you can 
see your way clear to letting this go, to letting Flynn go. He 
is a good guy. I hope you can let this go.'' \33\ Given what 
Flynn, a highly decorated retired Army Lieutenant General with 
a long career of service to the nation, had gone through in his 
short tenure on the transition team and as National Security 
Advisor (including fairly frivolous claims that he violated the 
Logan Act \34\ by speaking with representatives of foreign 
governments during the transition--the very thing 
``transitions'' are designed for),\35\ the President (and quite 
frankly most Americans who have looked at the matter) quite 
likely thought that he'd been through enough. Ordering the 
exercise of prosecutorial discretion to not pursue the matter 
would have been within the President's authority. Merely hoping 
that his subordinate would ``see [his] way clear'' to the same 
conclusion cannot possibly qualify as obstruction, therefore.
---------------------------------------------------------------------------
    \32\ Testimony of Caroline Frederiskson, President, American 
Constitution Society, Before the House Committee on the Judiciary (July 
12, 2019), at 10.
    \33\ Mueller Report, Vol. II, p. 40.
    \34\ 18 U.S.C. 953 (``Any citizen of the United States, wherever he 
may be, who, without authority of the United States, directly or 
indirectly commences or carries on any correspondence or intercourse 
with any foreign government or any officer or agent thereof, with 
intent to influence the measures or conduct of any foreign government 
or of any officer or agent thereof, in relation to any disputes or 
controversies with the United States, or to defeat the measures of the 
United States, shall be fined under this title or imprisoned not more 
than three years, or both'').
    \35\ See, e.g., Kara Scannell, ``Flynn charge suggests arcane law 
is `leverage' for special counsel investigation,'' CNN.com (Dec. 2, 
2017) (quoting Michael Zeldin, former prosecutor and special assistant 
to Robert Mueller in the Justice Department, for the claim that Flynn's 
outreach to foreign governments was ``facially'' a violation of the 
Logan Act). If Flynn's communications with foreign governmentsv during 
a transition violated the Logan Act, then necessarily the numerous 
communications with and intended to influence foreign governments by a 
number of former elected officials who had no such official role would 
also violate the Logan Act. For example, John Kerry, Secretary of State 
during the Obama Administration, has admitted that he met with Iranian 
Foreign Minister Javid Zarif ``three or four times'' after he left 
office, to discuss the nuclear agreement that the Obama Administration 
had negotiated with Iran and that President Trump withdrew from, and he 
reportedly has had numerous meetings or telephone conversations with 
various European leaders advising how to save the Iran nuclear deal in 
direct contradiction to Trump's policy. Jeff Dunetz, ``Did John Kerry 
Violate Logan Act?'' The Jewish Star (May 22, 2019), available at 
http://www.thejewishstar.com/stories/did-john-kerry-violate-logan-
act,17566. Indeed, former Secretary Kerry seems to have made a habit of 
Logan Act violations to pursue his own policy agendas that were 
contrary to those of the Administration then in office. See Dunetz, 
supra (noting Kerry's 1985 unapproved friendly meeting in Managua, 
Nicaragua, with Nicaraguan Sandanista President Daniel Ortega, in 
opposition to the Reagan Administration's support of Ortega's 
opponents; his 2006 meeting with Syrian dictator Bashar al-Assad over 
then-President George W. Bush's objection; and his 2018 meeting in 
London with Hussein Agha, a close associate of Palestinian Authority 
President Mahmoud Abbas, in which he reported urged Abbas ``to hold on 
and be strong'' until Trump was no longer in the White House and ``not 
yield to President Trump's demands.''). Speaker of the House of 
Representatives, Nancy Pelosi, has also ``carrie[d] on . . . 
correspondence or intercourse with'' a foreign government without the 
authority of (and directly contrary to the stated position of) the 
Executive Branch, namely, Syria, in violation of the explicit terms of 
the Logan Act. See, e.g., Center for Individual Freedom, ``Did Nancy 
Pelosi Violate the Logan Act?'' (April 12, 2007), available at http://
www.cfif.org/htdocs/freedomline/current/in_our_opinion/Did-Nancy-
Pelosi-Violate-the-Logan-Act.html. No one has been prosecuted under the 
Logan Act since the 1850s, and no one has ever been convicted under it 
because, as most scholars agree, the Logan Act, adopted in 1799, is 
probably unconstitutional. See, e.g., Kevin M. Kearney, ``Private 
Citizens in Foreign Affairs: A Constitutional Analysis,'' 36 Emory L.J. 
285, 346 (1987) (asserting that, if prosecuted, the Logan Act would 
most likely be unconstitutional for vagueness and overbreadth); Detlev 
F. Vagts, ``The Logan Act: Paper Tiger or Sleeping Giant?,'' 60 Am. J. 
Int'l L. 268 (1966); but see Daniel Hemel and Eric Posner, ``Why the 
Trump Team Should Fear the Logan Act,'' New York Times (Dec. 4, 2017), 
available at https://www.nytimes.com/2017/12/04/opinion/trump-team-
flynn-logan-act.html.
---------------------------------------------------------------------------
    Or take the firing of Director Comey itself. As I recall, 
Democrats were furious with Comey for his breach of Department 
of Justice policy in holding a press conference in October 2016 
about the reopening of the investigation into Hillary Clinton's 
email server \36\ (just as Republicans had been furious with 
Comey for holding a press conference the previous July 
``exonerating'' her despite the clear evidence that she had 
illegally used an unsecure private for government business, 
including transmission of classified material).\37\ That alone 
was more than enough grounds to fire Comey. Add to that the 
fact that Comey advised the President he was not the subject of 
the Russia investigation, but then refused to State that fact 
publicly when he subsequently testified before Congress, the 
real question is why Comey was not fired earlier. As the 
President himself has noted, Comey's duplicity on that score 
was having serious consequences for the President's conduct of 
foreign affairs, one of the very concerns that led the OLC in 
both 1973 and 2000 to conclude that sitting Presidents cannot 
be indicted while in office. As volume II of the Mueller report 
recounts the President's concern: ``I can't do anything with 
Russia, there's things I'd like to do with Russia, with trade, 
with ISIS, they're all over me with this.'' \38\ In other 
words, the President believed (with good reason) that the 
investigation risked delegitimizing him on the world stage, and 
that misperception was perpetuated by the fact that Comey had 
failed to clarify that he was not the center of the 
investigation.
---------------------------------------------------------------------------
    \36\ See, e.g., Eric Lichtblau, et al., ``F.B.I. Chief James Comey 
Is in Political Crossfire Again Over Emails,'' New York Times (Oct. 28, 
2016), available at https://www.nytimes.com/2016/10/29/us/politics/fbi-
clinton-emails-james-comey.html.
    \37\ See, e.g., Mark Landler and Eric Lichtblau, ``F.B.I. Director 
James Comey Recommends No Charges for Hillary Clinton on Email,'' New 
York Times (July 5, 2016), available at https://www.nytimes.com/2016/
07/06/us/politics/hillary-clinton-fbi-email-comey.html; Andrew C. 
McCarthy, ``FBI Rewrites Federal Law to Let Hillary Off the Hook,'' 
National Review (July 5, 2016), available at https://
www.nationalreview.com/corner/fbi-rewrites-federal-law-let-hillary-
hook/. The FBI initially found Secretary Clinton's conduct to be 
``grossly negligent,'' which is the legal element necessary for 
illegality under 18 U.S.C. 793(f). Director Comey instead sanitized 
that finding as well, asserting instead that she was merely ``extremely 
careless.'' See Victor Davis Hanson, ``Scandals Sanitized with 
Linguistic Trickery,'' National Review (June 21, 2018). Director Comey 
then assumed the mantle of prosecutor (which was not his role) and 
falsely stated that because Secretary Clinton did not have a specific 
intent to harm national security, no prosecutor would bring charges 
under such circumstances. Specific intent is not an element of the 
crime of mishandling classified information, and as the Senate 
Committee on Homeland Security and Government Affairs noted in its 
Interim Report on the email scandal, ``[o]ther American citizens have 
been charged under this statute for less serious actions.'' Interim 
Report at 8, citing e.g., United States v. Roller, 42 M.J. 264 
(C.A.A.F. 1995) (service member inadvertently packing classified 
documents with his personal belongings on his last day before a 
transfer); United States v. Gonzalez, 16 M.J. 428 (C.M.A. 1983) 
(service member inadvertently intermingling classified messages with 
personal mail); Indictment, United States v. Smith, CR 03-0429 (C.D. 
Cal. 2003) (FBI agent allowed Chinese informant to handle classified 
documents). Comey's preemptive exoneration was only made possible, of 
course, by the recusal of Attorney General Loretta Lynch, following her 
``chance'' meeting with Secretary Clinton's husband, former President 
Bill Clinton, on the tarmac of the Phoenix Airport while Hillary was 
under an active investigation.
    \38\ Mueller Report, Vol. II, p. 56.
---------------------------------------------------------------------------
    Or take the alleged to fire Mueller because of his manifest 
conflicts (or at the very least appearance of conflicts) of 
interest, namely, his close personal relationship with key 
players in the investigation (former Director Comey, whose 
illegal leak of information to the New York Times spurred the 
appointment of Mueller in the first place; and Rod Rosenstein, 
who authorized one of the FISA warrants) as well as with an 
organization that Mueller once ran--the FBI--whose alleged 
conduct was, or at least should have been, a significant part 
of any comprehensive investigation. Note here that the 
President, as the nation's Chief Executive, could have fired 
Mueller himself merely for the appearance of such conflicts, 
and would have been well advised to do just that so that the 
investigation could continue without such a taint--avoidance of 
even the appearance of conflict is particularly important in 
high profile matters such as this one. Mueller was not fired, 
and even if he had been, the investigation would not have been 
stopped but would have continued.
    Again, if that is obstruction, it pales in comparison to 
recent examples of real obstruction that have gone largely 
unremarked. Take, for example, the scandal involving the IRS 
during the previous Administration. I am particularly familiar 
with the specifics of this one, because an organization for 
which I serve as Chairman of the Board was the victim of the 
illegal disclosure of confidential portions of its tax returns. 
The Department of Justice refused to grant immunity to Matthew 
Meisel, the individual to whom the illegal tax return 
information was provided, even though it had determined that it 
was not going to prosecute Meisel. Meisel had asserted his 
Fifth amendment right against self-incrimination, but the grant 
of immunity would have required Meisel to testify as to the 
name of his source within the IRS; if the refusal to grant 
immunity was done to shield an IRS official who made an illegal 
disclosure, then the Department of Justice itself obstructed 
justice.
    Or take the series of events more directly related to the 
2016 Presidential campaign. The Obama Administration's 
Department of Justice allowed witnesses in the criminal 
investigation involving transmission of classified information 
over Secretary Clinton's unsecure private server to participate 
in interviews as ``counsel'' even though they were also 
witnesses, granted them immunity when they were themselves 
implicated in the illegal conduct, allowed them to conduct 
their own searches of their laptop computers and personal 
phones (some of which were even destroyed--literally, with 
sledgehammers--and with them any potentially incriminating 
evidence).\39\ None of that is remotely normal operating 
procedure; rather, it appears it was designed to shield the 
Administration's preferred candidate for President and her 
staff from potential criminal liability. If true--and the 
evidence certainly points strongly in that direction--then we 
have real obstruction of justice, not just the feigned claims 
under consideration now.
---------------------------------------------------------------------------
    \39\ See, e.g., Andrew C. McCarthy, ``In Politicized Justice, 
Desperate Times Call for Disparate Measures,'' National Review (May 19, 
2018), available at https://www.nationalreview.com/2018/05/clinton-
email-trump-russia-probes-justice-department-double-standards/.
---------------------------------------------------------------------------
    Let me close with this. The incessant harassment of the 
President of the United States and his top aides is quite 
likely taking a real toll on the President's ability to perform 
the duties of the office to which he was elected, and even more 
importantly undermining our national interest in the 
international arena, the very thing that led the OLC to 
determine that a sitting President must be immune from 
indictment while he remained President. That such a risk must 
be taken when there is documented evidence of serious 
wrongdoing that rises to the level of treason, bribery, or 
other high crimes and misdemeanors warranting impeachment is a 
fundamental and necessary component of the checks and balances 
inherent in our constitutionalsystem. But the harm to the 
national interest is simply too great for such inquiries to be 
undertaking on such weak evidence as we have before us, and 
certainly when, by all appearances, the real motive behind the 
perpetuation of this investigation strongly appears to be base 
partisan interests and continued pique over the loss of the 
last President election. There is good reason that, as the OLC 
recognized, our Constitution places the power to conduct 
impeachment proceedings in the hands of politically accountable 
elected officials: ``We the People'' can hold political actors 
to account for any abuse of that power for mere partisan gain. 
I strongly urge you, therefore, to accept the closing of the 
investigation by the Mueller team, to accept the results of the 
last election, and to get on with the business of actually 
addressing through legislation many of the serious problems our 
Nation currently faces.

    Chairman Nadler. Thank you.
    Professor Gerhardt.

                TESTIMONY OF MICHAEL J. GERHARDT

    Mr. Gerhardt. Thank you, Mr. Chairman.
    It's an honor to be here today and an honor to participate 
in today's hearings and to be a part of an important discussion 
about constitutional processes for Presidential misconduct.
    A good place to begin our discussion, I believe, is with 
the Supreme Court's decision in Nixon v. Fitzgerald, a 1982 
decision by the Supreme Court that held that the President is 
immune to civil lawsuits seeking damages based on his official 
conduct.
    Near the end of its opinion, the Supreme Court talks 
about--recognizes a number of other ways in which the 
Constitution allows for the President to be held accountable 
for his misconduct.
    There are formal mechanisms, for example, such as 
impeachment, such as congressional oversight, such as popular 
elections, that allows for considerable opportunity and, in 
fact, legitimacy for this Committee and Congress to consider 
which, if any, possible ways it wants to consider for holding a 
President accountable for his misconduct.
    There's long history here, but let me cut to the chase. The 
first mechanism, congressional oversight, is, of course, a 
longstanding legitimacy. The Constitution does not require that 
this house follow any particular procedures in trying to 
determine whether or not and how it may hold a President 
accountable for his misconduct. In fact, just the opposite.
    Article I, section 5 of the Constitution vests each body of 
Congress--the House, the Senate--with the authority to 
determine its own internal rules of governance. The Committee 
today is doing nothing more than following through in--
following through in accordance with the House rules. That's 
all that's happening. It's as simple as that.
    Besides congressional oversight, there are, as we 
recognize, other mechanisms. One of them, of course, is 
impeachment. I won't dally on that right now, but one thing to 
recognize about the possibility of impeachment is that the 
House, and particularly this committee, is fully entitled to 
consider what evidence there may be on whether a President 
committed misconduct, but also, what other evidence needs to be 
determined to reach a decision about whether or not to proceed 
further on any particular process relating to Presidential 
misconduct. It's that simple.
    The Constitution does not require a series of hoops that 
this Committee has to go through to make its determinations 
about what, if anything, to do with Presidential misconduct. 
Just the opposite, as I said. The Constitution vests 
considerable authority in each Chamber to determine its rules 
of governance, and here the committee's following through on 
that.
    Another mechanism we haven't discussed but could is 
censure. I have longed believed that censure is a legitimate 
option for this Committee to consider, if and when it 
encounters or finds that a President or any other official has 
engaged in misconduct. The authority isn't just derived from 
the fact the Constitution doesn't disallow censure; the 
authority is established by longstanding traditions and 
exercise of power within this body.
    For example, when Abraham Lincoln was a Member of the House 
of Representatives, he introduced a resolution criticizing 
President Polk's initiating, in his opinion, the illegal 
Mexican War. His resolution didn't pass, but he did vote for a 
resolution that did pass 82-81 holding President Polk 
accountable for unnecessarily initiating an unlawful war.
    That's good enough for me. If President Lincoln thinks it's 
good enough for the House, I think it's longstanding authority 
we can follow.
    Other mechanisms, of course, involve possible lawsuits. 
Civil lawsuits based on unofficial misconduct have been 
recognized, in Clinton v. Jones, as legitimate and they may 
proceed. In addition, of course, there may be the possibility 
of criminal trials.
    One thing to understand about the possibility of criminal 
trials is, as Dr. Eastman just suggested, that there's a 
longstanding debate of whether or not a sitting President may 
be subject to criminal process. I believe so. I've set forth my 
arguments in my written statement. I won't expound on them 
here, but I'm happy to answer questions about it.
    Of course, a final thing I hope you'll allow me to just 
finish with is something that Raoul Berger, long recognized as 
one of the great authorities on impeachment, said 30 years ago 
in The New York Times. He said by refusing to comply with the 
subpoenas of the House Judiciary Committee, President Clinton 
is setting himself above the Constitution. No President is 
above the law. No President can use his authority or any of his 
powers to thwart the powers of this body and therefore to be 
above and beyond any accountability to the law.
    Thank you very much for the opportunity to be here today.
    [The statement of Mr. Gerhardt follows:]

                STATEMENT OF MICHAEL J. GERHARDT

    It is an honor to be invited to appear before the House 
Judiciary Committee to discuss ``Constitutional Processes for 
Addressing Presidential Misconduct.'' It is hard to imagine a 
more important subject for this Committee to consider. As you 
know, this subject is not new for me. It has been at the core 
of my academic work. My first law review article, ``The 
Constitutional Limits on Impeachment and its Alternatives,'' 
was published thirty years ago this year. It addressed this 
subject, as have two books I subsequently wrote on the law of 
impeachment (and its alternatives), one in its third edition, 
and several other publications (and testimony in Congress). I 
have studied the procedures of this great institution as well 
as the Senate, particularly their respective powers of internal 
rule-making, investigation, impeachment, censure, and other 
subjects I expect we are likely to cover in this hearing. I 
hope I may be able to assist your understanding of these 
important topics.
    A good place to begin is with the Supreme Court's decision 
in Nixon v. Fitzgerald, 457 U.S. 731 (1982). In that case, the 
Supreme Court, 5-4, ruled that presidents are immune from civil 
lawsuits seeking damages based on their official conduct. Near 
the end of its opinion, written by Justice Lewis Powell, the 
Court emphasized that its decision ``will not leave the Nation 
without sufficient protection against misconduct on the part of 
the Chief Executive.'' The Court explained, ``There remains the 
remedy of impeachment. In addition, there are formal and 
informal checks on Presidential action that do not apply with 
equal force other executive officials.'' Among the ``informal'' 
checks are a president's being ``subject to constant scrutiny 
by the press,'' as well as his ``need to maintain prestige as 
an element of Presidential influence, and a President's 
traditional concern for his historical stature.'' The formal 
checks recognized by the Court were ``[v]igilant oversight by 
Congress,'' impeachment, and popular elections. The Court 
emphasized further ``t]hat the existence of alternative 
remedies and deterrents establishes that absolute immunity will 
not place the President `above the law.' '' I will discuss each 
of the formal checks on presidential misconduct briefly as well 
as a few other checks, which were not discussed in the Court's 
opinion.
    First, congressional oversight is a longstanding means for 
either chamber, or both, to investigate possible presidential 
(and other official) wrong-doing. The legitimacy of this 
mechanism is well-settled and beyond question. The Constitution 
nowhere says, much less requires, either chamber of Congress to 
approve resolutions, of any kind, before the committees of 
either or both chambers conduct investigations, issue 
subpoenas, take testimony, and gather evidence. All of these 
are instrumental to each chamber's performing its 
constitutional duties.
    The constitutional foundation for either chamber, or 
committees in either chamber, to perform these functions can be 
traced back to both the British and colonial systems, which 
were often a model for the framers, and to the enumerated 
powers of the Congress in article I, section 5, of the 
Constitution. This section provides that ``Each House may 
determine the Rules of its Proceedings.'' We should be grateful 
when the Constitution provides a clear answer to a question, 
and it plainly does so here. Each chamber may establish its own 
rules of internal governance, which include, among other 
things, establishing committees, empowering the chairs of those 
committees with powers such as issuing subpoenas, and 
establishing procedures to follow in law-making and other 
legislative functions.
    Besides the text as constitutional authority for all this, 
we have more than two hundred years of congressional practice 
and a few judicial decisions that make crystal clear that each 
chamber's latitude to fashion or re-fashion its rules and 
procedures is profoundly broad. There is nothing in the 
Constitution that requires each chamber to establish 
committees, but each did. There is nothing in the Constitution 
that prevents each chamber from modifying its rules, and each 
have done so many times. There were no committees in early, 
pre-civil war impeachments, because there were no committees. 
In time, the House and Senate each decided to create committees 
to improve their efficiency and abilities to handle their 
growing workloads. Those decisions were perfectly legitimate. 
In short, there is nothing in the Constitution dictating the 
procedure each chamber must use, if any, to issue subpoenas and 
to initiate or to conduct investigations. It is the rules of 
each chamber, not the Constitution, which dictates the 
procedures and rules that each chamber adopts or modifies as it 
sees fit.
    Resolutions are sometimes useful for shaping or supporting 
the House as it chooses how to proceed in exercising its 
authority, even when considering impeachments, but the 
Constitution does not require it to do so. At present, the 
Committee's investigation of misconduct laid out in the Mueller 
Report is being done pursuant to all of the Congress' article I 
authorities, and the Committee is reasonably considering the 
available constitutional remedies for any presidential 
misconduct it uncovers, including the remedies discussed in 
Nixon v. Fitzgerald and discussed here today. Legitimate 
purposes for congressional hearings and investigations are 
remarkably broad, as broad as the powers of Congress. They may 
be exercised, by a Committee and its Chair pursuant to the 
House rules, singularly or in combinations to authorize 
subpoenas and conduct investigations in the course of 
performing its duties. The rules of this House authorize what 
Chairman or this Committee may do in exploring or suggesting 
appropriate remedies for executive-branch officials, including 
the President, who refuse to comply with lawful subpoenas.
    A corollary to the power invested in the Committees to 
investigate possible wrong-doing, either on the basis of 
impeachment, another power, or some combination of powers, is 
the power to issue subpoenas and to hold hearings on whether to 
hold witnesses defying subpoenas should be held in contempt of 
Congress. By their nature, legislative subpoenas have the force 
of law. In United States v. Nixon, 418 U.S. 683 (1974), the 
Court unanimously directed President Nixon to comply with a 
judicial subpoena ordering him to turn over taped conversations 
in the White House to defendants charged with breaking into the 
Watergate Hotel. Not long thereafter, the House Judiciary 
Committee approved an article of impeachment against Nixon 
based on his refusal to comply with a legislative subpoena. 
Refusals to comply with duly authorized subpoenas (which are 
made pursuant to the House's internal rules of governance) show 
contempt for the Rule of law and the legitimate authority of 
Congress. Attorneys on behalf of the House or this Committee 
may seek enforcement of these subpoenas in court; if committees 
were barred by the Constitution to do that, then the President 
would be ``above the law.'' That is completely antithetical to 
the Constitution we have, and we would no longer be a Nation of 
laws and not just the people we happen to like.
    It is important not to confuse the demands of the 
Constitution with actions undertaken by either chamber pursuant 
to the delegations set forth in the Constitution. While the 
Supreme Court has said that committees must have ``a legitimate 
purpose'' when seeking evidence, doing investigations, or 
issuing subpoenas, it is absurd to think that the Court's, or 
the Constitution's, directives limit the discretion in each 
chamber on the needs to investigate, issue subpoenas, or hold 
witnesses in contempt of Congress for failing to comply with 
their subpoenas. For example, the House did not approve 
resolutions to authorize impeachment inquiries in any of the 
first few impeachments considered by the House. Much later, 
after each chamber had created committees, the Senate appointed 
a special committee, chaired by Sam Ervin of North Carolina, to 
look into the circumstances relating to the break-in at the 
Democratic headquarters in the Watergate Hotel. The same was 
done in the House. Neither chamber approved resolutions to 
authorize those initial hearings; the initial investigations 
were authorized within the rules of internal governance the 
Constitution had given to each chamber of Congress to fashion 
on their own. There has been no tradition, rising to the level 
of a constitutional command, that requires impeachment 
resolutions to be approved by the House to authorize this 
Committee to initiate an impeachment inquiry--or to proceed in 
any particular way. As long as the Committee functions pursuant 
to the House rules (and its inherent authority), it is 
functioning properly. Nor was there a House resolution 
authorizing this Committee to consider whether or not Justice 
William O. Douglas had committed any impeachable offenses. The 
matter died in Committee but only after some initial, brief 
deliberation and investigation were done.
    Nor was there a House resolution authorizing three separate 
hearings held by this Committee in 2016, on whether John 
Koskinen, then the head of the Internal Revenue Service, had 
committed any impeachable offenses. Nor was there one, in the 
late 1980s, authorizing this Committee to explore whether to 
impeach three federal district judges. All three judges were 
eventually impeached, convicted, and removed from office. The 
lawsuit filed challenging the procedures held in the Senate was 
dismissed because, the Court found, it raised non-justiciable 
questions left to the final discretion of the Senate. See 
Walter Nixon v. United States, 506 U.S. 224 (1993).
    A second mechanism for addressing possible presidential 
misconduct - impeachment--was deliberately designed to deviate 
from the British practice of impeachment. A people, who had 
overthrown a king, were not going to turn around, just after 
securing their independence from monarchial tyranny, and create 
an office that, like the King, was above the law. In England, 
the King could not be impeached, a factor which enraged the 
framers' generation to such an extent that the Declaration of 
Independence is a list of impeachment articles leveled against 
the tyrannical King they were rebelling against. Our president, 
unlike the King, is not the embodiment of law and certainly not 
immune from the ways in which the Constitution allows him to be 
held accountable or to be investigated for misconduct. In 
England, anyone (except the King) could be impeached for 
anything and could be subject to any penalties Parliament 
chose, while the framers wisely limited the scope of 
impeachable offenses and the remedies available to Congress to 
two sanctions--removal from office and disqualification to 
occupy any other federal office.
    The distinctions between the British and the American 
systems on the law and practice of impeachment are essential to 
keep in mind when we consider the scope of impeachable 
offenses. Besides telling us that ``The House of 
Representatives shall . . . have the sole power of 
Impeachment'' (Article I, section 2, clause 5), the 
Constitution says that, ``The President and all civil Officers 
of the United States, shall be removed from office on 
Impeachment and Conviction of Treason, Bribery, or other high 
crimes and misdemeanors'' (Article II, section 4). The 
Constitution defines treason (Article III, section 3), and 
federal criminal statutes define bribery. First, the framers 
and ratifiers called impeachable offenses ``political crimes,'' 
which included ``great'' offenses against the United States, 
``attempts to subvert the Constitution,'' when the President 
``deviates from his duty'' or ``dare[s] to abuse the power 
invested in him by the people,'' breaches of the public trust, 
and serious injuries to the Republic. In his influential essay 
in The Federalist Papers, Alexander Hamilton declared that 
impeachable offenses are ``those offences which proceed from 
the misconduct of public men, or, in other words, the abuse or 
violation of some public trust'' and ``relate chiefly to 
injuries done immediately to the society itself.'' In his 
influential lectures on the Constitution, given shortly after 
ratification, Justices James Wilson said impeachable offenses 
were ``political crimes and misdemeanors.'' In his equally 
influential Commentaries on the Constitution, Justice Joseph 
Story explained that that impeachable ``offenses'' are 
``offenses, which are committed by public men in violation of 
their public trust and duties'' and ``partakes of a political 
character, as it respects injuries to the society in its 
political character.'' The theme that clearly emerges from 
early discussions of the scope of impeachable offenses are that 
they are not neatly delineated but depend on context and 
gravity. As to which or what kinds of misconduct fit into this 
terminology, we know that, in the constitutional convention, 
George Mason worried that if the President ``has the power of 
granting pardons before indictment or conviction, may he not 
stop inquiry and prevent detection?'' James Madison responded 
that, ``There is one security in this case to which gentlemen 
may not have averted: If the President be connected, in any 
suspicious manner, with any person, and there be grounds to 
believe he will shelter him, the House of Representatives can 
impeach him; they can remove him if found guilty; they can 
suspend him when suspected, and the power will devolve on the 
Vice-President. Should he be suspected also, he may likewise be 
suspended and be impeached and removed.'' Madison added, ``This 
is a great security.'' We know, from the debates on the scope 
of impeachable offenses in the founding era and subsequent 
congressional practice (or ``liquidations,'' Madison said), not 
all crimes are impeachable (for example, jaywalking) and not 
all impeachable offenses are crimes (such as abuses of the 
pardon power or President Nixon's ordering the heads of the CIA 
and IRS to harass his political enemies). As happened with 
former Judge Alcee Hastings (now a member of the House of 
Representatives), the President or any other impeachable 
official does not have to be found to have committed a felony 
to be impeached. Whether any impeachable official has broken a 
law, in the judgment of Congress, may be relevant, but it is 
not required. See generally Michael J. Gerhardt, The Federal 
Impeachment Process: A Constitutional and Historical Analysis 
105-113 (3rd edition, University of Chicago Press 2019).
    A third option that the Committee should consider as a 
possible process to address presidential misconduct is censure. 
Censure usually takes the form of a resolution approved by a 
majority, in either chamber of Congress. There are two 
arguments commonly made against the constitutionality of 
censure. The first, initially made by President Andrew Jackson, 
was that the explicit authorization of impeachment in the 
Constitution necessarily excludes or bars Congress from 
deploying any other mechanism for sanctioning the President for 
misconduct. The second is that censure is an unconstitutional 
bill of attainder, barred in article I, section 9, which 
entails either chamber's finding someone guilty and imposing a 
punishment on the person in the absence of a judicial trial.
    After many years and opportunities to consider the 
constitutionality of censure, I concluded that the arguments in 
favor of its constitutionality are stronger than the ones 
against it. (See Michael J. Gerhardt, The Constitutionality of 
Censure, 33 U. Richmond L. Rev. 333 (1997).) First, the idea 
behind the censure is not that it is a replacement for 
impeachment but instead an option to consider when a 
president's misconduct has fallen short of an impeachable 
offense. It makes no sense to say impeachment is the only 
remedy for presidential misconduct, since it does not, based on 
the plain language of the Constitution, only is available for 
impeachable misconduct not unimpeachable misconduct.
    Second, the text of article I, section 7, of the 
Constitution raises a reasonable inference that censure may be 
a permissible means for addressing or calling attention to 
official misconduct. That section says, ``Judgments in Cases of 
Impeachment shall not extend further than to removal from 
Office and disqualification to hold any Office of honor, Trust 
or Profit under the United States.'' The inference is that 
there may some judgments falling short of impeachment, 
conviction, and removal, such as censure. Even if impeachment 
were the only or exclusive means for formal action by the 
Congress to sanction the President for misconduct, it does not 
follow that it would preclude other options for dealing with 
other kinds of misconduct.
    Third, it is reasonable to assume that the First Amendment, 
along with the Speech or Debate clause, protects Members 
individually in denouncing what they consider to be official 
misconduct (even demanding resignations from the perpetrators). 
But, if the Constitution protects Members individually in 
expressing their opinions, it does not make sense to preclude 
them from doing so collectively. There is no doubt that Members 
of Congress may circulate a statement denouncing an official 
for misconduct and then submit that petition in the 
congressional record. Censure is the same thing.
    Fourth, a censure is not a bill of attainder because it 
imposes no tangible punishment on the person being censured. It 
exacts no fines, imprisonment, or any other material, physical, 
or substantial punishment on the official being censured. The 
person censured may not like or may he or she may disapprove of 
the condemnation expressed by the House or the Senate, but they 
have their own platforms for expressing their disagreement or 
disapproval.
    Moreover, the House has approved resolutions, which have 
censured the President. Indeed, when Abraham Lincoln was in the 
House of Representatives, he proposed a resolution to condemn 
President Polk for initiating an illegal war, the Mexican War 
(1846-1848). The House rejected his proposed resolution but 
instead approved 82-81, with Lincoln casting his vote with the 
majority, a resolution declaring that the Mexican War had been 
``unconstitutionally and unnecessarily begun.'' If President 
Lincoln believed that such censure was constitutional, that has 
always been good enough for me--and, I respectfully suggest, 
for this institution, too. Later as president, he did not 
object on constitutional grounds that there was a joint 
Committee assigned to review his handling of the war.
    The next remedy to consider as a remedy, or check, on 
presidential misconduct is popular election. Obviously, there 
are no formal limits on what the public may take, or not take, 
into consideration in the electoral process. Yet, one 
significant limitation on this check, often overlooked, is the 
fact that the Constitution limits presidents to two terms in 
office. Both Presidents Nixon and Clinton faced serious threats 
of impeachment in their second terms, a time when neither was 
subject to any further elections to check what they did in 
office.
    Yet another way to hold a President accountable for 
misconduct is by civil suits seeking damages but for unofficial 
or pre-presidential misconduct. Unanimously, the Supreme Court 
settled the constitutionality of this option in Clinton v. 
Jones, 520 U.S. 681 (1997) when it found such proceedings to be 
constitutional.
    A final mechanism for addressing presidential misconduct is 
criminal trials. There is no question that a President may face 
criminal proceedings for misconduct after he has left office. 
The more troubling question, for many, is whether a sitting 
President may be indicted while in office. The Department of 
Justice has taken the position that it is unconstitutional to 
indict, prosecute, and/or imprison a President for any possible 
criminal misconduct he committed in office or in procuring 
office. (The late Ron Rotunda, a distinguished legal scholar, 
advised Kenneth Starr, when Starr was the independent counsel 
assigned to investigate possible misconduct in the real estate 
transaction known as Whitewater, that the President may be 
investigated and indicted while in office. Rotunda was unsure 
whether the President could be imprisoned while he was still 
president.) The principal objection to subjecting the President 
to criminal process while he is in office is that, as the 
executive branch is the only branch overseen by a single 
individual, criminal proceedings would profoundly impede its 
functioning because the President would be so distracted by 
having to defend himself from possibly going to prison or worse 
that the entire executive branch would become paralyzed.
    My longstanding position on this question is no secret. I 
have long been skeptical of the arguments vesting the President 
with absolute immunity from any criminal proceedings while he 
is in office. First, the Constitution says no such thing. Just 
the opposite. It vests Members of Congress with immunity when 
engaged in speech or debate. This clause raises the natural 
inference the President has no corresponding immunity from the 
Constitution's vesting Members of Congress with immunity for 
doing their jobs and its silence on president's having any 
similar kind of immunity.
    Second, just as the Court reasoned in Clinton v. Jones, it 
makes little to no sense to allow a President to use his office 
to shield himself from criminal liability (which, by 
definition, would be based on his unofficial conduct, but not 
to do so for civil infractions based on pre-presidential or 
unofficial misconduct. If, for example, a President murdered 
someone to silence them from revealing embarrassing information 
during his successful campaign for the presidency, it makes no 
sense to insist he may never stand trial for that crime for at 
least four years, perhaps as many as eight. What if, to modify 
the example a little further, he murdered someone on camera to 
show that he can do whatever he likes as president? The 
temptation to say that is what impeachment is for is too 
simplistic, because what happens if the President's party 
controls this chamber or the other, or maybe both, and prefer 
not to remove the President who has done so many favors for 
them. The failure to impeach in that circumstance leaves the 
American people with a criminal in the White House.
    It has long been said that the Constitution is not a 
suicide pact. When, for example, James Buchanan was in the 
White House, he believed the Constitution did not allow him to 
protect federal forts under siege in South Carolina and 
Florida. Obviously, President Lincoln disagreed. The point is 
not that our leaders may bend or manipulate the Constitution to 
do what they believe is necessary under the circumstances. They 
may not. The Constitution provides constraints on presidents 
and vests this body with the monumental power of impeachment to 
deal with the serious misconduct of the President. The House 
may excuse or ratify what a President has done, or it may 
exercise its discretion not to impeach the President, whom they 
believe may have acted in good faith. The Constitution allows 
for that. If the House does not agree with the President or his 
actions, it may Act on that basis. The Constitution allows for 
that. What the Constitution does not allow is our leaders 
breaking the Constitution, or the law, to serve their political 
needs. We do not teach that in constitutional law classes, and 
you have all taken an oath, as have the President and all the 
people who work for him, to defend and support the Constitution 
as it is, not as you or this President, would like it to be.
    Ultimately, you must decide what kind of precedent you wish 
to establish. It is for this Committee and the House to 
determine how, and even whether, in what ways they wish to 
exercise its powers in response to charges of misconduct by the 
most powerful person in the government. It is not for the 
President to say or to obstruct congressional deliberations and 
investigations or other legitimate functions.
    Thirty-five years ago, Raoul Berger, a conservative 
constitutional scholar who was widely renowned as one of the 
twentieth century's great experts on impeachment, wrote an 
opinion in the New York Times responding to President Nixon's 
defiance of a legislative subpoena. Mr. Berger said, ``By 
refusing to comply with the subpoenas of the House Judiciary 
Committee, President Nixon is setting himself above the 
Constitution. He would nullify the constitutional provision for 
Presidential accountability that was designed to prevent 
dictatorial usurpations.'' Berger, Mr.
Nixon's Refusal of Subpoenas: ``A Confrontation with the 
Nation,'' N.Y. Times, July 8, 1974. As Mr. Berger explained, 
``The House's need for all the facts surrounding suspected 
Presidential offences cannot of course be circumscribed by an 
executive determination of what is relevant.'' The same can be 
said about the need for this committee, or any other committee, 
to investigate official misconduct when they have reason to 
suspect its occurrence. Mr. Berger went further to emphasize 
that such defiance (done by the President or ordered by him) 
was plainly a matter the House had a legitimate reason to 
investigate. Indeed, he deemed the defiance an impeachable 
offense. He noted that, Justice James Wilson in 1791, had 
observed presciently that, ``the most powerful magistrates 
should be amenable to the law . . . . No one should be secure 
while he violates the Constitution and the laws.'' In closing, 
Mr. Berger reminded the Nation that President Nixon was a man 
and nothing but a man, who ``is subject to the law in all its 
manifestations, including, if need be, arrest.'' [I] would 
recall to the Nation the words of a great statesman, Edward 
Livingston, in the early days of the Republic: ``No Nation ever 
yet found any inconvenience from too close an inspection into 
the conduct of its officers, but many have been brought to ruin 
. . . because the means of publicity had not been secured.'' A 
year earlier, Mr. Berger had wisely counseled the Nation and 
the Members of this institution that, ``Congress already has 
enough power to force the White House to yield documents and 
supply witnesses. The question is whether Congress has the 
nerve to use it.''
    Thank you, again, for the privilege to appear before you on 
this important subject. If you have any questions, please do 
not hesitate to let me know.

    Chairman Nadler. The Committee will now stand in recess for 
5 minutes, and Democratic Members will meet over here and the 
Republican Members on their side.
    This will be a 5-minute recess.
    [Recess.]
    Ms. Scanlon. [Presiding.] The Committee will now resume.
    We'll now proceed under the 5-minute Rule with questions, 
and I'll begin by recognizing Mr. Collins.
    Mr. Collins. And I thank the chairwoman for doing that. 
We've got to go to the floor and take up the 9/11 bill, so I 
appreciate that. I won't be long.
    Mr. Eastman, let's talk just for a moment. Do you think 
there's any possibility that this group of attorneys and 
nonattorneys on this Judiciary Committee have any--or their 
staffs have any problem understanding the constitutional role 
of Congress and oversight of the Administration, on any 
Administration?
    Mr. Eastman. I don't know the background of every member, 
but I think the usual member ought to know the answer to that.
    Mr. Collins. That would come from just, if nothing else, 
life growing up and taking, you know, government classes 
growing up, correct?
    One of the things I want to be interested in--and there's a 
lot of things that people will talk about today, and we'll get 
into a lot of different things. One of the problems that I've 
had here--and we talk about constitutional process. We also 
talk and the professor here talked about our internal processes 
and going on. One of the things that I've just been very 
disappointed in our Committee for the last 6 months is our way 
we handle subpoenas and the way that we have went through 
contempt and how we have rushed through this process and how 
we've instead of--you're familiar with subpoenas, correct?
    Mr. Eastman. Yes.
    Mr. Collins. How they should operate. Has a subpoena ever 
been--and from a perception that you ever had, could a--would a 
Black's Law Dictionary of a subpoena say that it is an opening 
to a dialogue?
    Mr. Eastman. No.
    Mr. Collins. Would it ever be said that a subpoena should 
be to enhance your standing in court?
    Mr. Eastman. No.
    Mr. Collins. Okay. If that be true, then my question is, do 
you believe that it hurts us as an institution when we rush 
through these issues of contempt and subpoena? I would love for 
you to talk about that for a minute.
    Mr. Eastman. Well, look, you know, I want to take up--I 
agree with most of what Professor Gerhardt said. The one point 
of disagreement I have is I don't think he gave enough credit 
to the notion that these fights over congressional subpoenas 
and congressional testimonies by the executive are ones that 
arise out of a deliberate design function of the Constitution, 
which is a separation and a counterbalance of powers.
    Yes, the Congress has oversight authority, but there are 
limits to that authority, and those limits we typically 
classify generally as executive privilege. So, most of the 
fights in our Nation's history over the issuance of subpoenas 
and the testimony of high-ranking executive officials deal with 
that counterbalancing authority that the executive has. 
Congress cannot, in its oversight capacity, intrude on the 
executive functions, including the confidentiality of 
Presidential communications. I think that's well established as 
well.
    The fight, then, is over whether these current rounds of 
subpoenas and demands for testimony are really designed to 
intrude on the executive in an unconstitutional way. I think 
that's where the conversation has to focus.
    Mr. Collins. You talk about conversation and dialogue. This 
is one of the things that I've been in Congress, not my life, 
but the last 6\1/2\ years, and I've noticed the battles that go 
between both Democrat and Republican Administrations in the 
Hill. This has been going on forever.
    Do you believe it's good--and I've got several questions. 
Do you believe it's good for a Committee just to lead, with no 
conversation with an individual, to lead with a subpoena?
    Mr. Eastman. I don't. There's a lot of negotiation that has 
historically gone on on those issues.
    Mr. Collins. We went to the floor for contempt on very 
limited terms, especially with the Attorney General in a 
shortened time here.
    The question that I would have here is--if you look at this 
from a judge's perspective, when they say--and we talk about--
and by the way, this Committee seems to be unique in this, 
because other committees, such as the Intel Committee, actually 
negotiated and began to get stuff in the proper way of back and 
forth and back and forth. When we go to--if we were to try and 
enforce one of these contempts that we have done with lack of 
foundation, lack of background, do you believe it hurts this 
Committee and this institution as a whole?
    Mr. Eastman. It would certainly undermine the claims in the 
court that the subpoenas or the efforts were made in good 
faith, and that would certainly undermine any court's plan on 
giving enforcement effort to those things.
    Mr. Collins. I appreciate it. I know in my home county of 
Hall County, my judges would look at me and say go back and do 
your job before you bring it to me.
    So with that, I do appreciate the chair's indulgence. With 
that, I'll yield back.
    Ms. Scanlon. Okay. Thank you.
    The chair recognizes Representative Lofgren for 5 minutes.
    Ms. Lofgren. Thanks very much.
    I think this is an important hearing. I noted the Ranking 
Member's comment that we should be taking up other subjects 
instead of this one. I can't help but recall that the 
Democrats, in terms of election security, as a first order of 
business, introduced H.R. 1 about election security and got no 
help from the minority party. My own bill, the SAFE Act, that 
we just passed 2 weeks ago to harden election systems got only 
one Republican vote. So, that's a bit disingenuous.
    Let me talk about the OLC opinion. I've been interested in 
that for some time, and I'm wondering whether, Ms. Fredrickson 
or Mr. Gerhardt, you believe that the OLC opinion would cover 
activities--criminal activities for any President that occurred 
prior to that President assuming office.
    For example, Spiro Agnew was--left his position for bribery 
that was engaged in while he was in Maryland, before he was 
Vice President.
    What is your view on that?
    Ms. Fredrickson. Well, just say two quick things, and then 
Professor Gerhardt probably has a more thorough answer.
    It's one thing is that the Vice President has not covered.
    Ms. Lofgren. No, I understand that. I just meant that as an 
example.
    Ms. Fredrickson. That's just one of the weaknesses of the 
OLC opinion, is it does seem to indicate that--insulate a 
President from judicial process in a way that I think is not 
consistent with the Rule of Law as understood by the Founders.
    Ms. Lofgren. One of the questions I've had, if I can throw 
at you, in addition, Professor Gerhardt, is there any limit to 
this? Let's say some day in the future, President A is annoyed 
with the Vice President, pulls out a gun, shoots the Vice 
President in the head in the Oval Office. That would be a 
Federal crime. Would that President A in the future be immune 
from prosecution?
    Mr. Gerhardt. I hope not. I respectfully disagree with the 
OLC opinion. Obviously, OLC does fantastic work. They're not 
right about everything. Everybody is subject to scrutiny. In 
this case, I think they got it wrong.
    I've long thought that the President is not special. 
Everybody in government is subject to criminal process. Should 
anybody in government commit a crime, they're not entitled to 
any immunity. That's the Constitution we have.
    In fact, to go back to your earlier question about whether 
or not a President--we can just--let's keep it hypothetical--
commits a crime before he is elected, and nobody knows about 
it. If we find out about it later, it has becomes almost absurd 
to imagine that the country has to somehow sit tight for 4 or 8 
years until he leaves office before, he is subject to a 
criminal trial. If that crime has any relationship to his 
election, and it almost certainly does because it would have 
affected people's votes to know about it, then I think the 
Constitution gets turned on its head.
    Ms. Lofgren. Let me ask you this. In terms of the OLC 
opinion, obviously they're just looking at Federal 
prosecutions. We have 50 States. If the President A shoots 
somebody who is not a Federal official, in a State, that would 
be a violation of State law. Do you believe that the 
Constitution prohibits a State prosecution of a President for a 
State law violation?
    Mr. Gerhardt. I don't believe it does, but I also should 
just point out, for the record, that this Committee and this 
House of Representatives has confronted this issue already, to 
some extent, in the case of Thomas Porteous.
    Ms. Lofgren. Right.
    Mr. Gerhardt. Thomas Porteous was a Federal district judge 
who nobody knew--
    Ms. Lofgren. We were on the Committee during the 
impeachment, so--
    Mr. Gerhardt. I won't go into details, if you don't want, 
but I think they're quite pertinent. The point is he committed 
criminal misconduct before he entered his office as a Federal 
district judge. He didn't tell the Senate about it, and that 
turned out basically to be fraud against the Senate and was the 
basis for his impeachment.
    Ms. Lofgren. Let me just ask a final question. If the DOJ 
opinion is correct, it seems a logical extension is that the 
Federal prosecutors could not be expected to actually 
investigate a President.
    When you think back to the Nixon impeachment, Jaworski was 
provided information to the Congress. Certainly, Ken Starr 
provided us information. I was on the Committee at that time. 
Presumably, that would not be permitted if you could not 
prosecute a sitting President.
    What do you think of that?
    Ms. Scanlon. Time has expired, but you can answer.
    Mr. Gerhardt. Well, if a prosecutor finds evidence of 
obstruction, for example, then that may be an appropriate time 
to consider the propriety and legitimacy of criminal process.
    That no one--the very principle of no one being above the 
law means just what it says. Nobody's above the law. A 
President can't obstruct an impeachment, you know, a House 
Committee looking into the possibility of whatever misconduct 
he has committed, because if he could do that, then he really 
is above the law.
    Ms. Lofgren. Thank you. My time has expired.
    Ms. Scanlon. Thank you.
    The chair recognizes the gentleman from Florida for 5 
minutes.
    Mr. Gaetz. Thank you, Madam Chair.
    Mr. Eastman, you've commented on the potential harms that 
can come with a special counsel that's unbridled. Is there 
anything you'd like to add to that?
    Mr. Eastman. Well, I mean, I want to pick up on something 
that Professor Gerhardt said, the notion that the President 
would be above the law. One of the things that has troubled me 
about the OLC opinions, which are correct, is that potential 
criminal liability may not exist at all for a sitting President 
for conduct either--criminal conduct either while in office or 
before, given the statute of limitations problems.
    Both OLC memos recommended to Congress that they could 
address that issue, and I would encourage you to do so. That 
would ensure that no President is above the law at the end of 
the day. It would also ensure--and this is what the OLC memos 
are both based on, and they would apply whether the criminal 
conduct occurred while in office or before--the unique 
responsibilities of the President in our system of government 
and the ability of a single prosecutor or a single grand jury 
to interfere with that. I think that's why the OLC memos are 
correct.
    To remedy the one shortcoming from that, you could address 
the statute of limitations thing. Chairman Nadler in his 
opening statement mentioned that was one of the things that 
might be worth considering. I would endorse that.
    I do think, though, that the reasoning of the OLC memos, 
implicitly in the first one and explicitly in the second, also 
extends, although for different--not separation of powers 
reasons, but for federalism reasons, to State authorities being 
able to indict the President. They're right about that as well. 
That door is closed as well for the same reasons that a Federal 
indictment against the President, while he is sitting, is 
closed.
    I think that's right. It's a balancing act. The balance, 
given the unique nature of the President's role and the unique 
nature of his election, the only one, save for the Vice 
President, who is elected nationally, those two things have 
contributed to this immunity that OLCs of both sides of the 
political aisle have recognized, like I said earlier, over a 
span of 50 years.
    That doesn't keep the President off the hook, but it does 
shift the discussion to a politically accountable body where 
people can be held to account if they abuse the investigative 
process.
    Mr. Gaetz. You made mention of the President's unique 
powers and how they interface with an analysis of proper versus 
improper conduct, and you also make reference to the dealing 
with Director Comey. Is there anything you'd like to add on 
that front?
    Mr. Eastman. Well, something that Chairman Nadler said in 
his opening that I disagree with, and I think is important to 
get out here, one of the pieces of legislation that is being 
considered is to expose White House communications with the 
Department of Justice to identify whether the President is 
having any role in prosecutorial decisions. That idea 
fundamentally misunderstands the nature of article II of the 
Constitution, which says the executive power, all of it, is 
vested in the President of the United States.
    The Attorney General, in its prosecutorial functions at the 
Department of Justice, holds that power derivatively from the 
President. The FBI, in its investigative power, holds that 
power derivatively from the President. The notion that the 
President can't be the one to make the prosecutorial or the 
investigative decisions is to completely undermine that core 
aspect of article II. So, that idea is just simply misguided.
    Now, if the President decided that Director Comey--and I 
outline in my testimony why both sides of the political aisle 
in Congress were upset enough with Mr. Comey to have warranted 
removing him long before the President did, but the President 
had that authority himself. I don't think that exercising an 
authority that he constitutionally has rises to the level of 
obstruction of justice.
    Mr. Gaetz. Thank you, Madam Chair. I yield back.
    Ms. Scanlon. The chair recognizes the gentlewoman from 
Texas for 5 minutes.
    Ms. Jackson Lee. I thank the chair very much.
    I'm going to read partly a statement by a former Federal 
prosecutors. I would also like to add, having been here in 1998 
and also for a number of impeachment proceedings regarding 
Federal judges, when Mr. Starr handed our friends on the other 
side of the aisle the Starr report, they immediately began 
impeachment proceedings. That was the historical record that 
was created. I don't know if they were concerned about any 
factual basis other than the Starr report.
    In this instance, we are meticulously listening to scholars 
and interviewing individuals by way of subpoena and building 
blocks of the constitutional process and as well the building 
blocks of the understanding of the American people.
    Each of us believes that the conduct of President Trump 
described in Special Counsel Robert Mueller's report would, in 
the case of any other person not covered by the Office of Legal 
Counsel policy against indicting a sitting President, result in 
multiple felony charges for obstruction of justice. They 
recount the President's efforts to fire Mueller and to falsify 
evidence about that report, about that effort, the President's 
efforts to limit the scope of Mueller's investigation to 
exclude his conduct, and the President's effort to prevent 
witnesses from cooperating with investigators probing him and 
his campaign.
    Professor Fredrickson, do you find agreement with 1,025 
prosecutors, the possibility of such?
    Ms. Fredrickson. Well, I have to say I've never been a 
prosecutor, but I think it's a very impressive list of some of 
our Nation's most illustrative prosecutors who have engaged in 
lengthy careers. I take what they say very seriously. I think 
it is very important for this Committee to go further and 
examine the allegations that were laid out in the Mueller 
report.
    Ms. Jackson Lee. Thank you.
    I ask the chairwoman to ask unanimous consent to place the 
statement by former Federal prosecutors, part of what I just 
read, 1,025 indicate that the President would be subject to 
felony charges if he was not the President of the United 
States.
    Let me also make mention--
    Ms. Scanlon. Without objection.
    [The information follows:]

   
                     MS. JACKSON LEE FOR THE RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Ms. Jackson Lee. Thank you very much--of H. Res. 396, 
Resolution of Investigation, Professor Gerhardt--and welcome to 
all of you, by the way, thank you so very much for your 
presence. It recounts--it's under our rules 6 and 7 of House 
practices--it is an instruction for the Judiciary Committee to 
investigate. Included in the resolution, it indicates various 
elements of investigation, violation of the Foreign Emoluments 
Clause of the United States Constitution, violation of the 
Domestic Emoluments Clause of the United States Constitution, 
obstruction of justice, abuse of power, misfeasance in public 
office, malfeasance in public office, failure to protect the 
confidentiality of national secrets from enemies, foreign and 
domestic--just a litany similar almost to one--Articles of 
Impeachment.
    Let me ask you this. In your written testimony, you note 
that the theme that clearly emerges from early discussions of 
the scope of impeachable offenses are that they are not neatly 
delineated but depend on context and gravity, of which the 
responsibility of this is housed in the Judiciary Committee, 
and not all crimes are impeachable and not all impeachable 
offenses are crimes?
    I would ask you, is impeachment limited to criminal acts?
    Mr. Gerhardt. Not at all, Congresswoman. In fact, it's 
important to understand that one of the most significant theme 
in the Constitutional Convention was that when the delegates 
thought of possible impeachable offenses, they were trying to 
figure out the scope of them. They never listed something that 
wasn't actually a crime; they listed things that were not 
crimes. In fact, many impeachments have been based on things 
that are not crimes.
    Ms. Jackson Lee. I'm going to go on to another--can a 
President be impeached for conduct related to improper exercise 
of his article II powers, such as removing a subordinate 
Federal officer? Let me add, would all communications between 
the President and, say, the Department of Justice always be 
protected, always be not subject to review or suggesting that 
they were inappropriate?
    Mr. Gerhardt. I think it's an overreach to suggest the 
President somehow can insulate all his communications with 
anybody from congressional inquiry. That essentially makes the 
Presidency unaccountable.
    Ms. Jackson Lee. So, can he be impeached for the improper 
exercise of article II?
    Mr. Gerhardt. Absolutely.
    Ms. Jackson Lee. Can the President be impeached at least 
partly on his conduct or her conduct before assuming office?
    Mr. Gerhardt. I've suggested both through my statement and 
other writings that I think a Presidency could be subject to 
impeachment for that.
    Ms. Jackson Lee. Clearly, the Mueller report, in Volume I, 
has talked about a number of incidences dealing with the 
Russian intrusion into our elections that seemingly this 
Administration and the Office of the President was involved in.
    Mr. Gerhardt. At the very least, this Committee is entitled 
to look into things. So, you have got the Mueller report. The 
Mueller report obviously contains a lot of different things, 
such as possible acts of obstruction of justice. It's quite 
reasonable and legitimate for a Committee--for this particular 
Committee to look at that and to ask whether or not more 
investigation is needed.
    There is nothing in the Constitution that precludes the 
committee. In fact, there's a lot in the Constitution that 
supports this Committee looking at that material and deciding 
whether or not it does provide evidence of misconduct or 
whether or not it needs more evidence.
    Ms. Jackson Lee. I thank the chairwoman. I yield back.
    Ms. Scanlon. Okay. Thank you.
    The chair recognizes the gentleman from California.
    Mr. McClintock. I thank you, Madam Chairman.
    Dr. Eastman, the more that comes out on the Mueller report, 
the more I become concerned that it appears to me that they 
couldn't make a legal case against the President. So they 
decided instead to try to make a political case, and they did 
so by seriously misrepresenting the evidence that they had. 
Give you a few examples.
    The John Dowd conversation, the President's lawyer, calls 
Robert Kelner, Michael Flynn's lawyer. The Mueller report 
quotes only a small portion of the conversation that leaves the 
impression that Dowd's trying to influence testimony. It 
deliberately omitted a very large part of the conversation 
where Dowd made it absolutely crystal clear that it was not 
what he was suggesting.
    Another example. Konstantin Kilimnik is repeatedly 
referenced as a Russian Government operative in his 
interactions with Paul Manafort. What Mueller knew but failed 
to mention in his report was that Kilimnik was, in fact, a U.S. 
intelligence asset.
    There was an article just published in The Federalist. It 
notes the recent developments in the Concord case that involves 
the Internet Research Agency, the internet troll farm at the 
center of the Russian Government interference narrative. The 
judge in that case asked prosecutors to address also the 
specific tie to the Russian Government, and the DOJ responded 
the report doesn't say that. It was that next day that Mueller 
held his press conference where he walked back the linkage that 
he had made between the Russian Government and the internet 
troll farms.
    So, I have to tell you, having reviewed some of the 
material behind the report, I'm concerned this report seriously 
misrepresents the supporting evidence that it's supposed to be 
based upon. So, I'd like to hear your opinion of the nature of 
the report itself and what does it say of the integrity of the 
report if exculpatory evidence was deliberately omitted from 
that report.
    Mr. Eastman. Congressman McClintock, we've seen a number of 
stories about the political biases of the Members of Mr. 
Mueller's team that have occupied our Nation's attention for 
some time now, and I think one of the allegations that the 
President attempted to obstruct judges was his alleged 
direction to White House Counsel Don McGahn to notify Deputy 
Attorney General Rod Rosenstein to fire Mueller because of his 
alleged conflict of interest. This is critical and I think it 
may well full explain why we don't have in that report some of 
the triggering events that led to the report that any competent 
investigation would have explored.
    Department of Justice guidelines specifically say that 
people ought not to be leading an investigation when they have 
personal--close, personal relationships with targets or key 
witnesses of the investigation or with an organization of the 
investigation, and Mr. Mueller had both. He had very close, 
personal relationships with FBI Director Comey who, of course, 
whose own leak of information to The New York Times is what 
triggered the appointment of Mr. Mueller in the first place and 
who was a key witness in one of the allegations against the 
President about, you know, can you see your way to letting the 
case drop against Mr. Flynn? He suffered enough. He had a close 
relationship with Mr. Rosenstein who was a signer on one of the 
FISA warrants that triggered the whole Russia collusion story 
in the first place.
    Those things alone ought to have forced Mr. Mueller to 
recuse himself because they are conflicts of interest that 
would have not led to his appointment under Department of 
Justice guidelines in the first place. For the President as the 
top national executive to raise the question about those 
conflicts is not obstruction of justice; it's doing his job. If 
he had said, because of that conflict, we're going to shut down 
the whole investigation because I don't like it going after me, 
then you might have had obstruction of justice, but that's not 
what we have here.
    The perpetuation of this myth is rising to the level of 
farce, and it is distracting, not only the President and the 
country domestically, but on the world stage. In fact, we are 
perilously close to the ongoing proceedings here rising to this 
very same level that is why the Department of Justice has over 
a half a century twice concluded the President ought not to be 
indicted while he's in office. They recognize that the 
impeachment proceeding is a necessary evil that would suffer 
those consequences but on things that are much more grave than 
we have at issue here.
    Mr. McClintock. Is it fair to say that this report was 
corrupted both by personal relationships and by political 
biases?
    Mr. Eastman. When you see the things that are omitted from 
it, that's the conclusion that one has to go.
    Mr. McClintock. This is, so far, just the tip of the 
iceberg. They're dribbling out all the time and of grave 
concern.
    Mr. Eastman. When Mr. Horowitz' full IG report comes out on 
the origins of this thing, we're going to be shocked to learn 
how much more there is.
    Mr. McClintock. Thank you.
    Ms. Scanlon. The chair recognizes the gentleman from 
Tennessee for 5 minutes.
    Mr. Cohen. Thank you, Madam Chair.
    First, I'd just like to comment the question about 
exculpatory evidence being put in and questioning Mr. Mueller's 
compliance. Mr. Mueller made clear that he did not suggest the 
President should be indicted or was indicted because of the 
OLC's opinion that he couldn't be indicted. That's pretty much 
dealing--taking exculpatory evidence when you put that in. 
We're not indicting him because we can't do it, not because we 
didn't find evidence of criminal activity; and if we did, we 
would have said so. So that's firstly.
    Second, the question about his closeness to Mr. Rosenstein 
and Mr. Comey. He was also close to Mr. Barr. So, maybe Mr. 
Barr shouldn't have taken the job.
    Although existing regulations governing the appointment and 
removal of a special counsel already provides some limitations 
on the removal of the Attorney General, those can be rescinded 
or modified because they're the Attorney General's regulations. 
They can modify those protections against unwarranted removal.
    The chair has introduced a bill, H.R. 197, that's called 
the Special Counsel Independence and Integrity Act, which would 
codify those protections and would permit the special counsel 
who believes his or her removal was unlawful to contest that 
removal in court.
    Ms. Fredrickson, what are the benefits of enacting the 
current protections that the Department has for unwarranted 
removal of a special counsel and make them statutory law?
    Ms. Fredrickson. Thank you so much for the question. So, 
there are a number of benefits, and one is it's clear that the 
Attorney General could repeal the existing regulations, and 
there was quite a bit of worry that that might happen. I 
believe Senator Graham on the Senate side has introduced a 
partner to this legislation for the very same reasons, that the 
regulations lay out some important protections for the 
independence of the special counsel, but they're not enough 
because they're not actually insulated from action by an 
Attorney General who might himself want to see, or herself, 
want to see an investigation curtailed. So, it's an important 
piece of legislation to consider.
    I did also just want to go back to the prior question 
regarding the factual disputes and the accusation that Special 
Counsel Mueller was biased and omitted important information. I 
don't want to speak to that, but I do want to say it seems to 
me that's actually an extremely strong reason, if people 
believe that, to want to get as much of this information into 
the public hands as possible but certainly into for this 
Committee to review.
    Mr. Cohen. I'm sure we'll do that.
    How would providing a special counsel a private right of 
action to contest his or her unlawful removal deter some of the 
conduct described in the Mueller report?
    Ms. Fredrickson. Well, to have some kind of a legal 
recourse to ensure that a special counsel isn't removed for 
less than good cause is an important mechanism to protect that 
authority and to protect the integrity of an investigation that 
might be necessary.
    Mr. Cohen. Then maybe some of the instances that were cited 
in the report that might amount to obstruction of justice 
wouldn't have occurred because they would have known that they 
could--Mr. Mueller could have gone to court to contest those in 
an open hearing.
    Ms. Fredrickson. Absolutely. Mr. Mueller laid out numerous 
examples of where he was thwarted along the way and was 
threatened that if he had had some additional legal recourse--
    Mr. Cohen. Let me ask. We're going to run out of time. 
You've read the Mueller report, have you not?
    Ms. Fredrickson. Yes.
    Mr. Cohen. All right. How many instances of obstruction of 
justice do you believe were shown where all three elements of 
obstruction of justice were met?
    Ms. Fredrickson. Well, the report itself describes it in 
extremely good detail, but there are certainly several examples 
dealing with the efforts to get the White House Counsel to fire 
Mr. Mueller.
    Mr. Cohen. That's one. Then telling Mr. McGahn to lie about 
it?
    Ms. Fredrickson. Telling him to lie about it and to tell 
him to create a fake paper trail. All of those are--
    Mr. Cohen. What are some others?
    Ms. Fredrickson. The effort to the removal of the FBI 
Director. There are--
    Mr. Cohen. Asking Mr. Sessions to unrecuse himself?
    Ms. Fredrickson. Exactly. Or asking Corey Lewandowski to go 
to the Attorney General to tell him to resign, holding the 
resignation letter for future use.
    Mr. Cohen. So, you don't have a specific number. That's at 
least four or five. Do you think there are seven or eight or 
four or five or 10, or how many do you think there are?
    Ms. Fredrickson. Well, that is something for this Committee 
to consider is--
    Mr. Cohen. Thank you.
    Professor Gerhardt, do you have an opinion on how many 
there are?
    Mr. Gerhardt. I'm sorry. I missed part of the--
    Mr. Cohen. How many cases of obstruction of justice were in 
the Mueller report that you think all elements were met?
    Mr. Gerhardt. While I've read it, I can't say off the top 
of my head how many instances there are, but I do think it's 
important to recognize that there is certainly evidence of 
possible obstruction in there. There's no question about that.
    The report doesn't exonerate the President. Instead, it 
actually suggests at several moments that one of the processes 
that's important to consider, given the limitations the 
prosecutor felt that were imposed on him, was for Congress or 
this Committee to look into possible evidence of misconduct. 
That's perfectly within the power and legitimacy of this 
committee.
    Mr. Cohen. Thank you.
    I yield back the time I do not have.
    Ms. Scanlon. Thank you.
    The chair recognizes the gentleman from Texas for 5 
minutes.
    Mr. Gohmert. Thank you. I appreciate y'all being here.
    Dr. Eastman, in looking at page 2--well, it's page 2 
because you had a cover sheet, but talks about you're not--you 
implied--you're talking about the title of this hearing, that 
the Mueller report identified Presidential misconduct that 
would trigger whatever constitutional process might have been 
available. As a factual matter, I could not disagree more. I 
don't find anything remotely rising to the level that would 
trigger the one constitutional path designed to address 
Presidential misconduct, namely impeachment.
    I want to take you back to the prior Administration, 
something that was called Fast and Furious. We know crimes were 
committed. We had people within our Justice Department who 
forced people to sell guns that we knew the sales constituted a 
crime because we knew they were going to end up in criminal 
hands, and they were required to do it and we know at least one 
Federal agent was killed as a result. Somebody somewhere in the 
Justice Department had to say, we're not going to--we're not 
going to prosecute that. We're not going to investigate it. We 
know what happened. Of course, some of us here that reviewed e-
mails that were disclosed, made public thanks to Judicial 
Watch, there were crimes being committed and nobody prosecuted.
    During the Clinton Administration, my U.S. Attorney friends 
back in Texas were telling me they'd been given--and I couldn't 
tell you, some of them--I couldn't tell you whether they vote 
Democrat or Republican, but I know they cared about justice. 
They were saying they'd been directed, let's back off of the 
pursuit of drug crimes. Let's start pursuing white-collar 
crime. They got that directive.
    Somebody within the Department of Justice who knew there 
were crimes, drug crimes being committed with regard to Fast 
and Furious, knew crimes were committed and at least one 
Federal agent died, had directed, we're not going to pursue 
those. Just leave them alone. This is where we want to 
concentrate, because obviously, no Department of Justice can 
pursue every single crime.
    In your opinion, just knowing what we know from the public 
information, would you say Eric Holder or President Obama, his 
boss, obstructed justice?
    Mr. Eastman. Congressman, there's an important distinction 
to be made here--
    Mr. Gohmert. Exactly.
    Mr. Eastman. --between prosecutorial discretion and 
shielding high-ranking officials. I've outlined in my testimony 
several other examples.
    Mr. Gohmert. But the drug--shifting from drug prosecution 
to white-collar crime, that's prosecutorial discretion.
    Mr. Eastman. That's right. Preventing an investigation to 
shield the person that committed the crime because he was a 
high-ranking official or to alter the FBI investigative report 
on the advent of the email personal server and Hillary 
Clinton's conduct, to remove the language of one of the 
elements of the crime, that rises to obstruction of justice 
rather than prosecutorial discretion.
    Mr. Gohmert. So, you're talking about when James Comey 
eliminated the mental State necessary--
    Mr. Eastman. He said mental State was an element; it was 
not. The FBI original draft of the report called it gross 
negligence, which is an element of the crime. He changed that 
language to avoid the element of the crime. That's not 
prosecutorial discretion. Those things do rise and have an 
intent to obstruct or interfere with the investigation.
    Mr. Gohmert. Well, that brings up another issue. Mueller 
was required to--or we know--I'm not supposed to really get 
into the scopes memos I've reviewed, well, at least some of 
them. We know publicly he was allowed to pursue crimes that 
came to his attention during the investigation.
    Hillary Clinton's emails, private server, disclosure of 
classified information, those surely came to his attention. He 
would have been authorized, just from what you know publicly, 
to pursue and investigate Hillary Clinton, would he not?
    Mr. Eastman. Well, he would. Even more directly, the use of 
campaign funds funneled through a law firm illegally, not 
reported to the Federal Election Commission, to pay for the 
Steele dossier, which we now know had as his sources high 
Russian-level officials that triggered the entire narrative, 
that certainly was within his jurisdiction, and that's not 
investigated at all.
    Mr. Gohmert. Yes. Well, I appreciate the effort that you 
took.
    I know all three of you got paid well for being here today.
    Mr. Eastman. I missed that.
    Mr. Gohmert. For those that don't know that, didn't get 
paid at all. Thank you all for the time you took to prepare. 
Thank you.
    Ms. Scanlon. The chair recognizes Mr. Johnson from Georgia.
    Mr. Johnson of Georgia. I thank the chairwoman.
    Ms. Scanlon. --for 5 minutes.
    Mr. Johnson of Georgia. I've heard more and more 
Republicans starting to pronounce Director Mueller's name as 
Mueller. I've been hearing that over the past few weeks. Is 
that some kind of Republican attempt to somehow besmirch 
Director Mueller? Dr. Eastman?
    Mr. Eastman. No. Maybe it's bit of my German heritage. My 
mother's maiden name was Stein, and the Mueller is the German 
pronunciation.
    Mr. Johnson of Georgia. It's Mueller, and I've heard so 
many people saying Mueller on the other side. It just seems 
like there's something that--there's some kind of secret memo 
flowing out there.
    Listen, you are an officer. You are Chairman of The 
Federalist Society's Federalism & Separation of Powers Practice 
Group, are you not?
    Mr. Eastman. I am, Congressman.
    Mr. Johnson of Georgia. So, there's no doubt that you are a 
Republican or perhaps a Libertarian, but I suspect more 
Republican.
    Mr. Eastman. The Federalist Society is a nonpartisan 
organization.
    Mr. Johnson of Georgia. It raises about $20 million a year 
for its various purposes, correct?
    Mr. Eastman. I've not looked into the budget of the Federal 
Society. I'm a chairman of one of its practice groups.
    Mr. Johnson of Georgia. I understand.
    Mr. Eastman. I should say that I'm not here speaking on 
behalf of The Federalist Society.
    Mr. Johnson of Georgia. Certainly. Certainly.
    You're familiar with Director Mueller and his reputation. 
You know that he is a former Marine officer, that he has 
practiced law both in government, outside of government, former 
U.S. attorney, United States Assistant Attorney General for the 
Criminal Division, a homicide prosecutor in Washington, DC. 
He's been the Acting United States Deputy Attorney General and 
he's been appointed to Senate-confirmed positions by Presidents 
George Herbert Walker Bush, Bill Clinton, George W. Bush, and 
Barack Obama. He's a Republican, too.
    You're familiar with that, right?
    Mr. Eastman. I know he's got a long resume. I didn't know 
he was a Republican.
    Mr. Johnson of Georgia. You didn't know he was a registered 
Republican?
    Mr. Eastman. It doesn't matter on my criticism of the 
report.
    Mr. Johnson of Georgia. Well, a man of that kind of 
distinction, you may disagree with some of the conclusions that 
he reached, but you have no problem with his truthfulness and 
veracity, do you?
    Mr. Eastman. Congressman, I have a real problem with his 
flipping the burden of proof in Part II of the volume.
    Mr. Johnson of Georgia. That's not my question. My 
question, you believe him to be a man of good character?
    Mr. Eastman. I don't know his character. I've never met the 
man. I will say this--
    Mr. Johnson of Georgia. Let me ask--
    Mr. Eastman. --he staffed his office with people who had an 
obvious political bias, and that's troubling to me.
    Mr. Johnson of Georgia. Let me ask you this. You're at a 
congressional hearing, the title of the hearing being about the 
various constitutional processes for addressing Presidential 
misconduct.
    Now, certainly this hearing that we're having today, you 
don't think we're overstepping our bounds by having this 
hearing, do you?
    Mr. Eastman. I do. I have never said that Congress doesn't 
have oversight authority.
    Mr. Johnson of Georgia. But, I mean--
    Mr. Eastman. It can be abused, and I think--
    Mr. Johnson of Georgia. For this hearing, you think that 
we're overstepping?
    Mr. Eastman. I do. This matter has become a farce.
    Mr. Johnson of Georgia. Well, question--
    Mr. Eastman. It has become a farce.
    Mr. Johnson of Georgia. Question asked and answered. Okay. 
Thank you.
    Let me ask Professor Gerhardt. Sir, in your written 
testimony, you note that the theme that clearly emerges from 
early discussions of the scope of impeachable offenses are that 
they are not neatly delineated but depend on context and 
gravity, and that you say also that not all crimes are 
impeachable and not all impeachable offenses are crimes.
    I want to ask you this question: Is impeachment limited 
only to criminal acts?
    Mr. Gerhardt. Not at all. If you'll allow me, I just want 
to make sort of two points to clarify a couple of things. The 
first is I've not been paid at all. I've got three kids, one in 
college. It would be great, but--
    Mr. Johnson of Georgia. You're not being paid either to be 
here, right?
    Mr. Gerhardt. I'm not being paid to come here. I'm not 
being paid to be here. It's an honor.
    The second point I just want to make is that kind of 
follows a little bit from what you've just suggested is a 
concern I have, and that is if the President--and I think that 
concern has been sort of overshadowed by the efforts to deflect 
the attention away from the purpose of this hearing.
    If the President of the United States can remove the 
special prosecutor, not comply with lawful subpoenas, and is 
immune to criminal prosecution while he's in office, that's the 
definition of being above the law.
    Mr. Johnson of Georgia. Thank you.
    I yield back.
    Ms. Scanlon. The chair recognizes the gentleman from 
Virginia for 5 minutes.
    Mr. Cline. Thank you, Madam Chair.
    I want to thank our witnesses for taking the time out of 
their schedules, without pay, to be here today to participate 
in this exercise. I want to also apologize to them because this 
is little more than an attempt, a blatant attempt to keep on 
life support this ongoing impeachment by any other name. As you 
can see from the audience, which is half full and the Committee 
which is half full, I'm--there are other things going on on the 
Hill today that are of importance as well. There's a hearing 
about the border that is down the hall. I think that is a 
critical issue about the humanitarian crisis going on at the 
border. I would like to see this Committee use its jurisdiction 
to look into the humanitarian crisis that's going on at the 
border.
    I see the TV cameras here, and I want to apologize to 
people at home who've tuned in and think they're looking at a 
repeat of a past hearing because, no, it's not a repeat. It's 
just the same pundits, journalists, and academics here opining 
about Volume I or Volume II of the Mueller report, not moving 
the ball forward at all, just really spinning the wheels of 
this committee, using up time and using up resources to come to 
no conclusion, other than the fact that the Democrats want to 
impeach this President but they don't have really enough to go 
on in the Mueller report. There are other issues that are of 
primary importance facing this country that are being addressed 
by other committees around this Congress.
    As a member of this committee, I worked hard to get on this 
committee. It is very disappointing to me that we continue just 
to spin the wheels of this committee.
    So, Professor Eastman, I will ask you, as a former 
prosecutor, I was very confused by Volume II and the Mueller 
report, 400 pages of no charges, no recommendations for 
charges. Robert Mueller determined he could not exonerate 
President Trump of the allegations that he obstructed justice.
    I've never seen this as a prosecutor. Have you ever seen a 
prosecutor use that line of logic?
    Mr. Eastman. No, I haven't. That's my fundamental 
disagreement with Part II. It reassigns the burden of proof to 
the object of the investigation having to prove his innocence, 
rather than the prosecutor having to demonstrate guilt beyond a 
reasonable doubt. That violates one of our most fundamental 
precepts of fairness and justice in the criminal justice 
system, the presumption of innocence.
    For him to have said that the President couldn't convince 
me he didn't do any of this, when his job was to determine 
whether he had enough information to bring an indictment or to 
present to this body things that would lead to either an 
impeachment or a post President-in-office indictment, that's 
what his job was. That is the greatest flaw in Volume II of the 
Mueller report.
    Mr. Cline. So, in our systems, prosecutors either indict or 
not indict, and leave it at that.
    So, Mueller here is putting the burden on the President to 
prove his innocence instead of the burden being on Mueller to 
prove his guilt.
    Professor Eastman, can a President obstruct justice by 
simply exercising his article II powers?
    Mr. Eastman. That's a close question. The reason it's close 
and the reason I'm hesitating and not giving you an unqualified 
no is if the President exercised his powers with a deliberate 
intent to prevent--but we have no evidence of his intent here 
at all. What we do have is documented in the report itself, 
things like, can you clear the way to let Flynn go because he 
suffered enough. That's perfectly within the President's 
authority, and there's no even hint of bad intent there. Can 
you get rid of Mueller because of his conflicts of interest? No 
bad intent; that's clearly within the President's authority.
    Mr. Cline. When Bill Clinton tried to alter witness 
testimony before a grand jury, that--
    Mr. Eastman. That had the necessary intent and was rightly 
troubling. Deliberately changing an FBI report to remove an 
element of a crime of trafficking into classified information 
to shield the Presidential candidate I prefer, that's an 
obstruction of justice with the requisite intent.
    Mr. Cline. Section 4 of article II says the President, Vice 
President, and all civil officers of the United States shall be 
removed from office on impeachment for and conviction of 
treason, bribery, or other high crimes and misdemeanors.
    Do you see anything in Volume II that rises to that level?
    Mr. Eastman. I do not, because I don't see anything in 
there that demonstrates a requisite intent that would otherwise 
alter the President's perfect authority to control the 
executive branch.
    Mr. Cline. Thank you.
    I yield back.
    Ms. Scanlon. The chair recognizes the gentleman from 
Florida for 5 minutes.
    Mr. Deutch. Thank you, Madam Chairman.
    Thanks to all the witnesses for being here.
    Mr. Gerhardt, your testimony describes several categories 
of formal remedies for Presidential misconduct: Congressional 
oversight activities, impeachment, censure, election, civil 
suits, and criminal trials.
    Was Special Counsel Mueller able to pursue any of these 
remedies for potential misconduct by President Trump?
    Mr. Gerhardt. No, he was not. He was not in the sense of 
being able to do anything more than issue his report.
    Mr. Deutch. His investigation, just to be clear, was a 
criminal investigation, right?
    Mr. Gerhardt. Right. It certainly was, yes.
    Mr. Deutch. If he found criminal wrongdoing by the 
President, could he pursue a trial?
    Mr. Gerhardt. He could, or he might have thought he might 
be able to, but he also plainly felt, as he said, that he was 
restricted by Department of Justice policy on this.
    Mr. Deutch. Well, he said he was restricted by the OLC 
policy, didn't he?
    Mr. Gerhardt. Right. That's what I'm saying, yeah.
    Mr. Deutch. Right. So, Presidential misconduct uncovered by 
Mueller didn't come with an inherent remedy, did it?
    Mr. Gerhardt. No, it did not come with an inherent remedy.
    Mr. Deutch. So, the Mueller report itself, the Mueller 
report itself was never going to hold the President of the 
United States accountable?
    Mr. Gerhardt. That is absolutely true. In fact, a couple of 
times, a couple of key times when discussing obstruction of 
justice, he mentions Congress.
    Mr. Deutch. Right. So, exactly. So, Mr. Gerhardt, if the 
special counsel cannot hold the President accountable, who can?
    Mr. Gerhardt. The answer is nobody.
    Mr. Deutch. Nobody can hold the President accountable?
    Mr. Gerhardt. Well, that is to say if the President--I may 
have misunderstood.
    Mr. Deutch. Mr. Gerhardt, Congress can hold the President 
accountable, can't it?
    Mr. Gerhardt. Of course. I just--
    Mr. Deutch. Right. I just wanted to clarify that.
    Mr. Gerhardt. Yeah.
    Mr. Deutch. Ms. Fredrickson, in your testimony, you note 
that special counsel couldn't exonerate President Trump, but he 
also couldn't proceed with a criminal remedy because he 
accepted the OLC policy that a sitting President cannot be 
indicted.
    Without those options, what did Mr. Mueller do in his 
report?
    Ms. Fredrickson. Well, he did the appropriate thing, which 
was to refer to Congress to pursue its constitutional 
processes, which is, in fact, what this Committee is doing now.
    Mr. Deutch. Right. So, he conducted the investigation. He 
preserved evidence. He provided analysis of that. Then, as you 
quote from the report and as you've just said now, the 
separation of powers doctrine authorizes Congress to protect 
official proceedings including, those of courts and grand 
juries, from corrupt, obstructive acts, regardless of their 
source. Further, Special Counsel Mueller closes Volume II by 
stating, and I quote, the protection of the criminal justice 
system from corrupt acts by any person, including the 
President, accords with the fundamental principle of our 
government that no person in this country is so high that he is 
above the law.
    Ms. Fredrickson, do you read these sections of the report 
as a referral to Congress to pick up where Mr. Mueller left 
off?
    Ms. Fredrickson. Well, I certainly read it as saying to 
Congress that there is important allegations are incredibly 
disturbing, indicate actions by the President and his 
associates that are very destructive to Rule of Law and that 
Congress needs to examine. I think it has a congressional duty 
to--
    Mr. Deutch. Thank you very much.
    Mr. Gerhardt, on May 30, President Trump said he can't be 
impeached because there was no crime. It appeared he was 
suggesting that he would need to be found guilty in a criminal 
trial to be impeached.
    Is that how impeachment works? Is that what impeachment 
requires?
    Mr. Gerhardt. Impeachment--
    Mr. Deutch. Yes or no.
    Mr. Gerhardt. Impeachment does not require what the 
President said.
    Mr. Deutch. Right. You described, in fact, how the Framers 
thought of high crimes as violations of public trust and 
violations of a duty to our society. Some have argued the 
President can't commit the crime of obstruction of justice when 
he's exercising his article II powers. We've heard that here 
today.
    Regardless of the merits of that argument in a criminal 
trial, isn't the corrupt use of power exactly the sort of abuse 
that the Framers and historical Presidents show qualified as a 
high crime?
    Mr. Gerhardt. Absolutely. That's why we have it.
    Mr. Deutch. Right. So, let me finish with this.
    Professor Gerhardt, we heard that impeachment proceedings 
have begun without any formal vote for impeachment. Who has the 
power to set the proceedings for this body, for Congress to 
implement a constitutional power such as impeachment?
    Mr. Gerhardt. Congress.
    Mr. Deutch. Right. Do the House rules require a formal 
authorization of an impeachment inquiry?
    Mr. Gerhardt. Absolutely not. It doesn't say that in any 
place.
    Mr. Deutch. Professor Gerhardt, does the United States 
Constitution require a formal authorization of an impeachment 
inquiry?
    Mr. Gerhardt. Absolutely not. The words ``impeachment 
inquiry'' are not in the Constitution.
    Mr. Deutch. Thank you.
    I yield back.
    Ms. Scanlon. Thank you.
    The chair recognizes the gentleman from Louisiana for 5 
minutes.
    Mr. Johnson of Louisiana. Thank you, Madam Chair.
    Thank you to the witnesses for being here.
    Mr. Gerhardt, over here on your right. Yeah, sorry. We've 
got a big committee.
    You said in a recent interview with The New Yorker magazine 
that, quote, if the President has misled people, unquote, then 
it could be the basis for impeachment.
    President Obama made a statement that became rather famous 
regarding ObamaCare, and he said, quote, if you like your 
healthcare plan, you can keep it, unquote. It was famously 
called the lie of the year by PolitiFact.
    So, I don't mean this to be flippant. I want to ask you a 
question about your intellectual consistency. Is that an 
impeachable offense?
    Mr. Gerhardt. I would not say so, and it's partly because I 
think the President made a mistake. Acting in good faith is 
pertinent to any impeachment inquiry.
    Mr. Johnson of Louisiana. Well, but didn't you just explain 
in your last set of answers here that a violation of the public 
trust is an impeachable offense? I just heard you say that a 
few minutes ago.
    Mr. Gerhardt. That's true. Absolutely true.
    Mr. Johnson of Louisiana. So, is that not a violation of 
the public trust when half of America relied upon that great 
promise?
    Mr. Gerhardt. I don't think I would say it violated public 
trust. I think you need two things at least. One is you need to 
have--be doing a bad act. That's one of the things required. 
The other is you need to have bad intent. I think there are 
times when Presidents obviously are mistaken. I don't think 
that was a deliberate falsehood at all. I think that an inquiry 
would be justified any time that this Committee or the House 
has concern about whether or not the President had said or done 
something with bad faith and that was a bad act.
    Mr. Johnson of Louisiana. Okay. In a 1999 article that was 
entitled, The Lessons of Impeachment History, you quoted 
Alexander Hamilton in Federalist 65, and you wrote, quote, in 
the Federalist No. 65, Alexander Hamilton warned that 
impeachments often would begin in a partisan atmosphere. 
Consequently, Hamilton counseled the further along an 
impeachment proceeded, the more that Members of Congress needed 
to find a nonpartisan basis on which to resolve the 
proceedings, unquote. That's what you wrote.
    Mr. Gerhardt. Yes.
    Mr. Johnson of Louisiana. The Mueller report, of course, 
has been out for almost 3 months. As of June 30, there were 79 
elected Democrats calling for impeachment and zero Republicans. 
Our friend, Representative Amash, is now a registered 
Independent.
    So the question is, if this body were to take Alexander 
Hamilton's advice, shouldn't impeachment be off the table at 
this point because there's no way that we find a nonpartisan 
basis to proceed?
    Mr. Gerhardt. The answer is no. Part of the reason for that 
is because if one party decides to obstruct something, that is 
to say, doesn't agree, can't find common ground, that can't 
hamstring the institution.
    Mr. Johnson of Louisiana. Wait a minute. So, are you 
suggesting the Republicans are obstructing this now?
    Mr. Gerhardt. I'm sorry if that's overstated, but the point 
is--
    Mr. Johnson of Louisiana. It's greatly overstated. Thank 
you for acknowledging, yes.
    Mr. Gerhardt. The point is that it may or may not begin in 
a partisan atmosphere. You need fact-finding. You need 
investigation to determine the evidence and the gravity.
    Mr. Johnson of Louisiana. That's what we had with the 
Mueller report, right? Two years and $30 million and endless 
resources to do this. Didn't we have that?
    Mr. Gerhardt. Congressman, the Mueller report does not bind 
this committee. It does not bind--
    Mr. Johnson of Louisiana. No, but that was begun in a 
nonpartisan manner. He was famously the objective arbiter of 
all this.
    Let me move on.
    Mr. Gerhardt. I don't think he was the supreme arbiter of 
this.
    Mr. Johnson of Louisiana. All right. Well, I mean, we've 
known your true colors now when you say we're obstructing, so I 
guess--
    Mr. Gerhardt. I'm sorry for that phraseology. The point is 
that it can become a strategy, let's say, to be able to prevent 
bipartisanship by simply choosing not to go along if there are 
other political motivations for that.
    Mr. Johnson of Louisiana. I got it. I'm just saying, based 
upon your earlier scholarship, Alexander Hamilton would want 
this farce to end. Okay.
    Ms. Fredrickson, on March 22, 2019, your group, the 
American Constitution Center, issued a press release entitled, 
quote, Mueller Report, How far up the chain did the Trump 
campaign's efforts to conspire with Russia go? It quoted you. 
You said, quote, the question isn't whether Members of the 
Trump campaign conspired with Russia to sway the 2016 
elections. We already know they did, unquote.
    As you may know, conspiracy to commit an offense or to 
defraud the U.S. is a Federal crime under 18 U.S. Code, section 
371. I just want to know if you can remind this Committee which 
Members of the Trump campaign were charged and prosecuted for 
conspiring with Russia.
    Ms. Fredrickson. Well, and first, I'd like to say that I 
think it's unfortunate that so many on your side of the aisle 
don't seem to want to get to the bottom of what happened in 
terms of the Russian interference in our election.
    Mr. Johnson of Louisiana. To the contrary. Just answer the 
question.
    Ms. Fredrickson. That all of our intelligence agencies have 
indicated that there was sweeping attacks on our elections, 
that they were renewed in 2018 with some impact, and that there 
are anticipated attacks in 2020.
    Mr. Johnson of Louisiana. So, you disagree with the Mueller 
report's findings, Volume I?
    Ms. Fredrickson. There is much more work for this Congress 
to do to understand what Russia has attempted, what they were 
successful at, and what they're planning.
    Mr. Johnson of Louisiana. I got it, but I'm out of time. 
Just to follow up on that. So, with all the vast resources, the 
$30 million, the endless supply of investigators, the 500 
witnesses, everything that the Mueller report had, did, and was 
involved in for 2 years, you think there's yet more for the 
people on this dais to dig into, right?
    Ms. Fredrickson. I do. There were many people who had 
destroyed evidence. There were people who Mueller was not 
allowed to interview. So, I do think there's--I'm deeply 
worried about the integrity of our elections, and I hope 
Congress is as well.
    Mr. Johnson of Louisiana. Well, I'm deeply worried about 
the integrity of your organization.
    Ms. Scanlon. The gentleman's time has expired.
    Mr. Johnson of Louisiana. I'm out of time. I yield back.
    Ms. Scanlon. The chair recognizes the gentleman from Rhode 
Island for 5 minutes.
    Mr. Cicilline. Thank you, Ms. Fredrickson, for your last 
comment. I know there are many on this Committee who share your 
concern and frustration with the obstruction from our 
colleagues on the other side of the aisle. I think if Alexander 
Hamilton, great Founder who my friend mentioned, were alive, 
they would be appalled, frankly, at the conduct of this 
Committee and their unwillingness to take on these very serious 
issues.
    So, I thank Chairman for convening this hearing on this 
very important question.
    The hearing is entitled, Lessons from the Mueller Report: 
``Constitutional Processes for Addressing Presidential 
Misconduct.''
    Ms. Fredrickson, could you tell me what is the principle 
constitutional process available for addressing Presidential 
misconduct?
    Mr. Eastman. I'm sorry. Was that addressed to me?
    Mr. Cicilline. No, it was addressed to Ms. Fredrickson.
    Ms. Fredrickson. Well, I mean, Article I lays out Congress' 
authorities. They're multiple, but certainly the legislative 
power includes oversight as an essential part of it. Also, in 
article I is the power to impeach. Those tools are not 
alternative. They're--
    Mr. Cicilline. Is it fair to say impeachment is the 
principal process to address Presidential misconduct?
    Ms. Fredrickson. It's one of the processes. There's more of 
a continuum. As I mention in my testimony, during the Nixon--
during the Watergate hearings, there was actually--almost a 
year went by before there was a referral to the full House for 
a vote on the articles. So, it's hard to separate, I would say.
    Mr. Cicilline. Okay. Professor.
    Mr. Gerhardt. I agree. I think that I agree with everything 
she just said. I believe that it is completely within the 
discretion of this Committee and the power of this Committee to 
be able to, not just read the Mueller report, but to ask the 
very reasonable question whether we need to know anything else 
to undertake the constitutional responsibilities we have.
    Mr. Cicilline. Related to that, many of our Congress' 
ability to hold the President accountable rely on the executive 
branch providing Congress with information that it needs to 
legislate, to conduct oversight, or to consider remedies like 
impeachment or censure.
    Could you begin, Ms. Fredrickson, to describe generally 
what the Supreme Court has said about Congress' power to 
conduct investigations and to collect documents and testimony, 
including by use of subpoena, how the Court has described our 
power in that context?
    Ms. Fredrickson. The Court has used very sweeping language 
to describe Congress' power. Again, it's inherent and the 
legislative power is the power to conduct oversight and 
investigations.
    Mr. Cicilline. The Court has, in fact, said the power to 
secure needed information is an attribute of the power to 
legislate, which is a core function of Congress.
    Ms. Fredrickson. Well, exactly. I mean, Congress would not 
know how to respond to statutory gaps if it can't examine what 
the statutory gaps are.
    Mr. Cicilline. The perils of Congress being unable to do 
its constitutionally required work if an executive branch 
decides to prevent witnesses from coming forward or to instruct 
witnesses not to cooperate or to not make the documents 
available is significant.
    Professor, would you speak a little bit about, Professor 
Gerhardt, what the consequences of that would be for Congress? 
I mean, we have a President, for example, who said publicly 
that he is going to fight all efforts by Congress to get 
information, that he's going to tell witnesses not to come and 
defy subpoenas. What are the implications of that?
    Mr. Gerhardt. Well, they're not good. I mean, the 
implications of that is, at the very least, Congress should be 
concerned. Obviously, this Committee should be concerned. This 
Committee is acting perfectly reasonably to consider what 
evidence--I don't know if this has been put forward in the 
report or anywhere else. If I may, can I read one sentence from 
the report from Mr. Mueller that just goes along these lines?
    He says, with respect to the President--with respect to 
whether the President can be found to have obstructed justice 
by exercising his powers under article II of the Constitution, 
we concluded that Congress has authority to prohibit a 
President's corrupt use of his authority to protect the 
integrity of the Administration of Justice.
    Congress has that authority. This Committee has that 
authority.
    Mr. Cicilline. So we have had a number of examples, both 
with respect to the White House Counsel Don McGahn and the 
former White House Communications Director Hope Hicks, where 
the White House asserted something called--that they claim is 
absolute immunity, which is basically our right to prevent you 
from hearing anything relevant from these witnesses.
    Would that sort of obstruction that we're seeing in an 
effort to prevent witnesses from appearing before the Committee 
or producing documents in and of itself be an appropriate basis 
for an article of impeachment against a President, if proved?
    Yes, Ms. Fredrickson.
    Ms. Fredrickson. Well, if you look again at the Nixon 
impeachment, you'll see that the exact kind of obstruction 
formed one of the articles in that.
    Mr. Cicilline. Professor Gerhardt.
    Mr. Gerhardt. Clearly, the Constitution allows this body 
and this Committee to consider whether or not obstruction's 
happened. It's just important to really emphasize that it 
doesn't have to be a technical violation of a statute. It still 
may be a problem if the President obstructs justice in any way.
    Mr. Cicilline. Thank you.
    I yield back, Madam Chair.
    Ms. Scanlon. The chair recognizes the gentleman from 
California for 5 minutes.
    Mr. Lieu. Thank you, Madam Chair.
    Ms. Fredrickson, you were asked earlier a question about 
Russia. So, for Special Counsel Mueller's investigation, 34 
individuals were indicted. Isn't that correct?
    Ms. Fredrickson. Yes, that's correct.
    Mr. Lieu. At least eight have either pled guilty or been 
convicted. Isn't that correct?
    Ms. Fredrickson. That's correct.
    Mr. Lieu. The Mueller report identifies that Paul Manafort 
gave internal polling date to the Russians. Isn't that correct?
    Ms. Fredrickson. That's correct.
    Mr. Lieu. The Mueller report also shows numerous contacts 
between Russians and Trump campaign officials. Isn't that 
correct?
    Ms. Fredrickson. That's correct.
    Mr. Lieu. A fair reading of Volume I of the report would be 
that the Trump campaign knew about the Russian interference, 
welcomed it, embraced it, gave them internal information, and 
knew it was going to help Donald Trump win the election. Isn't 
that correct?
    Ms. Fredrickson. That is correct.
    Mr. Lieu. Okay. Let's move to Volume II now which focuses 
on obstruction of justice. In the Nixon impeachment hearings, 
the first article of impeachment, what was that on? It was 
obstruction of justice, wasn't it?
    Ms. Fredrickson. It was obstruction, yes.
    Mr. Lieu. All right. Obstruction of justice, certainly 
under the Nixon hearings, was important enough to be the very 
first article of impeachment. So, if there was obstruction of 
justice related to Donald Trump, that would also certainly 
qualify as important enough to be an article of impeachment if 
it was established, correct?
    Ms. Fredrickson. It certainly could be.
    Mr. Lieu. Okay. Let me talk to you now, Professor Gerhardt, 
about the obstruction we're seeing from the Trump 
Administration to congressional oversight investigations. It's 
not just on the Mueller report; it's on everything. So, we want 
to know, for example, why is the Trump Administration 
supporting the lawsuit to eliminate healthcare coverage for 
Americans with preexisting conditions? We can't get that 
information. We wanted to know why did Trump officials lie 
about the census? We couldn't get that information. We can't 
even get witnesses simply to show up here even under subpoena.
    The Trump Administration is asserting something called 
absolute immunity. No court has ever found that, correct?
    Mr. Gerhardt. No court has ever found that the President 
has kind of absolute immunity you're talking about, no.
    Mr. Lieu. Okay. So, given the assertions of this sort of 
fake immunity, do you agree that if these witnesses don't show 
up, they would be subject, not just to the lawful subpoena, but 
also to any potential other consequences, and that they 
themselves would be liable for not showing up?
    Mr. Gerhardt. Absolutely. The Committee and the chair have 
the power to issue subpoenas. Subpoenas are lawful orders. It's 
a question of whether or not they're complying with the law 
when they're considering whether or not to comply with the 
subpoena.
    Mr. Lieu. Okay. Then let's talk specifically again about 
obstruction of justice. The Mueller report lays out multiple 
instances of obstruction of justice. Then the special counsel 
goes, all right, here's three elements to establish obstruction 
of justice. In multiple cases, he shows that there's 
significant evidence of all three elements. Isn't that correct?
    Mr. Gerhardt. Right.
    Mr. Lieu. On the issue of intent, you can certainly infer 
intent from the very words of Donald Trump. Isn't that right?
    Mr. Gerhardt. Well, you can infer intent from words, 
circumstances, and context.
    Mr. Lieu. When Trump fired Comey, he stated that he was 
receiving great pressure from the Russia investigation and that 
that pressure's been taken off. That's certainly evidence of 
intent, isn't it?
    Mr. Gerhardt. It's perfectly reasonable to wonder about 
what's going on when he says something like that, yes.
    Mr. Lieu. When the President goes on national TV and says 
he fired Comey because of the Russia thing, that's certainly 
evidence of intent, isn't it?
    Mr. Gerhardt. It could be evidence of intent, absolutely. 
It's certainly the statement of something that sounds like 
obstruction.
    Mr. Lieu. When the President orders one of their senior 
officials to create a fake document, that's certainly evidence 
of intent?
    Mr. Gerhardt. I'm sorry. I missed that.
    Mr. Lieu. When the President orders one of his officials to 
create a fake document, that's certainly evidence of intent, 
isn't it?
    Mr. Gerhardt. Yeah, that's hugely problematic. One, it's 
obstruction. I might also go further to say that one of the 
consequences of vesting the President with so many 
entitlements, such as absolute executive privilege, absolute 
immunity, means that if there's any delay that relates to 
something criminal 4 years or longer, what happens to the 
evidence? That's a tremendous concern. So, that's why I have 
argued that I don't think the President's immune to the 
criminal process or other processes.
    Mr. Lieu. In the Mueller report, Special Counsel Mueller 
doesn't even put out any burden of proof. He doesn't shift the 
burden. He simply says, because I could not indict under the 
DOJ policy, I'm not going to make that prosecutorial judgment. 
Isn't that right?
    Mr. Gerhardt. That's correct.
    Mr. Lieu. I yield back.
    Ms. Scanlon. The chair recognizes Mr. Raskin for 5 minutes.
    Mr. Raskin. Madam Chair, thank you very much.
    Professor Gerhardt, let me start with you. Why does the 
Congress have the power to impeach the President but the 
President doesn't have the power to dissolve the Congress or to 
impeach individual Members? Why does the Congress have the 
power to impeach justice in the Supreme Court but they don't 
have the power to remove Members of Congress?
    Mr. Gerhardt. Well, that's all part of checks and balances. 
Of course, Congress has the power, in part, because Congress is 
accountable politically.
    Mr. Raskin. Yeah.
    Mr. Gerhardt. The idea is clearly behind those restrictions 
and is, as you well know, the effort to actually prevent the 
President or prevent the COURT from becoming all-powerful.
    Mr. Raskin. Do you agree with the rhetoric of coequal 
branches? Every time the President tramples another 
constitutional right or value or principle of separation of 
powers, one of my colleagues would get up and say, we're 
coequal branches, Mr. President. Please pay attention to us.
    Do you agree with that?
    Mr. Gerhardt. I do agree.
    Mr. Raskin. Before you go on, let me just say I disagree 
with it, and I want to tell you why. I don't think it's just 
because I'm a Member of Congress, now. When I was a professor 
of constitutional law, I disagreed with it. That's not the way 
I see the Constitution. The Preamble starts with, We, the 
people, to form a more perfect union, and so on, established 
the Constitution. The very next sentence says, All legislative 
powers are vested in the Congress of the United States.
    Then you get pages of description of what the powers of 
Congress are, and they are comprehensive. We have the power to 
declare war, to regulate domestic commerce--
    Mr. Gerhard. Right.
    Mr. Raskin. --international commerce. We have the power to 
impeach. We have the power to control the seat of government, 
post office, copyright, you name it. All of it's in there.
    Then for the President, the President is the Commander in 
Chief in times of actual conflict, and his job is to take care 
that the laws are faithfully executed.
    So, the reason I ask the question about impeachment is, 
don't we have the power to impeach the President because this 
is a representative democracy and article I puts Congress first 
and the President works to implement the laws that we've 
adopted?
    Mr. Gerhardt. I think what you've said makes imminent 
sense. I don't want us to be talking past each other.
    Mr. Raskin. Yeah.
    Mr. Gerhardt. I think that each branch, of course, is 
vested with certain powers, and no other branch can interfere 
or undermine those powers.
    Mr. Raskin. Right. I think at least it's constitutionally 
important to note that it's Congress that has the power to 
impeach everybody else and they don't have the power to impeach 
the Congress--
    Mr. Gerhardt. Absolutely right.
    Mr. Raskin. --because we are elected by the people.
    Mr. Gerhardt. That's correct.
    Mr. Raskin. I want to ask you, Ms. Fredrickson, a question 
about impeachment, about law and politics. There's been a lot 
of confusion in the country about this. Some people say, well, 
look, it's very clear that there were 9 or 10 episodes of 
Presidential obstruction of justice. It's very clear from 
everything that the special counsel wrote and from what he did 
in sending two letters of protest to the Attorney General for 
misstating and distorting the contents of the report and for--
from his having a press conference to come out and say the 
reason that we didn't indict the President was because of the 
DOJ policy that we can't indict the President.
    So, some people are saying it's very clear there's 
Presidential obstruction of justice. Why doesn't Congress just 
go ahead and impeach? And then others say, well, it's not just 
a legal question. It's a political question because it's 
invested with article I, with Congress. It's not in the courts. 
The courts don't have the power to do it. Congress has to do 
it.
    So, Members of Congress have to take into account, with 
everything else we're doing, with the border crisis, with 
trying to lower prescription drug prices. We've got to think 
about public opinion. We've got to think about our districts.
    Are those political considerations really proper and 
appropriate in terms of what Congress should think about? 
Should we be trying to think about this just as judges or 
should we think about it in the context of everything else 
we're trying to do?
    Ms. Fredrickson. I think Professor Gerhardt did an 
excellent job of explaining the language in the Constitution, 
what are high crimes and misdemeanors. They're not necessarily 
crimes. They could be crimes, but they could be other types of 
activity that might be fully lawful but might have really 
harmed the fabric of the Nation. So, it's a judgment call, and 
it's one that Congress has to make, among all of its other 
responsibilities.
    Mr. Raskin. Okay. Very good.
    Professor Gerhardt, let me come back to you. What about the 
role of public opinion here? Some people have said, well, only 
19 percent of the people supported impeaching Richard Nixon 
before the impeachment hearings got started. Forty-six percent 
of the people support impeachment today, which is extraordinary 
given that we haven't formally launched impeachment inquiry. 
He's never reached 50 percent in the polls. He's the only 
President since World War II who never has gotten up to 50 
percent in his approval ratings.
    Some people say, take that into account. The President has 
committed high crimes and misdemeanors. He's a sitting duck, 
and we should take that into account. Others say public opinion 
is irrelevant. And lots of Republicans, the majority of the 
Republicans still oppose it. We should take that into account 
instead.
    What is the role of public opinion in this decision?
    Mr. Gerhardt. Well, it's a great question. I think the role 
of public opinion is something, of course, that you should 
take--you're fully entitled to take into account. It makes 
imminent sense for that to happen. At the same time, there are 
fiduciary duties within each Chamber of Congress to consider 
how to exercise their respective powers, and public opinion, 
hopefully, will support that. That's what Congress, of course, 
hopes for.
    As in the Watergate situation, as you just mentioned, it 
took a year at least to be able to figure out through an 
investigation, with no help from the President, on whether or 
not he had committed any kind of misconduct. It's entirely 
possible that public opinion wouldn't necessarily support 
Congress or the House or any particular--as it moves along, but 
the evidence might inform public opinion and it might turn 
around, just like it did with President Nixon.
    Mr. Raskin. Finally, I have a yes-or-no question. Does 
anyone here think that President Clinton should have been 
impeached for what I consider a low crime and misdemeanor, 
lying about sex? Does anybody think that the House was correct 
in impeaching him?
    Mr. Eastman. I think he was. It was not a low crime. It 
was--
    Mr. Raskin. So yes, you believe that.
    Mr. Eastman. It was obstruction of justice.
    Mr. Raskin. Let me follow up with you then, Mr. Eastman.
    Ms. Scanlon. Time's up.
    The chair recognizes Mr. Armstrong for 5 minutes.
    Mr. Armstrong. Thank you.
    I think that line of questioning is interesting in a lot of 
different reasons. One, I think that's where you get the 
distinction between political and legal, because lying under 
oath is lying under oath, and it's a political distinction as 
to whether or not it's a minor crime or a major crime, and I 
think Mr. Raskin and I could have long esoteric debates about 
this issue in a different format.
    But, Professor Eastman, just I want to go to the 
obstruction stuff because we were just talking about it a 
little bit. Do you think any of the 10 potential episodes of 
obstruction outlined in the Mueller report constitute 
obstruction of justice?
    Mr. Eastman. I do not, because I don't think any of them 
demonstrate the necessary intent to obstruct. I think they are 
all well within the President's article II authorities.
    Mr. Armstrong. Well, and I have two different questions 
about that, and one starts with the article II authority. So, 
the answer is any President can't be guilty of obstruction just 
for exercising their article II authority. Otherwise, we'd get 
into this whole separation of powers, and we all want the 
President treated like everybody else because that makes 
everybody sound, like it is, but there's actually real sound 
separation of powers and policy reasons why that's not the 
case.
    So can you elaborate on that just a little bit?
    Mr. Eastman. I agree. I think the two OLC memos that I 
focus on extensively in my written testimony outline why that's 
the case. The President--and I'll go back to something Mr. 
Raskin said. The powers given to the Congress are enumerated. 
The power given to the President is unenumerated. It is the 
executive power, the entirety of it. The Framers of the 
Constitution did that deliberately because the system they had 
before that under the articles of confession--confederation was 
not working because we did not have an energetic executive who 
could execute the law both domestically and deal with anything 
that arose on the international scene. That's not a part of a 
legislative power; that is a core executive power.
    Mr. Armstrong. Well, and then that goes to why that memo 
exists. Without that memo in place and the President getting 
indicted, can you explain where we end up on separation of 
powers and how that would affect essentially governing 
structure of the United States?
    Mr. Eastman. It would be fundamentally altered. Any 
individual prosecutor in any State or in any Federal U.S. 
Attorney's Office could effectively unravel the results of an 
election. To think that those processes themselves won't become 
politicized is naive in the extreme. I think that's why the OLC 
memos, both under the Nixon Administration and under the 
Clinton Administration--I want to point out. This is a 
bipartisan conclusion by different Administrations by the 
Office of Legal Counsel.
    Mr. Armstrong. Now, and I want to go back to now let's 
assume the OLC memo doesn't exist. Does your answer change on 
obstruction of justice?
    Mr. Eastman. No. No. This goes back to the earlier comment 
I made about I think the fundamental flaw in the analysis in 
Part II of the report is that it put the burden on the target 
of the investigation to prove his innocence, rather than the 
normal prosecutorial function, which is, to lay out a case to a 
grand jury--in this case, the grand jury would be the House--to 
lay out a case of why I have probable cause to bring an 
indictment that would lead me to think I could get proof beyond 
a reasonable doubt.
    The standard is not criminal, I agree with Professor 
Gerhardt on that, but it also rises to the level of 
impeachment. I don't think anything here, particularly in 
comparison to things we've witnessed recently in recent 
Administrations, I don't think anything gets close to that 
standard.
    Mr. Armstrong. Well, and so there's been a lot made--and I 
practiced law in Federal court and done criminal law in my 
life, and one of the things is we all understand you can have 
obstruction even if the underlying crime doesn't exist. There 
is a legal way that occurs, and that is actually true. Intent 
becomes a huge part of this conversation. It's also true that 
it's very rarely charged when you find out there's not an 
underlying offense, and one of the reasons is is illegitimate 
purpose and legitimate purpose.
    Under the best or worst reading of any of these 10 
obstruction charges, can you find any one of those that doesn't 
have a legitimate purpose?
    Mr. Eastman. I don't find any of them that don't have a 
perfectly legitimate purpose, and it's a much more plausible 
purpose than any of the other stories that are being spun out 
to try and prove that there was an illegitimate purpose.
    Mr. Armstrong. Thank you.
    With that, I yield back.
    Ms. Scanlon. The chair recognizes the gentlewoman from 
Washington for 5 minutes.
    Ms. Jayapal. Thank you, Madam Chair.
    Ms. Fredrickson, let me start with you. In his written 
testimony, Dr. Eastman argues that a sitting President is 
immune from prosecution and that, therefore, impeachment is the 
only constitutional remedy for Presidential misconduct.
    Do you agree that a President is immune from prosecution?
    Ms. Fredrickson. No, I don't believe so. Again, just 
Professor Gerhardt laid out, I think rather extensively, the 
arguments with the OLC memo. I would say, however, that there 
is something interesting about this idea of sort of the 
structural arguments that make the President immune. That is, 
it's too cumbersome on his or her, hopefully someday, 
responsibilities and that, therefore, we just have to then find 
not in the text and not in the historical information an 
immunity for the President.
    If that were the case, we should be able to find inherent 
in that text as well an automatic tolling of statute of 
limitations for criminal prosecutions. You should really need 
to pass legislation to do that. So, it's certainly very 
disputed that the President is immune. There have been many 
scholars who have contested that, and certainly those who would 
also indicate that perhaps there can't be a prosecution but 
there could be an indictment. Would an indictment actually be 
that cumbersome for a President?
    So, they are very important questions. Again, it's 
indicative of how important it is for Congress to continue to 
examine the evidence underlying the Mueller report.
    Ms. Jayapal. You've sort of answered this, but let me ask 
the question anyway for anyone who might be listening that 
hasn't been following.
    Can a President violate Federal criminal law through his 
exercise of Article II powers?
    Ms. Fredrickson. Oh, absolutely.
    Ms. Jayapal. Okay. So, for example, could a President 
violate Federal bribery statutes if he or she were to offer a 
pardon to a witness in exchange for refusing to cooperate with 
a Federal investigator?
    Ms. Fredrickson. Yes.
    Ms. Jayapal. Okay. Professor Gerhardt, do you agree with 
Dr. Eastman that the only constitutional remedy for 
Presidential misconduct is impeachment? Just briefly.
    Mr. Gerhardt. Not at all. No, he and I respectfully 
disagree on that. I tried to lay out in my written statement a 
variety of other processes for handling or addressing 
Presidential misconduct. Impeachment obviously is one, but 
there may be others, depending upon the severity and gravity of 
the offense and what else this Committee determines through 
legitimate investigation.
    Ms. Jayapal. So, let me turn to another subject, and I'll 
stay with you, Professor Gerhardt. In Nixon v. Fitzgerald, the 
Supreme Court held that the President is entitled to absolute 
immunity from damages liability based on his official acts. 
Anticipating concerns that that finding would leave Nixon--it 
would leave the Nation without sufficient--and these are quoted 
words--without sufficient protection against misconduct by the 
Chief Executive, and quote, the Court articulated several 
formal and informal checks on Presidential misconduct in 
addition to the constitutional remedy of impeachment.
    The Court described those checks as constant press 
scrutiny, vigilant oversight by Congress--
    Mr. Gerhardt. Yes.
    Ms. Jayapal. --the desire to earn reelection, and the need 
to maintain prestige as an element of Presidential influence, 
and a President's traditional concern for his historical 
stature.
    So, can you elaborate on this concept of informal checks?
    Mr. Gerhardt. I'll try to as briefly as possible. So, there 
are things that are spelled out in the Constitution that 
clearly are formal mechanisms for addressing Presidential 
misconduct. The quote obviously sort of mentioned those. Among 
them are the things you just mentioned as well, impeachment, 
public opinion among them. Congressional oversight's a key 
element of that.
    The informal checks are things that are not done by 
government or done in any kind of official way, but they 
nevertheless might constrain a President. So, they would 
include some of the things that you just mentioned.
    For example, concern about maintaining influence; 
popularity is important for a President to succeed in office. 
At the same time, Presidents are in that unique position of 
thinking about what kind of influence or impact they'll have on 
the office itself or the Constitution over time. Those things 
might constrain them as well.
    Ms. Jayapal. Let's talk about press for a second. Because 
President Trump has repeatedly referred to the press as the 
enemy of the people, but the Court in Fitzgerald named the 
press as a really important check on the Presidency.
    Mr. Gerhardt. Yes.
    Ms. Jayapal. So, when you have a President who openly 
encourages violence against the press, praised Representative 
Gianforte for assaulting a reporter, regularly attacks judges 
who Rule against his policies, and refuses to release his tax 
returns, what effect does that have?
    Mr. Gerhardt. A terrible effect. That's something, of 
course, to take into account as well. The point you're making 
is a very sound one, that the press serves a very important 
function in this country of trying to put a spotlight on 
government and trying to actually allow for transparency in 
government. Efforts to obstruct that--I hope I'm using the word 
correctly in that context, would be matters of great concern.
    Ms. Jayapal. Thank you, Professor.
    I yield back.
    Ms. Scanlon. Okay. The chair recognizes Mrs. Lesko for 5 
minutes.
    Mrs. Lesko. Thank you, Madam Chairman.
    I have a question for Professor Eastman. It is basically, 
Professor Eastman, did the Office of Legal Counsel memo that 
holds a sitting President cannot be indicted stop Mueller from 
ending his report with a suggestion that President Trump should 
be indicted for obstruction of justice? Was there anything 
preventing him from doing that?
    Mr. Eastman. No, there was not.
    Mrs. Lesko. I think this has been asked before maybe, 
because I was in the other room in the other Committee actually 
being a witness. But, I have read through the Mueller report 
several times now, and what popped out to me was the thing 
about corrupt intent, that there was no underlying crime, no 
corrupt intent. I don't know if you have anything to add on 
that, how it would be difficult, is what Mr. Mueller said, my 
reading, to prove corrupt intent when there's no underlying 
crime.
    Mr. Eastman. Well, it's difficult. I agree with Professor 
Gerhardt that it's not impossible. We normally look at when 
there are two explanations for inaction, one's perfectly 
legitimate and the other a stretch to get to corrupt intent. We 
tend to Occam's razor, take the short path to say the 
legitimate one is probably the right one.
    Mrs. Lesko. Well, good. Mr. Eastman, since I wasn't here 
the whole time, is there anything that hasn't been said that 
you would like to add for our record?
    Mr. Eastman. The bottom line conclusion of both OLC memos 
that is absolutely correct is precisely why they came to the 
conclusion that a sitting President, while he remains 
President, cannot be indicted, that the constitutional remedy 
is impeachment, because it puts the issue into a body that is 
itself politically accountable. That is the most important 
piece to take away this.
    If the Members of this Committee and of this House truly 
believe that the things that Mr. Mueller has identified rise to 
the level of high crimes and misdemeanors, you would be being 
derelict in your duty not to bring impeachment charges. So, 
bring it on.
    I don't think there's anything in here and I don't think 
the American people will agree that there's anything here that 
rises to that level.
    The political accountability on that works both ways. If 
you don't bring actions against a President who has committed 
high crimes and misdemeanors, you will be held to political 
account. If you do pursue investigations on things that do not 
remotely rise to that level, you will also be held to political 
account. That's the beauty of our system, and that's why the 
OLC memos reach the conclusion that they do.
    Mrs. Lesko. Thank you, Mr. Eastman and the other witnesses.
    I yield back my time.
    Ms. Scanlon. Thank you.
    I recognize myself for 5 minutes.
    Professor Gerhardt, the purpose of these hearings are not 
just to educate Members of Congress, but also the general 
public on topics they may not have had the opportunity to look 
at. So, I wanted to take a couple minutes to tap your expertise 
as a constitutional scholar and talk about what the authors of 
the Constitution considered to be impeachable offenses.
    We had a little bit of quotation of Alexander Hamilton in 
the Federalist papers earlier, but I wanted to focus on his 
declaration that impeachable offenses are, and I quote, those 
offenses which proceed from the misconduct of public men, or in 
other words, the abuse or violation of the public trust.
    Could you comment on what the Founders of our country meant 
to be impeachable offenses and any examples they discuss that 
might be relevant to our inquiry today?
    Mr. Gerhardt. Well, I'll try, certainly. Alexander Hamilton 
obviously gets it right; that is to say, his formulation or his 
understanding of the scope of impeachable offenses is very 
consistent with what we learn from the Constitutional 
Convention and what we can infer from the structure of our 
Constitution.
    So, the core elements or core, I guess, paradigms of 
impeachable offenses become things like abuse of power, things 
like a breach of public trust, things that seriously injure the 
republic.
    So, those won't be limited just to technical crimes. 
They'll be limited to the kinds of unique things that a 
President is able to do. He has the pardon power. In the 
Constitutional Convention, it's mentioned that if the pardon 
power is used to shield somebody with whom the President is in 
criminal conspiracy with--I'm paraphrasing--that's an 
impeachable offense. Almost everybody would agree, that would 
be an abuse of power.
    So, the terms that Mr. Hamilton used and the terms that 
others such as Justice James Wilson used in describing the 
scope of impeachable offense set up categories, if you will, 
set up the kinds of things that would have to be proved in to 
constitute an impeachable offense.
    Ms. Scanlon. Thank you.
    Turning to the history of impeachment proceedings in this 
country, and you may have touched on this a little bit already. 
Given what you know of the facts laid out in the Mueller 
report, would it be appropriate for us to draw any parallels 
between the current moment and previous impeachment inquiries?
    Mr. Gerhardt. Absolutely. The most obvious is obstruction 
of justice. There was an obstruction of justice article 
approved by the House Judiciary Committee against President 
Nixon.
    I will hope that's not serious.
    Ms. Scanlon. Happens all the time.
    Mr. Gerhardt. Okay. There was an impeachment article 
approved by the House against President Clinton.
    It's well settled that obstruction of justice may provide a 
basis for Presidential impeachment. It's Presidential 
misconduct of the worst kind, invading, undermining the other 
branches as they try to exercise their legitimate powers to try 
and determine the President's accountability.
    Ms. Scanlon. We've heard a little bit of discussion about 
whether or not this particular President intended to obstruct 
justice. You have reviewed the Mueller report, right?
    Mr. Gerhardt. I've read it, yes.
    Ms. Scanlon. You know that the President refused to answer 
any questions regarding the allegations of obstruction of 
justice, right?
    Mr. Gerhardt. Right.
    Ms. Scanlon. So, we wouldn't have those words from his 
mouth unless he tweeted them.
    Mr. Gerhardt. That's correct. It's important to remember, 
the Mueller report doesn't just not bind this Committee or the 
House, it doesn't displace this Committee or the House. So, the 
Committee certainly has the authority to inquire into these 
things.
    Ms. Scanlon. I come to this proceeding with really profound 
concerns that misconduct by this President isn't limited to 
some ill-advised tweets but that his defiance of congressional 
subpoenas and the Constitution and the Rule of Law places our 
country in jeopardy. Call me old-fashioned, but I strongly have 
the opinion that the highest duty of the President is to serve 
the public and not to serve himself or to see how much he can 
get away with.
    Can you speak to what our oversight, impeachment, or other 
powers have to do with reigning in an Administration that might 
be defying the Rule of Law?
    Mr. Gerhardt. They have everything to do with trying to 
make sure that a President is accountable under law and 
pursuant to the Constitution. So, I won't go into a long line 
of hypotheticals, but the important thing to understand is that 
it's perfectly reasonable for the Committee to be able to 
inquire into the gravity of things, to look at evidence. If 
that evidence supports approval of Articles of Impeachment, 
that's your job to consider.
    There may be a variety of different processes, and we 
talked about them, that may be appropriate for holding a 
President accountable for misconduct, and we shouldn't lose 
sight of all of those different things. All those different 
things empower the Committee to do what it's doing.
    Ms. Scanlon. Thank you.
    With that, I would recognize the gentlewoman from Texas, 
for 5 minutes.
    Ms. Garcia. Thank you, Madam Chair. Thank you to the 
witnesses for being here this morning.
    Let me just say that, for me, it's refreshing to hear some 
good dialogue about the important role of Congress and the role 
that we have in this process, not only in oversight, as has 
been laid out by Professor Gerhardt, but in continuing to look 
at this, and Ms. Fredrickson, for you to also outline that 
these things do take time.
    I know that the Ranking Member made a show of talking about 
the show that he thinks this is and bringing out the popcorn, 
and if we're going to do an impeachment, we ought to just say 
it, and this is an impeachment want-to-be--inquiry want-to-be. 
We've done the opposite and met the first day--or the second 
time we met and immediately gone and said it's time for 
impeachment, here's what we're going to do. Everybody would 
have said we rushed to judgment one day. So, it's about 
striking a balance and making sure that we're thorough and that 
we look at everything.
    One thing that has really concerned me as a lawyer and as a 
former judge--and, Professor Gerhardt, I'll ask you the 
question, is this whole notion of the absolute immunity. It 
struck me that you said that, no court has ever opined on that.
    Mr. Gerhardt. Right.
    Ms. Garcia. Is that because no President has ever exerted 
this complete absolute immunity?
    Mr. Gerhardt. Immunity to criminal process?
    Ms. Garcia. Yes, sir.
    Mr. Gerhardt. Not yet.
    Ms. Garcia. Or even from testifying. If you recall, I for 
one, was totally frustrated when Hope Hicks a couple of weeks 
ago came to testify, and she walks in with, I forget, four or 
five lawyers, they objected to just about every question we 
asked. They objected about 155 times. It was anything having to 
do from the beginning of her--the minute she walks in the White 
House, that she has absolute immunity and she can't testify 
about it.
    Mr. Gerhardt. No--
    Ms. Garcia. It just seemed to me to be one of the most 
ridiculous assertions of any kind of privilege.
    Mr. Gerhardt. That would be an abuse of privilege, in my 
opinion. So privilege, executive privilege, attorney-client 
privilege, neither of these protects anyone, including the 
President or anybody that works for the President, to engage in 
criminal activity.
    You wouldn't have the privilege to maintain the 
confidentiality of that. In fact, the privilege is maybe not 
just waived but doesn't apply to conversations or actions that 
may relate to criminal activity.
    Ms. Garcia. In her case, it was more than just criminal--
potential criminal activity.
    Have you read the transcript? I mean, it was even talking 
about her job.
    Mr. Gerhardt. Right.
    Ms. Garcia. Do you think that she's at a level of position 
that is so sensitive that she couldn't just say what she did at 
the White House?
    Mr. Gerhardt. Nobody is in that position, not even the 
President. Executive privilege may well apply to certain 
conversations that happened, but they're fairly narrowly 
defined. It certainly does not apply to everything the 
President does or the executive branch does. If it did, then in 
the executive branch, the President would be immune from any 
kind of check and balance that can be imposed by either of the 
other branches.
    Ms. Garcia. It certainly--we've also seen many other Trump 
Administration officials either be ordered, not to come or they 
come and they don't really respond to many of our questions. 
What does that do to this check and balance that you're 
referring to?
    Mr. Gerhardt. It impedes the authority.
    Ms. Garcia. Can you explain so that the average American 
understands just why really it's important for us to have Mr. 
Mueller come here next week, for Hope Hicks to come, for Jared 
Kushner, and all of the subpoenas? This isn't about harassment; 
this is about getting to the truth. Because if we don't do 
that, what might happen?
    Mr. Gerhardt. Yes. I think it is immensely important. As a 
constitutional law professor, my client's the Constitution. I 
care about the Constitution. I care about it being 
appropriately read and appropriately applied and understood. 
Among the things that we should understand about the 
Constitution is the fact that impeachment is something that 
happens at the end of a process. It's not required at the 
beginning of a process.
    You need to be able to have a process, of which this 
Committee clearly, legitimately has the authority to conduct, 
to determine what happened, the gravity of what happened, and 
whether or not Articles of Impeachment are appropriate or some 
other mechanism is appropriate for addressing them.
    Ms. Garcia. As you said, impeachment inquiry is not in the 
Constitution, the words?
    Mr. Gerhardt. No. Impeachment, of course, is. But, Article 
I, Section 5, vests this Committee with the--vests this 
Congress the authority to adopt rules for its internal 
governance. It's the rules that govern the process that each 
Committee conducts.
    Ms. Garcia. All right. One final question. If you were here 
next week with us, what question would you ask Mr. Mueller?
    Ms. Scanlon. I'm sorry, it's time.
    Mr. Gerhardt. Thank you.
    Ms. Scanlon. You may finish. Did you have a quick answer?
    Ms. Garcia. Do you have a quick answer? She's--
    Mr. Gerhardt. Oh, well, I can think of a lot of questions. 
I do think it's important to clarify and make sure you probably 
understand the moments in his report when he defers to Congress 
and is passing the ball to Congress.
    Ms. Garcia. All right. Thank you.
    Thank you, Madam Chair. I yield back.
    Ms. Scanlon. Okay. I recognize the gentlewoman from Florida 
for 5 minutes.
    Ms. Mucarsel-Powell. Thank you, Madam Chair.
    I wanted to start by asking Mr. Gerhardt a question. 
According to the Mueller report, and among other things, 
President Trump requested then-Attorney General Jeff Sessions 
to reverse his recusal from the special counsel investigation 
with an eye toward curtailing its scope. Once President Trump 
learned that he was under investigation for potential 
obstruction of justice, President Trump then ordered White 
House Counsel Don McGahn to have Special Counsel Mueller 
removed altogether.
    So, President Trump finds out of Jeff Sessions' recusal, 
he's extremely upset about this, then he asks Don McGahn to 
remove the special counsel. Would this be considered, in your 
opinion, impeachable conduct?
    Mr. Gerhardt. Well, it certainly raises serious concerns. I 
would suggest that those actions do raise legitimate suspicions 
about, not just the motivation, but about the effort to 
obstruct the investigations into obstructing inquiries that Mr. 
Mueller was authorized to conduct.
    Ms. Mucarsel-Powell. Can you elaborate on your opinion on 
whether obstruction has also occurred after this President took 
office as we in this Committee have requested for several fact 
witnesses to appear before us, but they have been ordered by 
the President to not appear before us? How would you constitute 
that?
    Mr. Gerhardt. Well, that's an exercise of power that he's 
attempting. The question is whether or not that's an abuse of 
power. To be able to direct people, not just who are currently 
in government, but who used to be in government, from speaking 
at all to the Committee strikes me as a matter of great 
concern. That could be an abuse of power, because it stymies 
the committee's ability to gather evidence and to make 
determinations based on that evidence.
    Ms. Mucarsel-Powell. Do you have a view on the Miers 
holding that there's no absolute immunity for a Presidential 
aide? What is your view on that?
    Mr. Gerhardt. Now, immunity from what? I just want to 
clarify.
    Ms. Mucarsel-Powell. From testifying.
    Mr. Gerhardt. Oh, from testifying. Tthis is one of those 
areas where it has to be kind of carefully circumscribed. So, a 
President obviously has some ability to protect certain things, 
such as legitimate material protected by executive privilege. 
It doesn't extend to preventing people from doing their 
constitutional duty, I would say, to be able to comply with a 
subpoena and come before the Committee and talk about things 
that might have crossed the line and might have been illegal or 
unconstitutional.
    Ms. Mucarsel-Powell. Okay. Thank you.
    A couple of more questions. If the executive branch has 
taken this position that a sitting President can't be indicted 
as a matter of constitutional law, then Congress probably can't 
change it through a statute?
    Mr. Gerhardt. Right.
    Ms. Mucarsel-Powell. We can at least ensure that the 
statute of limitations for any offense doesn't run out before 
the President leaves office.
    So, this is for Ms. Fredrickson. If the President is immune 
from prosecution while in office, do you agree that it would 
make sense for us to pass a law tolling the statute of 
limitations for any offenses, to ensure that there will 
ultimately be a mode of accountability?
    Ms. Fredrickson. Well, it certainly seems like something 
Congress should examine. I think Professor Eastman actually had 
said that he supports that legislation, so maybe it's a place 
where you can get strong bipartisan support.
    I would hate to think that our Constitution insulates the 
President from any kind of accountability while he's President. 
So, I think it's very important for Congress to consider how to 
ensure that the President is not above the law.
    Ms. Mucarsel-Powell. Thank you.
    Mr. Gerhardt, are there any other types of legislation that 
Congress could enact that would help ensure some measure of 
accountability in situations where the Justice Department is 
refusing to bring charges against a sitting President?
    Mr. Gerhardt. I said quite possibly. For example, I 
understand there may be legislation under consideration about 
protecting special prosecutors, special counsels from being 
easily terminated. That would be one obvious thing to try to do 
to try and protect the person whose job it is to consider 
whether or not there's any misconduct undertaken by the 
President or anybody at his direction that is criminal or 
possibly impeachable.
    Ms. Mucarsel-Powell. Thank you.
    I yield back my time.
    Ms. Scanlon. Okay. I just want to remind our Committee 
Members that House rules and precedents require us to refrain 
from making inappropriate personal references to protected 
parties, including the President, and this includes accusations 
of dishonesty, criminality, treason, or other unethical or 
improper motive.
    With that, I would recognize Mr. Jordan for 5 minutes.
    Mr. Jordan. Thank you, Madam Chair.
    Ms. Fredrickson, what's the name of the organization that 
you head up?
    Ms. Fredrickson. The American Constitution Society.
    Mr. Jordan. American Constitution Society.
    Before the Mueller report was made public, and actually 2 
days before Attorney General Barr did his first letter to tell 
us anything about the report, which was March 24 of this year, 
2 days prior to that, on March 22, 2019, you said this. You 
said, the question isn't whether Members of the Trump campaign 
conspired with Russia to sway the 2016 elections. We already 
know they did.
    How did you know that before the report even came out?
    Ms. Fredrickson. We had seen multiple indictments as well 
as prosecutions and convictions of people associated with 
Russia.
    Mr. Jordan. Shouldn't normally someone who's heading up the 
Constitution Society, don't you normally wait until an 
investigation is over? In this great Nation, people are 
presumed to be innocent until proven otherwise, and you are 
already making a finding, stating a finding as the head of the 
American Constitution Society, before we even had the report by 
the special counsel's office.
    Ms. Fredrickson. There was quite a lot of evidence already 
in the record. I think the Mueller report then goes further to 
lay out multiple instances of contacts between Trump 
Administration--
    Mr. Jordan. What's interesting--you just mentioned the 
Mueller report. What's interesting is that same day that you 
said the question isn't whether Members of the Trump campaign 
conspired with Russia to sway the elections, we already know 
they did, even though we didn't know that because the report 
wasn't done. That same day, you wrote an op-ed--you just 
mentioned the Mueller report, but you wrote an op-ed that same 
day, March 22, 2019, where you said we don't need to read the 
Mueller report. Now you're telling us we do.
    So, before the report came out, before Bill Barr said 
anything, you said we already know he's guilty and, oh, by the 
way, don't read the report.
    Ms. Fredrickson. Sir, I--
    Mr. Jordan. Now, you're telling us we should read the 
report?
    Ms. Fredrickson. The point was a rhetorical one, that there 
is already so much evidence out there that Congress needs to 
examine.
    Mr. Jordan. That's not what--I've got the headline right 
there. We don't need to read the Mueller report. You wrote 
that, right?
    Ms. Fredrickson. I didn't write the title, actually. If you 
read the body of the opinion piece, you will see that it says 
Congress needs to get this report.
    Mr. Jordan. Here's what you wrote, second paragraph. Mr. 
Mueller's report may never go public, but we don't need to peek 
at the recommendations, anyway.
    So, did you write that?
    Ms. Fredrickson. I did.
    Mr. Jordan. Okay. So, you did. Now you're telling us we 
should read the report?
    Ms. Fredrickson. I do, yes. There is much more in there.
    Mr. Jordan. Let's read the report--
    Ms. Fredrickson. We knew a fair amount already, but now we 
know more. Congress needs to actually see the full report and 
the evidence underlying it. And--
    Mr. Jordan. Let's read the report. Let's read the report.
    Ms. Fredrickson. --understand how Russia interfered in our 
elections. Which, again, I will state, I think it's troubling 
that your side of the aisle doesn't seem to want to examine--
    Mr. Jordan. It's troubling that the head of the American 
Constitution Society said we already know that he did something 
before the report was final. Now, you're telling us to read the 
report.
    I'm going to read it on page 2. Page 2, the investigation 
did not establish that Members of the Trump campaign conspired 
or coordinated with the Russian Government in its election 
interference activity.
    So, first, you said don't read the report. Now, you're 
saying read the report. I'm reading the report, and it directly 
contradicts what you said as the head of the American 
Constitution Society.
    Of course, the Democrats think it's fine and appropriate to 
have the head of the American Constitution Society come in here 
and lecture us today, and tell us today how we need to move 
towards impeachment. I fail to get it.
    So, what do you say about that sentence right there on page 
2, that now that you've changed your mind and say we should 
read the report, where Bob Mueller says--the special counsel's 
office says the investigation did not establish that Members of 
the Trump campaign conspired or coordinated with the Russian 
Government in its election interference activities?
    Ms. Fredrickson. Well, I think it's unfortunate that you 
actually haven't read the opinion piece, which does say that 
Congress needs to see the full Mueller report. That is what the 
opinion piece says.
    Mr. Jordan. We're talking about what you wrote, what you 
said, and what Bob Mueller said. You said that--
    Ms. Fredrickson. Exactly what the opinion piece says, that 
Congress needs to get the full Mueller report.
    Mr. Jordan. Mr. Chairman, here's what's interesting. Here's 
what's interesting. We have a witness today, who before the 
Mueller report was out, said we already know the President's 
guilty. Before Bill Barr issued his first statement on the 
report, says we already know he's guilty. That same day that 
she said those things, she writes an op-ed piece saying don't 
read the Mueller report, because if you do, you'll find out 
what she claimed is absolutely not true.
    Ms. Fredrickson. I would actually--
    Mr. Jordan. She's an expert witness today.
    Ms. Fredrickson. --once again, would recommend that you 
actually read the piece so that you can see what it says.
    Mr. Jordan. I read your piece. I read the whole--
    Ms. Fredrickson. Apparently not, because it does say that 
Congress--
    Mr. Jordan. I did just a few minutes ago. I remember the 
exchange we had a few months ago right after Bill Barr had sent 
his March 24 letter we had a little discussion about this same 
type--I can't believe the Democrats invited you back.
    I yield back.
    Ms. Fredrickson. As I said, it's really unfortunate you 
don't actually bother to read beyond the title.
    Mr. Jordan. Mr. Chairman, I've got 20 seconds--I've got 4 
seconds. I did read--and you know what? I did not follow her 
advice. I read the Mueller report. She's telling people not to.
    Ms. Scanlon. Okay. I know that the Mueller report then goes 
on to say that his conclusions would change if he were given 
access to additional evidence.
    I now recognize Mr. Swalwell for 5 minutes.
    Mr. Swalwell. Thank you, Madam Chair.
    Professor Fredrickson, is there a difference between 
criminal conspiracy, something that could be proved beyond a 
reasonable doubt, and conspiracy?
    Ms. Fredrickson. Well, there's certainly a distinction in 
how the public talks about it and our understanding. One of the 
things I had was hoping to engage in with your colleague here 
from the other side of the aisle, is an understanding that all 
of our intelligence agencies have indicated that the Russians 
had made sweeping attacks on our election systems. There were 
multiple contacts with Trump campaign officials that there were 
indictments, there were prosecutions. There's an enormous need 
for Congress to actually probe more deeply into how this 
happened and how to prevent it from happening again.
    Mr. Swalwell. When you read the 200 pages of Volume I that 
lay out the multiplicity of contacts between the Trump campaign 
and the Russians, do you see a failure of imagination by prior 
Congresses to write laws that would protect us from this type 
of conduct and to have a criminal remedy? Do you see gaps that 
occurred, like being approached and not telling the FBI that 
foreign adversaries are trying to--
    Ms. Fredrickson. I know that Members of Congress are 
proposing such legislation. It's important to, again, I think 
as part of your authorities, to examine what happened, to see 
if in fact the laws were too weak and that allowed hostile 
foreign powers to have undue influence on campaign officials 
and to understand how influence might have been reached.
    So, yes, I think it's a very important part of your duties 
to protect the integrity of our elections.
    Mr. Swalwell. Thank you, Professor.
    Professor Gerhardt, recognizing that the Mueller report 
says criminally the laws that we have now, no proof beyond a 
reasonable doubt that there was conspiracy in Volume I. 
However, functionally, as a Congress and constitutionally, 
because of the conduct that's laid out, is there recourse 
through impeachment--just in what you have seen in how the 
Founders have described impeachment and how prior Congresses 
have engaged on impeachment, do you see a recourse for 
impeachment based on the 200 pages of just Volume I conduct?
    Mr. Gerhardt. I think it's quite reasonable to consider the 
propriety of it. I think that it is reasonable to inquire, 
investigate, determine evidence, and, again, to be able to hear 
witnesses and put together a record that is helpful to Congress 
to understand the gravity of whatever's happened, and as well 
as just whatever did happen.
    One other thing I would just sort of emphasize in this 
context is something we've repeated a few times today, but it's 
really important to remember, and that is impeachable offenses 
don't have to be actual crimes. So, this committee, this House, 
or another Committee or another House another time, may decide 
that there is something that's really serious, and they may 
want to call it conspiracy or they might want to call it 
something else, and they're entitled to do that. They have the 
authority to conduct proceedings to figure out what's happened.
    Mr. Swalwell. In your reading of the report, would you 
agree, Professor Gerhardt, that the Mueller team did not look 
at financial compromise of the President or anyone on his team?
    Mr. Gerhardt. That's correct. Again--
    Mr. Swalwell. I'll just let me add on to that. Would you 
agree that an impeachment inquiry would not prohibit the 
inquiring body from looking at financial compromise?
    Mr. Gerhardt. That's correct.
    Mr. Swalwell. Great. Thank you.
    I would yield back. Thank you.
    Ms. Scanlon. Okay. Thank you.
    Okay. This will conclude today's hearing. I want to thank 
all the witnesses for attending. We really appreciate your 
insights.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    Without objection, the hearing's adjourned.
    [Whereupon, at 11:47 a.m., the Committee was adjourned.]

   

                                APPENDIX

                     MS. JACKSON LEE FOR THE RECORD

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